White v Police No. Scgrg-00-328

[2000] SASC 127

WHITE  v  POLICE
[2000] SASC 127

Magistrates Appeal:  Criminal

1. MULLIGHAN J The appellant pleaded guilty to driving a motor vehicle on a road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle contrary to s47 of the Road Traffic Act 1961 and to driving a motor vehicle on a road whilst he was disqualified from holding or obtaining a licence contrary to s91 of the Motor Vehicles Act 1959. Both offences were committed during the same course of driving. One sentence of imprisonment for 21 days was imposed. The sentence was not suspended. Also, it was ordered that he be disqualified from holding or obtaining a licence to drive a motor vehicle for a period of three years.

2. He appealed against the sentence on the grounds that it is manifestly excessive and that the learned Magistrate erred in not suspending the sentence.

3. After hearing argument, I allowed the appeal and made various orders. I said that I would publish my reasons and I now do so.

4. At about 6.25 am on 7th August 1999, police observed the appellant driving a Volvo motor car on roads at Salisbury. It was dark and only the parking lights of the vehicle had been turned on. The police stopped the vehicle and it came to rest with the front nearside wheel over the kerb and on the footpath. The appellant alighted from the vehicle and was seen to stumble forward before standing. He was unsteady on his feet. His speech was slurred and there was a smell of liquor on him which the police described as moderate. He was taken to the Salisbury Police Station and breath analysis at 6.53 am showed him to have 0.192 grams of alcohol in 100 millilitres of blood. The appellant had driven the vehicle whilst disqualified by court order made on 15th June 1999 from holding or obtaining a licence to drive a motor vehicle for 12 months. The appellant told the police that he had consumed one or two drinks with friends but drove because he and friends wanted to get some breakfast and he was in better condition than those friends. He acknowledged that he knew that he was disqualified from holding or obtaining a licence.

5. The past record of the appellant is limited to the offences of driving with the prescribed concentration of alcohol in his blood, disobeying a provision of a provisional licence and driving without due care. All of the offences occurred during the same incident of driving on 11th February 1999. He pleaded guilty to the charges of 15th June 1999 at the Adelaide Magistrates Court and was fined $700 and the order for licence disqualification which I have mentioned was made.

6. The appellant first appeared on the subject charges at the Magistrates Court at Elizabeth on 9th December 1999. He pleaded guilty to the drink driving charge and was ordered to attend for assessment by the Drug and Alcohol Services Council. He attended for that assessment and it was found that he did not suffer from alcoholism or addiction to other drugs. The matter came back on for hearing before the Court on 7th March 2000. The appellant pleaded guilty to the charge of driving whilst disqualified and the matter was further adjourned until 27th March 2000. On that day, submissions were made on his behalf by his counsel and the sentence was imposed. In addition, an order was made for licence disqualification for three years commencing on 14th June 2000.  No point was taken in this appeal about fixing the commencement of the order at a future date.

7. The submissions made to the learned Magistrate on behalf of the appellant were that he was aged 20 years and lived with his mother. He has no other previous convictions. Until recently, he had been apprenticed as a chef and was currently unemployed but hopeful of obtaining work in the near future. He is a person of good character. Various written testimonials were placed before the learned Magistrate. A brief summary of their contents is that the appellant is a gentle person who has been significantly affected by the suicide of his father when he was a young child. His association with certain persons had been detrimental to him. He is honest, trustworthy and self reliant. His former employer wrote that he was a hard worker and all times and a great asset to his company, but his employment would have to be reviewed if he was sentenced, presumably to imprisonment. The store manager of a shop wrote of the financial responsibility of the appellant. He was said to be a polite and respectful young man. His offending was regarded as out of character.

8. The learned Magistrate was informed that the appellant did not own a motor vehicle. He did not breach the order for disqualification of licence prior to the subject offence. On the night of the offences, the appellant went into the city with friends. They were drinking and returned to the home of one of the friends where the drinking continued. After a few hours, they wanted food and intended to go to a McDonald’s restaurant which was less than a kilometre away. He volunteered to drive. He gave no thought to the licence disqualification. He acknowledged that his driving was stupid and it was submitted that he would not have done so if he had been sober. The learned Magistrate was asked to suspend any sentence of imprisonment.

