Nagy v Police - [2018] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NAGY v POLICE
[2018] SASC 141
Judgment of The Honourable Justice Kelly
20 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
The appellant pleaded guilty to one count of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961. The offence was aggravated because the appellant’s driving caused the death of a motorcyclist. The learned Magistrate recorded a conviction, directed the appellant to enter into a bond to be of good behaviour for two years and imposed a licence disqualification period of 18 months.
The appellant appeals against the disqualification period imposed on the grounds that it was manifestly excessive and that the learned Magistrate did not give any or adequate reasons for imposing a disqualification period three times more than the minimum prescribed by legislation.
Held per Kelly J dismissing the appeal:
1. It was a legitimate approach of the learned Magistrate in sentencing the appellant to balance the leniency afforded to him in not imposing a sentence of imprisonment with the imposition of a higher period of licence disqualification.
2. The learned Magistrate gave adequate reasons.
Road Traffic Act 1961 Section 45, referred to.
Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd [2013] SASCFC 100, distinguished.
Nattrass v Police [2008] SASC 267 ; Sprigg v Police [2011] SASC 10; Police v Godwin [2011] SASC 222; Fritsch v Police [2011] SASC 222; Wimmer v Police [2013] SASC 95; Harding v Police (2011) 110 SASR 197; Thiele v Police [2009] SASC 159; Police v Jachmann [2010] SASC 345; Gupta v Police [2017] SASC 20; G, J J v The Police [2012] SASCFC 139; R v Bennett [2011] SASCFC 68; Police v Berzins (2011) 111 SASR 319 ; Trompp v Liddle [1941] 41 SR (NSW) 108 ; Police v Chilton (2014) 120 SASR 32, considered.

NAGY v POLICE
[2018] SASC 141
Magistrates Appeal: Criminal
KELLY J:

The appellant Zolton Nagy appeals an order made in the Magistrates Court on 29 June 2018 that he be disqualified from driving for a period of 18 months, commencing 121.01 am on 5 July 2018.
The appellant had pleaded guilty to one count of aggravated driving without due care contrary to s 45 of the Road Traffic Act 1961 (“Road Traffic Act”). The circumstance of aggravation was the fact that the appellant’s driving caused the death of a motorcyclist.
The appellant requires an extension of time within which to file the notice of appeal. That application is not opposed and accordingly the appellant is granted the required extension of time. Also, for the sake of completeness, I make it clear that on the hearing of this appeal I have also taken into account the statement of Sergeant Craig Wutke dated 25 February 2017 which includes a schedule of times taken from his observations from viewing the Go-Pro footage taken from the motorcycle of the deceased. This included the time measured in seconds from when the appellant’s vehicle that was visible in the camera from the motorcycle to the time the appellant entered the intersection and to the moment of impact. Although this was apparently not tendered before the Court below, it was on appeal and I found that schedule helpful.
Background
The circumstances giving rise to the charge arose out of the following facts. On Friday, 8 July 2016 on the Barrier Highway near Burra at an intersection with Copperhouse Road and Springbank Road at about 12.15 pm, a collision occurred between a white sedan driven by the appellant and a yellow motorcycle being driven by the deceased man.
The appellant had been travelling south along Copperhouse Road towards its intersection with the Barrier Highway at which there was a give way sign. The motorcyclist was driving northeast along the Barrier Highway.
At the intersection the appellant pulled out in front of the motorcycle causing the motorcycle to collide with the front of the appellant’s vehicle. The motorcyclist was killed as a result of that collision.
At the intersection of the Barrier Highway and Copperhouse Road there is a clear and unobstructed view of the Barrier Highway for a distance of approximately 250 metres. On the day in question the weather was fine and dry.
The appellant is a 72 year old man with no prior history of offending of any kind.
After hearing submissions, on 29 June 2018 the learned Magistrate delivered sentence. His Honour recorded a conviction against the appellant and directed the appellant to enter into a bond to be of good behaviour for two years and to come up for sentence if the bond was breached. His honour disqualified the appellant from holding a driver’s licence for a period of 18 months.
The appellant now appeals against the disqualification of the licence on the following grounds:
The disqualification of the appellant’s driver’s licence was manifestly excessive;
The Magistrate did not give any or any adequate reasons for imposing a disqualification three times more than the minimum licence disqualification.
