WHITROW v Police - [2015] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITROW v POLICE
[2015] SASC 17
Reasons for Decision of The Honourable Justice Nicholson
16 February 2015
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
The appellant was charged with various road traffic offences, including one count of driving whilst having the prescribed concentration of alcohol in his blood contrary to s47B of the Road Traffic Act 1961. The appellant’s offending occurred in circumstances where he was driving himself to the closest hospital, having suffered a gaping wound to his hand following a chainsaw accident at his home. Prior to his departure, the appellant had sutured the wound with fishing line, consuming a large amount of alcohol in the process so as to alleviate the pain of doing so. The appellant’s reading was 0.175.
After pleading guilty to all offences in the Magistrates Court, the appellant brought an unsuccessful application to have the drink driving offence dealt with as trifling pursuant to s47B(3)(b) of the Act. The premise of that application was that the appellant’s urgent need to seek medical attention, inability to afford the cost of an ambulance, and lack of alternative transport constituted exceptional circumstances such that his offending should be considered trifling.
The appellant now appeals against the Magistrate’s dismissal of that application.
Held: Appeal dismissed. The Magistrate was correct to find that the offending was not, in all the circumstances, trifling.
Road Traffic Act 1961 s47A, s47B; Motor Vehicles Act 1959 s75A, referred to.
SA Police v Hodge (1996) 89 A Crim R 290; Police v Ludlow [2008] SASC 43; Siviour-Ashman v Police [2003] SASC 29; Williams v May [1908] VicLawRp 85, [1908] VLR 605; Police v Fargher [1999] SASC 206; Police v Mutton [2006] SASC 328; Mancini v Vallelonga (1981) 28 SASR 236; Verran v Roberts [1938] SASR 256; Campbell v Fuss (1991) 55 SASR 355, considered.

WHITROW v POLICE
[2015] SASC 17
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal from a determination by a Magistrate that an offence of driving with the prescribed concentration of alcohol was not trifling.
The appellant, the holder of a learner’s permit, was charged, by way of complaint and summons dated 5 March 2014, with the offence of driving whilst having a prescribed concentration of alcohol in his blood contrary to s47B of the Road Traffic Act 1961 (the Act). In addition, the appellant was charged with: failing to stop at an intersection, contrary to Rule 67(1) of the Australian Road Rules; driving without displaying two “L” plates, contrary to s75A(15)(b) of the Motor Vehicles Act 1959; driving without the presence of a qualified supervising driver, contrary to s75A(14) of the Motor Vehicles Act; and breaching the terms of his learner’s permit by driving with a prescribed concentration of alcohol contrary to s75A(14) of the Motor Vehicles Act. All of the offences occurred on the afternoon of Friday 7 February 2015 at Aldinga, in circumstances which will be explained shortly.
The appellant’s blood alcohol concentration of 0.175 grams in 100 millilitres of blood qualifies as a “category 3 offence” pursuant to s47A of the Act. The prescribed mandatory period of licence disqualification in the case of a category 3 offence (where, as here, a first offence) is not less than 12 months. The only[1] way in which that mandatory disqualification period can be reduced is by exercise of a discretion available only on the basis of a successful application, under s47B(3)(b), supported by evidence from the applicant on oath, that the offence was “trifling”. Upon such a finding a court may reduce the period to less than 12 months but not less than one month.
[1] Subsection 47B(3)(b) of the Act.
On 28 May 2014, the appellant succeeded with an application in the Magistrates Court to have his immediate licence disqualification lifted pursuant to s47IAB of the Act. That provision enables a court to temporarily lift a licence disqualification in circumstances where there is a reasonable prospect that the applicant might, in proceedings for the offence to which the disqualification relates, successfully argue that the offence was trifling. At the time of obtaining this order the appellant had been disqualified from driving for a period of three months and three weeks. The appellant submits that this is a sufficient period of disqualification given the “trifling” nature of the offending.
On 23 September 2014, the appellant pleaded guilty in the Christies Beach Magistrates Court to the five offences as charged. He then applied to have the drink driving offending characterised and dealt with as “trifling” pursuant to s47B(3)(b) of the Act. The appellant gave oral evidence and was cross-examined by counsel for the prosecution.
The Magistrate delivered reasons, on 3 October 2014, dismissing the application and adjourned the matter to 1 December 2014 for submissions as to sentence. In the intervening period the appellant filed a notice of appeal, dated 28 November 2014, challenging the Magistrate’s dismissal of his trifling application. The sentencing submissions did not proceed and the matter was further adjourned pending the outcome of this appeal.
