Brumby v Police - [2017] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRUMBY v POLICE
[2017] SASC 128
Judgment of The Honourable Justice Lovell
1 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
Appeal against penalty.
The appellant pleaded guilty to one count of aggravated driving without due care contrary to s 45 of the Road Traffic Act 1961. The appellant collided with a pedestrian when reversing out of a carpark after failing to see her. The pedestrian later died of her injuries sustained in the accident. The appellant pleaded guilty at the first opportunity. The Magistrate sentenced the appellant to the maximum prescribed penalty of 12 months imprisonment, with a nine month non-parole period. This sentence was suspended upon a bond of $100 to be of good behaviour for two years being entered into. The Magistrate also disqualified the appellant’s driver’s licence for three years. Pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 the appellant was entitled to up to a 40 per cent reduction in sentence for his plea.
The appellant submitted that the sentence imposed was manifestly excessive. The respondent conceded that the failure to give reasons in not applying a discount was an error and that the appellant needed to be resentenced.
Held (allowing the appeal):
1.       The Magistrate was in error in failing to apply a discount.
2.       That the sentence imposed was manifestly excessive.
3.       That the appellant be resentenced.
Road Traffic Act 1961 s 45; Criminal Law (Sentencing) Act 1988 s 10B, referred to.
R v Kilic (2016) 91 ALJR 131; Police v Holer [2016] SASC 187, discussed.

BRUMBY v POLICE
[2017] SASC 128
Magistrates Appeal: Criminal
LOVELL J.
Background

On 9 September 2016, Jonathan Mark Brumby (‘the appellant’) had taken his 5 year old son to the Women’s and Children’s Hospital for a chemotherapy appointment. Later that afternoon he was driving with two of his children on the Esplanade at Henley Beach when one asked to use the toilet. The appellant pulled in and parked near a toilet block. When reversing out of the carpark, the appellant collided with Ms Rhonda Tanner, who later died of her injuries sustained in the collision. After lengthy investigations by the police he was charged with the offence of aggravated driving without due care.
On 29 May 2017, at the first opportunity, the appellant pleaded guilty to that charge. A sentence of 12 months imprisonment is the maximum available for the offence charged pursuant to s 45(2)(a) of the Road Traffic Act 1961 (SA) (“RTA”) with a mandatory minimum six month licence disqualification. Despite the early timing of the plea entitling the appellant to up to 40 per cent discount, the Magistrate sentenced the appellant to the maximum 12 months imprisonment and imposed a nine month non-parole period. This sentence was suspended upon a good behaviour bond of two years being entered into for a sum of $100. Further the appellant was disqualified from driving for three years.
While a discount of up to 40 per cent was available in the circumstances per s 10B(2)(a) of the Criminal Law (Sentencing) Act 1988 no discount was applied in the appellant’s case. No reasons were given for not applying a discount. This was despite the Magistrate saying: “I give the defendant credit for his pleas of guilty and his indicated remorse.”[1]
[1] Remarks on Penalty 29 May 2017, [2].
Appeal
Given the failure of the Magistrate to allow an appropriate reduction for the early plea of guilty the respondent, appropriately, conceded that the appeal had to be allowed and the appellant resentenced.
The argument before me related to the appropriate starting point for this offending. The appellant submitted that the starting point of 12 months imprisonment, before discount, was in itself manifestly excessive given the admitted facts in this matter and his personal circumstances.
It was agreed by the parties before the Magistrate that the appellant had co‑operated with the investigation. In submissions to the Magistrate the prosecution had relied upon the apprehension report. The prosecution also submitted that the appellant was fully co-operative, had no prior convictions and that the vehicle was generally roadworthy.
Given the error and the respondent’s concession I would allow this ground of appeal. The sentence imposed by the Magistrate is to be set aside and the issue of resentencing the appellant to be dealt with below.
Resentence
The appellant was born on 30 June 1975. He was 41 years of age at the time of the collision and is now 42 years old. He has no prior criminal history. He has three children, aged 4, 5 and 10. He is estranged from the children’s mother but the care of the children is shared. His middle son has an inoperable brain tumour. On the day of the collision the appellant had taken his son for cancer treatment.
On the day of the accident the appellant’s two younger children (then aged 3 and 5) were seated in children’s car seats in the rear of the vehicle. These seats were higher than the rear seat. One of the two child seats protruded above the rear car seat head rest. A folded pram was located between the two child seats. From photographs taken by the police investigators it can be seen that the rear vision of the vehicle was significantly impaired.
Ms Tanner had crossed the road on foot and made her way across into the north-bound lane, approximately one metre west of the central dividing line of the road. It is apparent from the collision that the appellant did not see her and the facts show that Ms Tanner was almost directly behind the appellant’s car when the collision occurred. The appellant had been waiting for quite a while for a break in the traffic, and collided with Ms Tanner upon reversing in a break of traffic on the road. Ms Tanner was in good health and had good vision at the time of the collision. Ms Tanner did not contribute in any way to the accident.
Prior to this accident the appellant had been employed for 10 years as a rope technician for an access company. He has lost his job as a result of his licence disqualification. The loss of his licence has also impacted the appellant’s ability to assist in the care of his children. It is clear that the appellant has been emotionally affected by the death of Ms Tanner.
