Datson v Police

[1999] SASC 59

DATSON v POLICE

[1999] SASC 59

Magistrates Appeal

Nyland J

1. This is an appeal against sentence. On 5 September 1998 near Redhill, the appellant drove a vehicle, namely a car, on a road, namely Highway One, at a speed of 183 km/h when the speed limit was 110 km/h. The appellant appeared before a stipendiary magistrate in the Port Pirie Magistrates Court on 7 December 1998 and pleaded guilty to a charge of driving at a speed which was dangerous to the public, contrary to the provisions of s 46 of the Road Traffic Act 1961 (the Act). Following the entry of a plea of guilty, a second charge of speeding was withdrawn.

2. At the hearing in the Magistrates Court, the appellant was unrepresented.  Before the matter proceeded, the magistrate informed the appellant of his rights, including the right to legal representation.  He also informed the appellant of the likely penalty and informed him of the minimum licence disqualification of six months.  The magistrate then said to the appellant “you would be getting all of that”.  In his affidavit filed in support of the appeal, the appellant said that the magistrate did not inform him of his right to make an application under oath that the offence be determined trifling for the purposes of reducing the minimum length of licence loss to one month.  As a result, the appellant claims that he was wrongly led to believe that the minimum possible licence loss was six months and that, if he proceeded that day, he would receive a fine and a penalty of not more than six months loss of licence.  Accordingly, the appellant did not seek legal advice and remained ignorant of his right to make a “trifling application”.

3. It appears that in the course of the hearing, the magistrate questioned the appellant about his reason for speeding. The appellant responded that he had no reason, but that he thought he was travelling at about 140 km/h. The magistrate was informed that the appellant had no prior convictions and was provided with a letter from the appellant’s employer, indicating that he was employed as a truck driver. The magistrate does not appear to have made any notes as to other matters pertinent to sentencing and provided virtually no reasons for the sentence. The extent of his remarks is that he regarded the offence “as a most serious breach of s 46 of the Road Traffic Act”.  He said that “if I could impose more I would”.  He then imposed the maximum fine of $600 and disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months.

4. The appellant has appealed against that sentence on the ground that it is manifestly excessive. Mr Stretton appeared as counsel for the appellant on the hearing of the appeal. He submitted that the learned magistrate failed adequately to exercise his duty towards the appellant as an unrepresented defendant by failing to inform him of all the rights and avenues available to him. In particular, he failed to inform the appellant of his right to give evidence on oath for the purpose of substantiating a trifling application pursuant to s 46(3)(b) of the Act.

5. In Cooling v Steel (1971) 2 SASR 249, Wells J set out general guidelines to ensure the protection against undue disadvantage of unrepresented defendants who come before the courts of summary jurisdiction. In particular, he said (at 250):

   “It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court.”

6. On the hearing of the appeal, Ms Williams, who appeared for the respondent, did not have instructions to concede the magistrate's failure to advise the appellant of his right to have the matter considered as a trifling offence, but she did not resist the inference being drawn from the affidavits filed with respect to the appeal that that was the case.  She argued, however, that even if the magistrate had failed to inform the appellant of the possibility of making a trifling application, there was no circumstance nor combination of circumstances in this case which would justify a finding being, made to that effect.  Accordingly, no miscarriage of justice had occurred.

7. The magistrate had, however, very limited information before him concerning the circumstances of the offence.  He was not in a position to rule out the possibility of the offence being trifling on the basis of such limited information.  As Wells J said in Cooling v Steel (supra):

   “In general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.” (emphasis mine)

8. It is inherently inconsistent with those comments to excuse a failure to inform an unrepresented defendant of a right, merely on the basis of a cursory determination that the defendant would not be likely to succeed with respect to his application.  In this case, the appellant had an arguable case for the offence to be held trifling.  The essence of the offence is determined by reference to all of the circumstances and high speed is not of itself determinative of either when an offence has been committed or whether it can be found trifling.  As is conveniently summarised in Bollen on Motor Vehicles Legislation at 416/14:

   “there are a great many things for the Court to take into account whether an offence has been committed.  All these matters really boil down to a consideration of the danger created by or to be expected from the driving.  Driving at a very high speed on a distant country road with no houses about and with little traffic may not be dangerous driving.”

9. Mr Stretton, in the course of his argument referred to a number of cases in which the court had held an offence to be trifling, notwithstanding that the speed concerned was nearly double the speed limit, or substantially above the speed limit, where the surrounding circumstances were such that there was little actual danger in the particular circumstances surrounding the offence.

10. In this case, the appellant is a person of good character with no previous convictions.  He appears to be a skilled professional driver with a long and good driving record.  The road was the main interstate highway in perfect dry condition.  Visibility was good and there was almost no other traffic.  The only other car on the road was another vehicle that the police themselves caused to brake in front of the appellant by activating their flashing lights.  No embarrassment or danger appears to have been caused to this vehicle.  There was no allegation that the driving was reckless, nor was any fault alleged concerning the driving beyond the bare aspect of speed.  The appellant’s car was examined by the reporting police officer and found to be in good and fully roadworthy condition.  The appellant was fully co-operative at all times.  The appellant will be particularly hard hit by licence loss, being a professional driver, unqualified for other employment, residing in a regional area with limited other employment opportunity.

11. I do not propose to refer to the cases cited by Mr Stretton, other than the decision of Taylor v Police (Bleby J, 4 February 1998, SASC 6540, unreported) Taylor is, however, particularly relevant as it was an appeal from a decision of the same magistrate based on an almost identical set of facts.  In imposing penalty in this matter, the magistrate appears to have ignored the specific comments directed to him by Bleby J in Taylor.  In Taylor there was a similar failure to accord to the appellant the basic knowledge of the rights to which he was entitled and Bleby J commented that:

    “... the proceedings miscarried because the appellant was not informed of a highly relevant matter, having a substantial bearing on the possible on the possible outcome of the proceedings.  She was also not informed that, in order to take advantage of the potential benefit of subs (3)(b), a certain particular way of going about it would have to be observed, namely the leading of sworn evidence.”

12. A similar situation has therefore arisen in this case. I am satisfied that the magistrate failed to inform the appellant of his right to make an application pursuant to s 46(3)(b) which is therefore an error which requires the appeal to be allowed.

13. In each of these cases, the learned magistrate appears to have taken a different view of the seriousness of this offence from that taken by Parliament by imposing the maximum monetary penalty for a first offence.  It is, however, the task of Parliament to set the range of penalties appropriate to any given offence and to once again adopt the comments of Bleby J “it would need to be an extraordinary case where the maximum monetary penalty is imposed under this section for the first offence of any type”.

14. It follows therefrom that the sentence imposed by the magistrate was manifestly excessive.  The sentencing discretion has therefore miscarried and it is open to me to sentence afresh.

15. I have already set out the circumstances surrounding this offence and I have had regard to the various authorities to which Mr Stretton referred in the course of argument.  I have finally concluded that this is not an offence which can be considered to be trifling.  It is not, however, the most serious offence of its kind.  I therefore allow the appeal and I substitute the sum of $400 for the fine imposed by the magistrate and I reduce the order for disqualification to a period of six months.  The method of repayment and the date from which the disqualification is to commence shall be in accordance with the order of the magistrate.