Fritsch v Police - [2012] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRITSCH v POLICE
[2012] SASC 54
Judgment of The Honourable Justice David
4 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Appeal against length of licence disqualification – appellant pleaded guilty to one count of aggravated driving without due care – Magistrate recorded a conviction and imposed a 12 month good behaviour bond with a condition that appellant attend a Road Accident Awareness Program – Magistrate disqualified the appellant from holding or obtaining driver’s licence for 15 months – whether period of licence disqualification was manifestly excessive.
Held: appeal allowed – Magistrate erred in not giving enough emphasis to the excellent driving record of the appellant combined with the nature of the carelessness in that it was not prolonged careless driving and amounted to what may be considered to be momentary inattention – driver’s licence disqualification reduced to nine months – given period of disqualification already served by appellant, disqualification of eight months imposed – the imposition of the bond undisturbed.
Criminal Law (Sentencing) Act 1988 (SA) s 39; Road Traffic Act 1961 (SA) s 45, referred to.
Police v Berzins [2011] SASCFC 146; House v The King (1936) 55 CLR 499, considered.

FRITSCH v POLICE
[2012] SASC 54
Magistrates Appeal: Criminal

DAVID J: This is an appeal against sentence. The appellant, Lynette Ann Fritsch, pleaded guilty to one count of aggravated driving without due care. The offence occurred on 3 April 2007 on Mount Burr Penola Road. The circumstance of aggravation was that serious harm was caused to a person. The Magistrate recorded a conviction and imposed a 12 month good behaviour bond with a condition that the appellant attend a Road Accident Awareness Program and disqualified the appellant from holding a driver’s licence for 15 months. The bond was pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA). The appellant does not appeal against the imposition of the bond. The only ground of appeal is that the period of disqualification of 15 months was manifestly excessive.
Section 45 of the Road Traffic Act 1961 (SA) provides:
45—Careless driving
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
(b)     an offence committed in any of the following circumstances:
(i)the offender committed the offence in the course of attempting to escape pursuit by a police officer;
(ii)the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act;
(iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(iv)the offender was, at the time of the offence, driving a vehicle in contravention of section 45A or 47.
(4)If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4a)It is a defence to a charge of an offence against this section for the defendant to prove that he or she was, at the time of the offence—
(a)     carrying out duties as an emergency worker; and
(b)     acting in accordance with the directions of his or her employing authority; and
(c)     acting reasonably in the circumstances as he or she believed them to be.
(5)In this section—
emergency worker means a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section;
employing authority means—
(a)     in relation to a police officer—the Commissioner of Police; or
(b)     in relation to a person who is an emergency worker as defined by the regulations for the purposes of this section—the person defined by the regulations as the employing authority for that person;
serious harm means—
(a)     harm that endangers, or is likely to endanger, a person's life; or
(b)     harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or
(c)     harm that consists of, or is likely to result in, serious disfigurement.
In Police v Berzins,[1] the Full Court determined that a Magistrate had power to impose a bond in lieu of a term of imprisonment. That is what the Magistrate did in this case and about which there is no argument.
[1] [2011] SASCFC 146.
Circumstances of the offending
There is no dispute that the appellant was driving on the Mount Burr Penola Road looking for an address when she became lost. She stopped and parked temporarily on the side of the road and then decided to perform a U-turn. She did not engage her turning indicator lights, did not look in her rear view mirror or look behind to ascertain that the road was clear. About halfway through the turn there was a collision with another vehicle that was approaching the appellant’s vehicle from behind as a result of which the elderly female driver of that vehicle suffered serious harm. Her daughter, who was a passenger, suffered less significant injuries. There is no dispute that the driver sustained two cracked discs in her neck, a broken arm and a brain haemorrhage with associated paralysis down her left side, similar to what she would have experienced if she had had a stroke. She was admitted to the Royal Adelaide Hospital and detained there for a month. From there she was admitted into a rehabilitation facility. It is likely that she will suffer ongoing disabilities as a result of the accident.
Personal circumstances of the appellant
The appellant at the time of the accident was 47 years of age and married with two children. She is a nurse and a midwife and her job requires her to work shift work and be on call at irregular hours. She lives 10 kilometres out of Mount Gambier and her principal place of work is the Mount Gambier Hospital. The inevitable loss of licence would significantly curtail her effectiveness and indeed she may not be able to perform her work at all. She has no previous convictions of any kind and, most significantly, has no traffic convictions. Many excellent references were tendered to the Magistrate and she was regarded by the Magistrate as an outstanding member of her community.
The Magistrate’s remarks on penalty
In his careful and thorough remarks on penalty the Magistrate was clearly sympathetic to the plight of the appellant, as he was to the consequences of the accident upon the victims. He considered that the driving of the appellant was “very negligent” and was as a result of “a moment of inattention”. He set out in his remarks the difficulties the appellant will have as a result of the loss of her licence. He also emphasised her previous good record. He then imposed penalty.
Appeal
Ms Fuller, for the appellant, argues that where the offending was categorised by the Magistrate as “a moment of inattention” and “very negligent” a licence disqualification of 15 months, when the minimum period set by statute is six months, is manifestly excessive. She argues that not enough consideration was given to the difficulties the appellant would have whilst being disqualified for such a long period of time and her previous exemplary driving record.
Ms Fuller then presented an argument that although the appellant’s driving without due care has become aggravated due to the serious injury of another, the court must still look at the nature of the driving. She pointed out that a slight degree of negligence can lead to horrific consequences and therefore the court must go further than just looking at the consequences when imposing penalty. Ms Fuller is clearly correct. However, the legislation demands that both factors be looked at. In the present case there is driving which, although not at the lowest end of the scale, is less serious than other examples of careless driving because of the momentary nature of inattention combined with quite horrific injuries. Both aspects have to be considered bearing in mind the penalties, in particular the minimum licence disqualification.
Ms Cox, for the respondent, submits that although the period of disqualification might be considered harsh, nevertheless it is within the Magistrate’s sentencing discretion and therefore seeks support from the well known case of House v The King[2] and argues that the Magistrate’s discretion should be undisturbed.
[2] (1936) 55 CLR 499.
Conclusion
This matter has caused me great concern. At the end of the day, I am of the view that the Magistrate, despite his careful and sympathetic attention to the matter, has erred in not giving enough emphasis to the excellent driving record of the appellant combined with the nature of the carelessness in that it was not prolonged careless driving and amounted to what may be considered to be momentary inattention. Negligent as that is, in my view, it puts it in a different category than many other more serious examples careless driving. That is, of course, despite the horrific consequences.
I allow the appeal. The imposition of the bond will remain undisturbed, but I set aside the period of disqualification and on resentencing impose a licence disqualification of nine months. I note that the appellant has already served a period of one month and five days disqualification. I therefore deduct a rounded off figure of one month and impose a licence disqualification of eight months.