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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Fritsch v Police [2012] SASC 54
Case: [2012] SASC 54
Decision Date: 4 April 2012

CaseChat Overview and Summary

The appeal in Fritsch v Police involved the appellant challenging the length of a licence disqualification imposed by a Magistrate after they pleaded guilty to aggravated driving without due care. The Magistrate had imposed a 12-month good behaviour bond, required the appellant to attend a Road Accident Awareness Program, and disqualified them from holding or obtaining a driver's licence for 15 months. The appellant contested the excessiveness of the 15-month disqualification period.

The legal issue before the court was whether the Magistrate's 15-month licence disqualification was manifestly excessive. The court needed to consider the appellant's excellent driving record and the nature of the carelessness, which was described as momentary inattention rather than prolonged careless driving. The court had to determine whether the disqualification period appropriately balanced the need for deterrence and the appellant's previous driving history.

In reaching its decision, the court highlighted that while the period of disqualification might be considered harsh, it remained within the Magistrate's sentencing discretion. However, the court found that the Magistrate had not sufficiently emphasised the appellant's excellent driving record and the momentary nature of the carelessness. The court concluded that the 15-month disqualification was excessive, and it reduced the period to nine months. Given that the appellant had already served a portion of the disqualification, the court imposed an additional eight-month disqualification. The imposition of the good behaviour bond remained undisturbed.

The final orders of the court were to allow the appeal and reduce the licence disqualification to nine months, with an additional eight-month disqualification imposed. The good behaviour bond and requirement to attend a Road Accident Awareness Program remained unchanged.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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