Siviour-Ashman v Police

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SIVIOUR-ASHMAN  v  POLICE
[2003] SASC 29

Full Court:  Doyle CJ, Mullighan and Besanko JJ

  1. DOYLE CJ:            This is an appeal against an order of a single Judge of this Court dismissing the appellant’s appeal against a sentence imposed by a Magistrate.

    The Prosecution

  2. The appellant pleaded guilty to a charge of driving while there was present in her blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (“the Act”). The prescribed concentration is 0.05 grams or more of alcohol in 100 millilitres of blood.

  3. The appellant and prosecution provided to the Magistrate a Statement of Agreed Facts.  It was agreed that the appellant recorded a blood-alcohol reading of 0.120 grams of alcohol in 100 millilitres of blood when tested by police at about 4:50am, having been stopped at a Random Breath Testing station (“RBT”) on Anzac Highway.  The appellant had that evening consumed three standard drinks of Southern Comfort and Coke, interspersed with glasses of water, over a period of about three and a half hours, from about 11:00pm to about 3:30am.  The appellant left the bar where she had been drinking at about 3:40am.  She went to her car, which was some distance away, and began to drive home at about 4am.  She was stopped by police at the RBT at about 4:10am, and the test that recorded her blood-alcohol level at 0.120 was administered at about 4:50am.

  4. A short time before she left the bar, the appellant asked the barman for a glass of water.  The barman offered her, and she consumed, a fruit drink.  The drink contained alcohol, but the appellant did not know that.  She would not have accepted the drink had she known it contained alcohol.  She was taking care not to consume an amount of alcohol that would create a risk of her having an amount of alcohol in her blood in excess of the prescribed quantity.  It was agreed that but for the consumption of the fruit drink the appellant would not have had the prescribed concentration of alcohol in her blood.  In fact, it was agreed that but for the consumption of the fruit drink, the appellant’s blood-alcohol content would have been less than 0.05 at the time of driving.  It was also agreed that the appellant could not have known that the fruit drink contained alcohol, and that there was “no evidence to suggest the [appellant] felt the effects of the alcohol or her ability to drive a motor vehicle were impaired”.  It was agreed that the appellant did not appear to be affected by the alcohol she had consumed.

  5. The appellant applied to the Magistrate to have the offence treated as “trifling” for the purposes of s 47B(3)(b) of the Act. The section provides that:

    “the disqualification [from holding or obtaining a driver’s licence] prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a…

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Details
Case
[2003] SASC 29
Decision Date

CaseChat Overview and Summary

The case of Siviour-Ashman v Police involved an appeal against a conviction for driving under the influence of alcohol, a contravention of section 47B(1) of the Road Traffic Act 1961 (SA). The appellant, Ms Siviour-Ashman, drove her vehicle on a main road with a blood alcohol concentration exceeding the legal limit, despite her belief that she was not exceeding the legal limit due to circumstances beyond her control. The case raised the issue of whether the appellant's state of mind and belief could render the offence trifling, warranting a lesser penalty. The Supreme Court of South Australia was tasked with determining the relevance of the appellant's state of mind in assessing the seriousness of the offence and whether the offence could be considered trifling.

The court considered the principles established in previous cases regarding the relevance of an offender's reasons, motive, or belief in determining if an offence is trifling. The court held that while such factors could be relevant, they must be weighed alongside the offending conduct itself. In this case, the court found that the appellant's driving conduct, with an excessive blood alcohol concentration, was an ordinary instance of its kind. The court emphasised that the appellant's lack of awareness of committing an offence, or her mistaken belief that she was not offending, held limited relevance in assessing the seriousness of the offence under section 47B(1). Despite the mitigating circumstances, the court concluded that the offending conduct outweighed the appellant's state of mind and belief, leading to the determination that the offence was not trifling.

The court ultimately dismissed the appeal, affirming the conviction. The reasoning was that the appellant's belief and state of mind, while acknowledged as mitigating factors, did not render the offending conduct trifling when considered in the context of the statutory offence. The court recognised the hardship in the case but reiterated that it could not act solely on mitigating circumstances. The decision underscored the importance of assessing the seriousness of an offence based on the conduct itself, rather than the offender's state of mind, in cases involving driving under the influence of alcohol.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This last group of cases establishes that the offender’s reasons for acting, or motive or belief can be relevant in deciding if an offence is trifling. But, I would add, this sort of factor has to be weighed along with the offending conduct.Conclusions The offending conduct in the present case is an ordinary or typical instance of its kind. The appellant drove for some distance on a main road. The concentration of alcohol in her blood was well in excess of the minimum amount that falls within the prescribed concentration. The fact that the appellant did not realise that she was committing an offence, or might be committing an offence, is not of any great significance in relation to an offence of the kind in question. A failure to realise that an offence is being committed or might be committed is of limited relevance in deciding whether an offence of this kind is trifling. In the appellant’s case, however, there is more than that. It can be said affirmatively that she reasonably believed that she was not offending, and that her belief was correct and was falsified in circumstances beyond her control, and in respect of which she was not at fault. To that extent, the offending is not typical of its kind. In the case of an offence in relation to which knowledge of the presence of alcohol in the blood, or advertence to that fact, is significant in assessing the seriousness of the offence, this aspect of the facts on which the appellant relies would probably be enough for one to conclude that the offence was trifling. But in the case of s 47B(1), I consider that the offending conduct is to be given more weight than the explanation for it, and in particular, more weight than the offender’s awareness of the fact that an offence might be committed. To my mind, the offending conduct cannot be regarded as a trifling offence simply because of the appellant’s state of mind and belief, because of the very limited significance of advertence and state of mind when making a qualitative assessment of an offence like the one in question. For those reasons, I am not satisfied that the offence is trifling. I recognise that this is a hard case, and that there are strong mitigating circumstances. However, the Court is not able to act on the basis of mitigating circumstances. For those reasons I would dismiss the appeal. MULLIGHAN J: The issues raised on this appeal and the relevant factual circumstances are set out in the reasons for judgment of the Chief Justice. Also, he has discussed the relevant case law and I respectfully agree with his conclusions that both the offending conduct and the circumstances must be viewed as a whole. I also agree with his criticisms of findings and observations made by the learned Magistrate and the learned Judge. There is no need for me to repeat any of these matters. I find myself in disagreement with the Chief Justice as to the outcome of the appeal but I can express my reasons briefly. There is nothing atypical about the offending conduct. The appellant drove her motor vehicle for a considerable distance with an excessive blood alcohol level plainly in contravention of the Road Traffic Act 1961 (SA).

Ratio Decidendi

Legal Principle Established

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