The essence of the complaint is that in light of a number of considerations the Magistrate ought to have imposed the minimum prescribed licence disqualification period only. These considerations include the appellant’s age, his excellent antecedents including an unblemished driving record and the absence of any offending history, his good character and his remorse. The appellant also points to the Magistrate’s description of the driving as being caused by momentary lack of care together with the fact that the victim was exceeding the speed limit at the time of the offence.
The appellant relied on a number of authorities of this Court. It was submitted these support the appellant’s contention that an 18-month licence disqualification period for an offence of aggravated driving without due care caused by momentary inattention is manifestly excessive.
That submission necessitates an examination of the section of the Road Traffic Act which applies and the authorities which have arisen in relation to that section.
Section 45 of the Road Traffic Act states:
45—Careless driving
(1) A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2) If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a) the maximum penalty for the offence is 12 months imprisonment; and
(b) the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and1.6.2018—Road Traffic Act 1961 Duties of drivers, passengers and pedestrians—Part 3 Vehicle misuse and careless and dangerous driving—Division 4 Published under the Legislation Revision and Publication Act 2002 3
(c) the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3) For the purposes of this section, an aggravated offence is—
(a) an offence that caused the death of, or serious harm to, a person; or
(b) an offence committed in any of the following circumstances:
(i) the offender committed the offence in the course of attempting to escape pursuit by a police officer;
(ii) the offender was, at the time of the offence, driving a vehicle knowing that the offender was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that the offender's licence was suspended by notice given under this Act;
(iii) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(iv) the offender was, at the time of the offence, driving a vehicle in contravention of section 45A or 47.
Prior to the amendments to s 45 which were made in 2005 an offence of driving without due care carried a maximum fine only of $1,250 and a discretion was reposed in the Court as to the period of disqualification.
The introduction in 2005 of new aggravated offences of driving without due care represented a significant escalation of the penalties which had previously been imposed for careless driving.
As Bleby J observed in Nattrass v Police[1]:
It seems most likely that when parliament created the aggravated offence and provided for a maximum penalty of imprisonment, it intended that generally that penalty should apply where the aggravating circumstances are as severe as they were in this case, where the driving caused the death of a person. In other words, the only explanation for the more severe penalty is, in a case like this, the severe consequences of the offending.
[1] [2008] SASC 267 at [18].
It can be seen on the face of s 45 that a maximum period of imprisonment of 12 months is prescribed for the offence of aggravated driving without due care and a minimum period of licence disqualification of six months.
Where there is good reason a magistrate may utilise other alternative penalties such as a fine or a bond to be of good behaviour.
I turn now to discuss some of the authorities which both counsel referred to.
In Sprigg v Police[2], the issue on appeal was whether the appellant was guilty of the offence of aggravated driving without due care. The appellant had driven a motor vehicle which collided with another vehicle at a T-intersection on Victor Harbor Road with Waterport Road. As a consequence, the driver of the other vehicle was killed and consequently the appellant was charged with the aggravated offence.
[2] [2011] SASC 10.
The appellant was convicted and he appealed against his conviction. He argued that he had at all times driven properly and had taken all proper precautions, including looking carefully to his right for oncoming traffic on more than one occasion as he attempted to turn left from Waterport Road.
The Judge on appeal rejected that contention, finding that even if the appellant had looked to his right and kept a lookout, he had not exercised due care and attention, because if he had done so, he would inevitably have seen the other vehicle approaching as it was plainly there to be seen.
The Judge did however take into account a number of factors in finding that there was some explanation why the appellant may not have seen the approaching vehicle. He referred to the fact that it was dark and heavily overcast at the time. There had been drizzling rain prior to the accident and some drivers were using their headlights. In addition, the Judge found that the topography of the intersection included some large trees and vegetation at the side of the road. This provided a dark background in the area from where the deceased driver was travelling and may have partially obstructed the appellant’s view. An added problem in the circumstances was that the deceased driver was found not to have the vehicle headlights turned on.
In those circumstances, the Judge was prepared to reduce the sentence imposed by the Magistrate from four months to six weeks and wholly suspended. The statutory minimum six months disqualification of licence which had been imposed by the Magistrate was not altered.
