Wilkins v Police No. Scciv-03-5

[2003] SASC 23

WILKINS v POLICE
[2003] SASC 23

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)    The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Port Adelaide on 10 December 2002 following his plea of guilty to a charge that he failed to submit to a breath analysis, that offence having been committed on 21 December 2001 at Ottoway.

2. In his notice of appeal, the appellant states that he also appeals against the conviction . He has made it clear during the course of his submissions on the hearing of the appeal that his only complaint is with respect to the sentence.

3. He was represented by counsel before the magistrate but he represented himself before me on the hearing of the appeal.

4. The immediate circumstances of the offence are set out in the affidavit of the police prosecutor, Steven Bradfield. He explained to the magistrate that the offence occurred at about 6.20 pm on the day in question when the defendant drove his motor car on Eastern Parade at Ottoway and was apprehended at a random breath testing station.

5. An alcotest recorded a positive reading of 0.106 per cent. When the defendant questioned that result, he was given an opportunity to provide another sample, the outcome of which is not stated. He was then conveyed to Francis Street at Port Adelaide where he was to undergo a breath analysis test. When this test was applied he failed to provide a sufficient sample of breath.

6. Following a demonstration of what was required of him, he made three further attempts, but without a reading being obtained. He was thereupon charged with failing to comply, following which he was given his blood rights, which he declined to exercise.

7. He explained to the police officers that his last drink had been at about 4.00 pm and that he had only consumed “two beers”.

8. The appellant was 40 years of age when he appeared before the sentencing magistrate. He is single but has two children, having separated from their mother. Indeed, it appears he separated in August or September immediately prior to the occasion when the offence was committed.

9. He completed a science degree some years ago at Adelaide University and eventually found work in the computer industry. At the time he was sentenced he was employed with DPS Technology at Kilkenny with whom he has informed me he is still employed.

10. Apparently the sentencing magistrate was told that in fact the appellant had consumed four stubbies at a social occasion, namely Christmas break-up drinks at his work, which he attended before being apprehended.

11. The sentencing magistrate observed in his sentencing remarks that the appellant had become irrational and had started screaming when he was asked to comply with the requirement to provide a sample of his breath.

12. The magistrate proceeded to impose 80 hours of community service to be completed within eight months, and he disqualified the appellant from holding or obtaining a driver’s licence for a period of 18 months commencing on 11 December 2002, that is, the day after he was dealt with in the Magistrates Court. It is from the disqualification of his licence that the present appeal is brought.

13. In his submissions, the appellant explained that at the time he was unable to cope satisfactorily with life due to the stresses occasioned by his break-up with his wife. He was living on his own, his wife having custody of his children. He attributes his failure to comply with the request to provide a sample of his breath to the stress that he was under at that time. He maintains that he had no more than four stubbies referred to by the sentencing magistrate and that these were spaced drinks, the implication being that it is unlikely that he was over the legal limit. This, however, is contrary to the alcotest reading.

14. The appellant had a prior record of offences, more particularly traffic offences. These include four convictions for driving whilst disqualified which the sentencing magistrate regarded as irrelevant. However, he did take into account a conviction in August 1991 for the same offence, that is, failing to submit to a breath analysis. On that occasion, the appellant was fined and his licence disqualified until further order. However, as the sentencing magistrate pointed out, that was some 11 years before the present sentence was imposed.

15. The last relevant conviction is some six years before the present sentence was imposed, and I think that in all the circumstances, the prior record was only marginally relevant for the purposes of fixation of a sentence for the present offending.

16. The appellant has not been able to point to any manifest error on the face of the sentencing remarks delivered by the sentencing magistrate. Mr Grant, who appeared for the respondent, emphasised that circumstance and the fact that, as he put it, the sentence was arguably within a proper exercise of sentencing discretion, even although opinions might differ as to the appropriate sentence to be imposed.

17. Under the relevant sections of the Road Traffic Act, it was incumbent on the magistrate to impose a licence disqualification for a period not less than twelve months.

18. Even although, as I have indicated, there is no manifest error on the face of the remarks of the sentencing magistrate, in my view, the sentence imposed indicates that it is likely that the magistrate failed to make a proper allowance for the stress under which the appellant was suffering at the time.

19. Soon afterwards, following another drink driving incident, the appellant sought treatment from a psychiatrist. There is no suggestion that the stress that he was under at the time was other than genuine.

20. In my opinion, this is one of those cases where the sentence imposed, more particularly the licence disqualification, is, on the face of it, excessive in the sense that if proper allowance had been made for the personal circumstances of the appellant, the requirements of justice might have been met by the imposition of the minimum penalty of twelve months disqualification. This is, of itself, a substantial penalty.

21. In all the circumstances, the appeal is allowed. The sentence of 18 months disqualification is quashed and in lieu thereof I impose a sentence of 12 months suspension to date from the same date, that is, from 11 December 2002.

22. Mr Wilkins, you appeared in person so there is no question of any costs.

23. Do you understand that you have got a 12 month suspension, which is the minimum. I warn you that you must not drive during that period of suspension because you cannot expect any leniency from the court if you drive. You must adhere to the suspension.