Prefumo v Bedworth - [2013] WASC 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: PREFUMO -v- BEDWORTH [2013] WASC 463

CORAM: McKECHNIE J

HEARD: 6 DECEMBER 2013

DELIVERED : 6 DECEMBER 2013

FILE NO/S: SJA 1037 of 2013

BETWEEN: LOUIS MARCEL ANGELO GILBERT PREFUMO
Appellant
AND
PHILIP JOHN BEDWORTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M G WHEELER
File No  :PE 46322 of 2012

Catchwords:

Road traffic - Disqualification order irreducible term of disqualification - Disqualification notice - Necessity to take into account - Whether disqualification can be backdated to date of disqualification notice

Legislation:

Road Traffic Act 1974 (WA), s 63, s 64, s 71H, s 106A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms J N Harman

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

McKECHNIE J: On 7 February 2013, the appellant appeared before a magistrate for sentence, having pleaded guilty to a charge of driving under the influence. The facts as read out were:
It was 1.25 pm and the accused drove a Nissan Pulsar in a southerly direction on Charles Riley Road from North Beach Road in North Beach, and the accused was followed into Wilby Street by police. Police stopped him due to his manner of driving and he was required to submit a sample of breath at the roadside, but because of his facial injuries he was unable to blow in the machine. So as a result of that he was required to undergo a blood test at Sir Charles Gairdner Hospital and placed under that requirement.
He did submit a sample of blood at 3.17 pm, taken by a registered nurse there, and the sample was sent off for analysis and it returned a reading of .177 grams of alcohol per 100 millilitres of blood taken back at the time of the occurrence, and he was reinterviewed on 21 September, and based on the result he was issued a disqualification notice on that date, 21 September 2012.
The magistrate asked the appellant whether the facts were agreed and he said yes. The magistrate then invited him to say anything further he wished to add. The appellant began an account as to whether he had been advised that the blood sample had to be kept at a certain temperature. The magistrate interrupted by saying:
What's the point of you saying this? You have pleaded guilty, so if you're saying you’re not guilty, tell me now and we will send it back for trial.
The appellant responded:
No, it's not guilty. I’m just making a few points.
After a further interchange, the appellant told the magistrate he was really remorseful, which the magistrate took into account. The appellant asked if a suspension under the Road Traffic Act 1974 (WA), s 70(c) would be taken into account. When the magistrate came to sentence, he said:
I will take into account the plea of guilty, albeit on trial date. The information is relevant to the extent that I will be able to treat it, in my view, as a plea. I will treat it as a plea at first instance because the accused had genuine grounds for defending the matter, but also, by the same token, he has a genuine reason for pleading guilty. So I will give him the minimum penalty.
Unfortunately, the old DUIs do not count because they are more than 20 years old, but the 1999 .08 conviction does count in terms of sentencing, so I need to take that into account as I must, and I will do so. Accordingly, you will be fined the sum of $1,600 … costs of $125.70, and you are disqualified from holding or obtaining a drivers licence for 18 months, reduced by any period already served pursuant to a section 71C notice. So effectively it is 18 months from the date you received the suspension notice.
The appellant lodged an appeal against both sentence and order, the grounds of appeal being in the attached affidavit. The affidavit, which is discursive, quotes from the Road Traffic Act, s 71H which provides that time served under a disqualification notice may be taken into account. It is said that the magistrate was not correct in his sentencing and made an error of law. The difficulty is that the magistrate expressly had regard to the period of suspension when setting the penalty.
The balance of the matters in the affidavit do not relate to sentence and are, therefore, irrelevant. A plea of guilty is an admission of all the material facts of the charge. The appellant raised matters, both in his affidavit and at the hearing which I do not regard as relevant. The respondent precautionarily filed material in relation to it, but this is solely an appeal against sentence. I note though that a sample of the appellant's blood was taken by a registered nurse at Charles Gairdner Hospital.
It is said that he was not advised that his sample had to be kept at a particular temperature, and so he could not then have it independently analysed. However, there is no evidence that the sample that was analysed was incorrectly taken or stored. In his affidavit, the appellant also said he was on medication which contained alcohol and he had not consumed alcohol. This is inconsistent with the explanation advanced to the magistrate, which was:
On the night before I went to a party, and the thing is that I was not - I was not that - aware at the time that alcohol actually stayed in your system for quite a while. That’s why I got such a high reading.
The appellant also challenges the reason why his car was pulled over by police. However, that reason is irrelevant in view of his blood alcohol reading.
The appellant wrote to the court seeking an adjournment, because he had referred the matter to the Crime & Corruption Commission, and today has attempted to argue matters which go well beyond the matters of sentence to which I have confined him.
The appeal raises for consideration several sections of the Road Traffic Act. The appellant was charged under s 63. Section 63(1):
Driving under the influence of alcohol etc
(1)A person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence, and the offender may be arrested without warrant.
(2)A person convicted of an offence against this section is liable -
(a)for a first offence -
(i)if the person has been previously convicted of an offence against section 64, to a fine of -
(I)not less than the minimum fine that would apply if the offence were against that section instead of this section; and
(II)not more than 50 PU,
And, in any event, the court convicting that person shall order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than the minimum period of disqualification that would apply if the offence were against that section instead of this section.
Under s 64, a table sets out the disqualification period. A blood alcohol reading of or greater than .13 (which this was), mandates for a second offence a term of 18 months' suspension.
Section 106A in relation to mandatory disqualification says:
(1)If this Act requires a court to disqualify an offender from holding or obtaining a driver's licence -
…
the requirement is irreducible in mitigation, and irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -
(d)for that period; or
(e)for a period not less than that minimum period;
The appellant had previous convictions. Section 105 provides that convictions recorded more than 20 years before the commission of the present offence shall not be taken into account for the purposes of determining the penalties to be imposed for the present offence, so the magistrate was correct to ignore offences earlier than 20 years, but did take into account a conviction in 1999. Hence, this was treated effectively as a second offence.
There is an apparent conflict in the Road Traffic Act between s 106A, to which I have just referred, and a section which has been added more recently, s 71H.
Section 71B and following provide for an immediate disqualification notice to be issued to a person in certain circumstances. The obvious reason for that is if a person returns a positive reading. It is common ground that the appellant was issued with such a disqualification notice on 21 September 2012. Section 71H(1) provides:
This section applies if a court convicts a person of the offence to which a disqualification notice relates.
That is the case here where the offence to which the appellant pleaded guilty and was convicted is precisely the offence to which the disqualification notice related. Section 71H(2) says:
If the section applies, the court is to take into account any period of disqualification imposed under s 71D(1) in respect of the disqualification notice when making an order disqualifying the person from holding or obtaining a driver's licence.
What the magistrate did was to backdate the suspension to a period from the date on which the appellant received the suspension notice, that is, 21 September 2012.
The question arises whether the magistrate was correct to do so. I consider he was. The effect of s 70H is to require a court to take into account the period served under the disqualification notice, and s 106A requires the court to disqualify for a period specified under the Act. In order to comply with both sections, the magistrate's decision to backdate the suspension to the time of the suspension notice seems to be the only rational way to comply with the Act.
To make it completely clear in case the appellant should have any difficulty with the licensing authorities, the effect is that his licence is suspended for a period of 18 months, from 21 September 2012. As the magistrate imposed the minimum fine, which he was obliged and mandated to impose under the Road Traffic Act, there is no substance in the grounds of appeal challenging that fine nor, for the reasons I have indicated, is there any substance in challenging the order for suspension and the date of it.
Leave to appeal is therefore refused and the appeal is dismissed.