Police v Godwin[3] was a Police appeal against a sentence imposed upon a person who had pleaded guilty to a charge of aggravated driving without due care. The circumstance of aggravation was that present in the appellant’s blood was a prescribed concentration of .113 grams of alcohol in 100 millilitres of blood. Police observed the defendant reverse his motor vehicle out of a car park and then drive on the incorrect side of the road, almost causing a collision with another vehicle.
[3] [2011] SASC 222.
The Judge on appeal declined to interfere with the Magistrate’s order that the appellant undertake 50 hours community service and imposed a licence disqualification period of the minimum six months. The Judge on appeal also accepted that the Magistrate had imposed a “merciful penalty” but declined to interfere with the sentence. Police v Godwin, simply stated, stands for no more than the proposition that the overall circumstances including the personal circumstances of a particular offender may allow a court to impose the statutory minimum disqualification of licence of six months.
In Fritsch v Police[4] the appellant pleaded guilty to one count of aggravated driving without due care, the circumstance of aggravation being that serious harm was caused to another person. The Magistrate imposed a 12-month good behaviour bond and disqualified the appellant from holding a driver’s licence for 15 months.
[4] [2012] SASC 54.
On appeal, the Court reduced the disqualification period on the ground that the appellant’s driving was “a moment of inattention”. The appellant in that case had performed a U-turn on a country road near her home without checking if there were oncoming cars. In reducing the licence disqualification from 15 months to eight months the Judge took account of the personal circumstances of the appellant. She was a nurse working irregular hours in a country hospital and lived 10 kilometres from her place of work. His Honour described the driving as negligent, but “not prolonged careless driving and therefore amounted to what may be considered to be momentary inattention”.
In Wimmer v Police[5] the appellant made a right-hand turn on a city street and failed to keep a proper lookout as a consequence of which an approaching motorcyclist was killed. The Magistrate sentenced the appellant to a term of imprisonment of two months suspended and disqualified him from holding or obtaining a licence for a period of 12 months. On appeal, the Judge confirmed the conviction of aggravated driving without due care. His Honour allowed the appeal against sentence by setting aside the order for imprisonment and substituting a fine of $1,000. He did not interfere with the disqualification period.
[5] [2013] SASC 95.
The appellant in Harding v Police[6] lost control of his motor vehicle whilst traversing a gentle bend on a bitumen road. As a consequence, he caused serious harm to his passenger. It was accepted that the cause of the vehicle leaving the road was the unroadworthy condition of the vehicle and the tread on the rear tyres. The Magistrate sentenced the appellant to a period of six weeks imprisonment and imposed a minimum licence disqualification of six months.
[6] [2011] SASC 114.
On appeal the single Judge set aside the sentence of imprisonment and directed the appellant to enter into a 12 month good behaviour bond... There was no interference with the licence disqualification period.
In Thiele v Police[7] the appellant was driving a motor vehicle on a country road and failed to give way to a motorcyclist travelling on the highway. The appellant was charged with aggravated driving without due care. The circumstance of aggravation was the death of the motorcyclist. The motorcyclist was wearing black, was riding a black motorcycle and was travelling against a background of dark trees which cast a shadow partially obscuring and camouflaging the motorcyclist.
[7] [2009] SASC 159.
The Magistrate sentenced the appellant to eight months imprisonment with seven of those months being suspended and imposed a licence disqualification period of 18 months.
The issue on appeal was whether the Magistrate was in error in describing the appellant’s want of due care as “close to being in the worst offending category.”
On appeal, the Judge took the view that in light of the explanation why the appellant did not see the motorcyclist, the offending could not be said to be in the worst category of offences of this nature. The Judge accepted that although the appellant’s lookout was inadequate the circumstances explained why she may not have seen the motorcyclist. Accordingly, his Honour categorised the lack of due care as “… in the category of a common human failing – an everyday experience. It was not close to the worst category of offending.”
In those circumstances the Judge allowed the appeal against sentence and wholly suspended the term of imprisonment. He did not interfere with the licence disqualification.
