Taylor v Police No. Scciv-02-1530

[2002] SASC 445

TAYLOR  v  POLICE
[2002] SASC 445

Magistrates Appeal: Criminal

1. GRAY J (Ex tempore)      This is an appeal against a sentence imposed by a magistrate.

   Background

2. On 12 March 2002 the appellant, Bruce Taylor, was charged with driving a motor vehicle with greater than the prescribed concentration of alcohol in his blood contrary to s 47B(1) of the Road Traffic Act (“the Act”). It was alleged that the concentration of alcohol was 0.123 grams in 100 millilitres of blood. The alleged offence took place on 24 November 2001.

3. The appellant pleaded guilty in the Port Augusta Magistrates Court on 26 July 2002. It was the appellant’s first conviction for a drink driving offence. The appellant was unrepresented. The magistrate recorded a conviction disqualifying the appellant from holding or obtaining a driver’s licence for a period of six months commencing on 2 September 2002. He also imposed a fine of $500. An alcohol interlock order was made. The magistrate did not provide any remarks on penalty. The order of the magistrate was stayed on 4 November 2002 following the lodging of Mr Taylor’s appeal.

   Extension of Time

4. The appellant’s notice of appeal was lodged out of time. In his submissions he stated that after the completion of his case he had learnt about a friend who was convicted of a similar offence and had been disqualified for only six weeks. It was said that in light of his circumstances it was not unreasonable to allow the extension. I understand that this is the explanation for the delay in the lodging of the appeal.

5. Counsel for the Crown submitted that the discretion to extend time should only be exercised where necessary to prevent a miscarriage of justice. It was submitted that where an appeal is bound to fail, the discretion should not be exercised. It was said that since the minimum penalty had been imposed this appeal could have no prospect of success.

   Issues on Appeal

6. Based on his blood alcohol reading, Mr Taylor’s offending was classified by the Act as a category two offence. The penalty for such an offence is set out in s 47B(1) and (3) of the Act. Section 47B(1) imposes a fine of not less than $500 and not more than $900. Section 47B(3) requires, in addition, a period of licence disqualification for not less than six months. The appellant received the minimum penalty for this offence.

7. The court’s discretion to reduce this penalty is constrained by the terms of s 47B(3)(b) which provides:

   “The disqualification 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 first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month”.

8. It was submitted by the appellant that his decision to plead guilty was as a result of being told by the magistrate that he would receive the minimum penalty upon that plea. The appellant believed that the minimum penalty was a mandatory six months suspension from driving. Following his appeal, the appellant understood that a friend charged with a similar offence was permitted to address the court and explain why such a penalty would cause undue hardship. He said the licence disqualification in that case was reduced to six weeks. The appellant submitted that had he had the opportunity to do so, he would have presented the court with information about his personal circumstances. The appellant argues that this information may have influenced the court.

9. The appellant described his personal circumstances that he says would have been put to the court. The appellant says that he suffers from a chronic back injury that causes him some incapacitation and requires regular attendance at a medical clinic five kilometres from his residence up to twice a week. The appellant said that he could have presented medical evidence to support his position. His partner does not drive and he has no other family at Port Augusta. He claimed that his disability pension did not allow sufficient funds for use of taxis and that public transport presented difficulty.

10. Counsel for the Crown drew attention to affidavits sworn by police prosecutors who attended court on the day the appellant was sentenced. It was said the magistrate advised the appellant of his rights and the likely penalties that could be imposed. The magistrate was informed that the appellant had no prior conviction. Notes on the police file indicate that the appellant had sought legal advice and knew of the likely fine and minimum period of licence disqualification.

11. It was submitted by the Crown that the minimum period of disqualification is not subject to the exception for mandatory penalties set out in s 17 of the Criminal Law (Sentencing) Act 1988. It was said this avenue was not open to reduce the penalty imposed by the magistrate. Further, it was submitted that evidence of undue hardship was not relevant for the purposes of establishing whether or not the offence was trifling within the meaning of s 47B(3). It was said the penalty would have been the same had there been evidence of the appellant’s circumstances before the magistrate. Counsel for the Crown submitted that there was nothing about the offence that was trifling. There was no evidence before the magistrate to suggest that the offence was atypical or a mere technical or inadvertent breach of s 47B(1).

    Consideration of the Issues

12. The appellant produced no written material about his friend’s case. Accepting that there was such a case, it may be that the magistrate found grounds to classify the offence in that case as trifling or simply misconceived their power to reduce the minimum penalty imposed in the legislation. However, it is clear from the terms of the legislation that the minimum penalty prescribed is to be reduced in only the most exceptional circumstances. Such cases that fit into the classification ‘trifling’ have been described as atypical or a mere technical or inadvertent or unintended breach. Even so, the court has noted that intention and inadvertence will assume a less significant role in this kind of offence.

13. In Przybytniak v Police[1] Bleby J highlighted the stringency of the exception. He said:

    “…the factors on which the appellant relies can be grouped into two main categories. The first group comprises a number of submissions going to the severity of the sentence on or the hardship likely to be suffered by the appellant by the suspension of her driving licence, based on the remoteness of her residence to facilities and to public transport and the effect of a suspension on her employment. She also relied on her lack of prior convictions and her good character. These submissions, while generally relevant to penalty, cannot be relevant, in my opinion, to a consideration as to whether the offence is trifling.”

    [1] (1998) 100 A Crim R 196 at 201

14. In my view these remarks are apposite to this case. I accept that the appellant will suffer some inconvenience by the loss of his licence given his remote location and disability. However, the magistrate made an alcohol interlock order when sentencing the appellant. The effect of such an order is that the appellant may regain his licence after a period of three months, provided the appropriate device has been installed in his car and he otherwise complies with the alcohol interlock scheme. I understand that over two months of the suspension has already run. In less than one month following the lifting of the stay, the appellant will be eligible to apply for an interlock device pursuant to the interlock scheme. This will reduce the personal hardship he would otherwise suffer.

15. I accept the appellant is a person of good character with no prior convictions. However, this was not an atypical offence and does not come within the category of trifling within the meaning of the Act. The magistrate was bound to impose, at the very least, the penalty given to the appellant. In my view, there is no merit in the arguments put by the appellant. In those circumstances, it is not appropriate to extend time for leave to appeal. I reserve the right to edit these reasons.