Przybytniak v Police

[1998] SASC 6581

PRZYBYTNIAK  v  POLICE

Magistrates’ Appeal

Bleby J

This is an appeal against a sentence imposed upon the appellant by a magistrate.  Before me the appellant conducted her own appeal, although she was represented by a legal practitioner in the Magistrates Court. 

The appellant was charged on complaint, with an offence contrary to s47b of the Road Traffic Act, 1961. The complaint alleged that on 26 June 1997 at Mount Osmond, the appellant drove a motor vehicle on Mount Barker Road while there was present in her blood the prescribed concentration of alcohol as defined in s47 of the Road Traffic Act. It was further alleged that the concentration of alcohol present in the appellant’s blood was .083g in 100ml of blood.

The appellant initially pleaded not guilty to the charge, but on the day that her trial was due to commence, namely 28 January 1998, the appellant pleaded guilty to the charge.  Submissions in mitigation of penalty were then sought to be made by her counsel.  No sworn evidence was led and the learned magistrate imposed a fine of $500 and disqualified the appellant from holding or obtaining a driver’s licence for a period of six months, commencing at 12.01am on 29 January 1998.  He allowed her six months in which to pay the fine.  The operation of the order relating to the suspension of driver’s licence was suspended on 9 February 1998, pending the outcome of the appellant’s appeal to this court. 

The brief facts as deposed to by the prosecutor in her affidavit, were that at 2.30am  on Thursday, 26 June 1997, police established a random breath testing station at Mount Barker Road at Mount Osmond.  At about 2.30am police tested the defendant and a positive reading was registered.  The appellant was conveyed to the Stirling Police Station by police.  Once at Stirling Station the breath analysis test was conducted which showed a blood concentration of .083g of alcohol per 100ml of the defendant’s blood.  The appellant told the police that she had consumed her last drink approximately half an hour prior to being stopped and that she had been drinking champagne. 

There is one relevant offence created by s.47b of the Act, and that is driving with more than the prescribed concentration of alcohol in the blood. In the case of the appellant, the prescribed concentration of alcohol was .05g per 100ml of blood. For the purpose of penalty only, the Act separates the offence into three categories. As the appellant pleaded guilty to having present in her blood at the relevant time, a concentration of .083g of alcohol per 100ml of blood, the offence in this case was properly classified as a category 2 offence for the purpose of fixing the penalty.

That arises because of the operation of s.47a of the Act, which provides relevantly, that a “category 2 offence means an offence against s.47b(1), where the concentration of alcohol in the blood of the convicted person was less than .15g, but not less than .08g in 100ml of blood”. Section 47b of the Act then stipulates that the minimum penalty for a category 2 offence where, as in this case, the offence is a first offence, is a fine of not less than $500 and a period of mandatory licence disqualification of not less than six months.

It is therefore evidence that in all respects, the learned magistrate imposed the minimum penalty. However s.47b(3)(b) of the Act provides:

“The disqualification prescribed by para.(a) shall not be reduced or mitigated in any way, or be substituted by any other penalty or sentence, unless in the case of a first offence the court is satisfied by evidence given on oath, that the offence is trifling in which case, it may order a period of disqualification that is less than the prescribed minimum period, but not less than one month.”

Thus, in order to attract that provision, there must be evidence given on oath from which the magistrate can be satisfied that the offence was trifling. 

There was no evidence given on oath before the magistrate, and therefore the magistrate was unable to apply the provisions of s.47b(3)(b), even if he was satisfied on the information otherwise put to him, that the offence was trifling.

Nevertheless the appellant complains that the sentence is manifestly excessive. By her written grounds of appeal, she argued that in this case, there was proper cause for the imposition of less than the minimum penalty pursuant to s17 of the Criminal Law (Sentencing) Act. That ground was not pressed in oral submissions before me, but I think it is appropriate that I just say something briefly about it. Section 17 of the Criminal Law (Sentencing) Act reads:

“17. Where a special Act fixes a minimum penalty in respect of an offence, and the court having regard to -

(a)...... the character, antecedents, age, physical or mental condition of the defendant; or

(b)the fact that the offence was trifling; or

(c)...... any other extenuating circumstances;

is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.”

