Lehmann v Police - [2010] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEHMANN v POLICE
[2010] SASC 102
Judgment of The Honourable Justice Gray
16 April 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING AT SPEED DANGEROUS TO PUBLIC
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
Appeal against conviction and sentence - defendant and appellant convicted of charge of driving at a speed dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA) - whether conviction appropriate - whether defendant's speed caused danger or risk of danger to the public - whether offence "trifling".
Held: appeal dismissed - defendant's driving caused a danger or risk of danger to the public and amounted to driving at a speed dangerous to the public - circumstances of offending do not justify a finding that the offence was "trifling".
Road Traffic Act 1961 (SA) s 45A(1) and s 46, referred to.
McBride v R (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; Firth v Prestwood (1987) 44 SASR 427; Merrill v Police (1996) 24 MVR 555; Senior v Police [2005] SASC 88; Siviour-Ashman v Police (2003) 85 SASR 23; Owen v Connellan (1991) 53 A Crim R 236, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"trifling"

LEHMANN v POLICE
[2010] SASC 102
Magistrates Appeal
GRAY J:

This is an appeal against conviction and sentence.
Bruce McCaig Lehmann, the defendant and appellant, was charged on complaint that on 23 December 2008, he drove a motor vehicle at a speed which was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA).[1] The defendant was further charged with the offence of driving at a speed of 45 kilometres per hour or more in excess of the speed limit, contrary to rule 20 of the Australian Road Rules and section 45A(1) of the Road Traffic Act.[2] The defendant pleaded not guilty to both counts.
[1] Section 46 of the Road Traffic Act 1961 (SA) relevantly provides:
(1)A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Maximum penalty: Imprisonment for 2 years.
(2)In considering whether an offence has been committed under this section, the court must have regard to—
(a)the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b)the amount of traffic on the road at the time of the offence; and
(c)the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d) all other relevant circumstances, whether of the same nature as those mentioned or not.
(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.
(4)In determining whether an offence is a first or subsequent offence for the purposes of this section, only a previous offence against subsection (1) for which the defendant has been convicted that was committed within the period of five years immediately preceding the commission of the offence under consideration will be taken into account.
[2] Section 45A(1) of the Road Traffic Act 1961 (SA) provides:
(1)A person who drives a vehicle at a speed exceeding, by 45 kilometres an hour or more, a speed limit that applies under this Act or the Motor Vehicles Act 1959 is guilty of an offence.
Penalty:
For a first offence—a fine of not less than $600 and not more than $1 000;
For a subsequent offence—a fine of not less than $700 and not more than $1 200.
Following a trial before a Magistrate, the defendant was found guilty and convicted of the charge of driving at a speed dangerous to the public. The charge of driving at an excess speed was dismissed. The Magistrate imposed a fine of $400.00 and disqualified the defendant from holding or obtaining a driver’s licence for a period of 12 months. At the time of sentencing, the defendant applied pursuant to section 46(3)(b) of the Road Traffic Act that the offence be considered “trifling”. That application was refused. The appeal is against that refusal and against the recording of the conviction.
Circumstances of the offending
The circumstances of the alleged offending and the findings of fact made by the Magistrate were not in dispute.
The incident giving rise to the charges occurred on 23 December 2008 at or about 11.30am. The defendant was travelling south on Menge Road, Tanunda. A vehicle equipped with a speed camera was stationary on the side of Menge Road, facing south down that road. It was accepted that the camera was capable of detecting vehicles both approaching and travelling away from the camera. As the defendant travelled past the speed camera on Menge Road, his vehicle was detected by that device as travelling at a speed of 97 kilometres per hour. The speed limit applicable to that portion of Menge Road was 50 kilometres per hour.
The relevant portion of Menge Road is a straight section of sealed road, 1.1 kilometres in length. On entry onto Menge Road, if travelling in a southerly direction, the relevant speed limit for approximately 300 metres is 80 kilometres per hour. Thereafter, the limit applicable to Menge Road is 50 kilometres per hour. The applicable limit is reduced on account of a built-up area on Menge Road and the subsequent approach to an intersection.
