Police v Waller - [2011] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WALLER
[2011] SASC 232
Judgment of The Honourable Justice Gray
16 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Police appeal against sentence - the defendant pleaded guilty to the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - the circumstance of aggravation was that the defendant drove with a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood - where the defendant turned right under heavy acceleration at a corner, apparently hit some rocks on the road, overcorrected, went out of control, left the road and collided with a fence - the Magistrate disqualified the defendant from holding or obtaining a driver's licence for a period of six months and, pursuant to section 18 of the Criminal Law (Sentencing) Act 1988 (SA), imposed a fine of $1,500.00 in lieu of a term of imprisonment - whether the period of driver's licence disqualification was manifestly inadequate.
Held: Appeal allowed - the penalty imposed by the Magistrate did not adequately reflect the seriousness of the defendant's offending and was manifestly inadequate - after giving the defendant credit for a period of six months in which the defendant was disqualified from holding or obtaining a driver's licence for the same offending, the defendant was disqualified from holding or obtaining a driver's licence for a further six months - accordingly, the total period of driver's licence disqualification imposed was 12 months - the other orders of the Magistrate confirmed.
Criminal Law (Sentencing) Act 1988 (SA) s 18; Road Traffic Act 1961 (SA) s 45 and s 47B, referred to.

POLICE v WALLER
[2011] SASC 232
Magistrates Appeal
GRAY J:

This is a police appeal against sentence.
The defendant and respondent, Christopher Graeme Waller, pleaded guilty to the offence of aggravated driving without due care.[1] The circumstance of aggravation was that he drove with a concentration of 0.08 grams or more of alcohol in 100 millilitres of his blood. His blood alcohol concentration was 0.130 grams of alcohol in 100 millilitres of blood. On the defendant’s plea, a second count of driving with the prescribed concentration of alcohol in his blood[2] was withdrawn.
[1] Contrary to section 45 of the Road Traffic Act 1961 (SA).
[2] Contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA).
The Magistrate considered that it was appropriate to disqualify the defendant from holding or obtaining a driver’s licence for the minimum mandated statutory period of six months. At the time of sentence, the defendant had already served a period of instant driver’s licence suspension from the time of the offence of four months and 18 days. The Magistrate gave credit for this period and ordered suspension for a further period of one month and 12 days. The Magistrate exercised her powers under section 18 of the Criminal Law (Sentencing) Act 1988 (SA) and in lieu of ordering imprisonment, imposed a fine of $1,500.00.
On 28 January 2011, the defendant completed work for the week. He drove to a hotel in Old Noarlunga near to his home. He had a few drinks, but apparently considered himself fit to drive. When he left the hotel, he took a back road to his home. It was said to be about a five minute drive. On a road at Noarlunga Downs he turned right under heavy acceleration at a corner, apparently hit some rocks on the road, overcorrected, went out of control, left the road and collided with a fence. His motor vehicle sustained damage that was said to have caused financial hardship.
The defendant had prior convictions recorded on 29 November 2000 for the offences of driving at a dangerous speed, driving without due care and exceeding the speed limit by 45 kilometres per hour or more. On that occasion, he was disqualified from holding or obtaining a driver’s licence for a period of 12 months and fined $300.00.
The defendant has been a long term resident of Morphett Vale and the surrounding suburbs. He went to school in the area and then trained as a welder. He obtained employment and has remained in the workforce. He works for an asphalt company and is responsible for one of the company’s three plants. He holds the position of foreman and manages ten other employees. His place of employment is at Mile End. He works long hours said to be between 70 and 90 hours per week. His work requires use of a motor vehicle. Further, he said that he needs to travel to work by motor vehicle. At the time of the offending, the defendant was 30 years of age. He had been in a relationship for seven and a half years and he and his partner had a four year old son.
The Magistrate noted in her remarks that the defendant was “obviously regretful” of his actions and that his family had suffered as a result. It was further noted that the defendant made full admissions to the police at the time of the offending.
Initially the police complained that the Magistrate had acted with a want of jurisdiction. However, following the lodging of the appeal, the decision of the Full Court in Berzins[3] authoritatively confirmed that the Magistrate had a discretion to act pursuant to section 18(a) of the Sentencing Act and impose a fine in lieu of imprisonment. In this circumstance, that complaint was abandoned. However, the police maintained the complaint that the sentence imposed was manifestly inadequate. This complaint was directed to the period of driver’s licence disqualification. It was said that the imposition of the minimum prescribed period did not adequately reflect the seriousness of the offence charged and the serious circumstances of the offending.
[3] Police v Berzins [2011] SASCFC 146.
Counsel for the defendant submitted that the penalties imposed by the Magistrate were within her sentencing discretion, that no error of sentencing principle had been identified, that no other error had been identified and that in the circumstances, there was good reason for the Magistrate to impose the period of disqualification of six months. Attention was drawn to the substantial fine that had been imposed. It was contended that notwithstanding the fact that the police had a right of appeal, the defendant’s exposure to double jeopardy was still a relevant factor and that this Court should only interfere in a clear case.
Section 45 of the Road Traffic Act 1961 (SA) relevantly provides:
Careless driving
(1)     A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)     If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)    the maximum penalty for the offence is 12 months imprisonment; and
(b)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)     For the purposes of this section, an aggravated offence is—
(a)    an offence that caused the death of, or serious harm to, a person; or
(b)     an offence committed in any of the following circumstances:
…
(iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
…
Counsel for the police in support of his submissions postulated the case where a driver with a blood alcohol concentration of 0.08, with an unblemished record and with no allegation of irregular driving would face the minimum prescribed of driver’s licence disqualification of six months. Counsel then contrasted such a case to that of a driver with a substantially higher blood alcohol concentration with a relevant prior record and where driving involved a want of care. Counsel argued that the culpability of the driver in the latter case would be substantially greater and that the suggested circumstances would warrant a penalty beyond the statutory minimum.
In my view, the penalty imposed by the Magistrate was manifestly inadequate. The defendant was driving with more than double the minimum prescribed concentration of 0.05 grams of alcohol in 100 millilitres of blood and drove with a want of due care which led to his vehicle leaving the roadway, going out of control and crashing into a fence. This was a serious case of aggravated due care. The defendant has a relevant antecedent. I consider that the penalty imposed by the Magistrate did not adequately reflect the seriousness of the defendant’s offending.
I consider that the defendant should be disqualified from holding or obtaining a driver’s licence for a period of 12 months. I would give credit for the period spent on instant licence disqualification of four months and 18 days and I would give credit for the further period of disqualification of one month and 12 days imposed by the Magistrate. Accordingly, it is appropriate to impose a driver’s licence disqualification for a further six months.
Conclusion
The appeal is allowed. The defendant is disqualified from holding or obtaining a driver’s licence for a further period of six months commencing at 12:01 am on Saturday 17 December 2011. Otherwise, the orders of the Magistrate are confirmed.