Holmes v Heycock

[1992] SASC 2954

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA JUSTICES APPEAL APPEAL FROM A COURT OF SUMMARY JURISDICTION AT HOLDEN HILL MATHESON J

CWDS
Road Traffic Act s.46 - bad case of dangerous driving by 18 year old youth - fine of $500 and disqualification for 12 months - appellant unrepresented at hearing - hardship in relation to studies and employment - disqualification reduced to six months.

HRNG ADELAIDE, 20 June, 1991 #DATE 20:6:1992
Counsel for the appellant:         Mr. E. N. McGee
Solicitors for the appellant:     Heuzenroeder and Heuzenroeder
Counsel for the respondent:         Ms. M. Clements
Solicitors for the respondent:     B. M. Selway, Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 MATHESON J The appellant pleaded guilty to a charge on complaint for that on 9 February, 1991 at Tranmere and other places in the State of South Australia he drove a vehicle, namely a utility on a road, namely Magill Road, at a speed and in a manner which was dangerous to the public, contrary to the provisions of s.46 of the Road Traffic Act, 1961. 2. The complaint was heard by Mr. A. R. Newman, S.M. sitting in the Holden Hill Court of Summary Jurisdiction. In his short remarks, his Honour said:
    " The speed that is alleged of 120 kph and the manner in which
    you were driving, even at 4 o'clock in the morning, if an emergency
    situation had arisen, even in a vehicle in completely first class
    condition, you would have been in no position at all to avoid a very
    serious accident. You were putting not only your life but the lives
    of your passengers, and in particular the two in the back of the
    vehicle, very much at risk by the erratic and high speed driving
    that is alleged by the police and admitted by you. It is one of the
    worst cases of this sort of driving that I've seen in the many years
    that I've been sitting on the Bench." 3. He fined the appellant $500 with $82 court fees, and disqualified him from holding or obtaining a driver's licence for a period of 12 months. On appeal, his counsel has argued that the period of disqualification was manifestly excessive in all the circumstances. I note that the minimum period of disqualification for this offence is six months. 4. There is no doubt that the offence was very serious indeed. The facts (which I quote from an affidavit admitted by consent) were as follows:
    " ... at 3.55 am on the 9th of February, 1991 police observed
    a Holden utility travelling north on Osmond Terrace and then turn
    right onto Magill Road at a fast rate of speed. As the vehicle
    executed the turn there was a loud squealing of tyres. Police
    observed 4 persons in the vehicle including 2 male persons sitting
    in the rear of the utility, facing each other with their feet on the
    floor of the utility tray. The male persons were heard to scream
    loudly as the vehicle turned onto Magill Road. The vehicle then
    proceeded east on Magill Road at a very fast rate of speed. Police
    observed the vehicle swerve erratically onto the incorrect side of
    the carriageway before returning to the correct side. Police
    followed the vehicle along Magill Road through Stepney, Maylands,
    Trinity Gardens and St. Morris. They positioned their vehicle about
    50 metres from the rear of the utility and timed its speed over 4
    tenths of a kilometre at a constant speed of 120 kilometres an hour.
    The lights and siren on the police vehicle were activated. During
    the timing phase the vehicle suddenly moved from the left to the
    right side of the carriageway crossing over the centre line by about
    2 metres. The defendant stopped the vehicle on Magill Road at
    Magill. Police put the allegation of the speed to the defendant who
    said he had no reason for speeding and that he did not think he was
    doing 120 kilometres an hour. He said he had no reason for swerving
    onto the incorrect side of the road on 2 occasions. The defendant
    was reported. Traffic at the time was light and the weather was
    fine and dry." 5. The appellant had legal advice prior to the hearing before the learned Magistrate but was actually unrepresented at the hearing. He was under the impression that he would be disqualified for a period in the vicinity of six months and claims, and I accept, that he did not really have an opportunity to tell his Honour what particular hardships disqualification would mean to him both at the time and later in the year. The appellant is undertaking the second year of a two year diploma course in wine marketing at Roseworthy and lives 5 kilometres out of Tanunda. Between the time of the order and the completion of his course in November, he will be dependent upon lifts from his parents and from other students, I am satisfied that he has missed and will continue to miss some of his lectures in consequence of the disqualification. Moreover, he has very good prospects of working with Samuel Smith and Son Pty. Ltd. - Yalumba Wines in a sales merchandising role as from November, 1991. He had a holiday job with that Company in November and December, 1990 and made a favourable impression. 6. The appellant is 18 years of age and has no previous convictions. He obtained his P plates at the age of 16 and his full licence on 10 October, 1989. He says that since obtaining his licence he has done a lot of driving in the course of working as a station hand and travelling to properties as far afield as Yorke Peninsula, Gladstone and Meningie. 7. In all these very special circumstances, I have decided that I should reduce the period of disqualification imposed. I think the learned magistrate was entirely justified in taking a very serious view of the offence, and on the information before him the period of 12 months disqualification could not be said to be manifestly excessive. However, I am now better informed about the personal circumstances of the appellant and I think they justify me in taking the merciful course which I now do. 8. The appeal will be allowed for the purpose only of reducing the period of disqualification from 12 months to 6 months. In other respects the order of the learned Magistrate will be confirmed. There will be no order as to costs.