The appellant’s notice of appeal contains the following grounds:
That whilst the Learned Magistrate was prepared to accept the appellant’s version of events, he ruled that those circumstances did not amount to trifling.
That His Honour placed too much emphasis on the alternative means of transport is excluding a finding of trifling.
That the Learned Magistrate failed to recognise the urgency in attending the hospital for medical attention.
The factual background to the offending
The appellant’s evidence as to the circumstances leading up to the offending was, by and large, adopted by the Magistrate.
On 7 February 2014, the appellant was at home in Port Willunga. He needed to clear tree branches in order to facilitate access by workmen who were repairing his air conditioning unit. While using a chainsaw he cut the back of his hand near the base of his thumb resulting in a gaping wound.
The appellant telephoned his local doctor in Aldinga who advised him that the wound ought to be examined by a surgeon. The appellant then called the emergency department of the Noarlunga Hospital and was told that the department was extremely busy and that it could be more than 10 hours before he might be treated. The appellant telephoned the Flinders Medical Centre and was advised that its emergency department was in a similar position such that the delay before treatment would also be several hours. He had not consumed any alcohol to this point.
The appellant became concerned that, if left untreated, there was a serious risk that his wound would become infected. He found a large sewing needle and some fishing line and commenced suturing the wound himself. Not having any antiseptic in the house, the appellant used gin to wash the wound. The process of stitching the wound was, not surprisingly, quite painful. The appellant therefore also drank the gin which proved to be an effective form of pain relief. The appellant managed to suture the wound with four neat stitches. He took photographs of the process which were admitted into evidence before the Magistrate.
Upon completing the suturing, the appellant formed the view that the wound required professional treatment to avoid or limit the risk of infection. By this stage the workmen had left and the appellant was home alone. He tried to call his wife who was at work but was unable to reach her. He therefore resolved to drive himself to the nearest hospital.
After failing to stop at an intersection on Main South Road, he attracted the attention of a patrolling police vehicle and was pulled over. An alco-test was administered, followed by a further breath analysis test at the nearest police station. He recorded a blood alcohol concentration of 0.175 grams of alcohol in 210 litres of breath, that being the equivalent of 0.175 grams of alcohol in 100 millilitres of blood. The appellant was issued with a notice of immediate licence disqualification.
The Magistrate’s reasons for dismissing the application
The Magistrate accepted the appellant’s account of the circumstances leading up to the offending. His Honour recognised that the appellant was concerned about the risk that his wound, though stitched, may soon become infected. He noted that the appellant was in a relatively isolated place, was unable to contact his wife and had reached the conclusion that he had a choice of either calling an ambulance or driving himself to the hospital. The appellant’s evidence was that he could not afford the cost of calling an ambulance which he estimated at approximately $800. However, the Magistrate observed that, as conceded by the appellant under cross-examination, he also had the option of calling a taxi. I add that there also were the options of asking one of the workmen (before they left) to drive the appellant to the hospital or a medical centre or of investigating whether a neighbour was available. During cross-examination, the appellant made the following concession – “I would say it was bad judgment on the day and you’re right I could have had better options”.
The Magistrate was referred to the decision of Police v Hodge.[2]In that case a woman was found to have a blood alcohol content of 0.156 after being pulled over whilst driving from a hotel in North Adelaide to the Royal Adelaide Hospital. The woman had elected to drive to the hospital after a male friend had collapsed on the footpath, suffering cuts and abrasions and becoming groggy and unresponsive. Debelle J refused to interfere with a Magistrate’s finding that the offending was trifling. However, his Honour remarked that the case was on the borderline.
[2] SA Police v Hodge (1996) 89 A Crim R 290.
The Magistrate in this matter found that the circumstances of the appellant’s offending were distinguishable from those in Hodge. In comparing the two, his Honour drew the following conclusions:
I agree there are similarities but there are also significant differences. The perceived medical emergency in Hodge occurred in North Adelaide and Ms Hodge was driving to the RAH only a short distance away. [The appellant] had a much longer distance to travel. In my view there was more urgency in Hodge where the passenger was at best semi-conscious and his true condition was unknown to Ms Hodge. No doubt [the appellant] was in pain but was otherwise conscious and alert, certainly alert enough to suture his own wound unaided. In Hodge Debelle J said ‘where a defendant asserts there is an emergency the court should examine the perceptions of a defendant and objectively examine those perceptions when determining whether in truth there was an emergency which justified driving.’ He also said the circumstances in Hodge were very much on the borderline of what constitutes a trifling offence.
