Justices Act 1902, s 199(1)(g), s 219

Official Prosecutions (Defendants Costs) Act 1973, s 5(2)

Road Traffic Act 1974, s 63(1)

Fine and disqualification of licence imposed by Justice set aside

Fine of $800 and disqualification of 9 months substituted

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Pingelly that on 18 November 1999 she drove a motor vehicle on a road whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to the provisions of s 63(1) of the Road Traffic Act 1974. The statement of material facts which was served upon the appellant revealed that the offence occurred at about 9.50pm on 18 November 1999 when she drove a Holden Barina on Review Street, Pingelly. She was stopped for a random breath test and it was ascertained that she had consumed alcohol. She was conveyed to the Pingelly Police Station where a breath analysis test gave a reading of .178 per cent which was calculated to have been 0.170 per cent at the time of the occurrence.

2 The appellant came before a Justice of the Peace in the Pingelly Court of Petty Sessions on 23 November when she pleaded guilty to the offence. After hearing the statement of material facts the Justice asked the appellant whether she had anything to say, in response to which she said "I was stupid and shouldn't have done it" or words to that effect. The Justice then said to her "OK, you are going to get the book ... 18 months and $1200 plus costs".

3 On 18 January 2000, Templeman J gave the appellant leave to appeal the whole of the decision of the Justice, the grounds being that in all the circumstances the sentence was harsh and oppressive and the Justice failed to take into account that the appellant had no prior convictions. The latter fact was established on the hearing of the appeal before me by production of a certified copy of the appellant's record which revealed that apart from the conviction recorded in the Court of Petty Sessions at Pingelly on 23 November 1999, she had never been convicted of any offence and further had no demerit points recorded against her name for any breaches of the Road Traffic Code. The record reveals that the appellant was born on 14 September 1954 and was thus 45 years of age at the time of her conviction.

4 On the hearing of the appeal counsel for the appellant pointed out that the fine imposed on the appellant was well above the minimum of $800 which could have been imposed and the disqualification of licence was three times the minimum. It was submitted that the minimum penalties would have been appropriate in the circumstances, as the degree of intoxication was not extremely high, the manner of driving was not untoward and the appellant was a first offender both in relation to drink driving and traffic offences generally. It was put that there were no aggravating circumstances presented to the court which would have justified the imposition of anything other than the minimum penalties.

5 Counsel for the respondent conceded that the sentence imposed by the Justice was harsh and oppressive as contended in the grounds of appeal. It was argued, however, that the blood alcohol level of 0.12 per cent was "substantial" and a "relatively high level of intoxication" which justified penalties above the minimum. When pressed, however, counsel for the respondent conceded that as the appellant has already served a disqualification of licence in excess of 9 months, the imposition of the minimum fine combined with a disqualification of licence for 9 months would, in all the circumstances, be appropriate.

6 In my view the grounds of appeal have been made out and it would be appropriate in all the circumstances to set aside the sentence imposed by the Justice and to substitute in lieu of the sentence a fine of $800 (the minimum fine which could have been imposed) with disqualification of licence for a period of 9 months, commencing 23 November 1999.

7 At the hearing of the appeal counsel for the appellant sought an order for costs. That order was sought under s 199(1)(g) of the Justices Act 1902 which provides that upon the hearing of an appeal the Court may make such order as it thinks fit including an order as to costs. This section must be read with s 219 of the Justices Act, which provides that no order for costs shall be allowed against any Justice or police officer in respect or by reason of any appeal under the Act. There is a proviso that where on an appeal brought by the police officer the decision appealed against is confirmed and involves a point of law of exceptional public importance, costs may be allowed to the respondent. That, however, was not this case. Counsel for the appellant argued that an order for costs might properly be made against the Crown as representative at the hearing of the appeal of the respondent. However, I know of no authority which would justify such an order being made, and in any event the appearance of the Crown on the hearing of the appeal was helpful to the respondent, it being conceded that the appeal had merit.

8 I was referred by counsel for the respondent to Robson v Carter, unreported; SCt of WA (Wallace J); Library No 4511; 19 May 1982. In that case it was said to be well settled that the only authority to order costs to a successful defendant against a complainant policeman where a dismissal of a complaint has been ordered in summary proceedings is that enacted in the Official Prosecutions (Defendants Costs) Act 1973. The provisions of that Act are inapplicable to a successful appellant whose appeal relates only to sentence, as s 5(2) of the Act provides that a defendant is "successful" for the purposes of that Act if the charge is dismissed, withdrawn, struck out or a conviction is quashed. Counsel for the appellant did not seek to argue any entitlement to costs under the provisions of that Act.

9 At the hearing I therefore made the following orders:

(2) The fine and disqualification of licence imposed by the Justice in the Court of Petty Sessions at Pingelly on 23 November 1999 be set aside.

(3) In lieu of the fine imposed there be a fine of $800.

(4) In lieu of the disqualification of licence imposed there be an order that the respondent's licence be disqualified for a period of 9 months commencing 23 November 1999.