Dycer v Police - [2010] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DYCER v POLICE
[2010] SASC 241
Judgment of The Honourable Justice Anderson
10 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against penalty - whether magistrate erred in exercise of the discretion not to record demerit points for the offence - recording of demerit points resulted in suspension of appellant's driver'slicence - whether magistrate failed to consider the circumstances of the offending when exercising the discretion not to record demerit points.
Held: No error in the magistrate's exercise of the discretion or reasoning.
Appeal dismissed.
Australian Road Rules under the Road Traffic Act 1961 (SA) r 67, referred to.
Gilbert v Owen (1991) 14 MVR 235; McCade v Chandler (1984) 37 SASR 477; Shillabeer v Linnane (1979) 22 SASR 382, applied.

DYCER v POLICE
[2010] SASC 241
Magistrates Appeal: Criminal

ANDERSON J. This is an appeal from a decision of a magistrate who convicted the appellant for failing to stop at a stop sign, contrary to r 67 of the Australian Road Rules under the Road Traffic Act 1961 (SA), fined the appellant $292 and dismissed the application by the appellant not to record demerit points.
The appeal originally was based on several grounds but on the hearing of the appeal Mr Apps, who appeared for the appellant, indicated that there was no argument that the magistrate erred in recording a conviction and he conceded that the offence could not be described as trifling. The offence took place in Mount Gambier.
The appeal proceeded on the basis that the magistrate should have exercised his discretion under s 98B(4) of the Motor Vehicles Act 1959 (SA) and remitted at least two of the three demerit points involved in order that the appellant not have his licence suspended.
Background
In his remarks on penalty, the magistrate described the appellant’s action in failing to stop at the stop sign in paragraphs [1] and [2] as follows:
[1]You have pleaded guilty to failing to stop at a stop sign at an intersection. It is a well known intersection, well known to you and to others in this community. A particularly difficult one at the top of Bay Road where it intersects with Lake Terrace. It is on a slope, the roadways that form the intersection approach from different angular directions and each have limited vision. The defendant was looking to his right up and up hill to see vehicles emerging from his right. The road from the right approaches the intersection in a curve and it is also downhill so it has limited vision to the right given that vehicles can travel down that road at 50 km/h approaching the intersection there. These were the circumstances that presented a hazard in terms of the need for a stop sign.
[2]In any event, the stop sign was erected there and plain to see. Mr Dycer was well aware that the stop sign was there and had driven through it, apparently, very many times in the past. He admits boldly that on this occasion that he looked to his right and saw that there were no vehicles approaching downhill from around the curve, to the extent that he could see, and so “rolled” through the intersection knowingly disobeying the stop sign.
After imposing the penalty the magistrate turned to deal with the application of Mr Dycer pursuant to s 98B(4). That section provides:
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
Mr Dycer gave evidence on oath in support of the application, as he was required to do by the section.
In his reasons the magistrate pointed out that when cross-examined Mr Dycer admitted that he knew that the stop sign was there and that he committed the offence notwithstanding.
Section 98B(4) has two limbs, namely, that demerit points incurred can be remitted if the offence is found to be trifling or if any other proper cause exists.
I will not deal with the question of whether it was a trifling offence because it has now been conceded on the appeal that it cannot be so described. The magistrate was correct in finding that it was not trifling. The concession was appropriate.
The complaint of the appellant is that, in his reasons for declining to reduce the demerit points, the magistrate dealt with the second limb of s 98B(4), being “any other proper cause”, solely on the basis of the personal circumstances of the appellant and the consequences for him of a loss of licence, but not the circumstances of the offence.
Because a previous driving offence resulted in Mr Dycer having only a probationary licence, the demerit points incurred as a result of this offence would mean that a period of licence suspension of six months would be required to be served.
The magistrate dealt with the circumstances relating to the offending and whether the offence was trifling in the first part of his reasons and then turned to deal with whether any other proper cause existed and said at [6]:
[6]The defence counsel also submits that other proper cause exists, namely the consequences personal for the defendant when compared with the facts of the offending.
In the paragraphs of the reasons which followed, the appellant submitted that the magistrate dealt exclusively with questions relating to the personal consequences for the appellant. It was submitted that this was an error.
Mr Apps argued that the magistrate had not taken into account the circumstances of the offending in dealing with the question of whether any other proper cause exists but had solely concentrated on the personal consequences for the appellant.
I do not agree with this submission. The magistrate had just heard the evidence from the appellant. He was aware of the two limbs of s 98B(4) which he had to deal with, and although he does not make it clear in his reasons, I have no doubt the magistrate was taking into account both the consequences personal to the defendant and also the circumstances of the offending when he came to the conclusion that no other proper cause existed to reduce the demerit points.
As Ms Wells for the respondent pointed out, there are clues in the reasons which tend to indicate that the magistrate was dealing with both aspects. She submitted that the magistrate dealt with the facts of the offence at the outset of his reasons in [3]-[4]. Although not discussed again by the magistrate when dealing with s 98B(4), this was an ex tempore judgment and I have no doubt that all the facts were in his mind when the magistrate delivered his reasons. I agree with Ms Wells that the circumstances of the offending must have been part of the background upon which the magistrate proceeded when considering whether there was any other proper cause.
Ms Wells then discussed the principles relating to “proper cause” in Gilbert v Owen (1991) 14 MVR 235. In that matter Olsson J referred to his earlier decision in McCade v Chandler (1984) 37 SASR 477. His Honour said:
The critical features for consideration, as I see it, are: * Firstly the proper cause envisaged by s98b(10) must relate to the circumstances of the offence rather than the offender. * Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence. * Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections. Moreover, the need to exercise a rapid judgment in a particular situation may also be important.
In McCade, Olsson J referred to Shillabeer v Linnane (1979) 22 SASR 382 where Mitchell J said that potential disqualification and its effects on the convicted person was not “of itself” a proper reason for reducing demerit points.
Ms Wells submitted, using Olsson J’s summary, this was not inadvertent conduct and it was not momentary inattention. She submitted that it was a typical breach and deliberate. I agree with those submissions. I adopt, with respect, Olsson J’s summary of the then equivalent of s 98B(4).
The demerit points
Mr Apps argued that the magistrate’s discretion had miscarried because he had wrongly directed himself in relation to this second aspect. Because this is an appeal by way of rehearing, I was urged to take the action which the magistrate declined, namely, to remit at least two of the demerit points, thus bringing the appellant under the prescribed number so that he would not lose his licence.
The circumstances of licence disqualification were emphasised by Mr Apps and clearly involved some hardship for the appellant. He is a businessman who in the course of his business travels by car regularly between Adelaide and Mount Gambier and as a result of the licence disqualification he will have to incur the cost of air fares for his travel.
Conclusion
It cannot be shown, in my view, that the magistrate has made any error or has misused his discretion in any way in coming to his conclusion. I am not prepared to interfere with the exercise of the magistrate’s discretion and I am not prepared to act independently of that and reduce the demerit points as requested by the appellant. It is my view that the circumstances of the offending and the hardship for the defendant do not amount to a proper cause for remitting the demerit points.
For these reasons I dismiss the appeal.