In Police v Jachmann[8] a truck driver driving a B-double semi-trailer collided with a cyclist on the Sturt Highway while travelling at a speed of between 90 to 95 kilometres per hour. The truck driver was charged with aggravated driving without due care. The circumstance of aggravation was the death of the cyclist. The Magistrate found that the cyclist was close to the left-hand edge of the sealed carriageway. There was no overhanging vegetation that would cast a shadow over the cyclist. The Magistrate accepted the truck driver’s claim not to have seen the cyclist at all prior to the collision. The Magistrate imposed a monetary penalty of $250 only and imposed the mandatory minimum licence disqualification of six months.
[8] [2010] SASC 345.
The Police appealed the sentence. The issue on appeal was whether the Magistrate had acted beyond power in fining the truck driver $250. On appeal, Gray J stated:[9]
It is to be recognised that more serious degrees of culpability may be envisaged than a simple case of a defective lookout, such as a defective lookout arising from a high blood alcohol reading. However, the present offence was nevertheless an aggravated offence and as the remarks of Bleby J in Nattrass demonstrate, the amendments to the Road Traffic Act and in particular s.45 were specifically designed to address the serious consequences that may flow from driving without due care.
Further, the Magistrate was in error in expressing the view that the Court should have an “unfettered discretion as regards the sentencing tariff”. There is no sentencing tariff. This is particularly so in regard to the wide range of circumstances that can give rise to an offence against s. 45 of the Road Traffic Act. Further, the sentencing discretion is fettered by the mandatory minimum licence disqualification that is to be imposed and by the lack of a discretion to impose a fine. Parliament did intend to fetter the sentencing discretion and did so by the terms of the legislation.
[9] Police v Jachmann [2010] SASC 345 at 17.
The Judge on appeal set aside the order made by the Magistrate and imposed a term of imprisonment of three months suspended. His Honour disqualified the driver from holding or obtaining a driver’s licence for a period of nine months.
In Gupta v Police[10] the appellant inadvertently pressed the accelerator instead of the brake in a car park and moved forward abruptly for about eight seconds. During that time she injured several people, some of them seriously. A magistrate imposed a prison sentence of three months suspended with a licence disqualification period of 12 months. On appeal, the Judge set aside the sentence of imprisonment and substituted a fine of $1,000. Her Honour did not interfere with the licence disqualification period.
[10] [2017] SASC 20.
In G, J J v The Police[11] a youth drove into the rear of another vehicle and caused serious injury to three occupants of the other vehicle. He had been originally charged with three separate offences of aggravated driving without due care. On appeal the Crown conceded that he should only have been charged with one offence of aggravated driving without due care.
[11] [2012] SASCF 139.

On appeal the Court set aside the sentence originally imposed and without recording a conviction imposed a sentence of 120 hours of community service. The Court disqualified the youth from holding a licence for a period of 18 months.
I was referred to numerous other authorities during argument. Those authorities demonstrate that the circumstances in which the offence of aggravated driving without due care can be committed are wide and disparate. In some cases minimum periods of disqualification of licence have been imposed. In others, such as R v Bennett[12]and Police v Berzins,[13] disqualification periods of two years and 20 months respectively were imposed.
[12] [2011] SASCFC 68.
[13] [2011] SASCFC 146.
Section 45 of the Road Traffic Act was amended after the Kapunda Royal Commission and was specifically designed to address the serious consequences that may flow from driving without due care. Nevertheless, in an appropriate case the Court will dispense with the need to order a sentence of imprisonment. Many of the appeals to which I was referred concern cases where orders were made at first instance to impose either immediate or suspended terms of imprisonment.
These authorities demonstrate that an order for disqualification is one component only of a sentence to be imposed for the offence of aggravated driving without due care under s.45 of the Road Traffic Act. The flaw in the appellant’s argument is in seeking to view the appropriateness of an order for disqualification in isolation from the rest of the sentence imposed. As the authorities to which I was referred plainly demonstrate, it is one component only of an overall sentencing package. The disqualification period imposed in this case must be assessed in the light of the maximum penalty imposed by s.45 of the Road Traffic Act. Here the maximum penalty prescribed is 12 months imprisonment while the minimum licence disqualification prescribed is six months.
