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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] SASC 6581
Decision Date: 2 March 1998

CaseChat Overview and Summary

Przybytniak appealed against a sentence imposed by a magistrate. She was charged with driving with an alcohol concentration of.083g in 100ml of blood, exceeding the prescribed limit of.05g. The appellant pleaded guilty and was fined $500 and disqualified from holding a driver's licence for six months. The appellant's appeal focused on whether the offence was trifling and if the sentence was excessive. The court considered the statutory provisions under the Road Traffic Act and the Criminal Law (Sentencing) Act, which govern the penalty for such offences. The court found that the appellant's claims about the circumstances of the offence did not meet the threshold for being considered trifling. The appellant argued that her solicitor should have led evidence that the offence was trifling, but the court found that such evidence would not have altered the outcome. The appeal was dismissed, and the driving licence suspension order was reinstated.

The court concluded that the penalty imposed was the minimum allowable under the law and was appropriate given the statutory requirements. The driving licence suspension was reinstated, and the time to pay the fine and costs was extended to nine months.

Orders