CHAPMAN v Police - [2009] SASC 196

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CHAPMAN v POLICE
[2009] SASC 196
Judgment of The Honourable Justice Bleby (ex tempore)
25 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING BODILY HARM - SOUTH AUSTRALIA
Appeal against sentence imposed by Magistrate – appellant pleaded guilty to one count of causing harm by dangerous driving – sentenced to six months imprisonment, suspended - 15 month licence disqualification imposed – appellant young and inexperienced driver – lost control of car while travelling at excessive speed – two passengers injured, one quite seriously - appellant had not ingested any alcohol or drugs – whether Magistrate erred in determining that the offence required a sentence of imprisonment – whether sentence manifestly excessive.
Appeal dismissed – offence carried maximum penalty of five years imprisonment – passenger’s injuries at the higher end of the scale of harm – deterrence a critical factor - Magistrate had little choice but to impose sentence of imprisonment – sentence not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 19A; Criminal Law Sentencing Act 1988 (SA) s 11, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Morse (1979) 23 SASR 98, applied.
R v Johnston (1985) 38 SASR 582; R v Thompson (1975) 11 SASR 217, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive"

CHAPMAN v POLICE
[2009] SASC 196
Magistrates Appeal

BLEBY J. (Ex tempore) On 3 March 2009 the appellant pleaded guilty in the Adelaide Magistrates Court to a charge, on information, of one count of causing harm as a result of driving in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA).
The offence is a minor indictable offence. The maximum penalty for the offence is imprisonment for five years. There is a mandatory licence disqualification for a period of not less than 12 months.
The appellant was sentenced on 31 March 2009 to six months imprisonment. The term of imprisonment was suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of two years. The appellant was also disqualified from holding or obtaining a driver’s licence for 15 months.
The offence occurred in the early hours of 17 March 2007, at approximately 1.40 am. The appellant had finished working a shift at the Lion Hotel in North Adelaide. He offered a lift to Claire Fitzgerald and Bridget Coffey into the city.
Prior to the collision, the appellant was travelling in a westerly direction along Sir Edwin Smith Avenue in North Adelaide. Upon reaching the intersection of that road with King William Road and War Memorial Drive, the appellant stopped his car to comply with traffic signals. He accelerated from his stationary position over a distance of 200 to 300 m along War Memorial Drive. At a point in a sweeping bend on the road he lost control of the vehicle and it collided with a tree.
In the hearing before me a question arose as to what the Magistrate was told about the appellant’s speed. The police prosecutor swears that in making submissions to the Magistrate he read out from the police apprehension report the version of the passenger, Claire Fitzgerald, that “The light turned green and all she can remember was thinking she was going to die. She felt the car was travelling too fast and was out of control.” He also swears that he read out the version of the passenger Bridget Coffey that: “She further states [the appellant] was driving fast along War Memorial Drive. She leant forward and looked at the speedometer and saw the car was travelling faster than 75 km/h. She states … not long after that [the appellant] lost control of the car. She felt the car sliding sideways and was travelling very fast.”
The prosecutor says he did not include in his submissions an allegation contained in the police apprehension report that the appellant drove on the wrong side of the road as that, he acknowledged, was a disputed fact.
Counsel for the appellant in the Magistrates Court has sworn in an affidavit that he cannot recall the exact submissions made by the prosecutor but accepts that he made submissions based on the details contained in the police apprehension report. In a subsequent affidavit he asserts that the prosecutor did make reference to the vehicle crossing on the wrong side of the road, a submission which he interrupted and which, after discussion with the prosecutor, the prosecutor withdrew. He accepts that the prosecutor may have recited the witnesses’ versions concerning the speed of the vehicle. He maintains, however, that it was never acknowledged by him that Ms Coffey’s assertions as to the appellant’s speed were accurate. He says that he made submissions based on the fact that the appellant was travelling in excess of 50 km/h.
Both the prosecutor who appeared on the date of sentencing and counsel for the appellant are agreed that, in the course of his sentencing remarks, the Magistrate referred to the fact that the appellant had driven on the wrong side of the road and that at that point counsel for the appellant took the unusual step of interrupting the Magistrate to inform him that fact was disputed. The prosecutor confirmed that the prosecution did not rely on that assertion. The assertion does not appear in the Magistrate’s sentencing remarks.
In his sentencing remarks the Magistrate also summarised the two witnesses’ allegations regarding the speed of the vehicle. No similar objection was taken by counsel for the appellant to those facts being noted by the Magistrate.
I accept that the appellant may not admit to the speed stated by the witness Coffey. However, on the evidence before me it is clear, and I find, that the Magistrate was informed of those allegations. They were, after all, significant facts relating to the seriousness of the offence. I am also satisfied that the appellant did not object to those facts being recorded even though he may not have accepted them.