9. In his remarks on penalty, the learned Magistrate made an error. He said that it was a matter of aggravation that the offences were committed some two months after the order for disqualification had been made. In fact, the order was made about five months earlier. It appears that the learned Magistrate mistook the date of the conviction as the date of the first offence. The learned Magistrate, after referring to the circumstances of the offences and the matters favourable to the appellant which have been mentioned, said that the appellant’s counsel had acknowledged that imprisonment was an appropriate sentence but it should be suspended. The learned Magistrate rejected that submission. He said:

   “The view that I have about this matter is that it is appropriate to require and oblige you to serve a short sentence of imprisonment. The juxtaposition between those two offences occurring as they have less than two months apart really, in my view, indicate serious disregard on your part to the responsibilities of a citizen and the orders made by the court in Adelaide on 15 June.”

He then imposed the sentence. He ordered that the period of licence disqualification commence on 14th June 2000 at which time the previous period of disqualification would expire.

1. The penalty for a subsequent offence of driving under the influence is a fine of not less than $1,500 and not more than $2,500 or imprisonment for not more than six months. The prior conviction for the offence of driving a motor vehicle with the prescribed concentration of alcohol, by virtue of s47(4) of the Act, has the effect of the subject offence being a subsequent offence of driving under the influence for the purpose of penalty. The penalty for a first offence of driving whilst disqualified from holding or obtaining a licence is imprisonment for six months, however, the Court is empowered to impose a lesser penalty such as a fine or community service if “good reason” exists: s18, Criminal Law (Sentencing) Act 1988.

2. In my view, the learned Magistrate erred in his approach to sentencing with respect to both offences with the consequence that the sentence is manifestly excessive.

3. The correct approach is to consider the sentence for each offence separately and then, if appropriate, to impose one sentence of imprisonment pursuant to s18A of the Criminal Law (Sentencing) Act: see R v Major (1998) 70 SASR 488.

4. I do not think a sentence of imprisonment was justified for the offence of driving under the influence. Even though the offence is to be regarded as a subsequent offence and the appellant was considerably affected by alcohol, it was not in the worst category of cases of this type. The appellant had driven on the spur of the moment over a relatively short distance. There was nothing abnormal about his manner of driving. There were no features of bad driving often present in the most serious types of cases. The attention of the police was drawn to the vehicle he was driving because he had not turned on the headlights. His blood alcohol level was high but not as high as in more serious cases. He was not truthful when he told the police about the amount of alcohol he had consumed but he otherwise fully co-operated with them. These matters do not diminish the seriousness of the offence. The appellant was a menace to others who might be using the road and he must be adequately punished but, as I say, it was not the most serious type of case.

5. The personal circumstances of the appellant gave reason for a non-custodial sentence. His age, good character, otherwise responsible habits and prospects in life justified a different sentencing option. Imprisonment is, and must be, the last resort and must not be imposed unless no other sentencing option is appropriate. Whilst the learned Magistrate erred in saying that the offences occurred less than two months apart, it was, nonetheless, a significant matter that the appellant re-offended about six months after the earlier offences. However, that, in itself, does not justify such a severe punishment as imprisonment given all of the other circumstances. Parliament has acknowledged that a fine may be appropriate for other than the most serious of subsequent offences. In my view, a fine was the appropriate sentence for this offence.

6. I do not think imprisonment was justified for the offence of driving disqualified. It was put to the learned Magistrate in the course of submissions that the appellant gave no thought to the licence disqualification. The learned Magistrate did not reject that submission. He did not find that the offending was contumacious:  see Police v Cadd (1997) 69 SASR 150 at pp171 and 179. I do not think it was contumacious. It was foolish and unthinking. It was not defiant or intentionally disobedient. Consequently a custodial sentence was not necessary in order to impose just punishment. The matters which I have mentioned personal to the appellant justified other than a sentence of imprisonment.

7. As has been seen, the appellant’s counsel before the learned Magistrate conceded that imprisonment was appropriate. That concession is of little significance. It was for the learned Magistrate to determine the correct sentencing option regardless of any concession by counsel.

8. I formed the opinion that the sentencing discretion miscarried and had to be exercised afresh in the light of present circumstances.

9. I was informed that the appellant is no longer working as an apprentice chef due to behaviour on the part of his former employer. At present, his income is restricted to social security payments. A fine had to be imposed on the first charge and in an amount more than the minimum to reflect the seriousness of the offence but less than would otherwise be imposed because of his financial position. I imposed a fine of $1,700.

10. After the appellant was sentenced, he did not lodge the appeal and obtain bail until after he had been in prison for 11 days. That itself is a significant penalty for a person of his age. I thought the appropriate sentence for the offence of driving whilst disqualified, in all the circumstances, should have been community service, not imprisonment. However, as he had served 11 days in prison, I did not think any further sentence should be imposed. On this charge, I convicted him without penalty.