Coe v Visser

[2000] TASSC 46

[2000] TASSC 46

CITATION:           Coe v Visser [2000] TASSC 46

PARTIES:  COE, David James
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 1/2000
DELIVERED ON:  15 May 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  12 May 2000
JUDGMENT OF:  Crawford J

CATCHWORDS:

Traffic Law - Offences - Procedure - Sentence - Overtaking when unsafe to do so - Whether $400 fine and disqualification for six months manifestly excessive in circumstances of case.

Aust Dig Traffic Law [120]

REPRESENTATION:

Counsel:
           Applicant:  A J Dillon
           Respondent:  J P Ransom
Solicitors:
           Appellant:  Archer Bushby
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2000] TASSC 46
Number of paragraphs:  9

Serial No 46/2000

File No LCA 1/2000

DAVID JAMES COE v CLAAS VISSER

REASONS FOR JUDGMENT  CRAWFORD J
  15 May 2000

1. The applicant pleaded guilty to a charge of overtaking when it was unsafe to do so contrary to the Traffic (General and Local) Regulations 1956, reg5(1)(g).  He was convicted, disqualified from holding or obtaining a licence to drive a motor vehicle for six months, fined $400 and ordered to pay costs of $24.20.  He has applied to review the order of disqualification and the fine upon the basis that they were manifestly excessive, both individually and cumulatively. 

1. At 9.35am on Saturday, 22 May 1999, the applicant was driving a Camry sedan in a westerly direction on the Frankford Highway leading out of Exeter.  Just after leaving Exeter a truck with a trailer laden with timber pulled out onto the highway in front of him and commenced to travel in the same direction.  It was several hundred metres ahead at the time it pulled out.  It was travelling slowly and changing up through the gears.  The applicant moved onto the right side of the road, into the eastbound lane, and commenced to overtake.  He was travelling at about 70 - 80 kph.  At the time it was very foggy and visibility was reduced to 100 - 150 metres.  As a result he failed to see an approaching red Mitsubishi Lancer in the eastbound lane.  All drivers became aware of the situation when the Lancer was within 100 metres of the truck.  At that time the applicant was approximately level with the cabin of the truck.  He accelerated and pulled sharply in front of the truck.  The truck braked heavily and moved partially off the road.  The driver of the approaching Lancer braked heavily and swerved away from the truck, before swerving back onto the road, losing control and colliding with the rear wheels of the truck.  As a result the driver of the Lancer suffered shock and a minor injury to her leg. 

1. The applicant was aged 37 years, a consulting engineer and a director of a firm of consulting engineers, which had offices throughout Tasmania.  He had been with the company for at least 10 years and travelled throughout the State on a weekly basis.  He travelled from where he lived at Rosevears, on the Tamar River, to attend the firm's Devonport office on at least two or three occasions each week and regularly drove along and was familiar with the highway in question.  He travelled public streets far more than the average driver, travelling up to 60,000 kilometres each year.  He accepted that visibility was restricted to 100 - 150 metres due to the foggy conditions and that it was unsafe to overtake because of the limited visibility.  However, his counsel said that it was a low speed overtaking manoeuvre which was carried out on a straight, level section of the highway.  The applicant was unaware of the presence of the approaching vehicle, although he accepted that he should have been aware of the possibility that a vehicle would emerge out of the fog towards him. 

1. For a person who drove as much as the applicant, his record for traffic offences was not a bad one.  He had received four traffic infringement notices on prior occasions.  In 1989 he crossed double white lines.  In December 1996 he sped between 15 and 29 kilometres per hour above the speed limit and was fined $110 and received three demerit points.  In September 1997 he was fined $50 for using a mobile telephone while driving.  On 13 May 1999, which was nine days before this offence, he sped by less than 15 kilometres per hour above the speed limit and was fined $50 and received one demerit point.  It can therefore be seen that over the three year period preceding this offence he had committed two speeding offences, of no particular seriousness on the face of the record, and had used a mobile telephone while driving.  At the time he appeared before the magistrate he had an accumulation of four demerit points.

1. The prescribed penalties for the offence were a fine not exceeding $500 and disqualification for any period.

1. In his reasons for sentence, the learned magistrate noted the considerable amount of travelling undertaken by the applicant, given the nature of his work.  His Worship accepted that he was a responsible and valued member of the community, and continued:

"On this occasion your impatience led you to take this risk in overtaking the truck and it did not pay off.  You simply did not have enough visibility to enable that manoeuvre to be undertaken with safety and as your counsel has said your plea of guilty is entered on that basis to overtaking when unsafe to do so [sic].  Now this caused a collision between the other vehicles.  I note that you stopped and rendered what assistance you could but it was your impatience and your risk taking which led to these consequences and you should pay for it."

1. It was appropriate for the learned magistrate to have regard to the actual consequences of the offence, that is to say to take into account that a collision occurred and an injury was suffered, albeit not a serious one.  There was clearly a potential for far more serious consequences than in fact occurred.  In all the circumstance, the offence was not a mere minor breach of the traffic regulations.  A relatively substantial fine and period of disqualification were deserved.  I have no hesitation in concluding that the fine of $400 was not excessive.

1. A difference of opinion between me and the learned magistrate, concerning the length of the period of disqualification, would not alone justify intervention.  The sentencing discretion is a broad one and on review a court should not interfere in a case such as this unless excessiveness of the penalty is manifest to the point of error.  Disqualification for three months was appropriate and would have been adequate.  That being my judgment, questions arise whether disqualification for six months was manifestly excessive and whether a reduction of the period by three months would amount to no more than "tinkering" with the penalty which was imposed.

1. The conclusion I have come to is that six months' disqualification was manifestly excessive, in all the circumstances of the case.  It was twice as long as the period I would regard as being adequate and appropriate.  Accordingly, the motion will succeed and there will be an order that the order imposed in the court of petty sessions at Launceston on 14 January 2000 be amended by reducing the period of licence disqualification from six months to three months.