Most of the authorities to which I was referred dealt with issues which arose because a magistrate had either imposed an immediate sentence of imprisonment in circumstances where they felt an obligation to do so, or where they failed to suspend a term of imprisonment which was imposed in some other circumstances. The issue and length of the licence disqualification was very much a secondary issue in those matters.
Here, it is evident from the Magistrate’s remarks that his Honour was persuaded that in all of the circumstances a sentence of imprisonment was not required. Having regard to the whole of the circumstances, including in particular the appellant’s personal circumstances, that course was open to his Honour.
The appellant’s counsel sought to characterise the appellant’s driving in this case with the driving of appellants in cases such as Sprigg v Police,[14] Thiele v Police[15] and Fritsh v Police[16], where in the latter case the Court characterised the driving as “momentary inattention”[17]. In some respects, this is misleading as has been pointed out in all cases of driving without due care there is of necessity an element of inattention involved. That is why the offence is described as driving without due care.
[14] [2011] SASC 10.
[15] [2009] SASC 159.
[16] [2012] SASC 54.
[17] [2012] SASC 54 at 10.
I do not see much merit in endeavouring to categorise the various levels of driving without due care in the particular circumstances of this case. I do however observe that the circumstances here were not on all fours with the authorities relied on by counsel for the appellant, in particular Sprigg v Police[18] and Thiele v Police[19]. As I have observed earlier there were explanations accepted by the Court in both cases as to why the respective appellants did not see the other vehicles.
[18] [2011] SASC 10.
[19] [2011] SASC 159.
In the current case, the Court had the benefit of still pictures taken from the Go-Pro camera of the deceased motorcyclist. I have viewed all of those pictures. A striking feature demonstrated by those pictures shows that on that section of road there is clear visibility in both directions. Counsel for the appellant sought to proffer, as had been done in the Court below, an explanation that the yellow motorcycle might have blended in with the colour of the grass. The photographs give the lie to that submission. It was the middle of winter and the grass was green. There was nothing to impede the vision of the oncoming motorcyclist from the appellant’s vehicle as it approached the intersection.
It can be accepted that the appellant’s driving was not aggravated by any other circumstance, such as speeding or recklessness. Nevertheless, it is plain from the footage taken from the deceased’s camera that the appellant should have had in full view the approaching motorcycle. There is simply no explanation for his failure to see the motorcyclist other than that the appellant either has defective vision or he did not maintain an adequate look-out. In these particular circumstances, the driving in this case was not in the upper range of seriousness for offending of this category. Nevertheless, in the absence of any explanation as to why the appellant failed to see what was plainly there to be seen, I consider this was a case of a grossly inadequate failure to keep a proper lookout.
I am not persuaded by the appellant’s argument that the speed of the motorcycle being driven by the deceased was a cause of the accident. It is likely that the motorcyclist was travelling at 115 or perhaps up to 120 kilometres per hour. Nevertheless, as the vision from the Go-Pro camera shows, he was entitled to assume that the white sedan approaching the main highway would slow down and stop.
The New South Wales Court of Appeal in Trompp v Liddle[20] stated the principle as follows:
A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not.
[20] (1941) 41 SR (NSW) 108 at 109.
Counsel for the appellant relied on the decision of this Court in Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd[21] as authority for the proposition that the deceased had a duty to drive defensively in the circumstances. In Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd the driver of a semi-trailer collided head-on with a Jaguar motor vehicle on the Dukes Highway in South Australia. The point of distinction between the driving in that case and the driving of the appellant in this matter is obvious. For a period of approximately 500 metres the driver of the semi-trailer had the opportunity to observe the approaching Jaguar behaving in an erratic fashion, swerving on to the incorrect side of the road and drifting from right to left. The Court held that from the moment he saw the Jaguar straddling well over the centre line of the country highway, only a few hundred metres away, behaving erratically, the driver presented a serious and imminent danger. In these circumstances the truck driver should have applied pressure to the truck’s brakes before he did.