The respondent has conceded the appeal on the basis of the error in failing to give reasons in not applying a discount. Further, it did not strongly resist the appellant’s submissions on the issue of manifest excess in relation to imposing the maximum penalty of imprisonment for 12 months. The appellant submitted that the three year licence disqualification imposed by the Magistrate was also manifestly excessive.
“Worst Category”
In considering the question of the appropriate starting point on a resentence counsel’s submissions touched on the question of whether imposing the maximum penalty was appropriate for this offending. Submissions from each counsel touched on the concept of a “worst category” of offending.
In imposing the maximum penalty it is open to infer that the Magistrate considered this particular offending as in the worst category for this type of offending. The fact that counsel can conceive of a worse instance of offending does not necessarily remove a particular factual circumstance from the “worst category” of offending. The term itself, however, is to be treated with some caution. This was the subject of the High Court’s judgment in R v Kilic:[2]
What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the “worst category”, it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided.
There is also another reason to avoid use of the expression “the worst category” of an offence. Not infrequently where an offence does not warrant the maximum prescribed penalty, a sentencing judge may observe in the course of his or her sentencing remarks that, although the offence is a serious, or perhaps particularly serious, instance of the offence, it is not within the “worst category”. To do so is not inaccurate and it may be thought a convenient form of legal shorthand. But lay persons are unlikely to be familiar with the legal signification of the expression and, as a result, might wrongly take it to mean that the judge has underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind, sentencing judges should avoid using the expression “worst category” and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty.
(Citations Omitted)
[2] R v Kilic (2016) 91 ALJR 131, [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).
Simply because a death occurred does not necessarily bring the current offending “within the worst category”. As the High Court pointed out such terminology has the potential to be confusing and lead to error.
The appellant clearly did not take reasonable care in ensuring that there was no one behind him before he commenced to reverse from his park. The fact that he did not have a clear view through his rear window meant he was required to be particularly cautious before reversing. However on the facts of this matter it could not reasonably be said that the offending is so grave as to warrant the maximum prescribed penalty. In my view there was no justification for imposing the maximum penalty of 12 months before applying any statutory discount.
In resentencing I have regard to the written and oral submissions of both counsel. I have read and had regard to the Police apprehension report and the factual circumstances as agreed by the parties.
I acknowledge the gravity of the offending and the death of Ms Tanner. I note the information provided by counsel for the respondent that the family of the deceased want the matter resolved as expeditiously as possible. There is no doubt that the appellant’s failure to keep a proper lookout has had tragic consequences for everyone involved and their families.
The appellant’s personal circumstances, lack of prior offending and early guilty plea are also all factors that I take into account. This includes the impact of the licence disqualification on the appellant’s dependents, in leading to the loss of his employment and rendering him unable to assist in taking his son to any further treatment for his medical condition.
In the circumstances I would fix a head sentence of five months imprisonment, reduced to three months by way of a 40 per cent discount for the appellant’s plea of guilty at the earliest opportunity. In my view good reason exists to suspend the sentence. The sentence will be suspended upon the appellant entering into a bond to be of good behaviour for a period of nine months. He has already served over three months of the previous bond. The appellant will have to enter into a new bond.
The period of disqualification applicable is a mandatory minimum of six months disqualification per s 45(2)(b) and (c) of the RTA. The Magistrate ordered a period of disqualification of three years. This satisfies the statutory mandatory minimum requirement. The Magistrate in relation to the disqualification period noted that, despite the “severe impact on the [appellant’s] potential employment” the disqualification was the consequence of negligent driving leading to the loss of life.[3]
[3] Remarks on Penalty 29 May 2017, [11].
It is submitted by the appellant that this period of disqualification is manifestly excessive in the circumstances. Further, the same submissions relating to the failure to consider applying a discount for the appellant’s early guilty plea were made relating to the licence disqualification. The appellant accepted that no discount could reduce the sentence below a six month period given the express wording of s 45(2)(c) of the RTA.
The respondent submitted that s 10B of the Criminal Law (Sentencing) Act 1988 does not apply to the period of disqualification. Peek J in Police v Holer undertook an extensive examination of the legislative development of the penalties in relation to s 46 of the RTA.[4] The respondent submits that the same analysis can be applied in this case.
[4] Police v Holer [2016] SASC 187, [63]-[72].
The respondent accepted that, even if the 40 per cent discount pursuant to s 10C of the Criminal Law (Sentencing) Act did not apply to a licence disqualification, the personal circumstances of the appellant, including matters such as his cooperation and his early plea, were all relevant matters for me to have regard to when resentencing the appellant.
In those circumstances, and given the view I have formed, I do not need to consider whether the analysis of Peek J in Holer applies to s 45 of the RTA. I order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of seven months backdated to commence on 12.01am 30 May 2017.
Orders
In allowing the appeal, I order that:
1the sentence imposed by the Magistrate is set aside;
2the appellant be sentenced to three months imprisonment;
3the above sentence be suspended upon the appellant entering into a bond of $100 to be of good behaviour for a period of nine months, and;
4the appellant be disqualified from holding or obtaining a driver’s licence for a period of seven months, backdated to commence at 12:01am 30 May 2017.