Traeger v Police No. Scgrg-99-957 Judgment No. S381

[1999] SASC 381

TRAEGER V POLICE

[1999] SASC 381
Magistrate’s Appeal
1 MARTIN J. (Ex tempore) On 5 November 1998 the appellant pleaded guilty to driving a motor vehicle on the road while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961. The concentration was .116 grams of alcohol in 100 millilitres of blood. The appellant was convicted and fined $700. In addition he was disqualified from holding or obtaining a driver's licence for a period of two years. On the same occasion the appellant was convicted of speeding and driving without a licence. He drove at 115 kph in a 90 kph zone. For each of those offences he was fined $200.
2 By Notice of Appeal dated 4 August 1999, the appellant seeks to appeal against the order of disqualification on the basis that it was manifestly excessive. 
3 In his short sentencing remarks the Magistrate commented that the prescribed concentration of alcohol and speeding offences were typical of the offences to come before the court 'in absolutely epidemic proportions.' He referred to the appellant's seven prior convictions, including two for driving without a licence.  He then said:
'But here it is, he is still at it.  I can only express grave concern as a member of the community that unless he stops, some totally innocent person might just have to forfeit his or her life under the wheels of his vehicle when he is speeding or when he is drunk, and there is nothing, absolutely nothing anyone can do about it.'
4 The appellant was unrepresented in this court.   As to the delay from November 1998 to August 1999, the appellant said he thought he had been given a nine month disqualification; he had been told to expect a disqualification of that order and the two people in front of him had been disqualified for periods of about six months.  It was not until he went to pay the fine some months later that he found out he had lost his licence for two years.  When he became aware of that fact he sought advice from Legal Aid and raised the necessary financial means required to lodge the Notice of Appeal within a couple of weeks.  Notwithstanding that delay, if I was of the view that the appellant had any prospects of success I would have extended time within which to appeal. 
5 The appellant has told the court that he has been unemployed since November 1998.  He is now 50 years of age with no real skills and has been offered a job as a truck driver for a company involved in demolition and rubbish removal.  He says this is his last chance to obtain employment and he no longer has a drinking problem.  
6 The difficulties facing the appellant arise out of the circumstances of this offence in the context of his record of prior offending. From 1973 to 1989 the appellant was convicted on four separate occasions of driving under the influence. On 12 July 1990, he was convicted of driving whilst there was present in his blood the prescribed concentration of alcohol as defined by s 47A of the Act. On that occasion, he was disqualified from holding or obtaining a driver's licence for a period of four years. In connection with the offences of driving under the influence, various periods of disqualification were imposed and, on two occasions, the appellant was sentenced to imprisonments. Only one of those sentences was suspended. In 1996 the appellant was convicted on two occasions of driving without a licence.
7 On the occasion in question, the appellant was detected travelling at 115 kph on Port Wakefield Road at Bolivar in a 90 kph zone.  When stopped he denied speeding.  He did not have a licence.  When the breath analysis test returned a result of .116, the appellant stated that he did not think it would be as high as that because he did not feel drunk. 
8 The offence related to the prescribed concentration of alcohol is a category 2 offence which is an offence involving a concentration of not less than .08 and not more than .15 grams of alcohol in 100 millimetres of blood.  For a first offence the minimum period of disqualification is six months.  For a second offence the minimum period would be 12 months and for a subsequent offence two years.  For the purposes of determining whether this is a first offence, however, only offences committed within the previous five years immediately preceding the commission of the offence under consideration can be take into account (s 47B(4)).   In those circumstances, for the purpose of determining the minimum period of disqualification the current offence must be considered a first offence. 
9 The restriction imposed by s 47B(4) does not mean that the record of prior offending is to be ignored for all purposes. The appellant's appalling record with respect to traffic offences, and in particular offences involving the consumption of alcohol and driving, are highly relevant to a determination of the appropriate penalty. The Magistrate quite rightly regarded the instant offence as demonstrative of a continuing attitude of disobedience of the Road Traffic laws: Veen v The Queen (No.2) 164 CLR 475 and 477 and 478.
10 Counsel for the Crown has conceded that the period of disqualification was heavy, but submitted it was within the range of the Magistrate's discretion by reason of the prior history and the circumstances of this offending. 
11 I do not know whether the appellant is right when he says this is his last opportunity to obtain a job, but I accept it is a real possibility that he is correct.  It is most unfortunate that he has an opportunity to work which he will not be able to take up if this disqualification remains in place. 
12 Notwithstanding the unfortunate consequence, however, no error by the Magistrate has been demonstrated and I am unable to say that the period of disqualification is outside the range of the Magistrate's discretion.  In those circumstances an appeal would not succeed.  The application to extend time within which to appeal is dismissed.