GUPTA v Police - [2017] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GUPTA v POLICE
[2017] SASC 20
Judgment of The Honourable Justice Vanstone
23 February 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
Appeal against sentence imposed by a Magistrate for aggravated driving without due care. Where appellant lost control of the motor vehicle she was driving and caused serious harm to two pedestrians. Where Magistrate imposed a suspended sentence of three months' imprisonment and licence disqualification for 12 months. Whether the sentence is manifestly excessive. Whether the offence called for the imposition of a period of imprisonment.
Held per Vanstone J (allowing the appeal); The Magistrate mischaracterised the seriousness of the appellant's driving. In all circumstances the offence did not call for a sentence of imprisonment. The sentence is set aside and in its place a fine of $1,000 and driver's licence disqualification for 12 months is imposed.
Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.

GUPTA v POLICE
[2017] SASC 20
Magistrates Appeal: Criminal
VANSTONE J.

This appeal concerns a sentence imposed upon the appellant following a most unfortunate incident which occurred in the carpark of the Glynburn Plaza Shopping Centre at Firle on 9 November 2015. On that day the appellant lost control of the motor vehicle she was driving and caused damage to various fixtures, and more importantly, caused serious harm to two pedestrians. Approximately a year later the appellant was summonsed for the aggravated form of the offence of driving without due care. A Magistrate imposed a suspended sentence of three months imprisonment and the appellant’s driver’s licence was disqualified for a period of 12 months.
It is argued by the appellant that the sentence is manifestly excessive and that the offence did not call for the imposition of a period of imprisonment.
Background
The offence occurred a little before 6pm. The appellant was driving a four wheel drive station wagon which was not her own car, but her husband’s. Some of the incident was caught on closed circuit television footage, but from quite a distance. The appellant was seen to drive into the carpark and to slow down, apparently waiting for a parking spot to become available. From either a very slow crawl, or perhaps from a stationary position, the vehicle was seen to forcefully accelerate towards a shop. The vehicle hit and drove over a concrete bollard and then mounted the kerb, hitting a shopfront at an angle, but with enough force to smash the front window. The vehicle continued, hitting the two victims from behind and dragging one along on the footpath. It hit a car, before coming to a halt against a garden hedge in the carpark. Upon the appeal it is acknowledged that from the first heavy acceleration to the time when the vehicle stopped completely, a period of eight or nine seconds elapsed, that being slightly less than approximated by the Magistrate. It appears clear that the vehicle was finally brought to a halt by the application of the brakes. It also seems plain that the journey taken by the vehicle was as a result of continuous acceleration. That is, it was not a situation where pressure on the accelerator was eased and then reapplied.
The appellant was aged 49 years at the time of sentence. She had no prior convictions and an excellent driving history. There was no apparent reason for this episode. No alcohol or other drugs were involved. Questioned by police, the appellant said she was not sure why the car behaved as it did. When it was put to her that she might have engaged the accelerator rather than the brakes, she said she was not sure.
Before the Magistrate were victim impact statements which attested to the serious injuries received by both pedestrians. The effects of their injuries are enduring.
The complaint and summons containing the charge was not issued until almost a year after the event. The appellant pleaded guilty at the first available opportunity, on 14 November 2016.
The Magistrate gave detailed and reasonably lengthy reasons explaining the penalty imposed. The Magistrate rejected the submission of the appellant’s counsel that the offending was at the lower end of the scale and said that she found it to be “a serious case of driving without due care [sitting] at the higher end of the offence”. The Magistrate had earlier made the following observation:
You had numerous points and moments prior to your final application of your brakes where your inattention to your driving might have alerted you and you could have recovered the situation but you did not do so.
The Magistrate acknowledged the appellant’s prior good character and that she had expressed the wish to apologise directly to the victims and had written a letter of apology to the Court. She recorded that the appellant was married with two children and was supported by her husband. The Magistrate noted that the appellant was a “deeply religious Hindu” and that she was a “strong and committed member of the community”. The appellant taught young children music and supported others in the community. She was in full time employment within Super SA. There were character references which spoke highly of the appellant, the appellant’s character and of her work. The Magistrate accepted that she was deeply remorseful and had been “strongly affected by the offending”.
