Menzel v Police No. Scciv-02-1441

[2002] SASC 404

MENZEL  v  POLICE
[2002] SASC 404

Magistrates Appeal (Criminal)

1. BLEBY J (Ex tempore): This is an appeal from a decision of the Magistrates Court sitting at Elizabeth against a sentence imposed upon the appellant for driving at a speed and in a manner dangerous to the public, contrary to s 46 of the Road Traffic Act 1961, and failing to comply forthwith with a request from the police to stop his vehicle, contrary to s 52 of the Road Traffic Act.  The appellant pleaded guilty to both offences.  A further complaint of driving without due care was withdrawn.

2. On the first offence of driving at a speed and in a manner dangerous to the public the Magistrate imposed a fine of $300 and disqualified the appellant from holding or obtaining a driver’s licence for 15 months commencing on 11 September 2002.  On the second offence the Magistrate imposed a fine of $300.  The conviction and penalty were entered on 10 September 2002.  The notice of appeal was filed on 25 September 2002, one day out of time.  There is no suggestion of prejudice to the respondent by the delay, and pursuant to Rule 3.04(d) of the Supreme Court Rules I extend the time within which the appeal may be instituted to 25 September 2002.

3. The appellant is self represented.  He appeals only against the length of his disqualification from holding or obtaining a driver’s licence.  This is based on hardship associated with his work circumstances and commitments.  It was the appellant’s first conviction for any offence.  The appellant is a partner in a business called Network Administration which involves him or his business partner conducting onsite call-out support to computer networks in schools.  He says that in February 2003 the partnership is due to start servicing some additional large contracts.  However, if he is unable to drive he claims it will be impossible for the business to take on the contracts as it will require serving three to four schools a day.  The appellant initiated the business partnership with his partner earlier in 2002.  He states that he earns a minimal wage and would not like to return to unemployment benefits.  He has no previous convictions.

4. When a person is convicted of driving at a speed and in a manner dangerous to the public, and it is a first offence, he or she must be disqualified from holding or obtaining a driver’s licence for such period being not less than six months, as the Court sees fit. Under s 46(3)(i) of the Road Traffic Act, however, if the Court is satisfied by evidence given on oath that the offence is trifling then a period of disqualification less than the prescribed minimum period, but not less than one month, can be imposed.  No such evidence was given in this case and under no circumstances could this offence be described as trifling, if such evidence had been given.  The appellant was therefore facing a minimum licence disqualification of six months.

5. The offence occurred at about 12.15 am on the Saturday before Christmas, 22 December 2001.  The appellant undertook what is often described as a “burnout” on Stebonheath Road, Davoren Park.  That is spinning the wheels of his car to produce clouds of smoke from the tyres and accelerating very fast.  He reached a speed estimated at 160 km per hour.  At that speed he failed to observe a stop sign at the intersection of Stebonheath Road and Petherton Road, Davoren Park.  He subsequently returned a positive blood alcohol reading which was dealt with by way of expiation notice.

6. He plainly endangered his own life, that of his passenger, and of other road users. A substantial penalty greater than the minimum licence suspension was called for.

7. The Magistrate warned the appellant at the outset of the hearing that he could be facing a substantial licence disqualification.  He gave the appellant an opportunity to obtain legal assistance, if he wished.  The appellant declined that offer.  The Magistrate invited the appellant to make submissions as to the need for his driver’s licence, but the appellant did not make any such submissions.  The Magistrate therefore proceeded, not through any fault of his, in ignorance of any relevant mitigating circumstances or circumstances of hardship which might affect the appellant.  The material on which the appellant now seeks to rely was not put to the Magistrate.

8. In order to justify reliance on that material now on appeal, three criteria must be met.  It must be shown that it could not have been obtained by due diligence at the time of the hearing;  it must be such as would have had an important influence on the outcome;  and it must be apparently credible:   R v Downing (1981) 27 SASR 481 at 485. It appears that some of the evidence on which the appellant now seeks to rely was available to be led but was not led. To that extent it seems to me there is no reason why it can now be relied on. To the extent that the events in question had not happened, and the appellant was unable to rely on the submissions which he now makes, that evidence too is not relevant because there has to be a point at which all the facts are closed, save in some very rare and special circumstances. Generally speaking that evidence cannot be relied on: R v Smith (1987) 44 SASR 587; R v Amuso (1987) 138 LSJS 53.

9. I turn to consider the sentence in the light of the material that was before the magistrate. It was, as I said, a serious offence.  But it was also a first offence by a man with an unblemished record.  Quite apart from any peculiar effects that a licence disqualification may have had on the appellant, a 15 month suspension was, in my opinion, unduly harsh.  Something more than the six month minimum was required.  In my opinion a suspension of eight months would have been appropriate. Accordingly, I make the following orders:

   (1)  The appeal is allowed.

   (2)  The order of the Magistrates Court that the appellant be disqualified from holding or obtaining a driver’s licence for 15 months is set aside.

   (3)  In lieu thereof there will be an order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of eight months commencing on 11 September 2002.

   (4)  In all other respects the sentence of the Magistrates Court is confirmed.