Police v SELVAKULALINGAM - [2007] SASC 424

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SELVAKULALINGAM
[2007] SASC 424
Judgment of The Honourable Justice Nyland
5 December 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Respondent pleaded guilty in Magistrates Court to charges of driving with prescribed concentration of alcohol in the blood and driving at night while headlights not operating - whether magistrate erred in finding that the offending was "trifling" - typical example of its type - whether principle of double jeopardy applies - appeal allowed.
Road Traffic Act 1961 ss 47A and 47B(3)(b); Australian Road Rules R 215(1), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Police v Mutton (2006) 246 LSJS 153; Campbell v Fuss (1991) 55 SASR 355; Police v Hodge (1996) 89 A Crim R 290, discussed.
Mancini v Vallelonga (1981) 28 SASR 236; Police v Fargher [1999] SASC 206, unreported, Perry J, 14 May 1999, considered.

POLICE v SELVAKULALINGAM
[2007] SASC 424
Magistrates Appeal
Nyland J:

This is a prosecution appeal against an order for disqualification imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 8 June 2007.
The respondent was charged on complaint with two offences. First, that on 30 April 2003 at Adelaide, he drove a motor vehicle on a road, namely East Terrace, while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (the Act). It was alleged that the concentration of alcohol was .095 g in 100 millilitres of blood. Secondly, it was alleged that on the same date, the respondent drove his motor vehicle on East Terrace at night while the headlights fitted to his vehicle were not operating effectively and clearly visible, contrary to the provisions of Rule 215(1) of the Australian Road Rules. The respondent was fined with respect to the offences charged and a period of licence disqualification was imposed. This appeal is confined to the disqualification component of the sentence.
The respondent, who was represented by counsel, pleaded guilty to the charges against him and thereafter made an application pursuant to s 47B(3)(b) of the Act, that the offending in relation to the first count be found to be trifling and consequently that the period of licence disqualification be reduced below the statutory minimum of six months. The application was opposed by the appellant.
The respondent gave evidence in support of his application. After hearing that evidence and submissions of counsel, the learned magistrate found that the respondent’s offending was trifling. The magistrate recorded a conviction and ordered the respondent be disqualified from holding or obtaining a driver’s licence for a period of three months. He imposed the minimum fine of $500. The period of disqualification was to commence at 12.01 am on Tuesday 12 June 2007.
The prosecution has appealed against those orders on the following grounds:
(1) the learned magistrate erred in finding the offence to which the respondent pleaded guilty was trifling, and
(2) the sentence imposed by the learned magistrate was manifestly inadequate.
There is no dispute as to the facts giving rise to the charges against the respondent. At about 10.45 pm on Wednesday, 30 April 2003, the respondent was observed by police officers driving a yellow Porsche Boxter, travelling in an easterly direction on Rundle Street. There were no lights operating on the vehicle. The vehicle turned left on East Terrace travelling in a northerly direction and continued to be driven without any lights. The respondent was stopped on East Terrace, about 50 metres north of Rundle Street, where he was spoken to by police. The police alcotested the respondent and obtained a positive reading. The respondent was subsequently conveyed to the Grenfell Street control base where he submitted to a breath analysis test. That resulted in a reading of .095 g in 100 millilitres of blood. The respondent was reported for driving without lights and driving with excess blood alcohol. The hours of daylight on 30 April 2003 were between 6.52 am and 5.35 pm. The Porsche’s lights were checked and found to be operating correctly. The road conditions were sealed and dry. The weather was dry. It was dark but street lights were on. There was no embarrassment to any other traffic.
The respondent told the police that he thought he had only had a couple of red wines. He was very embarrassed and co-operated fully with the police.
In evidence the respondent said that he was aged 35 and had been driving since he was 18 and was the managing director of a business. At the relevant time he was residing in an apartment on Hutt Street at Adelaide. The vehicle in question was a 2003 plated Porsche Boxter which the respondent had only owned for about two months. He had been to a special function at the Universal Wine Bar on Rundle Street. That function had commenced between about 6 pm and 7 pm. He had travelled there straight from work and parked his car opposite the wine bar. He had a meal and consumed what he thought were just a couple of glasses of alcohol. He was intending to drive home and believed he had suitably monitored his drinking. He did not wish to leave his car in the street for fear of it suffering damage. He thought that the distance to his home was no more than about 400 to 500 metres, although he later checked and found the actual distance to be 628 metres. He finished dinner between about 10.30 pm and 10.45 pm. He said he did not feel affected by the alcohol he had consumed. He said he turned left on to East Terrace, with the intention of then doing a U-turn to drive in an easterly direction in the direction of his home. It appears that he had travelled no more than about 10 metres before he was stopped by the police. The respondent told the police that he thought the vehicle lights were on as he had been accustomed to driving cars in which the lights were operated automatically, and had assumed that was the case with this car. The respondent acknowledged there was no urgent need to return home and that his concern had been for the potential damage to his car.
