Selby v Police

[2007] SASC 97

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

SELBY v POLICE

[2007] SASC 97

Judgment of The Honourable Chief Justice Doyle (ex tempore)

13 March 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA

Appeal against sentence imposed in the Magistrates Court - appellant pleaded guilty to a charge of failing to comply with all reasonable directions given by a member of the police force contrary to s 47E(3) of the Road Traffic Act - after testing positive to roadside alcotest, and prior to the completion of breath analysis, appellant wilfully drank water contrary to instructions of police officer - appellant received minimum penalty - sentence subject to reduction only if appellant, by evidence given on oath before the Magistrate, satisfied the Court that the offence was "trifling".

Held:  appeal dismissed.

Road Traffic Act 1961 (SA) s 47E(1), s 47E(3), s 47E(6), referred to.

SELBY v POLICE
[2007] SASC 97

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore):              This is an appeal against a sentence imposed by the Magistrates Court.  Mr Selby claims the sentence is excessive.

2. Mr Selby pleaded guilty to a charge that, having been required under s 47E(1) of the Road Traffic Act 1961 (SA) (the “RTA”) to submit to a breath analysis, he failed to comply with all reasonable directions of a member of the police force in relation to that requirement, contrary to s 47E(3) of the RTA.

3. The offence occurred on 16 July 2004.  The plea of guilty was entered, and sentence was imposed, on 9 November 2006, 2 years and 4 months after the date of the offence.

4. Endorsements on the Magistrates Court file indicate a series of adjournments for a variety of reasons.  It is unsatisfactory that such a long time should be allowed to pass before a fairly straightforward matter like this is dealt with.  I am not able to say who was at fault.  However, I encourage magistrates before whom matters come to avoid such delays.  I would have thought that the matter not having been resolved within 12 months of the date of the alleged offence, it should have been brought to a head without further delay. 

5. The circumstances of the offence are these.

6. The police stopped Mr Selby in relation to a traffic offence and, while dealing with this they required Mr Selby to submit to an alcotest. This returned a positive result. The police then required Mr Selby to submit to a breath analysis. He was directed not to take anything by way of his mouth until the breath analysis had been completed. That direction was given under s 47E(3) of the RTA.

7. The police took Mr Selby to a police station.  While there, Mr Selby went to a nearby bathroom and, according to the police, began to drink water from a tap in the room.  The police say that they saw him use his hands to scoop water into his mouth.  The police then arrested Mr Selby for failing to comply with their direction.

8. On appeal, Mr Selby put a rather different version of the facts to me, but, as I have explained to him, he having pleaded guilty on this basis, that is the basis on which the appeal must proceed. 

9. Because of the water he had consumed, no breath analysis was conducted.

10. When Mr Selby pleaded guilty he was represented by counsel, and the court file records that submissions were made on his behalf.  The prosecutor did not allege any prior convictions. 

11. Details of the submissions in mitigation are not available.

12. The Magistrate recorded a conviction, fined Mr Selby the sum of $700, and disqualified him from holding or obtaining a driver’s licence for a period of 12 months, commencing on 10 November 2006. 

13. Remarks that the Magistrate made on sentencing, if any, are not available.

14. In his notice of appeal, Mr Selby says that he needs his driver’s licence to obtain employment and, in particular, to obtain a position in the defence forces.  I accept that is true as a matter of fact.

15. Mr Selby’s appeal faces an immediate obstacle. By s 47E(3) of the RTA, the minimum fine for a first offence is a fine of not less than $700. By s 47E(6), the Magistrate was obliged to order that Mr Selby be disqualified from holding or obtaining a driver’s licence, as a first offender, for a period of not less than 12 months.

16. The Magistrate has imposed the minimum punishment that he was able to impose.

17. By s 47E(6)(b), the Magistrate could impose a lesser penalty in the case of a first offence if “satisfied, by evidence given on oath, that the offence is trifling”.

18. Mr Selby gave no evidence on oath before the Magistrate.  In any event, in the light of material now before me, there is no basis upon which a magistrate could conclude that the offence was trifling.  The circumstances indicate that it was a deliberate breach of the direction.  I consider that Mr Selby was fortunate that the Magistrate imposed the minimum sentence.

19. The difficulty that Mr Selby is having in obtaining employment without a licence does not help to show that the offence is trifling.  In short, this Court has no power in the circumstances to reduce the sentence, but even if the power were available, on the material before the Court, there is no basis for doing so.  An appeal cannot succeed.

20. Mr Selby lodged his notice of appeal on 10 January 2007, several weeks out of time.  He says that he did not know that the appeal had to be lodged within 21 days.  If the appeal had merit, I might have been prepared to extend the time for the filing of the notice of appeal.  As the appeal has no prospect of success, it is not appropriate to extend the time.

21. Accordingly, I refuse to extend the time for the institution of the appeal and I order that the notice of appeal be struck out.  That has the same effect as an order dismissing the appeal.