Police v Wait

[2008] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v WAIT

[2008] SASC 153

Judgment of The Honourable Justice David

12 June 2008

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES

Prosecution appeal against penalty - respondent pleaded guilty to driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol - magistrate imposed conviction and mandatory period of licence disqualification pursuant to s 47B of the Road Traffic Act 1961 (SA) - respondent unable to pay minimum fine - whether magistrate had the power pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA) to substitute a bond.

Held: the magistrate had the power to impose a bond instead of a fine and its exercise was within the magistrate's discretion - appeal dismissed.

Road Traffic Act 1961 (SA) ss 47A, 47B(1), 47B(3); Criminal Law (Sentencing) Act 1988 (SA) ss 13, 18, 39, referred to.
Janz v Woolven (1990) 55 SASR 239, applied.

POLICE v WAIT
[2008] SASC 153

Magistrates Appeal

1. DAVID J:              This is a prosecution appeal against penalty.

2. On 26 February 2008 the respondent pleaded guilty to driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the RTA”). The respondent’s blood alcohol concentration was .105G of alcohol in 100Ml of blood, making the offence a Category 2 offence under s 47A(1) of the RTA. The respondent had one prior conviction for the same offence.

3. The appropriate penalty for a Category 2 second offence committed contrary to s 47B(1) of the RTA, is a fine of not less than $700 and not more than $1,200 as well as the mandatory minimum period of licence disqualification pursuant to s 47B(3)(a)(ii)(B) of the RTA of not less than 12 months.

4. The magistrate convicted the respondent and disqualified him from holding or obtaining a driver’s licence for a period of eight months and one day, discounting a period of four months of licence disqualification which he had already served since the commission of the offence. Instead of a fine, the magistrate ordered the respondent to enter into a bond to be of good behaviour for six months in the sum of $500. Although the magistrate has not, in his brief sentencing remarks, stated the statutory basis upon which he substituted the penalty, it was presumably pursuant to the power conferred by s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) which reads:

   39—Discharge without sentence on defendant entering into bond

   (1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—

   (a)      to be of good behaviour; and

   (ab)    to comply with the other conditions (if any) included in the bond; and

   (b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.

   (1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).

   …

5. The respondent (who was represented by counsel at sentencing but not on appeal) put to the magistrate that he was a pensioner and would find it very difficult to pay a fine.[1] Although the magistrate does not mention the respondent’s personal circumstances in his remarks, it was nevertheless clear from the presentation of the matter both at sentence and on appeal that this was the reason why the magistrate invoked s 39 and imposed a bond instead of a fine.

   [1]    Appellant’s Outline of Argument, SCCIV-08-368, 8 May 2008.

6. The appellant argues that the magistrate erred in imposing a bond. The appellant argues that if the magistrate found, pursuant to s 13 of the CLSA, that the respondent did not have the means to pay the fine, the magistrate should have instead, pursuant to s 18 of the CLSA, imposed a sentence of community service. Originally the argument was that the magistrate simply did not have the power to substitute a bond pursuant to s 39 of the CLSA for the minimum fine prescribed by s 47B of the RTA. However, the decision of the Full Court in Janz v Woolven[2] makes it clear that the power to substitute a bond for a fine does in fact exist in these circumstances. The Full Court held that even though s 39 could not be used in relation to the minimum period of licence disqualification mandated by s 47B(3) of the RTA, it could nevertheless be used in relation to other penalties, including the prescribed fine.[3]  The appellant conceded this on appeal.

   [2] 55 SASR 239.

   [3]    Janz v Woolven 55 SASR 239, 241-242.

7. The appellant now argues that even though the magistrate had the power to impose a bond, it was nevertheless inappropriate for him to exercise that power. It was submitted that the offence, which was a second Category 2 offence under the RTA, was serious and lacked any mitigating or trifling features. It was submitted that other more appropriate penalty alternatives were open to the magistrate.

8. The respondent, on appeal, urged his personal circumstances upon me. He said he is aged 68 and became a pensioner earlier than usual because of injury. He said he has no money and certainly not enough to pay the minimum fine.

9. As the magistrate had the power to impose a bond instead of the prescribed fine, and there was no dispute that the respondent is aged and impecunious, I cannot find that the magistrate has erred in exercising his discretion to sentence in the way that he did.  I dismiss the appeal.