POLICE v ROBERT FERINI No. SCGRG-98-604 Judgment No. 6711 Number of Pages - 5 Traffic Law

[1998] SASC 6711

POLICE V FERINI

Magistrates Appeal

LANDER J

This is an appeal by SA Police against a sentence imposed by a Magistrate sitting in the Magistrates Court at Adelaide.

The respondent was charged that on 15 January 1998 at Adelaide he drove a motor vehicle on Botanic Road whilst there was present in his blood the prescribed concentration of alcohol as defined in s47A of the Road Traffic Act. It was alleged that the concentration of alcohol was 0.094 grams in 100 millilitres of blood.

The respondent appeared but was unrepresented by counsel.  He pleaded guilty to the charge which arose as a result of the respondent being required to submit to a sample of his breath at a random breath testing station.  The appellant informed the Magistrate that the breath analysis operator described the respondent as not being affected by alcohol. 

The respondent did not have any relevant prior convictions.

The Magistrate informed the respondent that he was intending to impose the minimum penalty, namely a $500 fine and a six months licence disqualification.

The respondent then advised the Court that whilst he had consumed alcohol he had expected to be under the limit.  He told the Court that his licence was necessary for his employment and it was likely that he would lose his job if he lost his licence. 

Following these submissions the Magistrate said that he believed that the matter was trifling.  He said that it was Parliament’s probable intention when creating this offence that people affected by alcohol should not be driving on the roads.

The prosecution submitted to the learned Magistrate that the offence for which the respondent was charged was exceeding a prescribed concentration of alcohol which does not amount to a charge of driving under the influence.  The learned Magistrate was reminded that the legal limit under the Act was 0.05 and that the respondent’s reading was nearly twice that.

The learned Magistrate invited the respondent to give evidence on oath and in particular to depose to his sobriety.

The respondent accepted the invitation and gave quite short evidence.  It was this:

"Q     What you told me from the dock is true?

A      Yes.

Q     In particular, what you told me about you being able to perform the task required by the breath analysis operator satisfactorily is true?

A      Yes.

Q     That you say you were not affected by liquor?

A      That’s correct."

Following upon that evidence, the learned Magistrate said:

"The defendant’s evidence that he was not affected by liquor and according to the breath analysis operator, he was not apparently affected by liquor.  There is no complaint about the defendant’s manner of driving.  No complaint about his appearance or his actions.  He says on oath that he wasn’t affected by liquor.  I just wonder what we are doing in circumstances like this, because the whole purpose of the legislation should be towards people who drive whilst affected by liquor.  There will be a conviction and a fine of $500, court fees of $73, levy $28 and a prosecution fee of $16.  Time to pay four months.  In view of my findings, I declare the offence as trifling and reduce the minimum of six months to one month disqualification."

The prosecutor appeals against His Honour’s finding that the offence was trifling and his reduction of the period of licence disqualification below the prescribed minimum period.

Section 47B of the Road Traffic Act provides for the offence of driving a motor vehicle whilst there is present in a person’s blood the prescribed concentration of alcohol. It provides for a range of penalties depending upon the concentration of alcohol in the blood of the convicted person. It provides for three categories of offences. A category one offence is where the concentration of alcohol in the convicted person’s blood is less than 0.08 grams in 100 millilitres of blood; a category two offence is where the concentration of alcohol in the blood of the convicted person is less than 0.15 grams but not less than 0.08 grams; and a category three offence is where the concentration of alcohol in the blood of the convicted person is 0.15 grams or more in 100 millilitres of blood.

The respondent having a concentration of alcohol of 0.094 grams in 100 millilitres of blood came within a category two offence.

The Act provides for a fine and disqualification.  The amount of the fine depends upon which category the offender comes within and whether it was a first, second or subsequent offence.  For a first offence for a category two offence the Act provides for a fine of not less than $500 and not more than $900.  The fine for a category three offence is not less than $700 and not more than $1200.

Section 47B(3) provides that where a person is convicted of either a category two or category three offence the Court must order that the person be disqualified from holding or obtaining a driver’s licence. Again a range of disqualification is provided for depending upon whether it is a category two or category three offence and whether it is a first, second or subsequent offence. In the case of a first offence for a category two offence the disqualification is for a period not less than six months. For a first offence for a category three offence the disqualification is twelve months.

In the case of a second offence a category two offence requires disqualification of twelve months and a category three offence disqualification of not less than three years.  In the case of a subsequent offence a category two offence gives rise to a disqualification of not less than two years and for a category three offence not less than three years.

