Smith v Police No. Scgrg-97-1344 Judgment No. S6393

[1997] SASC 6393

SMITH v POLICE

Magistrates Appeal:  Criminal
Bollen AJ

This is an appeal against the suggested severity of the sentence.  It is suggested that the fine imposed and the period of disqualification from holding or obtaining a driver's licence are both manifestly excessive in the circumstances.

The appellant was seen by police driving along Salisbury Highway at about 3.25 a.m. There is nothing to challenge the answer which the appellant gave to the Magistrate that there was no other traffic about.

The appellant was straddling a line. He was driving on the wrong part of the road, at least to some extent. He was drunk. I use that word advisedly. The result of the blood test was .199 grams in a hundred millilitres of blood. More significantly, when the defendant stopped in obedience to the police injunction he staggered, had to hold his hand against the car to hold him steady and when asked what he had to drink he said "Yes fucking heaps, can't you tell". Well, the police could tell. So, of course, the appellant suffered the misfortune of being charged with driving under the influence pursuant to section 47 of the Road Traffic Act.

I speak without being critical of the appellant.  It would be well, somehow or other, if everyone who faced a serious charge like this, even when pleading guilty, had legal representation.  I do not know how hard it is to get it but I would like to be on record as saying that I think it is a very good thing if people who are charged could be represented.

I think that at the hearing the Magistrate behaved impeccably in the sense that he enabled the appellant to put forward all sorts of relevant things.  The Magistrate asked a number of questions which are set out in the affidavit of the appellant in paragraphs 11 to 20 inclusive.

The Magistrate’s notes show that he ascertained very important things, including the fact that the appellant is a spray painter earning $100-$105 per household.  The Magistrate has not made it quite clear - $100 per week or $105 per week.  In any event, the appellant does not earn a large income.  He would need a vehicle to move from place to place.  The Magistrate ascertained that that was so.

The appellant had a prior conviction for driving with a prescribed amount of alcohol in his blood as far back as 1984.  He had a prior conviction for driving under the influence in 1990 when he had a higher reading.  He was fined $800 and ordered 12 months disqualification under the legislation as it then stood.  He had been clear of any traffic offence (and he has been driving a good deal in that time) for seven years.

Under section 47(4), for the purposes of section 47, a prior driving offence under the influence is not to be taken into account if it occurred more than five years previously. The Magistrate did not take it into account in an adverse way, in itself. He imposed a penalty in accordance with section 47(1)(a) as if for a first offence. That section provides for a penalty of, one, a fine not less than $700 and not more than $1200 or, two, imprisonment for not more than three months.

The Magistrate imposed the maximum fine of $1200 and disqualified the appellant holding or obtaining a driver’s licence for three years.  I just pause to reflect that three years is a long time.  It is a long time for a man not to use his vehicle.  It affects him virtually every day.  It affects him in his livelihood.  It is not like a suspension for three years for someone who drives at weekends only or something of that nature.  Nor, I repeat, is the appellant a man who earns a substantial income.  As I have said, I think that the Magistrate in trying to elicit information behaved impeccably.

Mr Cuthbertson says that the main error that the Magistrate made is that he treated the offence as being one in the worst category of cases of driving under the influence.

Miss Martin challenges that, pointing out that the maximum penalty, other than disqualification for this offence, is imprisonment for not more than three months.

The Magistrate may well have thought the case merited putting him in prison, therefore, runs the argument one cannot say that he has treated it as a case falling within the worst category.  I try hard to resist using the words but I think one can perhaps envisage two sorts of worse categories in this sort of thing, what I might call the worst, worst category.  That is for offences that merit imprisonment.  The next worst category is the most serious category of offences of this nature not calling for imprisonment. This matter, obviously, did not call for imprisonment. No-one challenges that.  There was not enough actual danger to merit it, although, it was a potential danger for, at anytime, a man, in the appellant’s condition, might have swerved anyway.  One cannot overlook the damage to himself if he swerved into a pole or fence.

Despite the arguments offered by the respondent, I think I must say that the Magistrate did fall into the error that Mr Cuthbertson has mentioned.  That means that the grounds of appeal, namely, the suspension that was manifestly excessive has been made out.  True it is, a bad case.  The appellant was badly intoxicated to the point of drunkenness.  Some bad driving.  His record which is not to be ignored.  All this marches against him.  Still, I think that the two penalties fixed upon were manifestly excessive and must have been so for the reasons argued by Mr Cuthbertson.

In the those circumstances, I allow the appeal.  I impose penalties afresh.  I think the circumstances of the offence and offender demand that there be a fine of $900 in lieu of the $1200 imposed.  There must be quite a substantial reduction in the period of disqualification.  I repeat what I say about affect on the appellant.  I think the period of disqualification should be one of 18 months.  I so order.