The vehicle equipped with the speed camera was positioned near the built-up area, which comprised five houses, a vineyard and a bowling centre. It was while travelling through this area that the defendant’s speed was recorded at 97 kilometres per hour. It was accepted that prior to being detected, the defendant was accelerating, but began decelerating shortly after passing the camera in preparation of coming to a halt at a stop sign at the intersection ahead. The defendant gave evidence that he was probably travelling at the speed of 97 kilometres per hour for approximately 50 metres.
Evidence was given that the average number of vehicles passing the speed camera that morning was just over one per minute, with a total of 155 vehicles passing in two hours and 15 minutes. However, no vehicles were observed to enter or exit the driveways along Menge Road and there were apparently no pedestrians in the immediate area at the time of the offence.
The manager of the bowling centre in the built-up area, gave evidence that December was one of the busiest months for the bowling centre. In relation to 23 December 2008, she estimated that there would have been 20 or 30 people present at the bowling centre at any one time throughout the day. She indicated that those patrons would have arrived either on foot, by bicycle or by motor vehicle. It was a popular location for children to visit while on school holidays and was particularly busy as a consequence of the proximity to Christmas.
It was accepted that Menge Road was a wide road, of bitumen construction and in good condition. At the time of the offence, the weather was fine and the visibility was good. The defendant’s vehicle was said to be in good condition, save for an inoperative speedometer. The vehicle had been serviced five days earlier. The defendant gave evidence that he was unaware of his precise speed, but thought that it was less than 97 kilometres per hour. The defendant also acknowledged that he was not aware of the 50 kilometre per hour road sign. These two matters suggest that the defendant was not keeping a proper lookout and was unaware that he was travelling at almost twice the applicable speed limit.
In assessing whether the defendant’s actions constituted driving at a speed dangerous to the public, the Magistrate engaged in the following discussion:
…What we had here was the defendant driving at nearly double the permitted speed in what the parties agree is a slightly built-up area. There are several driveways in the vicinity. Although no observations were made of his driving before and after his speed was recorded, the defendant’s speed when he passed the vehicle was 97 km per hour. The camera vehicle was parked in front of one of the houses. There were driveways on either side of the camera vehicle; that is one to the front and one to the rear of the vehicle. There was therefore a potential for pedestrians or vehicles to come out of those driveways at any time. It does not matter that in fact no pedestrian or no car was in the driveways at the time. It is the risk or potential which is important. If a vehicle or a pedestrian did come out of one of these driveways the defendant would not, at 97 km per hour, be in a position to deal safely with the situation.
The Magistrate made findings as follows:
I find The Menge Road vicinity is only sparsely populated.
I find there are five residential properties and the bowling centre situated on the left side of the Menge Road.
I find each of the houses has at least one driveway or entrance opening onto Menge Road.
I find there is a potential for motor vehicles and or pedestrians to be in the vicinity of the driveways at any particular time.
I find the speed detection vehicle was parked immediately in front of one of the houses.
I find the defendant’s vehicle was travelling at 97 km per hour when it passed the speed detection vehicle.
I find the defendant’s speed was almost double the permitted speed.
Because there was a potential or risk of vehicles or pedestrians entering Menge Road from any of the driveway/s serving the house where the camera vehicle was parked, a speed of 97 km per hour at that point in the road was dangerous. [The defendant’s] speed increased the risk of an incident, and increased the likely consequences of any untoward event to an unreasonable extent. I am satisfied beyond reasonable doubt the defendant was driving at a speed dangerous to the public. I find the charge proved.
The Appeal
Section 46 of the Road Traffic Act creates the offence of reckless or dangerous driving and relevantly provides:
(1)     A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Maximum penalty: Imprisonment for 2 years.
(2)     In considering whether an offence has been committed under this section, the court must have regard to—
(a)the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b)     the amount of traffic on the road at the time of the offence; and
(c)the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d)all other relevant circumstances, whether of the same nature as those mentioned or not.
(3)     Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.