The appellant in her written grounds cited a number of factors which in her submission, justified a reduction in the minimum penalty under this section. I will return to those when I come to deal with the question of whether or not the offence was trifling. However there was a major obstacle to the application of s17 of the Criminal Law (Sentencing) Act in this case, at least with respect to the licence suspension. Sections 17 and 20 of the Act are both in Part 2, Division 2 of the Act, and s20 provides:

“20.  Nothing in this division:

(a)...... affects the sentence to be imposed by a court for murder or treason; or

(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.”

It has been held by a single judge of this court and affirmed by the Full Court, that licence disqualification is a penalty for the purposes of ss17 and 20 of the Criminal Law (Sentencing) Act: Cresswell v Bates (1989) 9 MVR 176 and Janz v Woolven; Lush v Hayes (1990) 55 SASR 239 at 241. It has also been held in a number of cases that s20 of the Criminal Law (Sentencing) Act precludes the application of s17 to a reduction of the mandatory licence suspension requirements of s47b of the Road Traffic Act: Philp v Bonney (1989) 50 SASR 531; Cresswell v Bates (supra); Janz v Woolven; Lush v Hayes (supra).

It follows therefore that in the circumstances before him, the learned magistrate could not have applied s17 of the Criminal Law (Sentencing) Act, and had no option but to impose not less than the minimum period of licence suspension prescribed. By her grounds of appeal, the appellant criticised her counsel for not making submissions relevant to s17 of the Sentencing Act, but as I have said, that point was not pressed on the appeal, and any such submissions, if made, would have to have been rejected by the learned magistrate. 

The thrust of the appellant’s oral submissions however, and of her extensive written submissions which were tendered before me, did not relate so much to the failure to act under s17 of the Criminal Law (Sentencing) Act, but related to the alleged failure of her solicitor to lead evidence and make submissions under s.47b(3)(b) of the Road Traffic Act to the effect that the offence was trifling.  I have already quoted the terms of that paragraph.  The appellant asserts, and I am prepared to accept for present purposes, that her original instructions to her solicitor were that the loss of her driving licence would have a devastating effect on her. 

It seems that there were discussions about making a submission that the offence was trifling under s.47b(3)(b), and her solicitor seems to have advised against that and for a time at least, the appellant seems to have accepted that advice.

Some enquiries were then made about the possibility of pleading not guilty and with a view to challenging the accuracy of the breath analysis, presumably in order to try and bring herself into a category one offence, that is below .08.  She says there were some negotiations with the police and following further advice, she instructed her solicitor on the morning of the trial to plead guilty, but to seek the imposition of a penalty without suspension of licence. 

She claims, and again I accept for present purposes, that her solicitor’s submissions on penalty were interrupted by the magistrate when he announced that he would impose the penalty he did, namely the minimum that he is allowed to impose, without hearing sworn evidence under s47b(3)(b).

The appellant now complains that her solicitor did not put the material that she considered ought to have been put, nor make submissions under sub-s(3)(b), or that he was not allowed to do so by the learned magistrate. 

The basis of the appellant’s oral and written submissions to me were that the offence was trifling and should have attracted the lesser penalty under s47b(3)(b). I have already pointed out that that sub-section can only operate where evidence is given on oath, and it cannot be attracted where submissions are merely made from the bar table, and therefore in the circumstances before the magistrate of course he had no alternative than to do what he did.

The appellant’s complaint now is that her solicitor did not do what he should have done; that he should have led evidence to show that the offence was trifling. That did not form any part of the written grounds of the appeal in this case. As I said, those written grounds were more concerned with s17 of the Criminal Law (Sentencing) Act.

