The applicant seeks an extension of time and leave to appeal to this Court. For the reasons I have just given, and because the delay is not great, both the extension and leave should be granted. However, the respondent contends that, in any event, the decision of the learned Magistrate was plainly right and consequently the appeal to this Court should be dismissed.

There is no doubt that the learned Magistrate was influenced in imposing the sentence of seven days' imprisonment by his view that that was mandatory. However, the respondent concedes that in the circumstances of this case, that was not correct.

The applicant had twice previously been convicted of driving under the influence of liquor. The first of those occasions was on 30 November 1995 when he had a blood alcohol reading of 0.193 per cent. The second was on 9 January 1998 when he had a blood alcohol reading of 0.164 per cent. On each of those occasions he was substantially fined and disqualified from holding or obtaining a driver's licence for 16 months. The learned Magistrate appears to have acted in accordance with s 79(1C) of the , which provides that in circumstances where an offender has within five years been twice convicted under that subsection, the Court shall in respect of the offence impose, as a whole or part of the punishment, imprisonment. However, the circumstance requiring that aggravated penalty was not properly alleged. See s 47(4) and (5). It was accepted by the respondent in this case that no notice of the kind referred to in subsection (5) was served. In the circumstances, it is conceded that the learned Magistrate was in error in believing that he was obliged to impose a mandatory prison sentence.