On the hearing of the appeal, counsel for the defendant contended that on the basis of the circumstances of the offence and findings of fact made by the Magistrate, the defendant should have been found not guilty of driving at a speed dangerous to the public. It was said that in the circumstances, the speed of the defendant did not raise a risk of accident. To support this contention, counsel for the defendant pointed to the fact that the defendant drove at the excessive speed for only a short duration. Counsel contended that the defendant was an experienced driver well-equipped to respond appropriately in the event of an unexpected incident or event. Counsel submitted that the defendant did not travel through any intersections or junctions, the traffic was light and no vehicles entered or exited driveways at the time of the offence. It was said further that the location and the fact that the road was a rural rather than suburban road, the time of day, condition of the road and the good lighting, all contributed to minimising any risk created by the defendant’s speed.
Counsel submitted that the defendant’s speed was not a deliberate breach of the road rules. As earlier noted, the defendant’s speedometer was not operating at the time of the offending. Further, the defendant gave evidence that he was not aware of how fast he was travelling or that the applicable speed limit was 50 kilometres per hour rather than 80 kilometres per hour. It was submitted that in these circumstances, the defendant’s offending was less serious than a deliberate breach of the road rules and should be characterised as a mere departure from the road rules.
Counsel for the defendant contended that the circumstances as described warranted a finding that the offence was trifling. It was said that the facts as outlined above demonstrated that although there was a high rate of speed, there was no danger or real risk of danger occasioned, and as a consequence, the offending conduct was properly characterised as trifling
Counsel for the Police contended that the speed of 97 kilometres per hour in the circumstances as accepted by the defendant amounted to driving at a speed dangerous to the public in accordance with section 46 of the Road Traffic Act. It was further submitted that the Magistrate was correct to find that there were no circumstances to justify a finding that the driving was trifling.
Appeal against Conviction - Driving in a Manner Dangerous
The question of whether a person was driving at a speed which is dangerous to the public involves an objective test. The test focuses upon the nature and degree of risk of harm created by the driver’s conduct to those on or in the vicinity of the roadway.
In McBride,[3] Barwick CJ discussed the concept of driving in a manner or at a speed dangerous to the public:
The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
[3] McBride v R (1966) 115 CLR 44 at 49-50.
Section 46 of the Road Traffic Act was considered in Pope v Hall where Wells J observed:[4]
It is now well settled that if driving in a manner, or (where appropriate) at a speed, which was dangerous to the public is to be proved, it must be demonstrated that, in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure—and nothing more serious—from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.
To speak of the degree of danger created by any given act or course of conduct comprehends, in my opinion, two factors: the degree of risk that something untoward will happen, and the degree of risk that, if something untoward does happen, the damage caused will be more, rather than less, serious. If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both those factors together that you will be able to determine the degree of risk created by the situation—in other words, how dangerous the defendant's driving was.
I should have thought that such an analysis would be suggested by the ordinary use of language and the ordinary experience of life's accidents.
[4] Pope v Hall (1982) 30 SASR 78 at 79-80.
The above observations emphasise that when assessing whether the defendant’s driving constitutes driving at a speed dangerous to the public, the relevant consideration is the likelihood of an adverse incident occurring involving other road users, and the likely seriousness of such an incident. A risk may exist regardless of whether any persons are actually present at the time of the alleged offence.
