Moore v Police - [2013] SASC 30

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2013] SASC 30
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
22 February 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
The appellant pleaded guilty in the Magistrates Court to driving in a manner dangerous contrary to s 46 of the Road Traffic Act 1961 (SA) - the Magistrate sentenced the appellant to three months imprisonment, reduced from four months imprisonment by way of his plea of guilty on the first day of trial - the Magistrate also disqualified the appellant from holding or obtaining a driver's licence for 12 months - at the time of sentencing the appellant was serving a term of imprisonment of one year, four months and two weeks with a non-parole period of five months - the Magistrate ordered that the sentence imposed by her be served at the expiration of that term and extended the appellant's non-parole period by one month - the appellant appeals against the sentence of imprisonment imposed by the Magistrate.
(1) Whether permission granting an extension of the time in which to appeal ought to be made - (2) whether the Magistrate considered the short duration of the offending, the low speed at which the appellant was driving and the lack of embarrassment to other vehicles - (3) whether the Magistrate failed to have regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) - (4) whether the sentence was manifestly excessive in the circumstances.
Held: appeal dismissed - (1) an extension of time in which to appeal is granted to 10 December 2012 when the notice was filed - (2) the Magistrate expressly took account of the appellant's low driving speed - it is implicit in the Magistrate's remarks that she had in her mind the matters of duration and lack of embarrassment - (3) the Magistrate expressly turned her mind to s 11 of the Criminal Law (Sentencing) Act 1988 (SA), although she did not expressly mention the section itself - (4) the sentence is relatively severe for an offence of this kind, however, I am not persuaded that it is manifestly excessive.
Road Traffic Act 1961 (SA) s 46; Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
The Queen v Reiner (1974) 8 SASR 102, considered.

MOORE v POLICE
[2013] SASC 30
Magistrates Appeal

KOURAKIS CJ (ex tempore): On 24 October 2012, the appellant, Mr Moore, pleaded guilty in the Magistrates Court to driving in a manner dangerous, contrary to s 46 of the Road Traffic Act 1961 (SA), on 20 December 2011 at Mawson Lakes. The Magistrate sentenced Mr Moore to three months imprisonment. The Magistrate indicated that, but for his plea of guilty, she would have sentenced the appellant to four months imprisonment. The reduction in sentence, of 25 per cent, was a generous one given that the appellant had pleaded guilty on the first day of trial. The Magistrate also disqualified the appellant from holding or obtaining a driver’s licence for 12 months.
At the time of sentence the appellant was serving a term of imprisonment of one year, four months and two weeks with a non-parole period of five months. The Magistrate ordered that the sentence imposed by her be served at the expiration of that term and extended Mr Moore’s non-parole period by one month.
The appellant appeals against the sentence of imprisonment imposed by the Magistrate. The notice of appeal was issued out of time. At the commencement of the appeal I granted an extension of the time in which to appeal to 10 December 2012 when the notice was filed.
The offence
The offence occurred when the appellant was emotionally upset, as a result of an argument with his girlfriend. The appellant and his girlfriend were travelling in his car in a north-westerly direction along Elder Smith Road when, as a result of the argument, his girlfriend moved out of the car and started to walk along the western or north-western side of Central Link Road.
The appellant drove over a traffic island as he turned left from Elder Smith Road onto Central Link Road. He then drove his car along on the wrong side of the road, that is the north-western carriage way of Central Link Road, as his girlfriend walked in a generally southerly direction on the adjacent footpath.
The appellant continued to follow his girlfriend past the junction of Capital Street and Central Link Road and then onwards towards the intersection of Metro Parade and Central Link Road. I proceed on the basis that the distance over which he drove on the wrong side of the road was in the order of, and certainly not much less than, 200 metres. Importantly, in that distance the appellant crossed over the junction of Capital Street and Central Link Road.
On the approach to the intersection with Metro Parade, the appellant accelerated his vehicle hard, against the north-western kerb of Central Link Road onto the footpath on which his girlfriend was walking.
