Atkinson v Police No. Scciv-03-691

[2003] SASC 223

ATKINSON  v  POLICE
[2003] SASC 223

Magistrate’s Appeal

PRIOR J:

1. On 26 May 2003 the appellant pleaded guilty to driving without due care on the Sturt Highway at Greenock.  She appeals against the sentence imposed by the Magistrate.  He convicted the appellant, fined her $300 and ordered her to pay costs and fees of $139.  No complaint is made about that.  However, the Magistrate described the matter as “a very serious charge of driving without due care” and disqualified her from holding or obtaining a driver’s licence for 21 days from 31 May 2003.

2. The prosecutor told the Magistrate that at about 8.30 am on Sunday 23 February, police on patrol on the Sturt Highway near Seppeltsfield observed a white car on the southern side of the highway in a paddock.  A tow-truck was in attendance.  The appellant admitted to police that she was the driver of the vehicle at the time of the accident.  There were tyre markings on the northern side dirt verge of Sturt Highway some 250 metres from the car.  The vehicle had left the bitumen there, the driver having lost control.  The car appeared to have skidded across the highway and gone through a fence and into a paddock on the southern side of the highway.  There were black skid marks on the road to indicate the apparent course of the vehicle. 

3. The prosecutor told the Magistrate that the appellant said she was travelling about 100 to 110 km per hour.  It was foggy.  She did not know the car but said that it had a V8 engine.  She could offer no explanation as to why the accident had happened, but admitted that she was not concentrating at the time.  The Magistrate was told that the appellant did not have any previous convictions.

4. The appellant was represented by counsel.  Counsel told the Magistrate that the appellant was 28 years of age, the mother of a young child.  He described the events surrounding the accident as a momentary loss of concentration on the appellant’s behalf.  He said that she was not affected by alcohol and was driving within the speed limit.  As to the damage caused to the property adjoining the road, this had been fully paid for before the appellant received the complaint.  The appellant’s counsel in answer to a question by the Magistrate, said that this was evidence of her contrition.  It was put to the Magistrate that the appellant had learnt a lesson from this incident to be more careful in the future and that she was embarrassed that she had to be involved in court proceedings.  Counsel told the Magistrate that the appellant was going to be extra careful and not place herself in a situation like this again.  It was submitted that this was not a particularly serious case of driving without due care. 

5. Counsel sought to emphasise the fact that this was the appellant’s first offence of any kind.  Her only income was a pension.  She paid rent but had no other fixed commitments.  Counsel submitted that the most appropriate penalty was a modest fine.  However, the Magistrate asked counsel to address him on the issue as to why the appellant should not have her licence disqualified.  As to that, counsel put that as a single mother with a young daughter totally reliant upon her, she lived in an area where there was no public transport.  Loss of licence would therefore be devastating.  The appellant could not travel to meet her daughter’s or any other commitments without a licence.  Besides reliance upon the absence of any previous convictions, contrition and the fact that the damaged caused to the fence had been paid for, counsel sought to persuade the Magistrate that there were no aggravating features to the offence.  An accident caused by momentary loss of concentration did not warrant the exercise of the power to disqualify the appellant from holding or obtaining a driver’s licence.

6. In a further affidavit filed in this Court, the appellant adds that her daughter now attends kindergarten at the Nuriootpa Child Learning Centre three times a week.  It takes 10 minutes to drive the 10 kilometres from the appellant’s house to Nuriootpa.  There is no public transport between Nuriootpa and Greenock.  The appellant also says her daughter is about to start attending school.  It would be severely disruptive of her daughter’s routine if she was required to miss kindergarten for three weeks.  The appellant says she is not able to get to Nuriootpa any other way than by driving herself.  She says she has only lived in Greenock for some 15 months and does not know many people.  Her mother lives some 70 kilometres away, her brother on the eastern side of the city.  All other relatives live on the York Peninsula or interstate. 

7. The appellant also says that a loss of licence would confine her to her home for the period of the disqualification order.  Local shopping is in Gawler 25 kilometres away.

8. The appellant further says that she is concerned that she would be stranded at home and unable to take her daughter to hospital in a medical emergency.  She refers to having to drive her daughter to Haughton to spend weekends with her father.

9. With respect to the circumstances of the offence, the appellant says in her affidavit in this Court that on 23 February she was driving home at about 7.30 am in the morning.  Her daughter was at her father’s house for the weekend.  She acknowledged that the surface of the road was quite uneven.  She says that there is a sign warning of the rough surface and that at this time “there was quite a bit of fog around”.  She asserts that she momentarily lost concentration and accidentally veered onto the wrong side of the road and into the ditch with the V8 utility hitting a fence.

10. Before this Court it is submitted that the Magistrate’s remarks do not reveal how his Honour came to the conclusion that he should exercise his discretion to impose a period of licence disqualification.  It is said that the Magistrate erred in describing the appellant’s driving without due care as very serious and erred in failing to give sufficient weight to the fact that the collision was a minor accident, with no features of aggravation.  It is said that the Magistrate failed to give sufficient weight to the personal circumstances of the appellant. 

11. There is no doubt that a licence disqualification is a substantial punishment for most people.  It must not be an additional punishment over and above other penalties imposed, which is not warranted by the offending.[1]  In considering the exercise of the power to disqualify, a Court has to have regard to any particular hardship which it would cause to a particular person[2].  Even where disqualification is mandatory, a lesser disqualification can be imposed where a person lives in a remote rural area without access to facilities.

    [1] Learwood v Drinkwater (1986) 43 SASR 547 and Boemhn v Milham (1980) 24 SASR 98

    [2] Scott v Longley (1980) 23 SASR 278

12. It is proper for this Court to be slow to interfere with the exercise of a sentencing discretion. It was plainly within the Magistrate’s power to contemplate a licence disqualification for a breach of s 45 of the Road Traffic Act. 

13. In his brief sentencing remarks the Special Magistrate spoke of the breach being ‘very serious’.  No doubt that remark reflected concern for the fact that the appellant was driving at a relatively high speed in foggy conditions.

14. It must be acknowledged that the power to disqualify for breaches of s 45 of the Road Traffic Act is appropriately exercised for the most serious examples of that offending. So too where the offending is very serious or not that and all the circumstances warrant it. The complaint in this case did not allege that the appellant drove without due care or without reasonable consideration for other persons using the road. Had she been charged with driving without due care and without reasonable consideration for other persons using the road the magistrate’s finding that the offending was very serious would be difficult to challenge in this Court. However that was not the charge. It was simply that of driving without due care. The prosecution did not assert that other road users were endangered. It was early on a Sunday morning. The road was uneven. The appellant drove without due care by her speed in the unfamiliar vehicle and thus endangered herself through inattention. On that basis I think the offence charged and admitted to was not a very serious breach of s 45. At most it was serious.

15. The circumstances of the offence might have justified disqualification for a lesser period than that fixed by the magistrate.  However, for myself, once the personal circumstances of the offender are taken into account I could not substitute a lesser period of disqualification for that which was in my view both manifestly excessive and imposed upon a dubious finding that the offence admitted to was very serious. 

16. In exercising the sentencing discretion afresh with respect to disqualification, I acknowledge and consider the exercise of that power but decline to exercise it given the charge actually laid, the accepted circumstances of the offending and the appellant’s personal circumstances. 

17. I therefore allow the appeal and set aside the disqualification order but otherwise affirm the penalty imposed by the magistrate.  There will be no order as to costs.

18. I would allow the appeal for the purpose of setting aside the order for disqualification.