Heaton v Currey
[2006] WASC 217
•11 SEPTEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HEATON -v- CURREY [2006] WASC 217
CORAM: McKECHNIE J
HEARD: 11 SEPTEMBER 2006
DELIVERED : 11 SEPTEMBER 2006
FILE NO/S: SJA 1031 of 2006
BETWEEN: JESSE JOHN HEATON
Appellant
AND
MALCOLM CHARLES CURREY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T J McINTYRE
File No :MH 1459 of 2006
Catchwords:
Road traffic - Dangerous driving - Amount of fine - Suspension of licence - Term necessary
Legislation:
Nil
Result:
Appeal allowed
Fine $400 and motor driver's licence disqualification for 1 month
Category: D
Representation:
Counsel:
Appellant: Ms B M Lonnie
Respondent: Ms N Eagling
Solicitors:
Appellant: Legal Aid WA
Respondent: State Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
McKECHNIE J: In January this year the appellant was about to turn 21. His parents had bought him a new motor vehicle and just a few days before his 21st birthday at 9 pm, on 20 January 2006 he drove that vehicle with a passenger at an unknown excess speed in a built-up 50 km speed limit area. He failed to negotiate a left‑hand bend in the road. His car went out of control and he collided with a parked vehicle that was stationary on the kerb. Both vehicles were damaged and the parked vehicle was later apparently written off.
The appellant fled the scene of the accident but bits of his vehicle left behind and paint transfer meant that his house was searched the next day. In due course he went to the police station and made a record of interview. So it is that he came to be charged in the Magistrates Court on 17 March 2006 with one charge of dangerous driving and one charge of failing to stop after the occurrence of an accident. To each charge he pleaded guilty.
In respect of the failing to stop charge, the appellant was fined $750. That penalty is not subject to appeal. In respect of the dangerous driving charge, he was fined $750 (just $50 short of the maximum penalty) and his motor vehicle driver's licence was suspended for a period of 15 months.
The grounds of appeal challenge both the amount of fine as being manifestly excessive and assert error in imposing the licence suspension for 15 months.
This matter needs to be approached on the basis that for the charge of dangerous driving the appellant was fined $750 and received a motor driver's licence disqualification for 15 months. That was the total punishment. I use the word "punishment" advisedly because disqualification is imposed for many reasons including, most importantly, public safety, but also there is undoubtedly an element of punishment.
The amount of fine was in error
The imposition of a fine is the exercise of discretion and Magistrates, in general, have far more experience than Supreme Court Judges in the trends and conduct in the community and in setting appropriate penalties for road traffic offences. Here the fine was reduced by $50 only despite the fact that there was a plea of guilty. The appellant was 20 years of age, a fact which I do not consider carrying much weight either way. It is also asserted that the appellant suffered significant financial consequences as a result of the offence. That is true. The appellant's own car, recently given to him, was uninsured and he had to pay for the damage done to the other vehicle. That was a direct consequence of his driving.
The financial burden which the appellant has assumed by his manner of driving of itself is not necessarily mitigatory but still needs to be considered in the terms of a sentence. In some circumstances it may have a mitigatory effect because a person has accepted their legal responsibilities. This submission was made to the Magistrate. The manner of dangerous driving, though serious, is not perhaps the most serious example of such driving. It is not possible to see that the Magistrate gave any sufficient consideration to the financial impost or the plea of guilty. The appellant has made good the first ground of the appeal. In the circumstances, the fine of $750 for dangerous driving was manifestly excessive.
The circumstances of the actual driving are driving with a passenger at some unknown speed, in excess of 50 kilometres an hour, and coming into collision with another vehicle. That is certainly driving which deserves a significant punishment, but, absent any knowledge of the amount of alcohol consumed, or any other aggravating factor and, absent consideration of the financial consequences at all, the penalty was in error. I set aside the fine of $750 and impose a fine of $400. I take account of the fact that this was one incident comprising dangerous driving and leaving the scene. The overall criminality is serious, but a total fine of $1150 for the incident is an appropriate response.