It can be seen that both fine and disqualification are graduated according to two criteria:  the amount of alcohol in the blood;  and whether it is a first, second or subsequent offence.  However, it can be said that the greater the alcohol detected the higher the fine and the longer the disqualification.

The effect of the alcohol on the person is not a matter to which regard has to be had.  Nor is the Court required to have regard to the manner of driving.  Of course both these matters could be aggravating matters, but the absence of either or both does not entitle the Court to consider the offender within a different or lesser category.

In this case the learned Magistrate imposed the minimum fine provided for under s47B(1)(b). I do not think there is any doubt that he was entitled to exercise his discretion in that fashion.

The question for this Court is whether in the circumstances of this case he should have reduced the minimum disqualification of six months to one month.

He was only entitled to do that if he was satisfied of the matters in s47B(3)(b). That section provides:

"(b)    the disqualification prescribed by paragraph (a) shall not be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month."

The learned Magistrate did hear evidence on oath from the respondent and did conclude that the offence was trifling. In those circumstances he reduced the period of disqualification below the prescribed minimum to a period of one month as provided for in s47B(3)(b).

It has to be remembered that the respondent was charged with driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol.  The Act makes it an offence for any person to drive a motor vehicle whilst there is a concentration of 0.05 grams or more of alcohol in 100 millilitres of that person’s blood.  In the respondent’s case the concentration of alcohol was significantly greater than the prescribed concentration of alcohol.

He was not charged with driving under the influence of alcohol.  It was no part of the prosecution case that the concentration of alcohol in his blood affected his manner of driving.

The respondent, in my opinion, appears to be no different to most persons who are convicted of an offence under s47B in circumstances where they are obliged to undergo a breath analysis at a random breath testing station. Ordinarily those persons have been apparently driving competently or at least such as not to attract the attention of anyone in authority.

The purpose of this section is to regulate who may drive a motor vehicle on a road.  The section is concerned with road safety generally.  Parliament has provided an arbitrary limit, namely 0.05 grams of alcohol in 100 millilitres of blood, above which no one is entitled to drive.  Parliament has assumed that above that limit there is a risk that some persons will be affected by the amount of alcohol in their blood such that their capacity to drive safely is affected.  It may be that a particular person will not be affected by alcohol such as to interfere with that person’s capacity to drive a motor vehicle but that is not the point.  The section is in the terms it is so as to make it an offence simply to have the prescribed concentration of alcohol in the driver’s blood.

The learned Magistrate said that the whole purpose of the legislation should be towards people who drive whilst affected by liquor.  That is the ultimate purpose of the legislation, but that purpose is achieved in part by making it an offence for those drivers with the prescribed concentration of alcohol in the blood.

It is to confuse the offences of driving under the influence and driving with a prescribed concentration of alcohol to describe the latter one as trifling because the driver is not obviously affected by alcohol. 

In Mancini v Vallelonga [1981] 28 SASR 236, a matter concerning the driving of an overloaded articulated motor vehicle, Mitchell J said that an offence could not be trifling if it was a typical offence of the class prescribed. That, with respect, must be so. If the circumstances are not out of the ordinary or typical the offence could never be trifling because that would mean that the ordinary offence was trifling.

The section adopts a range of penalties to suit the blood alcohol content.  It assumes that the blood alcohol content will vary from .05 to in excess of 0.15.  It provides a graduated range of penalties to suit the blood alcohol content.

The commission of the offence does not require that a person is affected by alcohol.  That is a more serious charge.

Whilst it is true that the breath analysis operator and the respondent both claimed that the respondent was not affected by alcohol, that does not take the case out of the typical.

In my opinion there was nothing about this offence which allowed it to be said that it was trifling.  The respondent appears to me to be in no different a position than the usual offender apprehended in the circumstance in which he was.  The finding that the offence was trifling ought to be set aside and it therefore follows that the disqualification of one month must be set aside. 

Having regard to the Magistrate’s reasons it would be appropriate to impose the minimum disqualification in the case of a first offence for a category two offence which is disqualification from holding or obtaining a driver’s licence for six months.

I therefore allow the appeal for the purpose of setting aside the disqualification of one month and in lieu thereof imposing a disqualification of six months.

The result arrived at was not advocated by the respondent.  He simply accepted an invitation from the learned Magistrate.  In those circumstances it would not be appropriate to require the respondent to pay costs.  There will be no order as to costs.