HART v S a POLICE No. SCGRG-97-1647 Judgment No. S6515

[1998] SASC 6515

HART  v  SA POLICE

Magistrates Appeal
Nyland J (ex tempore)

This is an appeal against sentence. The appellant pleaded guilty in the Adelaide Magistrates Court to failing to comply with instructions indicated by traffic lights, driving without due care and driving an unregistered vehicle. He was convicted on all three counts. The magistrate, pursuant to the provisions of s18A of the Criminal Law (Sentencing) Act 1988, imposed one penalty with respect to all three offences, that being a fine of $350. In addition, he made an order that the appellant be disqualified from holding or obtaining a driver's licence for a period of six months.

The charges arose out of a traffic collision which occurred at the intersection of South Terrace and Morphett Street, Adelaide.  It appeared that the appellant entered the intersection at about 60 kph against a red light and collided with another car which entered the intersection on a green light.  There was some injury caused to two persons in that car. 

The magistrate characterised the collision as serious given that some $15,000 worth of property damage was sustained. 

At the hearing in the Magistrates Court, and on this appeal, the appellant was represented by Mr Keane of counsel.  In the Magistrates Court Mr Keane put to the magistrate that the appellant suffered a medical condition which, in combination with medication prescribed, caused periods of inattention.  The learned magistrate accepted this submission and accepted that neither the appellant nor his doctor fully appreciated the potential difficulties with the medication with particular respect to the appellant's ability to drive.  Nevertheless, the magistrate underlined the serious consequences which had flown from what was a momentary lapse of attention. 

In his sentencing remarks the magistrate acknowledged that there were weighty factors advanced in mitigation, including the appellant's early plea of guilty, the fact that on his own initiative he had made full restitution of damages suffered by the other parties, and the fact that, as it happened, no serious bodily injury was suffered. 

A letter from the editorial manager of The Advertiser, where the appellant is employed as a journalist, was also provided to the court.  That letter stated that the appellant was required to drive company vehicles in the course of the his duties, and it said that any restriction on his licence to drive could affect his ability to carry out assignments for The Advertiser. 

The magistrate had regard to all these various matters, but expressed the view that he could only give limited weight to the effect which a licence disqualification might have on the appellant's employment.  He then proceeded to impose a period of disqualification of six months. 

The appellant on appeal now argues that the learned magistrate erred in the exercise of his sentencing discretion in that he failed to take into account all the factors advanced in mitigation, as well as taking into account irrelevant matters. 

In particular, the appellant argues that the magistrate failed adequately to take into account the unusual circumstances in which the offending came about and that this was a momentary lapse due, it would seem, to the medication the appellant was taking, which caused a lapse in concentration. 

In this case, the appellant was potentially liable to pay a maximum fine of $1,000 for his failure to obey the traffic signals, a maximum fine of $1,000 with respect to the charge of due care, and $500 with an expiation fee of $100 for driving an unregistered vehicle.  Against that background the fine of $350 imposed by the magistrate must, in my view, be considered to be extremely moderate. 

It is fair to say, however, that the appellant's main concern on this appeal relates to the order made for disqualification of licence. 

This was a serious accident and it is perhaps fortuitous that more serious injury did not occur.  That was clearly a matter that was in the mind of the magistrate when imposing sentence.  It is not surprising therefore that he considered that it was appropriate to impose a period of licence disqualification by way of additional penalty. 

Nevertheless, this was a momentary lapse of attention and it was probably unwittingly caused by the medication that the appellant was taking.  There was no evidence to suggest that the appellant was taking a deliberate risk in running the traffic lights on this occasion.  It appears that the appellant, until this time, had a good record, in that he had no prior record at all. 

The collision caused serious financial consequences to the appellant, and he appears to have behaved in a responsible manner in attending to his obligations as a result thereof.

To some extent, as I said to Mr Keane in the course of argument, the letter from The Advertiser is equivocal, but, nevertheless, I accept that there is a possibility that the appellant's employment might be affected. 

Having considered all the circumstances in this matter this would appear to be an unusual case.  Against the background of the various factors advanced in mitigation.  I consider that the licence disqualification of six months was manifestly excessive.   The sentencing discretion therefore has miscarried and it is open to me to sentence afresh.  I do not propose to interfere with the fine imposed by the learned magistrate and I believe it was appropriate to impose some licence disqualification to reflect the seriousness of this matter.  I propose, however, to set aside the disqualification of six months and reduce the disqualification to a period of 28 days commencing 12.01 am on Friday, 16 January 1998.  The appeal will therefore be allowed for the purpose of reducing the period of disqualification.  I make an order that the respondent pay the appellant’s costs which I fix at $150.