SIVIOUR-ASHMAN v POLICE
[2003] SASC 29Full Court: Doyle CJ, Mullighan and Besanko JJ
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
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.
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.
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.
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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- Case
- [2003] SASC 29
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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