I have already pointed out that the appellant had apparently received advice about s47b(3)(b), which, at least for a while, she accepted, and so it was not surprising perhaps that her solicitor did not seek to lead such evidence. However, I would be reluctant to act on such a complaint on an appeal without some sworn evidence as to what the appellant’s instructions to her solicitor were, and without clear evidence that those instructions were contravened on the day of the trial. There is no such sworn evidence before me. However, I am prepared to assume for present purposes that what she asserts were the instructions of the appellant to her solicitor, and I am prepared to assume even that he ignored those instructions, or was in some way interrupted by the magistrate.

Section 47b(3)(b), if it were to be invoked, either before the magistrate, or before me, would as I say, require sworn evidence. I would not be prepared to hear such evidence unless there was clear evidence of default by the magistrate, or by the appellant’s solicitor, which vitiated the hearing in some way, and unless there were some reasonable prospect that the evidence, if it were led, would be sufficient to attract the provisions of the paragraph.

As I have said, there may, or may not have been default by the magistrate, or by the solicitor.  I am prepared to accept, in the appellant’s favour for the moment, that there was and I also allowed to have placed before me the voluminous documentary evidence in support of her submission that the appellant put before me to the effect that the offence was in fact trifling.  I am also prepared to assume in the appellant’s favour, that that evidence, if it were sworn evidence, would have been accepted without reservation by the magistrate and would not have been qualified in any way at all.  For that purpose I have had regard to everything that the appellant has put.  However, I cannot be persuaded that the facts and circumstances, even if they were accepted in toto, would be sufficient to render the offence trifling. 

Generally speaking, an offence will not be trifling if it can be described as a typical breach of the type of offence proscribed.  Many cases have held that the mere fact that the prescribed concentration of alcohol is marginally over the minimum does not place it in the trifling category. 

Much reliance was placed in the appellant’s written outline, and it was also mentioned in her oral submissions, on Gebhardt v Dunsmore (1982) 100 LSJS 84.

The circumstances of that case were that in the early hours of the morning, on a suburban street, which was not a main road, the defendant submitted to an alcotest, and a subsequent blood alcohol test gave a reading of .085.  The offence was held in the circumstances of that case to be trifling.  That case has been relied on by counsel in subsequent cases.  One only needs to go to a case like Gagliardi v Medwell (1983) 35 SASR 124, but Legoe J pointed out at p135 that Sangster J made it clear that he was not suggesting his opinion would necessarily be applicable to any other case with the same prescribed concentration of alcohol in the blood.

In Daniels v Cleland (1991) 55 SASR 350 at 353, Olsson J described Gebhardt v Dunsmore as evidencing a situation which he described as being “close to the extreme limit to which the concept may be taken”.

Of course, Gebhardt v Dunsmore and even Gagliardi v Medwell to which I have also referred were decided at a time where the prescribed concentration of alcohol was .08g per 100ml of blood.  The prescribed level is now .05 and therefore driving now at little over .08 will carry much less weight in relation to an offence being trifling than it did when the prescribed limit was .08. 

In addition to that, community attitudes to drink driving have come a long way since 1982 and 1983 when those cases were decided.  I very much doubt whether Gebhardt v Dunsmore would be decided in the same way if it were heard today. 

In s47b(3)(b) the adjective “trifling” qualifies the word “offence”, and so a court, for the purposes of the application of that section and, indeed, in the application of para (b) of s17 of the Criminal Law (Sentencing) Act, will only consider the circumstances of the commission of the offence, and will not consider questions of the offender’s antecedents or the effect that disqualification will have on the offender, in deciding whether or not an offence is trifling. 

