McColgan v Seiler

[2000] WASCA 168

McCOLGAN -v- SEILER [2000] WASCA 168

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 168
Case No:	SJA:1032/2000	Heard:	16 JUNE 2000
Coram:	HEENAN J	Delivered:	22/06/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Penalty varied by setting aside disqualification
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Parties:	ANTHONY JOHN McCOLGAN RONALD THOMAS SEILER
Catchwords:	Traffic offences Careless driving Penalty Colliding with rear of vehicle stopped in line of traffic on freeway Inattention more than momentary Appeal against disqualification for nine months Weight to be given to circumstances of offence and antecedents of offender
Legislation:	Road Traffic Act 1974, s 62 Sentencing Act 1995, s 105
Case References:	Logan v Weary, unreported; SCt of WA (Burt CJ); Library No 4951; 13 June 1983 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 2 February 1994 Caine v Penman, unreported; SCt of WA (Pidgeon J); Library No 6435; 8 September 1986 Chan v The Queen (1989) 38 A Crim R 337 Haines v Jupp, unreported; SCt of WA (Wallace J); Library No 4523; 26 May 1982 Harling v Hall (1997) 94 A Crim R 437 House v The King (1936) 56 CLR 499 Ladlow v Hayes (1983) 8 A Crim R 377 Lewis v Bennett, unreported; SCt of WA (White J); Library No 930406; 14 July 1993 Lowndes v The Queen (1999) 73 ALJR 1007 Lumney v Bennett, unreported; SCt of WA (Scott J); Library No 930697; 6 December 1993 Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 Nevermann v The Queen (1989) 43 A Crim R 347 R v Tait (1979) 46 FLR 386 Svenson v Cooper, unreported; SCt of WA (Olney J); Library No 6411; 21 August 1986

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : McCOLGAN -v- SEILER [2000] WASCA 168 CORAM : HEENAN J HEARD : 16 JUNE 2000 DELIVERED : 22 JUNE 2000 FILE NO/S : SJA 1032 of 2000 BETWEEN : ANTHONY JOHN McCOLGAN

Appellant

AND

RONALD THOMAS SEILER
Respondent

Catchwords:

Traffic offences - Careless driving - Penalty - Colliding with rear of vehicle stopped in line of traffic on freeway - Inattention more than momentary - Appeal against disqualification for nine months - Weight to be given to circumstances of offence and antecedents of offender

Legislation:

Road Traffic Act 1974, s 62

Sentencing Act 1995, s 105

Result:

Appeal allowed

Penalty varied by setting aside disqualification


(Page 2)

Representation:

Counsel:

Appellant : Mr G W Massey
Respondent : Mr F Sunderland

Solicitors:

Appellant : Fiocco Hopkins Nash
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Logan v Weary, unreported; SCt of WA (Burt CJ); Library No 4951; 13 June 1983

Case(s) also cited:

Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 2 February 1994
Caine v Penman, unreported; SCt of WA (Pidgeon J); Library No 6435; 8 September 1986
Chan v The Queen (1989) 38 A Crim R 337
Haines v Jupp, unreported; SCt of WA (Wallace J); Library No 4523; 26 May 1982
Harling v Hall (1997) 94 A Crim R 437
House v The King (1936) 56 CLR 499
Ladlow v Hayes (1983) 8 A Crim R 377
Lewis v Bennett, unreported; SCt of WA (White J); Library No 930406; 14 July 1993
Lowndes v The Queen (1999) 73 ALJR 1007
Lumney v Bennett, unreported; SCt of WA (Scott J); Library No 930697; 6 December 1993
Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998
Nevermann v The Queen (1989) 43 A Crim R 347
R v Tait (1979) 46 FLR 386


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Svenson v Cooper, unreported; SCt of WA (Olney J); Library No 6411; 21 August 1986

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1 HEENAN J: This is an appeal against a penalty of disqualification imposed upon the appellant in the Court of Petty Sessions at Perth for careless driving.

2 At about 6.15 on the evening of Monday 2 August 1999 the appellant had been driving a Subaru station wagon north along Mitchell Freeway near Karrinyup Road, in an area where the speed limit was 100 km/h. Also in the vehicle were a 10 year old boy, his father and another man. After two lanes of traffic ahead of him had banked up to a stop the appellant's vehicle ran into the rear of a Toyota sedan. The force of the impact pushed the Toyota forward and the appellant's vehicle continued on, sideways, colliding with the rear of a Ford sedan in the adjoining lane. The driver of the Toyota and two of the passengers from the appellant's vehicle were taken to hospital by ambulance. All three vehicles were towed from the scene.