The types of risks occasioned by an increase in speed were discussed by Johnston J in Firth v Prestwood[5] in circumstances where the defendant was detected driving at a speed of 169 kilometres per hour when the applicable speed limit was 110 kilometres per hour. Johnston J noted that the weather conditions and visibility were good and there was nothing about the locale or vehicle which in itself made the defendant’s speed dangerous, before observing that the fact of speed alone created the relevant risk:
In my opinion, there was danger associated with the defendant's driving, given the nature of the location in which he was driving. His very speed reduced his power to make accurate observation of what was going on about; in a practical way, he himself thought for a moment that an accident had occurred, whereas in fact what had happened was that the police officers had stopped an earlier vehicle travelling in the same direction as the defendant. Driving at that speed could easily give rise to a situation of acute danger to others if for some reason the defendant himself was temporarily less able to control the vehicle than he normally would be, by some fainting turn, a coughing fit, or some small event of that sort. A vehicle that stopped on the side of the road, perhaps because it had been called on to stop by the police unit, would eventually make its way back into the stream of traffic. The driver might look and observe an oncoming car but the driver would not assume or be able to discern that the vehicle further back along the road was travelling at 169 kilometres per hour. The fact that none of these events occurred is not to the point. What is to the point is the risk. Another risk is a problem arising from a blow-out. It may of course be said that some of these risks attend an act of driving at 110 kilometres per hour, and so they do; but the risk is not an unreasonable and unwarranted risk in the ordinary circumstances of this road, because society says that that is the speed which in ordinary circumstances can be reached on this sort of stretch or road. To travel at a speed greatly above the maximum is to increase the incidence of risk and to increase the likely consequences of any untoward event to an extent which is unreasonable and unwarranted.
[5] Firth v Prestwood (1987) 44 SASR 427 at 432.

In Merrill,[6] Perry J adopted the remarks in Firth v Prestwood, and observed that the higher the speed the less significant other factors, such as the absence of traffic, may become. Perry J’s observations were referred to in Senior[7] where Sulan J further observed:
The appellant's speed on a motorcycle created an unacceptable risk. If something untoward did happen the damage or injury caused would be serious. Excessive speed alone will add both to the risk of something untoward happening, and to a greater risk of damage and injury if something untoward does happen. The risk created by the speed of the appellant's vehicle was such that it is sufficient to constitute the driving as dangerous.
[Emphasis added]
[6] Merrill v Police (1996) 24 MVR 555.
[7] Senior v Police [2005] SASC 88 at [16].
In the circumstances of the present proceeding, the defendant’s driving was properly characterised as driving at a speed dangerous to the public. Although it was accepted that there were no pedestrians in the immediate area and no vehicles entering or exiting driveways along the roadway, there was a real risk of persons or vehicles being present. The defendant was travelling at a speed almost twice the applicable speed limit. This has relevance in a number of respects. The defendant’s braking distance would have been substantially greater than that which could have been achieved had he been travelling at the appropriate speed. Further, the speed would have implications in relation to the defendant’s reaction time and ability to take evasive action. In the event of an unforeseen incident on the road, by the time the defendant responded to that incident, the defendant would have travelled nearly twice the distance that would have been covered if travelling at the applicable speed limit. As a consequence, the defendant’s ability to respond to an unexpected event was significantly reduced. The speed of 97 kilometres per hour also increased the likely seriousness of any impact in a collision. It is to be observed that the defendant’s experience and confidence as a driver did not ameliorate the danger associated with others not keeping a proper lookout and not driving in a cautious manner on the expectation of confronting a vehicle travelling at twice the applicable speed limit.
The finding of the Magistrate that the defendant’s offending amounted to driving at a speed that was dangerous to the public was open on the evidence and was the appropriate conclusion in the circumstances.
Appeal against Penalty – Trifling
Section 46 of the Road Traffic Act as excerpted above provides for a mandatory period of licence disqualification when a person has been convicted of an offence under the section. For a first offence, a person must be disqualified from holding or obtaining a driver’s licence for a minimum period of 12 months, unless the Court is satisfied by evidence given on oath that the offence is trifling. If the Court is so satisfied, it may order a period of disqualification that is less than the prescribed minimum, but not less than one month.
It is to be observed that it is difficult to know what is meant by “trifling” in circumstances where, in order for a defendant to have committed the offence in question, the vehicle must have been driven recklessly or at a speed or in a manner which was dangerous to the public.[8] However the section clearly indicates that the legislature intended that there may be instances of driving which could constitute a breach of the section, but still be characterised as a trifling offence.
[8] See eg Senior v Police [2005] SASC 88 (Sulan J).