In my view [the appellant’s] case is some distance from that borderline. I expect his blood alcohol level of 0.175 may have clouded his perception of his circumstances. I admire [the appellant’s] courage and his tolerance to pain but I do not admire his judgment. He had other options he should have chosen. In my opinion this was not a trifling offence.
What is a trifling offence?
I agree with White J in Police v Ludlow[3] that the characterisation of an offence as “trifling” under s47B of the Act does not involve the exercise of a discretion. It entails a conclusion that sufficient circumstances existed so as to enliven the discretion under s47B(3) to reduce the term of the otherwise mandatory disqualification period. The question on appeal is whether the Magistrate’s conclusion was wrong in the sense that it was not reasonably open having regard to all of the relevant circumstances of the offence.
[3] See Police v Ludlow [2008] SASC 43 at [15].
The word “trifling” is not defined in the Act. However, the question of what constitutes a trifling offence for the purposes of s47B was considered in some detail by the Full court in Siviour-Ashman v Police[4] and by White J in Police v Ludlow.[5] In the latter case, White J conveniently summarised various relevant considerations, according to the case law.[6]
[4] [2003] SASC 29.
[5] [2008] SASC 43.
[6] At [13].
It has been said that it is probably impossible and certainly unwise for the courts to lay down any hard and fast rules as to what is meant by an offence of a trifling nature.[7] Nevertheless, a number of relevant considerations can be identified from the large number of cases in which the question has been considered in the context of s 47B of the RTA, and in particular from the recent Full Court decision in Siviour-Ashman v Police.[8] I summarise these as follows:
(a)the word “trifling” in s 47B of the RTA is used to mean of slight importance, insignificant or of little moment;[9]
(b)the focus of the Court’s consideration must be on the conduct constituting the offence but regard may also be had to the circumstances which explain how the offence came to be committed;[10]
(c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions;[11]
(d) an offence which is a normal or typical example of its type will not be trifling.[12] Section 47B(3)(b) must be understood as intended to deal with the unusual or exceptional case, the circumstances of which call for the usual minimum to be put to one side.[13] Campbell v Fuss[14] was such a case as the defendant, who had not earlier been driving the vehicle, was intending only to adjust the position in which it was parked;
(e) a lack of realisation by the defendant that he/she had or might have the prescribed concentration of alcohol is generally not relevant, but a soundly based belief falsified by events over which the defendant had no control may be relevant;[15]
(f) a belief that circumstances exist justifying the conduct engaged in might make an offence trifling, eg, driving in necessitous circumstances to fulfil some humanitarian purpose;[16]
(g) it has been said that when the breach is deliberate it can rarely be described as trifling[17] but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.
[7]    Williams v May [1908] VicLawRp 85; [1908] VLR 605 at 608; Siviour-Ashman v Police [2003] SASC 29 at [61]; [2003] SASC 29; (2003) 85 SASR 23 at 34-5 per Besanko J.
[8]    Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23.
[9]    Siviour-Ashman v Police at [24], 27 per Doyle CJ.
[10] Siviour-Ashman v Police at [29], 28 per Doyle CJ; [61], 34-5 per Besanko J; Police v Fargher [1999] SASC 206 at [15] per Perry J.
[11] Police v Hodge (1996) 89 A Crim R 290 at 291 per Debelle J; Siviour-Ashman v Police at [63], 35 per Besanko J; Police v Mutton [2006] SASC 328 at [17]; (2006) 246 LSJS 153 at 156 per Sulan J.
[12] Siviour-Ashman v Police at [25], 27-8 per Doyle CJ. See also Mancini v Vallelonga (1981) 28 SASR 236 at 239 per Mitchell J.
[13] Verran v Roberts [1938] SASR 256 at 259-60 per Napier J; Mancini v Vallelonga (1981) 28 SASR 236 at 239; Siviour-Ashman v Police at [25], 25-8 per Doyle CJ.
[14] (1991) 55 SASR 355.
[15] Siviour-Ashman v Police at [35], 30 per Doyle CJ.
[16] Siviour-Ashman v Police at [36]-[37], 30 per Doyle CJ, at [61], 34-5 per Besanko J.
[17] Mancini v Vallelonga (1981) 28 SASR 236 at 239 per Mitchell J.