3 On 22 December 1999 the appellant entered a plea of guilty to the charge of careless driving but, because he had been charged also with failing to report the accident and intended to defend that charge, both matters were adjourned until 9 February 2000. On that day the learned Magistrate accepted a submission of no case on behalf of the appellant and dismissed the charge of failing to report the accident. Then, when considering the penalty to be imposed for the careless driving, his Worship took into account the evidence which had been presented in support of the other charge. The evidence showed that the appellant had failed to keep a proper lookout, that his vehicle had been travelling fast when the accident happened and that the Toyota and the other car involved had been stationary for some time (the driver of the Toyota said it was about three seconds and the driver of the other car said that it was about five seconds) before the Toyota was hit. It seems that the inattention of the appellant had been more than momentary.

4 At the time of the accident the appellant was a 52 year old married man with three children. He was self employed as a financial adviser in a business which took him as far north as Kununurra and as far south as Albany. His counsel urged the learned Magistrate not to remove his licence submitting that, because he was required to service his clients statewide, it would impose inordinate hardship upon him. Counsel also pointed out that, although the appellant had been driving for approximately 35 years, his court record showed that he had been convicted of only two traffic offences: one, on 4 January 1982, of refusing a breath test and the other, on 15 April 1983, of driving under the influence. In respect of each he had been disqualified from holding a

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driver's licence, on the first occasion for four months and on the second for six months.

5 When imposing the penalty his Worship remarked as follows:

"The facts are not disputed. The defendant was driving his motor vehicle on the freeway. A line of vehicles stopped in front of him. He drove. He smashed into the back of the - - and I know the word 'smash' is a - - it's a word that denotes more than just hit the back of a car - - but it smashed into the back of the Toyota Corolla and careered that 10 metres, apparently, off the side of the road and then smashed into another car.

There's evidence from the first witness that he could see this car coming behind him very fast, and the first witness did say that he'd passed it earlier and it was weaving on the road, and then when he stopped up further ahead - - and he said he slowed down first to 70, and then slowed down and came to a halt, was there about 3 seconds and he could see this vehicle coming very fast and he said he knew it wouldn't stop, so he braced himself and then it pushed him 10 metres and then went on anything up to 20 or 30 metres after that, after hitting a second car.

We've had dozens and dozens - - hundreds of cases of cars hitting the back of other cars and usually they come to a halt. The force of hitting the car halts it, but here was a case where it shunted it out of the way and kept going and then hit another car, and I'm surprised he wasn't charged in that with dangerous driving. Certainly it's the worst case of careless driving I've ever seen, and it really calls for a sanction that's more than the minimum. It's enough to write off a car and do another one, and there was significant damage to his own it would seem. So that the maximum penalty for this offence you've got in the book is $600. I suppose we can envisage a worse one. So there will be a fine of $500 and he'll be disqualified from holding or obtaining a driver's licence for 9 months."

6 The charge was laid pursuant to s 62 of the Road Traffic Act 1974 which at the relevant time provided for a fine of $600 as penalty. The section makes no provision for disqualification. That provision is found in s 105(1) of the Sentencing Act 1995 which enables a court sentencing an offender for a motor vehicle offence to order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's

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licence. As Burt CJ observed in Logan v Weary, unreported; SCt of WA; Library No 4951; 13 June 1983,

"The essential question is as to whether in all the circumstances the order disqualifying the appellant was one which could be made by the Magistrate in all the circumstances of the case as a fair exercise of the discretionary judgment which is given to him by [the section in question]. To answer that question one must have regard to the circumstances of the offence and, I think importantly in traffic matters, to the relevant antecedents of the convicted person. By 'relevant antecedents' of course I mean regard should be had to his record as a driver of a motor vehicle."

7 In this case it was a bad accident, involving injury to three persons and damage to three motor vehicles, which resulted from a serious absence of due care and attention on the part of the appellant. However, while his traffic record was not a clean sheet, there was nothing about it which should have caused alarm. In particular it did not suggest that he was a person who had shown a disregard for the law or for the safety of other users of the road during the sixteen years which had passed since his last conviction.

8 In Logan v Weary Burt CJ went on to make the following cautionary remarks:

" ... when one is dealing with a particular offence committed under the Traffic Act which has no particular circumstance of aggravation about it I think it may be a wise counsel if people were to be punished in accordance with the punishment indicated in the Act as being directly referable to the offence which they have committed. In other words, I am saying that the jurisdiction conferred by [the section in question] should not be exercised, so to speak, as of course. I think you must be looking for some particular circumstance in the case being dealt with to justify the use of the ... disqualification power."

9 In my opinion, in this case the learned Magistrate placed undue emphasis upon the course taken by the appellant's vehicle after the first collision - that is at a time when its continued progress might well have been due to jamming of the accelerator or to something else which was quite beyond the appellant's control. That being so, I find that his Worship saw the conduct of the appellant as being more serious than it

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really was, leading him to impose the additional and unusual penalty of disqualification. I would allow the appeal and vary the penalty by setting aside the order for disqualification.