Toomey v Police

[2022] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

TOOMEY v POLICE

[2022] SASC 41

Judgment of the Honourable Justice Nicholson 

4 May 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

Appeal against sentence.

A Magistrate convicted the appellant of a number of driving offences, relevantly including driving whilst affected by a drug, upon his plea of guilty. For driving whilst affected by a drug, the appellant was given the penalty of a $1,100 fine and was disqualified from holding a driver’s license for 12 months. The disqualification period was ordered to operate cumulatively on another period of disqualification for two years.

The appellant has appealed against this sentence, out of time. The respondent submits that permission to appeal out of time should be refused and that there is no merit in the appeal.

Held:

1.      Permission to appeal out of time refused.

2.      Appeal dismissed.

Road Traffic Act 1961 (SA) ss 47B, 47BA, 47IAA, 169B; Motor Vehicles Act 1959 (SA) ss 9, 91, 102, 143; Summary Offences Act 1953 (SA) s 7; Sentencing Act 2017 (SA) s 26, referred to.

House v The King (1936) 55 CLR 499, considered.

TOOMEY v POLICE
[2022] SASC 41

Magistrates Appeal: Criminal

NICHOLSON J.

Introduction

1. On 2 October 2019, the appellant was sentenced in the Magistrates Court for a number of driving offences resulting from his conduct on four separate occasions.  The appellant has either served or satisfied all penalties imposed but for one as to which he has lodged a late appeal to this Court.  The appeal was filed on 11 November 2021, more than two years out of time.

2. The appeal concerns the sentence imposed for the offence committed on 3 March 2018 of driving whilst affected by a drug contrary to section 47BA(1)(a) of the Road Traffic Act 1961 (SA). It was the appellant’s third such offence and, as such, attracted a penalty by way of a fine of not less than $1,500 and not more than $2,200 and disqualification from holding a driver’s licence for not less than 12 months.  The Magistrate ordered disqualification for 12 months and this period was ordered to operate cumulatively on another period of disqualification for two years which, as it happened, was to commence upon the appellant completing a short period of imprisonment served subject to home detention conditions.

3. It is not clear to me exactly when the period of two years disqualification finished and the period of one year commenced.  However, the appellant is presently serving that one year disqualification, the subject of this appeal, which I understand still to have some six months or so outstanding.

4. The respondent submits that permission to appeal so far out of time should be refused and that, in any event, there is no merit in the appeal.

   Background

5. The following background is taken from paragraphs [6] and [7] of the respondent’s written submissions. 

   On 2 October 2019 the appellant was sentenced for the ten offences set out in the below table. The offences arose from conduct engaged in on four separate dates.

Ct	Date of Offence	Offence	Offence provision	Prescribed penalty
MCPAR-18-7003
1	3 Mar 2018	1.  Drive unregistered motor vehicle on a road	s 9(1) Motor Vehicles Act	Maximum: $7,500.
2	3 Mar 2018	2.   Drive uninsured motor vehicle on road	s 102(1) Motor Vehicles Act	Maximum: $10,000
3	3 Mar 2018	3.   Drive under disqualification or suspension	s 91(5) Motor Vehicles Act	2nd or subsequent offence: 2 years imprisonment
4	3 Mar 2018	4.   Drive with excess blood alcohol (Category 2 offence - 0.08<0.15g/100ml of blood).[1]	s 47B(1)(a) Road Traffic Act	Fine for 3rd or subsequent offence: not less than $1,900 and not more than $2,900 Disqualification for 3rd or subsequent offence: not less than 2 years.
5	3 Mar 2018	5.   Drive vehicle with drug type unknown in fluid or blood	s 47BA(1)(a) Road Traffic Act (3rd offence)	Fine for 3rd offence: not less than $1,500 and not more than $2,200 Disqualification for 3rd offence: not less than 12 months.
MCPAR-18-4095[2]
6	15 Feb 2018	1.  Drive under disqualification or suspension	s 91(5) of the Motor Vehicles Act	2nd or subsequent offence: 2 years imprisonment
MCPAR-19-5528[3]
7	28 Dec 2018	1.  Drive under disqualification or suspension	s 91(5) of the Motor Vehicles Act	2nd or subsequent offence: 2 years imprisonment
8	28 Dec 2018	2.   Drive unregistered motor vehicle on a road	s 9(1) of the Motor Vehicles Act	Maximum: $7,500.
9	28 Dec 2018	3.   Drive uninsured motor vehicle on road	s 102(1) and 143 of the Motor Vehicles Act	Maximum: $10,000
MCPAR-17-14506[4]
10	13 Nov 2017	1.  Disorderly behaviour	s 7(1)(a) of the Summary Offences Act	Maximum: $1,250 or 3 months imprisonment

[1]     The Appellant had 0.145g of alcohol per 100ml of blood present in his blood at the time of the offence.

[2]     Consolidated with MCPAR-18-7003 on 2/10/19.