Not surprisingly, the appellant was charged with an assault but that charge was withdrawn. The appellant is therefore not to be sentenced on the basis that he intentionally or even recklessly assaulted his girlfriend. In particular, he is not to be sentenced for intentionally or recklessly putting his girlfriend in fear.
The circumstances I have described, including driving onto the footpath, were nonetheless relevant to the dangerous driving offence. These facts were supplemented by other information provided by the prosecutor. The prosecutor inferred to the Magistrate that a witness, who was walking his dog in the vicinity, then saw the appellant’s girlfriend walk between traffic towards Club Metro Gym to get away. The witness observed the male drive his car over the traffic island on Elder Smith Drive into oncoming traffic and again over another island onto Metro Parade. According to the witness the male then deliberately drove his car onto the footpath at the female missing her by a matter of centimetres.
As I have already observed, the appellant cannot be sentenced on the basis that he intended to put his girlfriend in fear and the opinion of the witness on that issue must be put aside.
The prosecutor also provided the Magistrate an affidavit of a witness, an off-duty police officer. I will set out in my reasons paragraph [6] of Ms Fielder’s affidavit:[1]
The male appeared very agitated; he continued driving the vehicle at slow speed along side the female yelling out he was also punching the front windscreen of the vehicle as he drove along Central Link. Upon approaching Metro Parade, the driver of the red Toyota Celica accelerated hard causing the wheels on the vehicle to spin, turned the vehicle to face north, cut across oncoming traffic and drove up the gutter on to the foot path towards the female. I thought he was going to run the female down. The female avoided the vehicle and ran east across Central Link towards Metro Parade. I saw the male, no shirt, wearing jeans; exit the driver’s side of the vehicle and chase after the female.
[1] Exhibit R2, affidavit of Steven John Graham Exhibit SJG-3; FDN5C.
The affidavit of another off-duty police officer, M, was also put before the Magistrate. M deposed as follows:[2]
The male appeared very agitated; I could see him punching the front windscreen of the vehicle on three occasions as he drove along Central Link. Upon approaching Metro Parade, the driver of the red Toyota Celica accelerated hard causing the wheels on the vehicle to spin and drove up the gutter on to the foot path towards the female and I thought he was going to run her down. The female avoided the vehicle and [ran] across Central Link towards Metro Parade. I saw the male, no shirt, wearing jeans; exit the driver’s seat of the vehicle and chase after the female.
[2] Exhibit R2, affidavit of Steven John Graham Exhibit SJG-2; FDN5B.
The off-duty police officers approached the appellant soon after the incident. Their affidavits show that the appellant was abusive and threatening. He was very agitated. The appellant told the police officers that he needed medication from his car to calm himself down.
The appeal
The appellant complains that the Magistrate failed to consider the short duration of the offending, the low speed at which the appellant was driving and the lack of embarrassment to other vehicles.
The Magistrate expressly took into account the second matter. It is implicit in the Magistrate’s remarks that she had in mind the first and third matters. It is important that failure to mention a matter in sentencing remarks is not treated as proof that the Magistrate or judge did not consider the matter. Wells J has simply explained why that is so in The Queen v Reiner:[3]
A trial judge when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not “Reasons for Sentence”); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing. Speaking for myself, I sometimes omit on purpose certain matters that I have taken into account, because I deem it inadvisable, in the prisoner’s interest (for example in the interests of his ultimate rehabilitation) to mention them. I sometimes wish to stress certain matters, and accordingly mention them alone; it would be wrong to suppose I have considered nothing more.
[3] (1974) 8 SASR 102 at 114; see also Bray CJ at 106 and Hogarth J at 112.
I am not persuaded the Magistrate overlooked any of the matters to which the appellant has referred.
The appellant also complains that the Magistrate failed to have regard to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) which provides that a sentence of imprisonment may only be imposed if, in the opinion of the court, (relevantly to this matter) any other sentence would be inappropriate having regard to the gravity or circumstances of the offence.