The magistrate delivered ex tempore reasons with respect to his finding that the offence was trifling. He referred to the fact that people who drink/drive are a hazard to other road users, and themselves, and as such he was required to consider ultimately what danger the respondent had posed in driving in the circumstances in which he had chosen to drive. In resolving this issue the magistrate considered that he needed to look at a number of factors which included the likely traffic conditions by reference to the time of day and the day of the week, the roads upon which the respondent drove, the blood alcohol reading and the degree of intoxication and, to a minimal extent, the type of vehicle driven by the respondent. He concluded that the legislation, of necessity, contemplated degrees of trifling as the relevant provisions state that the court may reduce the period of disqualification to not less than one month. He considered that because there was no set reduction, the legislation must have contemplated that in some circumstances a reduction to one month could be warranted, but in other cases a reduction to a period of greater than one month would be appropriate. He considered that the present case was such a case. He said:
The [respondent] was only intending to travel 600 metres. He was doing so in very light traffic conditions. He was doing so at a time when he was very mildly affected by alcohol. He was doing so when he had specifically monitored his alcohol intake and did not think that he was unable to drive. All those circumstances warrant the imposition of a period of disqualification of less than six months.
He then found that the respondent’s offending to be trifling, but not at the lowest end of the scale. He continued:
This is not an example of a man who has got in a vehicle and moved it 10 feet from a main road into his own driveway. He intended to drive some 600 metres. The fact that he had only driven 100 metres when he was stopped by the police, does not bear on the issue. I think I need to consider the [respondent’s] intentions at the time he chose to drive. In my view the [respondent’s] driving warrants a reduction from the minimum six month disqualification down to three months.
In Siviour-Ashman v Police[1], Doyle CJ considered matters relevant to the determination of what is a trifling offence in the context of s 47B(3)(b) of the Act. At [6] he pointed out that the Act does not define trifling but at [24] said that one should begin by bearing in mind the ordinary meaning of “trifling”. He then said that:
That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
[1] (2003) 85 SASR 23
He went on to make the following observations. At [25], he said an offence which is a normal or typical example of its type will not be trifling. At [28] and [29] he noted that circumstances extending beyond the offending conduct itself, and explaining how it was that the appellant came to offend, have been treated as relevant in a number of cases.
At [34] Doyle J referred to the fact that a miscalculation as to the effect of alcohol consumed, or a failure to keep track of the amount of alcohol consumed, has been rejected as a basis for treating an offence as trifling. However, at [36] he noted that the fact that something was done as an act of “common humanity” might render an offence trifling.
After summarising a number of relevant cases, Doyle CJ went on to say at [39]:
However, having said all that I recognise that in every case it is a matter of considering the offending conduct and the justification. This is an area in which minds can differ.
On appeal, counsel for the appellant did not take issue with the learned magistrate approaching the matter on the basis of degrees of triviality which might properly be reflected in the length of a period of disqualification once reduced below the minimum. He submitted, however, that in this case, the learned magistrate had erred in finding that the appellant’s offence was trifling.
Counsel for the appellant referred to the finding by the magistrate that the respondent was only intending to travel 600 metres, when the respondent had in fact already added a 50 metre deviation to that distance as a result of his left turn on to East Terrace. He also took issue with the finding by the magistrate that the respondent was mildly affected by alcohol but not unable to drive safely when in fact the respondent had been driving without lights illuminated on his vehicle. He further argued that the finding by the magistrate that the respondent had specifically monitored his alcohol intake was not only inconsistent with the evidence but also the magistrate’s own comment that he found it difficult to accept that a reading of .095 over a period of three hours could have been reached by drinking two standard glasses of wine as had been claimed by the respondent.
In any event, apart from asserted factual errors, counsel for the appellant argued that none of the factors identified by the magistrate provided a valid basis for finding the offence to be trifling. This offence was a normal or typical example of its type. The respondent had simply made a miscalculation as to the effect of alcohol consumed or had failed to keep track of the amount, and the short distance travelled was insufficient to make the offence trifling.
In this respect counsel for the appellant referred to Police v Mutton[2] in which the offender had driven a distance of about 400 metres. In that case, Sulan J said (at 17):
The fact that the respondent drove a relatively short distance on a quiet street when there was no traffic does not make the case exceptional.
[2] (2006) 246 LSJS 153
The offender in that case had a blood alcohol reading of .149 g of alcohol in 100 millilitres of blood and had left the house at about midnight to travel to a service station to purchase some milk for his children.