[3]     Ibid.

[4]     Ibid.

The sentence the appellant received was as follows:

(a)For each of the offences of driving whilst disqualified (counts 3,6 and 7) – pursuant to s 26 of the Sentencing Act 2017 (SA) one sentence of imprisonment for 3 months and 14 days to be served on home detention.

(b) For the offences of driving an unregistered and uninsured motor vehicle (Counts 1,2,8 and 9) – convicted and discharged without penalty having regard to the penalty imposed for the other offences committed on 3 March 2018 and 28 December 2018.

(c) For the offence of behaving in a disorderly manner (count 10) – convicted and discharged having regard for time already spent in custody in respect of the offence.

(d) For the offence of driving with a prescribed concentration of alcohol in his blood (count 4) –

(i)      A fine of $1100; and

(ii)     Disqualification from holding or obtaining a drivers licence for the period of 2 years to commence on 2 October 2019, taking into account the period of instant disqualification the Appellant had already served.[5]

(e) For the offence of driving with a drug in his blood (count 5) -

(i)             A fine of $1100; and

(ii)     Disqualification from holding or obtaining a drivers licence for the period of 12 months to commence after the period of disqualification imposed for count 4.

[5]     Road Traffic Act 1961 (SA) s 47IAA. Notwithstanding this order the period of disqualification did not commence until the appellant completed his sentence of imprisonment: Road Traffic Act 1961 (SA) s 169B.

1. There can be no complaint about the amount of the fine or the length of the disqualification ordered for count 5, the sentence under appeal.  It would appear that the fine was less than the minimum prescribed by statute about which the respondent makes no complaint and the disqualification period of 12 months was the minimum prescribed by statute.  The appeal only concerns this latter aspect of the sentence.  The only way by which the appellant could have received, in practical effect, a lesser disqualification period for count 5 would have been if the Magistrate had ordered that the period of disqualification was to be served partially or wholly concurrently with the period of two years for count 4 rather than cumulatively or consecutively.

   Consideration

2. The hearing of the appeal was adjourned on a number of occasions to enable the appellant to obtain legal assistance.  He was unable to do so.  As such, when the appeal finally came on for hearing, the appellant was self-represented.  I had before me the written submissions of the respondent, some handwritten communications by way of submission from the appellant, a psychological progress report by Mr Tony Ponnen dated 13 April 2022 and very brief oral submissions by the appellant.  I also had materials from the lower court file, an affidavit of Anthony William Battersby[6] affirmed on 18 February 2022 and the Magistrates remarks on penalty.[7]

   [6]     The police prosecutor in the court below.

   [7]     R v Toomey (Magistrates Court, Magistrate Alexandrides, 2 October 2019).

3. The appeal notice does not raise a tenable ground of appeal.  It outlines certain personal and family circumstances as they presently stand and is with respect an appeal to the mercy of the Court.  The psychological report provides some evidence in support of the appellant’s present circumstances.

   Further to my report dated 16^th September 2019, the following can be reported:

   ·     At the beginning of 2022, Mr Toomey has resumed attending psychological treatment sessions for his PTSD and ADHD symptoms.

   ·     Mr Toomey reported that he is currently not taking any illicit substances.

   ·     Mr Toomey stated that he is looking after his daughter [AT], and he had the need to take her to school regularly.

   ·     Mr Toomey also is taking care of his sister who has mental health challenges and may need after care and emergency medical treatment from the hospital or medical clinics.

   ·     Mr Toomey stated that he is trying to get approval to take care of his niece who is under DCP protection.

   The above facts are indicative of the need for Mr Toomey to have easy access to reliable transportation.  Mr Toomey has understood the severity of his past transgressions and in my opinion had learnt his lesson this time around after his brief stint being incarcerated.  I will support him having access to his car licence so that he can provide effective support and care for the vulnerable people under his care.

4. The respondent opposed the tender of the psychological report at the appeal on fresh evidence grounds.  The report does little more than bring up to date aspects of the appellant’s personal circumstances that were before the Magistrate in some detail. 

5. The Magistrate’s remarks on penalty are detailed and comprehensive.  Having regard to the appellant’s personal circumstances and quite unfavourable criminal record, particularly with respect to driving offences, the decision to order that the 12 month disqualification be served cumulatively was well within the discretionary envelope available to the Magistrate.  The decision to so order cannot be seen as plainly unjust or unreasonable in the House v The King[8] sense.

   [8] (1936) 55 CLR 499.

6. The appellant has not directed the Court to any so called process error by the Magistrate – no failure to take into account relevant circumstances nor taking into account irrelevant circumstances.[9]  On my review of the Magistrate’s remarks and the material that was before his Honour, I have been unable to identify any such process error.  The appellant’s present circumstances do attract sympathy.  However, I can find no legal merit in the appeal.  I refuse permission to appeal out of time and dismiss the appeal.

   [9]     House v The King (1936) 55 CLR 499.