Nattrass v Police - [2008] SASC 267

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NATTRASS v POLICE
[2008] SASC 267
Judgment of The Honourable Justice Bleby
8 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence imposed by Magistrate following plea of guilty to aggravated driving without due care – appellant sentenced to three months imprisonment, suspended – appellant disqualified from holding or obtaining a driver’s licence for 18 months – whether alternative penalty of a fine available under s 18(a) Criminal Law (Sentencing) Act 1988 (SA) – whether sentence manifestly excessive – appellant drove when having difficulty seeing due to sun glare – lack of due care caused death of cyclist – effect of serious consequences on sentence – relevance of previous conviction for driving without due care when affected by sun glare – 50 years of otherwise incident free driving – requirement of driver’s licence for farming and truck driving businesses, and to transport wife to medical appointments – circumstances calling for merciful approach – appeal allowed - sentence of imprisonment confirmed – driver’s licence disqualification reduced to mandatory six months.
Road Traffic Act 1961 (SA) s 45, s 164; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 10, s 11, s 15, s 16, s 18, s 39, referred to.
Philp v Bonney (1989) 50 SASR 531; Janz v Woolven (1990) 55 SASR 239; Cobiac v Liddy (1969) 119 CLR 257; R v Lowery (1992) 14 Cr App R 485; R v Penno (2004) 236 LSJS 457, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"penalty", "sentence"

NATTRASS v POLICE
[2008] SASC 267
Magistrates Appeal
BLEBY J.
Introduction

This is an appeal against a sentence imposed in the Magistrates Court sitting at Mt Gambier.
The appellant, Leslie Nattrass, pleaded guilty to a charge of driving without due care. This was an aggravated offence, the aggravating factor being that the death of a person was caused. On 2 July 2008, Mr Nattrass was sentenced to three months imprisonment. The sentence was suspended upon Mr Nattrass entering into a three-year good behaviour bond. In addition, he was disqualified from holding or obtaining a driver’s licence for 18 months.
Circumstances of the offence
The offending occurred early on the morning of 7 February 2007 at Yahl, near Mt Gambier. The victim, Anita Mary Evans, was riding her bicycle along Caroline Road. She was travelling east, and riding on the left hand side of the road. Mr Nattrass was also driving his cattle truck east along Caroline Road. There was no oncoming traffic. Mr Nattrass’ vehicle struck Ms Evans and killed her almost instantly.
The accident happened on a straight and open stretch of road, close to the homes of both Ms Evans and Mr Nattrass.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nattrass v Police

Details

AGLC: Nattrass v Police [2008] SASC 267
Case: [2008] SASC 267
Decision Date: 8 October 2008

CaseChat Overview and Summary

Nattrass appealed against the sentence imposed by the Magistrate following his guilty plea to aggravated driving without due care, which resulted in the death of a cyclist. The appellant was sentenced to three months imprisonment, suspended, and disqualified from holding or obtaining a driver’s licence for 18 months. The central legal issue was whether the alternative penalty of a fine was available under section 18(a) of the Criminal Law (Sentencing) Act 1988 (SA) and whether the sentence was manifestly excessive. The court had to consider the appellant’s difficulty seeing due to sun glare, his previous conviction for a similar offence, and his 50 years of otherwise incident-free driving. The appellant argued that the need for a driver’s licence for his farming and truck driving businesses, as well as to transport his wife to medical appointments, warranted a merciful approach.

The court reasoned that the Magistrate had no choice but to suspend the appellant’s driver’s licence for a period of at least six months. However, the court found that the Magistrate failed to give sufficient weight to the appellant’s personal circumstances, which justified intervention. The court noted the substantial hardship to the appellant and his wife due to the licence suspension. Consequently, the court decided to reduce the period of licence suspension to the minimum period of six months, starting from 12.01am on 3 July 2008. In all other respects, the sentence imposed by the Magistrates Court was confirmed. The appeal was therefore allowed, and the order for disqualification from holding or obtaining a driver’s licence for 18 months was set aside, being replaced with an order for a six-month disqualification.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

The Magistrate had no choice but to suspend Mr Nattrass’ driver’s licence for a period of at least six months. I consider that the Magistrate failed to give sufficient weight to those personal circumstances, and that that failure justifies intervention by this Court. In all the circumstances, and because of the substantial hardship to the appellant and his wife by the licence suspension, I would reduce the period of licence suspension to the minimum period of six months.Conclusion The appeal is therefore allowed. The order for disqualification from holding or obtaining a driver’s licence for 18 months is set aside. In lieu thereof there is substituted an order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of six months commencing at 12.01am on 3 July 2008. In all other respects the sentence imposed in the Magistrates Court is confirmed.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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