BAKER v Police - [2007] SASC 377

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BAKER v POLICE
[2007] SASC 377
Judgment of The Honourable Justice Sulan (ex tempore)
17 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
The appellant pleaded guilty to driving without due care, contrary to s 45(1) of the Road Traffic Act 1961 - the appellant was unrepresented - he has no previous convictions for driving related offences - at no stage prior to sentencing did the Magistrate indicate to the appellant that she was considering imposing a penalty of licence disqualification - the Magistrate disqualified the appellant from holding a licence for a period of six months - no reasons were given for the sentence imposed - whether Magistrate erred in not warning the appellant that she was considering imposing a sentence disqualifying him from holding a licence - whether Magistrate erred in failing to provide reasons - whether sentence manifestly excessive - appeal allowed - appellant re-sentenced.
Road Traffic Act 1961 (SA) s 45, s 164A, s 168, referred to.
Frank v Police [2007] SASC 288; R v Diesing (unreported, S5858, Court of Criminal Appeal, 23 October 1996).; Stoeckel v Police (2002) 36 MVR 481, considered.

BAKER v POLICE
[2007] SASC 377
Magistrates Appeal

SULAN J (ex tempore): The appellant pleaded guilty before a Magistrate to driving a motor vehicle without due care on 18 April 2007, at Anzac Highway, contrary to s 45(1) of the Road Traffic Act 1961 (‘the Act’). It is alleged in the complaint that the offence is a basic offence.
Section 146A of the Act provides that the penalty for driving without due care is a fine not exceeding $2500.
Section 168(1) of the Act provides that if a person is convicted of an offence under the Act, the court may order that the person be disqualified from holding or obtaining a driver’s licence for a period fixed by the court or until further order.
Section 45(2) provides that if a person is convicted of an aggravated offence of driving without due care, the court may imprison the person for up to 12 months and must order that the person be disqualified from holding or obtaining a driver’s licence for a period of not less than six months. The disqualification period is mandatory.
Pursuant to s 45(3), an offence is an aggravated offence if the conduct causes the death of, or serious harm to, a person. The complaint must specify the circumstances alleged to aggravate the offence, if it is alleged that the offence is aggravated.
In this case the offending was not alleged to be an aggravated offence. The complaint specified that it was a basic offence. It follows that there was no mandatory requirement to suspend the licence.
The appellant was unrepresented. He pleaded guilty. The facts alleged by the prosecution were that at about 12.30 am on 18 April 2007, the appellant was driving his car in an easterly direction along Anzac Highway. At the intersection of Anzac Highway and South Road, the appellant intended to turn right to travel in a southerly direction along South Road. He failed to observe a vehicle travelling in a westerly direction along Anzac Highway. He failed to give way and failed to stand. His vehicle collided with the vehicle which was travelling through the intersection in a westerly direction. No serious injuries were caused as a result of the accident. The appellant admitted that he had been driving carelessly.
Before me, the appellant confirmed the circumstances of the offence. He submitted that he had stopped at the traffic lights. He did not see the vehicle as he progressed into the intersection. The other vehicle came into collision with his vehicle. It is clear that he drove without due care.
This type of accident is not uncommon. Drivers commonly fail to observe vehicles or misjudge the speed of vehicles travelling in the opposite direction and effect a right-hand turn across the path of oncoming vehicles, thereby causing an accident.
The appellant has no previous driving offences. This is an offence which would usually not incur a period of disqualification of driver’s licence, particularly if the offender has no prior driving convictions.
The Magistrate imposed a licence disqualification of six months. She ordered that the appellant pay costs, court fees and levies totalling $201. The Magistrate gave no reasons for her decision, nor did the Magistrate warn the appellant, who was unrepresented, that she was considering imposing a disqualification of his driver’s licence.
The appellant appealed the sentence on the grounds that the sentence was manifestly excessive and that the Magistrate failed to inform him, prior to sentencing, that she was considering suspending his driver’s licence. He also complains that the Magistrate failed to give reasons.
