Nagy v Police

Case [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:

  1. 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.

  2. 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. 

  3. 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…

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Nagy v Police [2018] SASC 141
Case
[2018] SASC 141
Decision Date

CaseChat Overview and Summary

The appellant, Nagy, appeals against the disqualification of his driver’s licence by the Magistrates' Court of South Australia. The appeal arises from a fatal collision that occurred on 8 July 2016, when the appellant's vehicle collided with a motorcycle on the Barrier Highway near Burra. The collision resulted in the death of the motorcyclist. The appellant was charged and subsequently convicted, and the Magistrate imposed a sentence including a two-year good behaviour bond and an 18-month disqualification from holding a driver’s licence.

The central legal issues in this appeal revolve around the proportionality and reasoning behind the Magistrate's decision to disqualify the appellant from holding a driver’s licence for 18 months. The appellant argues that the disqualification was manifestly excessive and that the Magistrate did not provide adequate reasons for imposing a disqualification that was three times the minimum period prescribed by law. The appellant contends that, given his age, excellent antecedents, unblemished driving record, good character, and remorse, the Magistrate should have imposed the minimum prescribed disqualification period.

The Court considered the arguments presented and examined the evidence, including the observations from Sergeant Craig Wutke's analysis of Go-Pro footage from the motorcycle. While acknowledging the tragic outcome of the collision, the Court found that the Magistrate had provided sufficient reasons for the disqualification period imposed. The Court held that the Magistrate had appropriately considered the appellant's age, clean driving record, and remorse, but also the gravity of the incident and the need to deter similar conduct in the future. The Court found no error in the Magistrate’s assessment and upheld the 18-month disqualification.

The appeal was dismissed, and the 18-month disqualification of the appellant’s driver’s licence was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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