POWDITCH v POLICE No. SCGRG-98-1107 Judgment No. S6844

[1998] SASC 6844

POWDITCH V POLICE
[1998] SASC 6844

Magistrates Appeal

Perry J (Ex tempore)

This is an appeal against a disqualification from holding or obtaining a driver's licence imposed by a magistrate constituting a Magistrates Court sitting at Christies Beach. 

The appellant pleaded guilty to a charge that on 21 December 1997 he drove with excess blood alcohol concentration in his blood.  The concentration alleged was .141 gm in 100 ml of blood.

I have had the benefit of an affidavit filed by the police prosecutor who appeared in the court below.  From this it appears that the police were conducting random breath testing duties on Hindmarsh Road at Victor Harbor when the appellant was stopped while driving his motor vehicle, at 4.29 a.m.

The reading to which I have referred was recorded on a breath test conducted a few minutes later.  The prosecutor deposes to the fact that the appellant was unco-operative with the police. 

Following his plea of guilty to the charge the learned sentencing magistrate convicted the appellant and imposed a fine of $600 together with a licence disqualification for 14 months.  There is no appeal against the fine but only against the period of the licence disqualification. 

Mr Bourne, who appeared as counsel before the learned sentencing magistrate and before me, has sworn an affidavit in which he summarises the various matters which were urged by him by way of mitigation in the court below.  His affidavit is not challenged by the respondent.

From that affidavit it can be noted that the appellant is aged 29 years living in what is described as a stable defacto relationship with three children.  It appears that until he was injured in December 1997 he was employed in the industrial roofing industry.  His injury, which was to his neck and shoulder, attracted benefits under the Workers Rehabilitation and Compensation Act, and he was subsisting on compensation at the time of the offence. 

It was a Jimmy Barnes concert which took him to Victor Harbor that night.  He went with a group of friends who hired caravans intending to stay the night, rather than drive home afterwards.  Indeed, recognising the undesirability of drinking and driving, the appellant, together with his wife and some others, went by taxi from the caravan park to the Crown Hotel, intending to return after the concert by the same means. 

After the concert and while waiting for a taxi the appellant's wife, who suffers from a back injury, had a recurrence of her symptoms which was so serious that she required hospitalisation.  Indeed, she was admitted to hospital later that morning. 

When she suffered her incident, the appellant, to use his expression, jogged back to the caravan park to obtain his car intending to return with it and take his wife off to hospital.  As it turns out the return trip to the hotel was interrupted by the random breath test.  By the time he got back to the hotel his wife had been taken to hospital by some other means. 

It was put to the learned sentencing magistrate and emphasised in Mr Bourne's affidavit that the appellant needs to be able to drive to get to and from medical appointments for both himself and his wife, to take his children to and from school, and in order to preserve his prospects of rehabilitation and getting back into the workforce. 

Insofar as the appellant is incommoded by the absence of a licence, I hardly think that the circumstances are out of the ordinary.  Any licence suspension will inconvenience the defendant. Even somebody in employment whose continuing employment is jeopardised by suspension of a licence has to accept that fact, which is a common result of a licence suspension.

However, in this case it does seem to me that there were a number of factors which tend to distinguish the case from the norm.

The distance over which the appellant drove is not far and his driving was prompted by what seems to have been a genuine situation of emergency superimposed upon a situation in which he did not set out that night to drive.  Furthermore, there was no accident or injury to anyone.

While the appellant had a previous conviction for a drink/driving offence, it was outside the five year period which would have brought this offence into a higher sentencing category.

The question arises as to what range of penalties and more particularly what length of licence suspension might commonly be imposed for an offence of this kind.  The Road Traffic Act provides in s47B, various minimum fines and periods of suspension.  In the case of the periods of suspension however, it is silent as to the upper limit which may be imposed. 

Mr Bourne for the appellant sought to advance the argument that the various steps in the increases in the minimum period of suspension referable to higher blood alcohol levels, created what he described as the appropriate sentencing parameters.  He submitted in effect that the minimum penalty for the next most serious category should be regarded, in the ordinary run of cases at least, as the maximum penalty for a given offence.

I am unable to accept that argument.  In my opinion, once the relevant minimum penalty is defined by the Act, the Act ceases to have any further work to do in that respect and the length of the period of suspension to be imposed must then be determined by reference to more general considerations, extrinsic to the Act. 

I have, however, been assisted by a table of penalties imposed in cases involving offenders convicted of driving with more than the prescribed level of alcohol and who have had no previous convictions for such an offence within the previous five years.  The table sets out the penalties imposed in such circumstances in Magistrates Courts in this State between 1 January and 31 December 1996.

During that time, the table sets out in various categories a total of over 3,500 cases.  In the category of .1 to .149% blood alcohol, it addresses a total number of convictions amounting to 1434, of which there were 1390 licence suspensions.  Out of that total of licence suspensions only twenty cases were the subject of a licence suspension in excess of twelve months, the average suspension being of the order of 7.4 months.

While I am wary of statistical information of that kind, and it must always be treated with caution, the table affords some general guidance as to the appropriate penalty range. 

Standing back from the case, I must say that my first impression was that the licence suspension in this case was unduly high.  The arguments I have heard during the course of the appeal, addressed by both parties, confirms that view.

The appellant has satisfied the onus of persuading me that the sentence, or at least the suspension, was manifestly excessive in all the circumstances. 

In my opinion, it would have been appropriate in this case to impose a licence suspension of seven months.  I will allow the appeal for the purpose of quashing the order suspending the appellant's licence for 14 months and substituting, in lieu thereof, a disqualification period of seven months.  Subject to that, the orders and penalties imposed in the Magistrates Court remain. 

I order the respondent to pay the appellant's costs of and incidental to the appeal which I fix at $150, plus the filing fee for the notice of appeal.