[21] [2013] SASCFC 100
In this case, there was nothing in the conduct of the appellant’s driving as he slowed down and approached the intersection with the main highway to suggest that he would not give way to the deceased, as he was required to. Indeed, from the photographs of the damage made on impact, and taking into account the schedule tendered as to the timing of each vehicle’s approach to the intersection, I consider that it is likely the deceased had no time at all to take any evasive action to avoid a collision as the appellant pulled out in front of him. Certainly, on the material before me, there is no suggestion that the appellant did anything other than slow down as he approached the intersection. In these circumstances, I consider the deceased was entitled to assume that the vehicle entering from the side road would not pull out in front of him unexpectedly.
In response to the respondent’s outline of argument the appellant filed one further ground of appeal complaining that the Magistrate did not give any or any adequate reasons for imposing a disqualification which was three times more than the minimum described by the legislation.
The appellant’s complaint in this regard brings to mind the observations of Kourakis CJ in Police v Chilton:[22]
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity too, and a rigorous application of, the prescript in House v The King.
[22] [2014] SASCFC 76 at [19].
The short answer to the appellant’s complaint that the Magistrate did not explain why he imposed a licence disqualification of 18 months might be said to be because the reason was obvious.
The authorities demonstrate that very often the outcome for a person convicted of the offence of aggravated driving without due care where the circumstance of aggravation is the death of another person, is a sentence of imprisonment being imposed. In Nattrass[23] Bleby J explained why:
The consequences of an offence of this nature will almost invariably be unintended. It may seem harsh, but Parliament has prescribed a maximum penalty of imprisonment for 12 months for an aggravated offence of this nature. Because serious consequences of driving without due care of the nature of what occurred in this case will rarely be intended, and because this section of the Road Traffic Act is not concerned with recklessness, it seems most likely that when Parliament created the aggravated offence and provided for a maximum penalty of imprisonment, it intended that generally that penalty should apply where the aggravating circumstances are as severe as they were in this case, where the driving caused the death of a person. In other words, the only explanation for the more severe penalty is, in a case like this, the severe consequences of the offending.
[23] [2008] SASC 267.
Here, after consideration of all of the appellant’s personal circumstances, the Magistrate came to the conclusion that it was not a case which required his Honour to impose a sentence of imprisonment at all, whether immediate or suspended.
It was a legitimate approach to balance that leniency with a higher period of disqualification than his Honour might otherwise have done. The section prescribes a minimum period. That does not mean a Magistrate is obliged to impose a minimum. While the circumstances of this appellant’s driving might be said to constitute a typical example of an offence of this nature, that does not necessarily mean that it is either at the upper end or the lower end of the range of seriousness for the offence of aggravated due care. It simply means it is typical.
The question on this appeal is not whether this Court would have imposed a lesser or higher period of disqualification. The question is whether the imposition of a licence disqualification period of 18 months was within the range available to the Magistrate, as part of the sentence imposed.
While it can be accepted that the sentence as a whole in respect of both components needed to be within the available range, nevertheless there was nothing to prevent the Magistrate balancing as he did a higher disqualification period with the decision not to impose any term of imprisonment at all.
I do not accept the contention that the Magistrate did not give adequate reasons. The reasons in fact were very thorough and detailed and it is plain that his Honour went to some lengths to explain why it was that he found it unnecessary in the circumstances of this case to do more than impose a bond to be of good behaviour as the primary penalty. The higher period of disqualification imposed was well within the range available to his Honour and is explicable on that basis.
The appellant also complained that although the Magistrate was informed that due to a medical condition the appellant’s wife does not drive, no further submissions were made as to the effect on the appellant and his wife of a disqualification period of 18 months. On appeal I was informed that the appellant’s wife is wholly reliant on the appellant for private transport. Both the appellant and his wife are in their 70s and need to attend medical appointments and attend outings to avoid social isolation. Counsel for the appellant said this inconvenience is compounded by the age of the appellant and his wife and the fact that they are retired.
Although some of the details may not have been put before the Magistrate, he was plainly aware that the appellant was a retired man of the age of 72. I do not consider that the inconvenience to the appellant and his wife for the period of disqualification is a matter that requires any reconsideration of the disqualification period imposed by the Magistrate. That is because the appellant and his wife reside in a metropolitan area. Although undoubtedly it may well be inconvenient, there will be nothing to prevent them availing themselves of public transport or private transport to necessary appointments in the period during which the appellant is disqualified.
I dismiss this appeal.