Thung Son v Police

[2006] SASC 220

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

THUNG SON v POLICE

[2006] SASC 220

Judgment of The Honourable Justice White (ex tempore)

21 July 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME

Appeal against order of licence disqualification - appellant convicted of one count of driving with the prescribed concentration of alcohol in his blood, contrary to s 47B of the Road Traffic Act 1961 - magistrate imposed the minimum fine and disqualified the appellant from holding or obtaining a driver's licence for the minimum period required by s 47B.

Held: it could not be said that the circumstances of the offence were trifling so that the period of disqualification could be reduced or mitigated pursuant to s 47B(3) - extension of time within which to institute the appeal refused.

Road Traffic Act 1961 (SA) s 47B; Supreme Court Rules r 97.04; Criminal Law (Sentencing) Act 1988 (SA) s 17, referred to.
Przybytniak v Police (1998) 100 A Crim R 196; Wu v Police [2006] SASC 48; Janz v Woolven; Lush v Hayes (1990) 55 SASR 239; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

THUNG SON v POLICE
[2006] SASC 220

Magistrates Appeal (ex tempore)

1. WHITE J: This is an appeal against an order of licence disqualification imposed by a magistrate. 

2. The appellant pleaded guilty to the offence of driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act1961(SA) (“the RTA”).  He was sentenced for that offence on 21 March 2006.  The magistrate imposed a fine of $500 and disqualified the appellant from holding or obtaining a driver’s licence for a period of six months.

3. The appeal was instituted on 21 June 2006.  This was well outside the 14 day period fixed by SCR 97.04 for the institution of such appeals.  Thus the appellant needs a lengthy extension of time in which to institute his appeal.

4. The appellant is self-represented.  Without meaning any disrespect at all to him, I think it fair to say that the appellant has an incomplete grasp of the English language.  I have offered him an adjournment for the purpose of obtaining the assistance of a translator or interpreter or, for that matter, a lawyer, but because the appellant wishes to have the appeal determined quickly, he has indicated that he is prepared to proceed with the appeal this afternoon.  In the ordinary course of events this appeal would have been heard in the August sessions, but I acceded to a request from the appellant that his appeal be heard sooner.

5. Although the appellant needs an extension of time, I invited the parties to make their submissions as though on the hearing of the appeal itself and indicated that I would give my decision on the extension of time, having heard the parties in full.

6. The principal ground of appeal is that the licence disqualification is resulting in considerable hardship to the appellant and his family.  Four of the six months of licence disqualification have now elapsed.  The appellant is self‑employed and lives at Craigmore.  He works at Virginia.  He would like to have his licence so that he can drive to and from work.  For part of the time during the licence disqualification he has been able to obtain a ride with one or other of his brothers, but that is no longer possible.  In addition, the appellant’s wife recently gave birth to their first child and the applicant would like to be able to drive his family to and from appointments and to the other commitments which, as a young family, they have.

7. The offence occurred on 27 November 2005.  The appellant was driving his car on Main North Road at Elizabeth Grove at about midnight.  He was stopped by a police officer.  The police officer gave no particular reason for having stopped him but, in any event, the police officer required the appellant to submit to an alcotest.  That test produced a positive result.  The appellant was then taken to the Elizabeth Police Station where breath analysis produced a result of 0.096 grams of alcohol in 210 millilitres of breath. 

8. For the purposes of s 47B of the RTA the appellant’s offence was both a first offence and a category 2 offence. This meant that the appellant was liable to a fine of not less than $500 and not more than $900.

9. In addition, s 47B(3) provides that when a court convicts a person of an offence against s 47B(1) the court must, in the case of a first offence which is a category 2 offence, disqualify the offender from holding or obtaining a driver’s licence for such period being not less than six months, as the court thinks fit.

10. Putting that slightly differently, the magistrate was required by an Act of Parliament to impose a minimum licence disqualification of six months.  It can be seen, therefore, that the magistrate imposed the minimum fine and the minimum period of disqualification which he was required to impose by the RTA.  That being so, it is not possible to say that the magistrate has made an error by imposing a licence disqualification which was too harsh.

11. Ms Hanson, for the respondent, has quite fairly drawn my attention and the attention of the appellant to s 17 of the Criminal Law (Sentencing) Act1988 (SA) (“the CLSA”). That provides that a court may, when it is satisfied, having regard to particular matters, that good reason exists for doing so, reduce the minimum penalty fixed by a special Act below that minimum. However, that power cannot be exercised when a provision in the special Act expressly prohibits the court from doing so. The RTA does contain such an express prohibition. Section 47B(3)(b) states:

    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.”

    Because of that provision - that is, s 47B(3)(b) - it was not open to the magistrate to exercise the power contained in s 17 of the CLSA to reduce the minimum period of licence disqualification in this case.[1]

    [1]     Przybytniak v Police [1998] SASC 6581 (1998) 100 A Crim R 196; Wu v Police [2006] SASC 48 at [11]-[12].

12. As can be seen from s 47B(3)(b), the minimum period of licence disqualification can be reduced if the court is satisfied by evidence given on oath that the offence is trifling. No evidence to that effect was given in the present case. But, in any event, on the description of the offence given to the magistrate by the police prosecutor, and by the appellant today, his offence could not reasonably be characterised as trifling. It involved the driving on one of the major thoroughfares of this State - namely, Main North Road - with a blood alcohol content which was nearly twice the legal limit. The appellant was not present on Main North Road for only a matter of moments or a very short distance; he had commenced driving at Salisbury and was intending to complete his driving when he got home to Craigmore. In those circumstances, it could not, as I say, reasonably be said that his conduct in driving, and the circumstances of the offence, were trifling.

13. The hardship which the licence disqualification is causing to the appellant and to his family cannot be relied upon to make the offence trifling. It is the offending conduct itself which must be trifling before s 47B(3)(b) can be invoked.[2]

    [2]     Siviour-Ashman v Police [2003] SASC 29 at [21], (2003) 85 SASR 23 at 27.

14. Furthermore, the fact that the appellant’s driving was not apparently affected by the alcohol in his blood is not a significant matter for present purposes. As the Chief Justice has pointed out, s 47B is not concerned with the actual standard of the driving in question, but rather with preventing the danger which can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.[3]

    [3] Ibid at [26], 28.

15. The requirement to impose a disqualification arises where a court convicts a person of an offence against s 47B(1). There are provisions in the CLSA which permit a court in some circumstances to deal with an offence without recording a conviction. However, as Ms Hanson has pointed out, those provisions are not available in relation to a contravention of s 47B(1). Ms Hanson referred to the decisions of the Full Court in Janz v Woolven and Lush v Hayes.[4] 

    [4] (1990) 55 SASR 239.

16. One cannot help but have some sympathy for the appellant in his present circumstances.  It is easy to understand the difficulties which being without a driver’s licence can cause.  However, the dangers of driving with the prescribed concentration of alcohol are well known.  The statutory provisions which required the magistrate to impose a minimum licence disqualification of six months are clear.  They exist for the protection of the public

17. I return to the question of whether or not the appellant should be granted an extension of time in which to appeal.  For the reasons given above, it cannot be said that the appeal has merit.  In those circumstances, it is not appropriate to grant the appellant an extension of time within which to institute his appeal.  Even if I had otherwise been persuaded to grant the extension of time, I would, for the reasons which I have now given, have dismissed the appeal.

18. The formal order of the court is that the oral application by the appellant for an extension of the time fixed by r 97.04 in which to institute his appeal against the decision of the magistrate made on 21 March 2006 is refused. The effect of that is that the appellant will have to complete the remaining two months of the licence disqualification.