D'ANIELLO v Police
[2009] SASC 172
•12 June 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
D'ANIELLO v POLICE
[2009] SASC 172
Judgment of The Honourable Justice Gray
12 June 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appeal against sentence - appellant pleaded guilty to offence of driving in a manner dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA) - Magistrate sentenced appellant to suspended term of imprisonment of four months and disqualified him from holding or obtaining a driver’s licence for a period of 18 months - appellant aged 19 years at time of offending - whether sentence manifestly excessive - appellant’s appeal lodged 18 months after date of sentence - appellant not aware of right of appeal - whether extension of time appropriate due to appellant’s youth and position.
Held: appeal dismissed - gravity of appellant’s offending warranted a term of imprisonment - appropriate to suspend the term of imprisonment - extension of time not granted.
Road Traffic Act 1961 (SA) s 46, referred to.
Joanni v Police [2004] SASC 225; Graham v Decman (Unreported, Queensland Court of Appeal, Fitzgerald P, Thomas and White JJ, 29 November 1996), considered.
D'ANIELLO v POLICE
[2009] SASC 172Magistrates Appeal
GRAY J:
This is an appeal against sentence.
On 29 October 2007 Adrian D’Aniello, the defendant and appellant, pleaded guilty to the offence of driving a motor vehicle in a manner that was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA). The Magistrate sentenced the defendant to a suspended term of imprisonment of four months and disqualified him from holding or obtaining a driver’s licence for a period of 18 months. The suspended sentence bond required the defendant to be of good behaviour for two years, to be under the supervision of a correctional services officer for a period of six months, and to undergo programs that may be directed by that officer, including anger management programs.
The offence occurred at Millicent on Saturday 3 February 2007. At or about 8:10 pm the defendant was driving on Mount Gambier Road in a built up area. There were four passengers in his vehicle. Another motorist following the defendant overtook the defendant’s vehicle. That driver noted that when the passing manoeuvre was complete, the defendant’s vehicle sped up and came into contact with the rear end of his vehicle. As the other vehicle continued to travel along Mount Gambier Road, the defendant’s vehicle attempted to pass on the left. When the defendant’s vehicle was about level with the other vehicle, the defendant moved to his right and his vehicle came into contact with the other vehicle’s passenger side mirror causing minor damage. The defendant’s vehicle continued to veer to its right toward the other vehicle, causing the other vehicle to move onto the incorrect side of the road. At or about this time, an occupant of the defendant’s vehicle threw a bottle of water, which hit the windscreen of the other vehicle. The other vehicle slowed and undertook a U‑turn. The defendant also performed a U-turn and followed the other vehicle.
An independent witness to the incident described the defendant’s vehicle tailgating the other vehicle, at a time when the speeds of the vehicles were between 80 and 90 kilometres an hour.
The Magistrate summarised the defendant’s offending:
[Your offending] involved some deliberate harassing another driver on the road and at speed of 50 or 60 km/h and deliberately colliding with the rear end of another vehicle forcing it onto the wrong side of the road on a main highway in this township.
…
You put your girlfriend at risk, you put yourself at risk, you put the people in the other car at risk and you risked the lives of anybody else that was driving on the road. And for what? Seemingly just a silly moment of anger.
The Magistrate, in the course of his sentencing remarks, noted the defendant’s youth - he was aged 19 years - and his immaturity. He took into account the plea of guilty. The Magistrate also had regard to the death of the defendant’s brother that had been a “highly traumatising event”. This event, although providing a possible explanation, offered no excuse for the defendant’s conduct.
The Magistrate took the view that the gravity of the offending was such that he should impose a term of imprisonment, and in that respect observed:
This is serious offending. I have to impose a penalty that is both a personal deterrence [sic] to you but importantly in cases like that that will be a deterrent to others that might be minded to drive in the same way. Bearing in mind that general deterrence that I need to apply I think that it is appropriate that I impose a period of imprisonment but I am prepared to suspend it because of your age.
…
I take into account that driving dangerously is often an offence of the young however the protection of this community, of which I am particularly mindful, is also contributed to by the successful rehabilitation of young offenders. The importance of a suspended sentence is that it has particular importance in the case of a first offender who has not developed settled criminal or serious misconduct habits. I think you fall in that category.
The defendant’s appeal was not lodged until 27 February 2009, some 18 months after the Magistrate imposed the sentence. The explanation for the delay was that the defendant was only advised about his right of appeal when consulting a solicitor about other alleged offending in late 2008. Following lodging, there was some delay in the hearing of the appeal as the defendant wished to explore whether it was open to assert that there was a material dispute of fact about the circumstances of the offending. Ultimately this ground of possible challenge was abandoned.
The defendant submitted that in the circumstances, the imposition of a term of imprisonment on a young man for a driving offence was manifestly unjust. Counsel for the police accepted that if the Court was of the view that a manifest injustice had been occasioned, there should be an extension of time. However it was submitted that no such injustice was occasioned, and in this circumstance, an extension of time should be refused. I agree that this is an appropriate approach.
I turn now to consider the merits of the appeal.
The maximum penalty for a breach of section 46 of the Road Traffic Act is imprisonment for two years. The sentence imposed by the Magistrate was less than a quarter of that maximum sentence. The sentence was also appropriately reduced from a term of five months to four months to reflect the defendant’s guilty plea.
The circumstances of the defendant’s offending were serious.