I have no doubt that the Magistrate was also informed that the appellant could not recall much about the incident. There was no other information before the Magistrate as to the speed at which he was travelling. In all these circumstances, it was appropriate for the Magistrate to act on the assertions, as the appellant had not asserted otherwise and had not commented on his speed. The speed as asserted by the witnesses was also consistent with the circumstances of the appellant losing control of the vehicle on a sweeping bend in War Memorial Drive and with the severity of the impact of the vehicle against the tree. The passenger, Coffey, was trapped in the wreckage for more than two hours, it seems, before she could be freed.
Claire Fitzgerald was sitting in the front passenger seat. Bridget Coffey was in the rear left-hand passenger seat. As a result of the collision, Ms Fitzgerald suffered concussion, a fractured left rib, a cut to the bridge of her nose and a cut to the left rear side of her head. She spent a short period of time in hospital.
Ms Coffey was much more seriously injured. She was trapped in the car, as I said, for over two hours after the accident. Her pelvis was fractured and she suffered a fracture of the 7th cervical vertebra. As a result of these injuries she sustained substantial pain and was hospitalised for approximately six weeks.
At the time of the offence the appellant had recently turned 18. The Magistrate was told that the appellant was an inexperienced driver and was driving in an unfamiliar six cylinder Mitsubishi Magna Solara motor vehicle. He was still on his provisional licence. It was submitted that it was the cumulative effect of these conditions that caused the appellant to lose control of the vehicle. It was submitted that the appellant was unaware of the speed that he was travelling at the time of the accident. He had very little memory of the events which preceded the collision due to concussion he had suffered as a result of the accident.
The Magistrate accepted that there was no alcohol involved in the offending. Victim impact statements by the two passengers were tendered to the Court, read, and considered by the Magistrate.
Before the Magistrate the appellant’s counsel argued that in the circumstances the appellant should be released on a simple good behaviour bond. In advancing this argument, counsel for the appellant sought to rely upon the fact that the appellant was young, with no criminal antecedents. He had also shown notable remorse for his offending.
The prosecutor maintained that a term of imprisonment was warranted but was not opposed to the suspension of any term imposed. The Magistrate had before him two written character references and a written plea from the appellant’s mother received after submissions had been made but which was disclosed to the prosecutor and defence counsel before sentencing.
The Magistrate accepted that the appellant was a person of good character with no criminal antecedents. He accepted that his behaviour was inconsistent with the appellant’s good character. At the time of sentencing the appellant was a tertiary student undertaking a double degree in finance and economics.
The first ground of appeal relied on by the appellant is that the Magistrate erred in determining that the offence before the Court required a sentence of imprisonment.
The ability of an appellate court to interfere with the exercise of a sentencing discretion is limited. A sentencing decision may be interfered with only if it is shown that the magistrate acted upon an incorrect principle, took into account irrelevant or extraneous considerations, or failed to take into account relevant considerations, or that he or she acted upon mistaken facts.[1]
[1] Markarian v The Queen [2005] HCA 25, [25], (2005) 228 CLR 357, 370-371.
Save as to the appellant’s speed, there was no dispute about the accuracy of the factual basis of the offending upon which the appellant was sentenced. I consider that the Magistrate, in the circumstances I have described, was entitled to act on the estimate of speed given by the witnesses. Whatever it was, the speed in those conditions and with the appellant’s driving experience was much too high.
There is a suggestion that the Magistrate was referring at the time of his sentencing remarks to the police apprehension report that was before him and which had not been tendered. If that was the case, it was an inappropriate course to follow even though he may have had access to it prior to the hearing. Nevertheless, any irrelevant material which he might have taken into account by virtue of that consideration appears to have been appropriately corrected at the hearing. There is nothing to suggest that, having made that correction, the Magistrate proceeded to sentence on a different basis.
From the Magistrate’s remarks on penalty, it can be seen that he took into account the appellant’s lack of criminal antecedents, his remorse, his youth, his good character, his plea of guilty and the fact that the appellant was an inexperienced driver. The Magistrate also took into account the fact that the offending was out of character and that there was no alcohol involved. The Magistrate considered the victim impact statements and the letter from the appellant’s mother. He also considered that there was nothing before the Court which established that a conviction being recorded would jeopardise the appellant’s prospects of employment or future travel.
The appellant correctly points out that s 11 of the Criminal Law (Sentencing) Act 1988 (SA) requires that a sentence of imprisonment should only be imposed as a last resort and is only to be imposed in circumstances where no other penalty would be appropriate. He contends that a sentence of imprisonment was not required in the circumstances of the offence, having regard also to the personal circumstances of the offender. He acknowledges that deterrence is a factor to be considered but that it is not, he submits, the paramount consideration.
The clear object of Parliament in the prescription of this offence was the protection of the public from the obvious dangers of driving which is culpably negligent, reckless, or at a speed or in a manner which is dangerous to the public. Deterrence is a critical factor for consideration when determining appropriate sentences for crimes sanctioned in order to protect the public safety. As King CJ said of dangerous driving offences in R v Johnston:[2]
The penalties imposed by the Courts must be such, within the limits imposed by reason and considerations of justice, as to operate as a deterrent to those who might be inclined to engage in dangerous driving.