Noting that imprisonment was a penalty of last resort, the Magistrate took a starting point of five months imprisonment and reduced it by 40 per cent to three months imprisonment. She found good reason to suspend the sentence upon the appellant entering a 12 month bond. The Magistrate expressed the view that she was entirely confident that the appellant would see out the term of her bond without incident. A period of licence disqualification for 12 months was imposed.
The maximum penalty for the offence of driving without due care or attention in its aggravated form is 12 months imprisonment and a licence disqualification of not less than six months. It was the causing of serious harm to the victims which rendered the offence an aggravated one.
Arguments on appeal
Mr Andrew Ey, for the appellant, submitted that the characterisation of the offence as being at the higher end of the scale was erroneous, having regard to the fact that it was plainly not a wilful offence and that it was of very short duration. In relation to the serious harm caused, without derogating from the unfortunate injuries sustained from the victims, Mr Ey pointed out that fortunately no death had occurred. He contrasted this offence to that dealt with by Bleby J in Nattrass v Police [2008] SASC 267. There the appellant, an experienced truck driver, had hit and killed a cyclist while he had impaired vision due to driving into the sun. Plainly Nattrass realised that his vision was impaired and continued to drive his truck at up to 95 kilometres per hour notwithstanding the difficulty he faced. Nattrass had a prior conviction for a similar offence when three people had been injured.
Mr Anthony Keane, for the respondent, pointed out that whilst her accelerator was engaged, the appellant had driven over a bollard, mounted the kerb, hit the front window of the pharmacy, hit two pedestrians and dragged one along the footpath, hit a stationary parked car, continued to drag the pedestrian and then made contact with the garden hedge. Plainly the damage caused was extensive, quite apart from the injuries to the two victims. He submitted that the manner of driving remained unexplained, and the Court was not required to assume the least degree of culpability. He argued that the imposition of a term of imprisonment and the licence disqualification period imposed were within the discretion of the Magistrate.
Consideration
In my opinion the Magistrate mischaracterised the seriousness of the driving which led to the injury of the two victims. It seems clear that throughout the short incident the vehicle was out of the control of the appellant. She was plainly depressing the accelerator throughout. Perhaps she mistook it for the brake. However, I do not think there was any warrant to suggest that there were numerous points in that short interval where she could have recovered the situation and did not. There can be no suggestion that the appellant was not doing what she could to control the vehicle. This driving could truly be classified as a momentary lapse. The contrast with Nattrass, who took a decision to drive his heavy vehicle at significant speed notwithstanding that his vision was impaired, is a marked one.
Without depreciating the significant injuries sustained by the victims, I do not consider that this offence warranted the imposition of a term of imprisonment. I cannot agree that “having regard to the gravity or circumstances of the offence” the only appropriate penalty was a sentence of imprisonment: s 11(1)(a)(iv) of the Criminal Law (Sentencing) Act 1988 (SA). Quite apart from the lack of deliberation about the offence and its short duration, the prior good character of the appellant and the esteem in which she is plainly held told against the need for such a sentence.
The mischaracterisation of the seriousness of the offence is an error such as to require this Court to set aside the sentence and address the matter anew. Having considered all the papers and the arguments of counsel, I consider an appropriate penalty is a fine of $1,000. I would impose the same period of licence disqualification as the Magistrate, namely 12 months. That, of itself, is a significant penalty. The other costs and levies remain.
Conclusion
The orders I make are as follows:
1.Allow the appeal.
2.Set aside the sentence imposed by the Magistrate.
3.In its place impose a fine of $1,000 and driver’s licence disqualification for 12 months, to date from 1 December, 2016.
4.As before, require the appellant to pay the victim of crime levies of $160, prosecution fees of $100 and court fees of $260.