The defendant’s dangerous driving occurred on a Saturday evening on a highway along which there were connecting side streets and many houses with driveways. At the time of the offending the highway was subject to a moderate vehicular and pedestrian traffic. The conduct of the defendant directly endangered the safety of other persons.
Aggravating features of the defendant’s offending included the sustained aggression directed by the defendant toward another road user. This included his repeated attempts to bump the other vehicle and, as the Magistrate observed, “deliberately collided with another vehicle”. The defendant forced the other vehicle onto the incorrect side of the highway. Further, after the other driver attempted to get away from the defendant by turning his vehicle around and driving in the other direction the defendant continued to follow him.
It is relevant to note that at the time of the offending, the defendant had only recently regained his licence following its suspension for earlier offences. On 14 November 2006, the defendant pleaded guilty to two counts of misuse of a motor vehicle contrary to section 44B(3) of the Road Traffic Act. The Mount Gambier Children’s Court declined to record a conviction in respect of either offence, imposed a fine of $150 and suspended the defendant’s driver’s licence for a period of 21 days commencing on 1 January 2007.
Section 46 of the Road Traffic Act was amended by the Statutes Amendment (Vehicles and Vessel Offences) Act 2005 (SA) which came into effect on 30 July 2006. Prior to this amendment, the penalty for a first offence under the section was a maximum fine of $1,200 and, for a second offence, a maximum penalty of a fine of $1,200 or three months’ imprisonment. In increasing the maximum penalty, the Minister stated that imprisonment should be an option for a first offence and noted:[1]
The Government has reconsidered this penalty in light of the recommendations made in the Kapunda Road Royal Commission and accepts that the penalty should be increased and that imprisonment should be an option for a first offence. The new maximum penalty of two years imprisonment reflects a large increase but the Government believes this is justified when it is viewed against the potentially drastic consequences that such driving can cause.
Accordingly, penalties imposed by courts prior to this amendment have less relevance bearing in mind the fact that the maximum penalties available have substantially increased.
[1] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3215 (Paul Holloway, Minister for Industry and Trade).
In Joanni,[2] the defendant pleaded guilty and was convicted of two counts of dangerous driving contrary to section 46 of the Road Traffic Act. The appellant had a prior conviction for dangerous driving from 2000. The first count related to doing a “mono” whilst on a motorbike and travelling at 100 kilometres per hour in a 60 kilometres per hour zone. The second count related to travelling 116 kilometres per hour in a 60 kilometres per hour zone with a passenger on his motorbike. In relation to the first count, the Magistrate recorded a conviction and imposed a licence disqualification for a period of three years. With respect to the second count, the Magistrate imposed a suspended sentence of two months imprisonment and a licence disqualification for a further period of three years, to be cumulative with the licence disqualification imposed in relation to the first count. I considered that the conduct the subject of the second offence put the defendant’s passenger and other potential road users at risk.[3] I upheld the suspended term of imprisonment imposed by the Magistrate, although the cumulative licence disqualification was overturned.
[2] Joanni v Police [2004] SASC 225.
[3] Joanni v Police [2004] SASC 225 at [17].
In Graham v Decman,[4] the defendant was convicted of dangerous driving for his involvement in a “road rage” incident whereby he swerved into another vehicle several times causing damage to the other vehicle. The defendant had no record of prior offending except ten speeding offences over an eight-year period. The Queensland Court of Appeal upheld the penalty imposed by the Magistrate; a three month suspended term of imprisonment, a fine of $1,000 and a nine-month driver’s licence disqualification. The defendant harassed another road user. The Court of Appeal took the view that this rendered the defendant’s conduct more serious than or beyond the “normal” case of dangerous driving, and described a similar incident as being one of “deliberate violence using a dangerous weapon”.
[4] Graham v Decman (Unreported, Queensland Court of Appeal, Fitzgerald P, Thomas and White JJ, 29 November 1996).
Conclusion
The defendant’s conduct was serious. He decided to harass another road user because of alleged driving misconduct toward his girlfriend on an earlier occasion. The defendant used his vehicle as an instrument to give effect to his anger. He caused his vehicle to collide with the other vehicle on two occasions. He drove his vehicle in a manner so as to force the other vehicle onto the incorrect side of the road when the other vehicle undertook a U‑turn. He continued harassment by continuing to follow the other vehicle.
Road rage has become conduct of serious concern. General deterrence is a material consideration. The conduct of the defendant endangered the safety and lives of passengers in his vehicle as well as other road users. The gravity of the defendant’s conduct was such that the Magistrate was entitled to take the view that a sentence of imprisonment should be imposed.
In determining sentence in the within proceedings, the Magistrate appropriately took into account the defendant’s personal circumstances, the defendant’s plea of guilty, and the age of the defendant. The Magistrate gave significant weight to the effect of the defendant’s offending on his family.
The Magistrate was entitled, given the personal circumstances of the defendant, to lessen the impact of that sentence by suspending its operation. No error has been demonstrated on the part of the Magistrate in the exercise of his discretion.
The sentence imposed by the Magistrate has been largely served. In the circumstances, as the sentence imposed was, in my view, open to the Magistrate, this is a proceeding in which the Court should not grant an extension of the time to appeal. Were I to grant an extension, I would dismiss the appeal on the merits.
I refuse to extend time to appeal. The appeal is dismissed.