Counsel further submitted that the fact that there were very light traffic conditions did not make the offence abnormal or atypical. The respondent could have averted his concern about leaving his Porsche on Rundle Street by not taking his car out in the first place when he knew that he was going to be drinking.
Counsel for the respondent (who also represented the respondent in the Magistrates Court), submitted however that the magistrate had correctly identified all the relevant considerations when considering whether the offence was trifling. In particular, he had specifically adverted to consideration of the risk posed to the public and other road users by the respondent driving with his particular blood alcohol concentration. She pointed out that the appellant had not suggested that the magistrate had fallen into error by approaching the case on the basis of there being degrees of trifling. In the circumstances, when considering the evidence as a whole the decision of the magistrate could be supported. She referred to Campbell v Fuss[3] in which Olsson J, having considered a number of authorities which deal with the classification of trifling, said (at 357):
[3] (1991) 55 SASR 355
I made the point that Legoe J appeared to have accepted that three important aspects to be considered are:
1.    the actual level of alcohol, as revealed by analysis, and its proximity to the prescribed minimum;
2.    the nature of the defendant’s driving, the locality in question, the actual or potential danger to the public and the extent of any impairment of faculties of the defendant;
3.    the defendant’s state of mind and his responsibility in relation to his alcohol consumption and driving, including any special circumstances related to the reason for driving.
By way of contrast, Mitchell J considered that, in construing a provision such as that contained in s 47b of the Act, it should be borne in mind that:
1.    the offence is not trifling if it is a typical offence of the class prescribed;
2.    where the breach is deliberate it could rarely be characterised as trifling;
3.    an offence is trifling where it is merely technical, causal or intentional and there was no deliberate intention or it was due to inadvertence;
4.    the offence may be considered trifling where there are compelling humanitarian or safety reasons for doing what was in fact done.
It should be stressed that none of the considerations to which I have made reference can or should be accorded any particular invariable weight. They should all be considered in the context in which they arise and it is the relative totality of the features emerging from the whole of the circumstances which must lead to any ultimate conclusion as to whether or not an offence is trifling.
Counsel for the respondent pointed out that in this case, the blood alcohol level was much lower than in a number of other cases dealing with this issue, such as Police v Mutton (supra), in which the reading was 0.140, and Campbell v Fuss (supra), in which the reading was 0.2. She submitted that the magistrate had the advantage of hearing the evidence, and making an assessment of the respondent. He had accepted the evidence of the respondent as to his reason for executing the U-turn and that he had never intended to drive over the prescribed amount. He had also accepted the respondent’s evidence that he believed he was not over .08. It was 10.45 pm, the area was well lit and there was no embarrassment to other road users. Although the magistrate in his reasons did not specifically refer to the fact that the appellant was driving without lights, counsel for the respondent argued that did not disclose demonstrable error suha as would require this court to interfere. In support, counsel referred to Police v Hodge[4], in which the defendant had driven without lights and with a blood alcohol reading of .156. The magistrate’s finding that the offence was trifling was upheld on appeal. It should be noted, however, that the defendant Hodge had acted on humanitarian grounds in driving a friend to hospital in the context of an emergency, and the judge on appeal, although upholding the finding, noted that it was borderline. In Siviour-Ashman v Police (supra), Doyle CJ, however, indicated that he thought the decision in Police v Hodge (supra) was on the wrong side of the border but, as earlier mentioned, acknowledged that this was an area in which minds might differ.
[4] (1996) 89 A Crim R 290.
Counsel for the respondent pointed out that the magistrate’s reasons were delivered ex tempore at the conclusion of the evidence and some allowance should be made for that. It could not be suggested that the magistrate had overlooked any of the evidence which must have been “fresh” in his mind when delivering his reasons. The magistrate had accepted the evidence of the respondent that he had a very expensive car and was concerned about leaving it in that area. The magistrate appeared to accept that was a legitimate concern and, whilst not being a defining one, considered it nevertheless formed part of the totality of the circumstances which enabled him to form the view that the offence was trifling but not to the degree that would require the disqualification to be reduced to less than three months.
Was the offence trifling?
Under s47B(3)(b) of the Road Traffic Act 1961, the court may, if satisfied that the offence is trifling, impose a period of disqualification less than the prescribed minimum. In determining whether the offence is trifling, the court must primarily consider the offending conduct, whilst having regard to the reasons for the offending. The offending conduct in this case consisted of driving with a reading of .095 without headlights operating. As discussed in Siviour-Ashman v Police (supra), the surrounding circumstances, including the very light traffic conditions, the short distance to be travelled, the concern for the vehicle, and the respondent’s belief as to sobriety, must be viewed together with the offending conduct in order to determine whether the offence was trifling. Although the authorities indicate that the reason for offending may be given some weight, Doyle CJ made it clear in Siviour-Ashman v Police (supra) that the focus must remain on the offending conduct.