I should mention ground 3 briefly. It asserts an error by the Magistrate by considering factors relevant only to the charge of failing to stop and not relevant to the charge of dangerous driving. I do not consider the Magistrate has made those errors and would not uphold ground 3.
The period of suspension was excessive
"4.The learned Magistrate erred in imposing a fine of $750 and disqualification of 15 months for dangerous driving by sentencing on factors unrelated to the offending and the circumstances of the offence by taking into account:
(a)The Appellant was male;
(b)The Appellant was aged between 18 and 25;
(c)Young males kill themselves and others by being immature, having large egos, showing off and displaying stupid behaviour."
Ground 4 must be explained by what his Honour said when setting the term of suspension. He said:
"If you ever bother to read about it, you'll discover that males between 18 and 25 years of age, kill themselves and other people on the roads more than any other group in society, and that is because of this combination of immaturity, stupidity on occasions, male ego, showing off to your mates, all of those things combined. So I'm going to do you a favour, Mr Heaton. I'm going to take your licence off you for a substantial period of time before you are involved in an incident which might well, as I have said, result in the death or injury to some innocent individual or you causing the same to yourself."
Had his Honour stopped after the phrase "all those things combined" there would be no cause for complaint. Magistrates daily deal with many matters and sentencing remarks are not judgments and cannot be read with that degree of fine‑combing which is sometimes applied to reserved judgments. Sentencing remarks on occasion do, and properly should, contain elements of homily, advice or warning which are separated from the reasoning process leading to the penalty.
In the present case, the reasoning process miscarried. The Magistrate may well be right - young people drive with stupidity, male ego and showing off to mates et cetera. But the Magistrate then failed to give proper consideration to the position and circumstances of the person before him and what would constitute a proper period of disqualification for the appellant as opposed to a person who simply happens to be in the group which meets the descriptor given by the Magistrate.
While the Magistrate imposed a period of disqualification, it would appear for the purposes of public safety and of the appellant's safety, he does not in doing so appear to have given any consideration as to the fact that a disqualification was inevitably a further punishment on top of the fine. Nor did he appear to take into proper account the personal characteristics, as he knew them, of this appellant to decide what length of disqualification should be appropriate. In this case, the circumstances were that the appellant was aged 20, apparently employed, had one previous significant conviction for driving with excess .08. There were also the circumstances of the accident and the subsequent leaving the scene.
The error of reasoning by the Magistrate in applying the characteristics of the group to the appellant, without qualification, is such that there was an error of principle. The period of disqualification must be set aside. It is then necessary for me to look afresh at the question of whether there should be a disqualification and, if so, what that period should be. Only if I conclude that the disqualification I would impose would be the same as that imposed by the Magistrate would I have the power to dismiss the appeal under s 14 of the Criminal Appeals Act as urged upon me by counsel for the respondent.
In fact, I do not so conclude. This example of dangerous driving, and the appellant's earlier record, demonstrate that he is a person from whom the community requires a period of suspension for the purposes of safety. A period of disqualification is appropriate. However, that period should not be longer than one necessary to fulfil all the goals of sentencing. I bear in mind as well that the appellant is aged 20. The law recognises that people do mature. The appellant has lost the new car that he was given for his birthday. He has created for himself a significant financial hurdle. If the penny has not dropped with him now as to the consequences of his driving I doubt whether a lengthy period of disqualification will make any difference.
I take into account the need for a proper response by way of punishment to the dangerous driving. I have imposed a fine of $400. I do consider disqualification is appropriate. I would normally impose a disqualification on the appellant for a period of 3 months. However, the appellant has done, on my calculations, I think, roughly 2 months' disqualification so for those reasons I will impose a further 1 month period of disqualification to take effect from 11 September 2006.
The orders I make are that the appeal is allowed. The fine of $750 is set aside and in lieu thereof the appellant is fined $400. The term of 15 months' licence disqualification is set aside and in lieu thereof the appellant is disqualified from holding or obtaining a motor vehicle driver's licence for a period of 1 month from 11 September 2006.
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