Counsel for the respondent conceded the Magistrate fell into error in two respects. First, the learned Magistrate did not warn the appellant that she was considering suspending his driver’s licence. The appellant was unrepresented. In the case of an unrepresented defendant, if a magistrate is considering exercising his or her discretion to disqualify or suspend a defendant’s driver’s licence, it is incumbent upon the Magistrate to indicate to the defendant that she is considering making such an order. [1] An unrepresented defendant is unlikely to fully appreciate the significance of a licence suspension and may wish to obtain advice, or place material before the Magistrate relevant to the exercise of the Magistrate’s discretion. Unrepresented defendants are not commonly aware of all relevant matters that should be placed before the court in mitigation of penalty and are unlikely to inform the court of all relevant matters relating to penalty, particularly those matters that may affect the person if their licence is suspended.
[1] See, Stoeckel v Police (2002) 36 MVR 481.
In this case, if the Magistrate had informed the appellant that she was contemplating suspending his driver’s licence, relevant matters relating to the hardship which such an order would cause, particularly in respect of the appellant’s employment, could have been placed before the Court.
The failure of the Magistrate to give reasons was conceded as a second error. I am aware that magistrates have a significant case load and may deal with numerous pleas of guilty during the course of a day. I am also aware that a magistrate may be required to hear and determine many cases concerning breaches of the Act during the course of disposing of a day’s list. Nevertheless, if a Magistrate determines to exercise his or her discretion to suspend a person’s driver’s licence, the magistrate should indicate the basis upon which the magistrate has made such a determination.
Failure to give reasons does not of itself invalidate the sentence. However, if a magistrate does not give reasons, that may amount to an error, particularly when a defendant’s livelihood and employment may be affected.
If reasons are not given, the defendant is not informed of the basis of the decision, nor is it possible for an appellate court to know upon what bases the Magistrate has exercised his or her discretion. Sufficient reasons, albeit that they may be brief, should be given to enable both this Court and the defendant to understand why the Magistrate has imposed what, on the face of it, might appear to be a heavy penalty.
Counsel for the respondent has conceded that in the light of the errors made by the magistrate, this Court should allow the appeal and re-sentence the appellant.[2]
[2] See eg, Frank v Police [2007] SASC 288 and R v Diesing (unreported, S5858, Court of Criminal Appeal, 23 October 1996).
The appellant is 21 years of age. He has been driving for three years. He has no prior convictions for traffic offences or any other offences. The appellant works as a night-filler for Woolworths at Glenelg. He lives at Trott Park which is about 25 minutes drive from his place of employment. He normally commences work between 4 pm and 6 pm and finishes work between 11 pm and 1 am He requires his car in order to drive home from work.
He was suspended from driving a motor vehicle on 14 August 2007 and, to date, he has not driven. He did not seek to have his licence reinstated pending appeal.
Over the past two months he has had to make other arrangements to get to and from work. When he finishes work, he has had to make arrangements to stay with friends who have residences near his place of work. Alternatively, he has obtained a lift home from work with other work colleagues or he has caught taxis. This has caused him considerable inconvenience and expense.
The appellant is a volunteer member of the State Emergency Services. He has been unable to attend call-outs as a volunteer since the suspension of his driver’s licence.
The appellant has paid the court costs and other levies of $201.
This offending would not usually result in a person’s licence being suspended if a person is a first offender. The sentence was manifestly excessive.
In re-sentencing the appellant, I take into account that he has now served a period of licence suspension of two months. He has been severely inconvenienced and put to expense as a consequence. I do not consider that any further penalty is warranted.
The appeal is allowed. The order of the Magistrate suspending the driver’s licence of the appellant for six months is set aside. The orders for payments of costs and levies are affirmed.
I note that the appellant has made the payment of $201.
There will be no order as to costs on the appeal.