[2] (1985) 38 SASR 582, 584.
That is even more so in the case of youthful and inexperienced drivers whose confidence in controlling a motor car often outweighs their ability to do so. In some cases of this nature, “the deterrent principle must take priority and … sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour.”[3]
[3] R v Thompson (1975) 11 SASR 217, 222, Bray CJ.
The respondent also contends that a good behaviour bond would not reflect the seriousness of the offending. The respondent argues that the appellant’s conduct had a character of more than mere heedlessness. Excessive speed was an aggravating factor and the risk of injury or collision was created through recklessness.
The maximum penalty prescribed for this offence is an indicator of the seriousness with which Parliament expects the courts and the public to take offences of this nature. The conduct of the appellant went beyond mere carelessness or negligence. It fell into the category of culpable negligence or recklessness. Inexperience or lack of familiarity with the vehicle are no excuse. They require even greater care and more defensive rather than excessively confident driving. The only way that courts can convey that message to youthful and over-confident drivers is by adhering to the penalty regime set by the Parliament.
However, excessive speed or recklessness in driving are not the only elements of this offence. An equally important element is the causing of harm to another. In this case two innocent passengers were injured, one quite seriously. Indeed, the injuries sustained by Ms Coffey were at the higher end of the scale of harm contemplated by s 19A(3) of the Criminal Law Consolidation Act. Had the long-term consequences for her been only a little worse, the harm might well have been properly characterised as “serious harm” for the purposes of that subsection, resulting in a maximum penalty of imprisonment for 15 years and a minimum licence disqualification of 10 years for the very same driving. The nature and extent of the injuries caused by the appellant’s conduct can therefore only increase the seriousness of the offending.
It is clear from the Magistrate’s carefully considered sentencing remarks that he took into account all relevant factors relating both to the offence and its consequences, and all the relevant personal circumstances of the offender. It was plainly within the scope of his discretion to impose a sentence of imprisonment. Although he did not elaborate on why a sentence of imprisonment was appropriate, it is clear from his recitation and consideration of the relevant facts that it was taken out of the range where an alternative penalty was appropriate. Indeed, in the circumstances I have described and under the conditions prescribed by s 11(1)(a)(iv) of the Criminal Law (Sentencing) Act, the Magistrate probably had little choice but to impose a sentence of imprisonment. I reject the first ground of appeal.
The second ground of appeal relied upon by the appellant was that the sentence was manifestly excessive. The factors which must be considered in whether a sentence is manifestly excessive were outlined by King CJ on behalf of the Full Court in R v Morse.[4]
[4] (1979) 23 SASR 98, 99.
First, in determining whether the penalty is manifestly excessive, it is necessary to view it in the perspective of the maximum penalty prescribed by Parliament. I have already referred to the maximum penalty for this offence. That maximum is reserved for the worst possible offending of this nature.
Secondly, the standards of sentencing customarily observed with respect to the crime are relevant. However, for this crime, there is no relevant standard, given the infinite variety of circumstances which can attend the offending.
Thirdly, it is necessary to consider the place which this particular conduct occupies in the scale of seriousness of crimes the subject of this offence. The respondent conceded, and I agree, that while the injuries were serious and do have a bearing on this question, the conduct of the appellant was at the lower end of the scale of seriousness. It was an apparently isolated act and was not accompanied by the ingestion of alcohol or any drug.
The last consideration is that of the personal circumstances of the offender. The mitigating factors considered by the Magistrate have been previously mentioned. The relevant factors, in summary, are the absence of any criminal history, the appellant’s age, that the appellant was a relatively inexperienced driver, although for reasons I have indicated, I do not consider that to be an excuse, the appellant’s undoubted good character, that the offending was out of character, the remorse demonstrated by the appellant and the plea of guilty.
In relation to the appellant’s plea of guilty, the Magistrate used as his starting point a penalty of nine months imprisonment which he reduced by one-third to six months on account of that plea. While I have no doubt that the appellant’s remorse is genuine, in the sense that he genuinely regrets what he did, the submission as to his contrition must be tempered by what appear to be some unresolved issues, at least in the mind of Ms Coffey, arising out of her victim impact statement.
The circumstances undoubtedly favourable to the appellant must again be weighed against the significance in this offending of the need for a deterrent penalty. The Magistrate having clearly taken all the relevant matters into account, I need to ask myself whether the resultant penalty imposed was so unreasonable or plainly unjust, such that it warrants interference by this Court. It is not a question of whether I would have imposed the same sentence.
In all the circumstances, I cannot reach that conclusion. A sentence of imprisonment of that order was appropriate. It was very properly suspended in recognition of the appellant’s personal circumstances and of the fact that he is unlikely to commit another offence of this nature. The licence suspension was only a little over the minimum that the law required and was appropriate in the absence of an immediate custodial sentence. The second ground of appeal must therefore fail.
For the reasons I have expressed the appeal must be dismissed.