“Trifling” is to be understood as being of slight importance, insignificant or of little moment. The word denotes triviality. This was recognised by Doyle CJ in making the following remarks in Siviour-Ashman:[9]
I agree with the judge that one should begin by bearing in mind the ordinary meaning of "trifling". That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side: see Verran v Roberts [1938] SASR 256 at 259-260; Mancini v Vallelonga (1981) 28 SASR 236 at 239. The offence might be unusual or exceptional in this sense, if it is "a trivial example of the forbidden act": Brebner v Hersey [1963] SASR 1 at 11.
[9] Siviour-Ashman v Police (2003) 85 SASR 23 at [24]-[25].
In assessing whether an offence is trifling, the offending conduct and the circumstances in which it took place, must be viewed as a whole.[10] The reasons why a person acts in a particular way may be relevant as part of the circumstances of the offending.[11]
[10] Siviour-Ashman v Police (2003) 85 SASR 23 at [41] (Doyle CJ); see also Senior v Police [2005] SASC 88 (Sulan J).
[11] eg Senior v Police [2005] SASC 88 at [26] (Sulan J).
In Owen v Connellan,[12] Debelle J made the following observations in relation to what constitutes a trifling offence of dangerous driving:
There is some force in [counsel’s] contention that, once the respondent had pleaded guilty, the offence could not be certified as trifling. It might often be difficult to determine what constitutes a trifling offence of dangerous driving. It is almost an abuse of language to speak of an offence of dangerous driving as being trifling. But effect must be given to the fact that Parliament contemplates the possibility of a trifling offence. The purpose is to obviate the serious consequences that may follow upon a conviction where the offence is really of a trifling nature but the court must not allow itself to be carried away by sympathy and use the power to defeat the intention of Parliament as it is expressed in the legislation under consideration: Crafter v Schubert at 85. Where the offence comprises nothing else other than travelling at a very fast rate of speed an offence might be capable of being treated as trifling. As Cox J said in Craig v Dunsmore (1986) 128 LSJS 293 at 294:
"How, then, can there be a trifling offence under that section? Somehow one has to grapple with the unmistakable fact that Parliament in s 46 contemplates the possibility of a trifling offence in relation to speed or manner dangerous to the public. I suppose it would have to be what one might call a mere technical breach of the law. So far as speed is concerned, such a case might be one which was constituted by bare speed and nothing else -- a speed such as to bring the case within the section, but with no significant danger to anyone, and perhaps by reason of such facts as a short distance driven, or other unusual circumstances, properly to be described as trifling within the meaning of s 46. Such cases, one supposes, will be quite uncommon."
Legoe J considered the same question in Freckleton v Gower (unreported, Supreme Court, SA, Legoe J, No 1388, 21 March 1989) and said that the offence will be trivial if there is no danger in fact and there is no real possibility or a cogent possibility of a potential for danger. Thus, depending on the circumstances of the particular case, it might be possible for a defendant to satisfy the court that an offence of dangerous driving is trifling where the driving consists only of driving at a high rate of speed and there is no danger in fact or no real risk of danger. The fact that each case must be separately considered on its own facts and circumstances is emphasised by the fact that driving at a speed of 100 km/h or less may be dangerous in some circumstances but not in others: compare Craig v Dunsmore; Pope v Hall; Wells v Gill [1960] SASR 106 with Freckleton v Gower.
It will of course be relevant if the applicant can satisfy the court that he was driving at a fast speed because of some urgency or other extenuating circumstances: Kowald v Hoile (1975) 12 SASR 101.
[Emphasis added]
[12] Owen v Connellan (1991) 53 A Crim R 236 at 238-239.
In the circumstances of the within proceeding, the defendant’s offending cannot be characterised as trifling. In travelling at a speed nearly twice the applicable limit, the defendant posed a significant danger to the public. The defendant’s offending took place in a built-up area. It occurred at a time when people, including children, were attending at the bowling centre and at a time when it was possible that nearby residents would leave their properties and utilise the roadway. People in the area would be justified in expecting road-users to be travelling at a speed of or less than 50 kilometres per hour and in conducting themselves on that basis. It is relevant that there were no exceptional circumstances which could in any way justify the speed at which the defendant was travelling. The defendant’s driving gave rise to a real and cogent possibility of a potential for danger.
Conclusion
The appeal is dismissed.