While it is true that minds may differ as to the weight to be given to the circumstances explaining the offending conduct, the fact that the appellant had an expensive car, in my opinion, appears to have been given undue weight by the magistrate. As counsel for the appellant pointed out in his submissions, the respondent’s concern for his car could have been dealt with by not driving it to the restaurant in the first place. Further, the magistrate does not appear to have given sufficient consideration to the fact that the appellant was driving at night without the headlights of his vehicle illuminated.

As noted by Debelle J in Police v Hodge (supra) the purpose behind the legislative provisions that create the offence is “the establishment of safe driving conditions”. Sulan J also noted in Police v Mutton (supra) at [10] that the purpose of the legislation is the “…prevention of danger or potential danger to other road users”. For this reason, the focus remains on the offending conduct, rather than the circumstances explaining the offending conduct. The offending conduct in this case was serious. The appellant had nearly twice the permitted blood alcohol reading and was driving on a public road at night without headlights illuminated. In my opinion, the mitigating circumstances described above cannot lead to a conclusion that the offence was trifling. As noted by Mitchell J in Mancini v Vallelonga[5], an offence is not to be regarded as trifling if it is typical of its class, and it seems to me the offending in this case was a normal and typical example of its type. The magistrate has therefore fallen into error by finding that the offence is trifling. The appeal will therefore be allowed.
[5] (1981) 28 SASR 236, 239
Double jeopardy:
Counsel for the respondent further submitted, however, that in the event of the appeal being allowed, the court should refrain from revisiting the sentence on the grounds of unfairness. She referred to the decision of Perry J in Police v Fargher[6], in which the court allowed the appeal but did not interfere with the sentence imposed by the magistrate. The respondent in that case had already served a period of six weeks suspension and had resumed driving. Her employment as a carer for disabled people depended on her ability to drive, and it was accepted that imposing a further period of disqualification would put her at risk of losing her job. Perry J said at [19] and [20]:
… the fact remains that the reason for most Crown appeals, and it is the main purpose of this appeal, is to ensure that adequate sentencing standards are maintained. Where there is an element of double jeopardy, it is sometimes sufficient to identify the correct sentencing standard or approach, but to refrain from varying the actual penalty under appeal.
Here, it seems to me that the justice of the case will be met if I do no more than remind magistrates of the appropriate principles to be applied in approaching the question whether or not a given offence should be characterised as trifling.
[6] [1999] SASC 206, unreported, Perry J, 14 May 1999
Perry J made the point (at [18] and [19]), however, that situations in which it would be unfair to revisit the sentence might occur occasionally and that in most cases where an error had been identified, an appropriate sentence would be imposed.
Sulan J considered the circumstances in which it was appropriate to revisit sentences of this kind in the case of Police v Mutton (supra). The respondent in that case submitted that as he had served a period of disqualification and had since resumed driving, the court should follow the reasoning of Perry J in Police v Fargher (supra) and find that it would be unfair to revisit the sentence. Sulan J said at [22]:
In cases in which the legislature has prescribed minimum non-custodial penalties and there has been an error in failing to impose that minimum penalty, it will be rare for an appellate court not to give effect to the statutory requirement of a minimum licence suspension. Factors such as the level of alcohol in the blood, the distance of the driving, the reasons for the driving, and the current personal circumstances of a defendant are relevant. For example, factors such as a defendant having obtained a new job which required him or her to possess a current driver’s licence, or a defendant’s family situation having changed so that it was necessary for them to drive, may be sufficient to satisfy the court that an appeal should be dismissed.
Sulan J considered in Mutton that it was appropriate to revisit the sentence as there was nothing about the personal circumstances or circumstances of the offending that rendered it unfair so to do.
Counsel for the appellant relied on Mutton in submitting that in this case there was nothing compelling before the court which would justify failing to impose the minimum penalty, and I agree with that submission. In my opinion, none of the matters identified by counsel for the respondent bring this within the category of a rare or exceptional case which would require the appellate court to refrain from imposing the minimum term of licence suspension. The respondent will therefore be required to serve the minimum term of licence disqualification of six months. The respondent has, however, already served a period of three months disqualification as a result of the order made by the magistrate and, in my opinion, it is appropriate to take that period into account.
The respondent will be disqualified from holding or obtaining a driver’s licence for six months, but I take into account the three months already served. In view of the period of time which has elapsed in resolving this matter, the order for disqualification will commence at 12.01 am on 3 January 2008 and conclude at 12.01 am on 3 April 2008, but I will hear further submissions from counsel as to that aspect of the matter.