The appellant’s submissions
The appellant submits that, having regard to all of the circumstances of his offending, the Magistrate erred in failing to find it was trifling. In this respect, the Magistrate placed too much emphasis on the alternative means of transport available to the appellant in getting to the hospital. The appellant had previously called taxis to his residence that had failed to arrive, was of the view that he would be unable to afford an ambulance and had not been able to contact his wife. It was in these circumstances that he chose to drive himself to hospital.
The appellant also submitted that, even though his wound had been sutured, his lack of medical training and inability to apply a proper disinfectant meant that there was still a pressing need to have the wound professionally seen to. The Magistrate should have found that the appellant, acting reasonably, had a genuine belief as to an urgent need for medical attention.
Other submissions by the appellant included: that, even though he only held a learner’s permit, he was an experienced driver having held a full licence for 10 years in California; that, as such, his driving on 7 February 2014 did not create a risk to the general public due to inexperience; and that the actual offending that attracted the attention of police (failing to stop at a stop sign whilst travelling at approximately 5km per hour) was itself trivial and did not cause any embarrassment or safety concerns to other road users.
Consideration
The appellant knew that he had consumed a considerable amount of alcohol when he elected to drive. I agree with the Magistrate that the situation the appellant found himself in was not sufficiently serious as to justify his actions on the basis of a pressing humanitarian purpose or other necessitous circumstance. There were other options available such as calling an ambulance or a taxi or approaching a workman or a neighbour. None of these were explored before the appellant decided to drive himself. Furthermore, the appellant’s very high blood alcohol content, combined with the fact that his journey, had it been completed, would have required him to traverse the main arterial road of Main South Road on a Friday afternoon, meant that he posed a clear danger not only to himself but to other road users.
Even if the appellant’s driving had not been adversely affected by the level of intoxication,[18] this would be of no great significance to the question of whether the offending was trifling. In Siviour-Ashman v Police[19] Doyle CJ, in the context of a trifling application where there was no evidence to suggest the appellant felt the effects of her alcohol intake or had an impaired ability to drive a motor vehicle, observed:
If attention is confined in the present case to the conduct constituting the offence, it is a typical offence of its type. The appellant drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant’s driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by person with the prescribed concentration of alcohol in their blood.[20]
[18] Although there is no evidence to this effect and I expect that such a conclusion, if fully tested, would be found wanting.
[19] [2003] SASC 29.
[20] At [26].
Hodge is distinguishable on the facts. As Debelle J observed, the offending there was very much on the borderline of what might constitute a trifling offence. In Siviour-Ashman v Police, Doyle CJ expressed the view that the offending in Hodge was on the wrong side of the borderline. In Hodge the appellant’s urgency to get behind the wheel derived from her concern for the wellbeing of another individual, one who was semi-conscious and largely unresponsive. In the present case the appellant was fully cognisant of the predicament he faced. Objectively speaking, there was no immediate emergency. The need to have the wound appropriately treated was of course very important, but not so important as to justify him driving in a highly intoxicated state a substantial distance on public roads including a busy arterial road.

I am also not persuaded by the appellant’s reasons as to why he elected to drive as opposed to seeking out alternative modes of transport. Apart from the appellant’s assertion that he could not afford the cost of an ambulance, there was no evidence which would support such a finding. The appellant also said that he did not know his neighbours. However, there was nothing to prevent him from inquiring whether they were home and willing to drive him to the nearest hospital. It was also not beyond the appellant to have enquired, at least, as to the length of time a taxi would take to get to his premises. He could have advised the operator of the urgency of his situation which may have rendered it more likely that a taxi would arrive promptly.
Conclusion
The appellant must have known that it was highly likely that he was substantially over the limit when he decided to drive, yet he elected to run that risk. He had other potential alternatives which he failed to explore. Objectively his actions were extremely dangerous. The difficult circumstances he found himself in did not justify his decision to get behind the wheel and put the wellbeing of both himself and others into serious jeopardy. Only in rare and exceptional circumstances will a finding of trifling with respect to offending of this nature be made.[21] I have had regard to the various considerations identified by White J in Police v Ludlow and the balancing exercise called for. The circumstances the appellant found himself in were not sufficiently atypical as to justify his decision to drive whilst intoxicated. None of the appellant’s three grounds of appeal has been made out and the Magistrate was correct to find that the offending was not “trifling” within s47B(3)(b) of the Road Traffic Act.
[21] Police v Mutton [2006] SASC 328 at [15] (Sulan J).
I dismiss the appeal and remit the matter to the Magistrates Court for sentencing.