The Magistrate expressly turned her mind to that consideration although she did not mention the section itself. The Magistrate referred to the increase in penalty imposed by the Parliament with effect from 30 July 2006. By those amendments, a penalty of imprisonment of up to two years was provided for a first offence of dangerous driving. Until then, a first offence of dangerous driving was punishable by a fine and licence disqualification only.
The Magistrate observed that, Parliament having taken a more serious view of dangerous driving, it was the duty of the court to impose sentences which reflected the increased maximum penalty and which acted as an effective deterrent.
For those reasons the Magistrate concluded that the appellant’s offending “was sufficiently serious to warrant a period of imprisonment”. The appellant has failed to make good this ground of appeal.
The appellant complains the sentence was manifestly excessive. The appellant’s counsel emphasised:
1.the appellant’s age, he is 23 years old;
2.the appellant’s prospects of future employment;
3.the short non-parole period fixed by the District Court;
4.that the appellant had undertaken and completed cognitive behavioural therapy for his anger management;
5.the appellant had not been convicted before of a traffic offence committed by reason of the manner of his driving.
In my view, those considerations do not show that the sentence is manifestly excessive. Insofar as the sentence had interfered with the appellant’s prospect for employment, it is to be remembered that the effective period of imprisonment was the period of one month by which the existing non-parole period of five months was extended.
The appellant also emphasised that this driving did not involve driving over long stretches of road, for example kilometres over a highway at excessive speeds. That submission can be accepted but it does not take the appellant very far. The core culpability of the offending in this case was not of that nature. The offence of dangerous driving is not limited to that paradigm case of dangerous driving.
The appellant’s driving fell into a category of dangerous driving which is not as common as the paradigm case. Nonetheless, it poses a real risk of harm to the public. Indeed, tragic examples of dangerous driving of this kind when youths have driven in and around their friends when they were unfit to do so causing real harm or, indeed, loss of life are known to the courts.
The culpability of the appellant’s offence lies not only in the manner of driving but also in his disturbed emotional state at the time. The distressed state described in the affidavit of police officer shows that the appellant’s incapacity to manage his car safely was as severe as some incapacity caused by drink driving. Counsel for the respondent, Mr Grant, submitted that the appellant was just not in a fit state to drive. I agree. The appellant was plainly distracted, if not obsessed by, his argument with his girlfriend. In that state the appellant was unlikely to notice cars coming in the other direction as he drove all the way to the intersection with Metro Parade. Drivers of cars turning either left or right from Metro Parade into Central Link Road would not expect a car to be on the wrong side of the road. The appellant was in no state to notice cars turning into Central Link Road or to take the appropriate evasive action. The risk of a collision was high.
Moreover, there was a gym nearby. There was a real prospect that people visiting or leaving the gym would cross Central Link Road in the area of the appellant’s car. Finally, and most importantly, the appellant’s girlfriend was put in real danger when his car mounted the footpath.
It is, as the Magistrate observed, important that penalties deter dangerous driving which carries with it a risk to life and limb. Substantial periods of imprisonment are imposed for offences of causing serious harm or death by dangerous driving to deter such driving and in the hope that the unacceptable road toll might be reduced. That objective will not be achieved only by imposing punitive and deterrent penalties on offenders when the driving does actually result in death or serious harm. It is important that offenders who have dangerously driven in a manner which creates a great risk of death or serious harm do not escape condign punishment for the manner of their driving merely because of the fortunate happenstance that no-one was in fact injured or killed. It is plain enough, but I should emphasise, that such an offender is not likely to be sentenced as if his or her offence caused harm or death. However, generally speaking, the degree of risk of death or serious harm should be reflected in the penalty imposed for dangerous driving. The circumstance that those persons who were put at risk were fortunate enough to escape unharmed is not a reason to ignore the dangers posed by the offender’s driving.
I accept that the sentence is a relatively severe one for an offence of this kind. However, I am not persuaded that it is manifestly excessive. I dismiss the appeal.