It is sometimes said that an offence is trifling if it is merely a technical, casual or inadvertent and unintended breach. That may be so in respect of some offences to which that descriptor may apply, and there are other sections of other Acts which invoke a similar power, or which allow a court to declare an offence to be trifling in order to substitute a lower penalty. In respect of offences under s47b of the Road Traffic Act, that is, driving with the prescribed concentration of alcohol in the blood, many offenders, I am sure, may genuinely believe that they are not committing an offence, believing that their blood alcohol level is below the prescribed limit, but they know that they have been drinking and they know or ought to know that ingestion of alcoholic drinks will raise the concentration of alcohol in their blood. They should also know that the effects of ingestion of the same amount of alcohol over the same period of time will differ from one person to another. They will seldom know what their actual level is. They, nevertheless, take a risk in driving a motor vehicle. Questions of intention and inadvertence will therefore assume a far less significant role for this type of offence than they might for some other types of offence when considering whether that offence is trifling. Sometimes compelling humanitarian or practical reasons may bring an offence into the trifling category, but there is no suggestion of such circumstances here.

I think the factors on which the appellant relies can be grouped into two main categories.  The first group comprises a number of submissions going to the severity of the sentence on or the hardship likely to be suffered by the appellant by the suspension of her driving licence, based on the remoteness of her residence to facilities and to public transport, and the effect of a suspension on her employment.  She also relied on her lack of prior convictions and her good character.  These submissions, while generally relevant to penalty, cannot be relevant, in my opinion, to a consideration as to whether the offence is trifling. 

The second group of submissions is a group relevant to the circumstances of the offence.  The appellant points to the fact that the reading was at the lower end of the scale, a belief that the reading was inaccurate and the fact that her judgment was impaired at the time of the offence by a combination of emotional stress and the medication she was taking, whereby she genuinely believed that she was under the limit.  She also points to the fact that there was no evidence of impairment of her driving ability, no embarrassment to other road users and no collision. 

I have already pointed out that a reading at the lower end of the scale is insufficient to make the offence trifling, especially where the prescribed concentration of alcohol is now .05 and not .08.  The appellant’s belief about the inaccuracy of the reading cannot, of course, be challenged in these proceedings as she pleaded guilty to the offence as charged.  The impairment of her judgment resulting in a belief that she was under the limit does not excuse her from the knowledge that she had been drinking and that she chose to drive shortly thereafter. 

She acknowledged before me that between 6pm and 9pm she had drunk three glasses, or half a bottle, of champagne.  She had another drink poured by a friend at about 1.15am, which she described as being about 80ml in quantity, and which she described in her submission as being “of moderate strength, very sweet”.  She consumed that over a period of about 15 minutes.  She took it, she says, with impaired judgment as a result of her emotional state and medication that she had been taking.  But she knew, of course, and she acknowledged this, that she had been consuming alcohol; she knew that her food intake for the previous two days had been negligible and, yet, in those circumstances, she still chose to drive. 

In my view, those circumstances are not sufficient, either alone or taken with others, to justify the “trifling” label.  The lack of evident impairment of driving ability and the fact that no other road users were embarrassed is a very common feature of those whose offences are detected by random breathalyser checks, and there is nothing unusual or strange about that. 

In short, there is nothing about the circumstances of the case which make it an atypical offence, and so even if evidence had been led before the magistrate of all those matters, and even if the magistrate had accepted the appellant’s evidence on all those matters, the offence could not, in my opinion, have been found to have been trifling.  This means that I do not have to consider questions as to whether or not there is evidence before me on oath which would justify the appellant’s assertions about the instructions to her solicitor or, indeed, evidence on oath as to the nature of the offence because, in my view, if the material which has been placed before me were sworn evidence, and if it were accepted in its entirety, neither this court nor the Magistrates Court could have held that the offence was trifling. 

This means that the appeal must be dismissed, and the order suspending the driving licence reinstated.  In the circumstances, the penalty imposed was the minimum that could have been imposed by the magistrate.

The orders of the court will therefore be:

1. Appeal dismissed. 

2. That the order made on 9 February 1998 suspending the operation of the order disqualifying the appellant from holding and obtaining a driver’s licence is revoked with effect from 12.01am on 4 March 1998. 

3. That the time to pay the fine imposed by the learned magistrate, the court costs and levy be extended to nine months from 28 January 1998.