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. The road was a bitumen road with a grass verge to the edge of the bitumen. Mr Nattrass did not see Ms Evans before the vehicle hit her. He had difficulty seeing the road ahead because the sun was in his eyes. This difficulty was compounded by the fact that the vehicle’s windscreen was dirty and was covered with the remains of dead insects. Mr Nattrass had driven on that particular stretch of road 10 to 15 times a week for many years. He was aware that it was difficult to see when driving towards the sun on Caroline Road.
While travelling east along Caroline Road on this occasion, Mr Nattrass was obviously having difficulty in seeing what was ahead. For that reason, he reduced his speed to about 85-90 kph. The speed limit was 100 kph. As the Magistrate observed, his lack of care subsisted for a significant period of time and over a significant distance, and with his own awareness of the limitations of what he could see. Yet he deliberately continued to drive in circumstances where he could not and did not see Ms Evans.
A previous conviction
According to the Magistrate Mr Nattrass had been driving for 42 years. However, other information before the Court suggested that this was closer to 50 years. One matter which influenced the Magistrate was that Mr Nattrass had one speeding offence and a prior conviction for driving without due care. The latter offence occurred in 1990, in circumstances that had, according to the Magistrate, “very unhappy factual resonances with this [present] offence”. On the earlier occasion, three people were seriously injured as a result of Mr Nattrass’ failure to exercise due care. The accident occurred on that occasion because Mr Nattrass had the sun in his eyes and did not see an oncoming vehicle.
Mr Nattrass’ personal circumstances
Mr Nattrass is a 68-year-old farmer engaged principally in raising cattle. He also carries on business as a truck driver engaged in transporting cattle. He farms three properties; one near Mt Gambier and two in Victoria. Those properties are 27kms, 64kms and 127kms respectively from his home. He is generally of good character and has led what the Magistrate described as “an honest and industrious life”. He lives 14kms from Mt Gambier and has lived there all his life. His wife has cancer and needs to make special trips to Adelaide and Mt Gambier for treatment. Mr Nattrass has been driving his wife to Adelaide for this purpose. Mr Nattrass is his wife’s only carer. She cannot drive. She relies on her husband for all transport needs for medical, shopping and other activities.
The sentence imposed
Under s 45 of the Road Traffic Act 1961 (SA), the offence of aggravated driving without due care carries a maximum penalty of 12 months imprisonment and a mandatory licence disqualification of not less than six months. The section was amended in 2005. Prior to that the maximum penalty for any offence of driving without due care was a fine of $1250, with the power of the court to impose a licence disqualification. The amendment in 2005 increased the maximum penalty for a non-aggravated offence to $2500, created the aggravated offence to which Mr Nattrass pleaded guilty, and fixed the maximum penalty for an aggravated offence at 12 months imprisonment. It also prescribed a mandatory and irreducible licence disqualification for an aggravated offence of not less than six months.
The Magistrate imposed a period of imprisonment of three months, which was reduced from four months due to the guilty plea. The sentence was suspended due to Mr Nattrass’ personal circumstances, in particular his age, lack of criminal offending and the impact that a period of imprisonment would have on Mr Nattrass’ wife.
In fixing a period of licence disqualification, the Magistrate took into account the financial consequences to Mr Nattrass of the disqualification, as well the difficulties in transporting his wife to Adelaide for treatment. However, given the gravity of the offence, the Magistrate did not consider that the minimum period of disqualification was appropriate. A period of disqualification of 18 months was imposed.
Grounds of appeal
Mr Nattrass appeals on the ground that the sentence imposed was manifestly excessive. He seeks orders that the sentence be quashed, that a lesser sentence be imposed and that the licence disqualification be rescinded or reduced.
The sentence of imprisonment
So far as the sentence of imprisonment is concerned, Mr Boucaut, counsel for Mr Nattrass, argued that three months imprisonment, even though suspended, is a manifestly harsh penalty, having regard to the appellant’s age and antecedents. He contended that the Magistrate placed too much weight on the previous conviction of driving without due care some 17 years previously. He submitted that the Magistrate should have imposed a fine in the circumstances, in exercise of the powers contained in s 18 of the Criminal Law (Sentencing) Act1988 (SA).
Section 18 of the Criminal Law (Sentencing) Act relevantly provides:
18—Court may add or substitute certain penalties
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i)     a fine; or
(ii)    a sentence of community service; or
(iii)     both a fine and a sentence of community service; or
…
Section 45(1) of the Road Traffic Act does not prescribe a penalty for a non‑aggravated offence of driving without due care. That penalty is prescribed by s 164A of the Act. It is that section which provides for the maximum penalty of $2500. However, s 45(2) provides that if a court convicts a person of an aggravated offence, the maximum penalty for the offence is 12 months imprisonment. The subsection then continues by prescribing the minimum licence disqualification.
For the purposes of s 18 of the Criminal Law (Sentencing) Act, the Road Traffic Act is a “special” Act. Mr Boucaut argued that s 45(2) prescribed a sentence of imprisonment only for an aggravated offence, arguing that a licence disqualification was not part of the sentence.
However, “sentence” is defined in s 3 of the Criminal Law (Sentencing) Act as meaning:
(a)the imposition of a penalty; or
…
(d)the making of any other order or direction affecting penalty.
The word “penalty” is not defined. However, this Court has held that “sentence” as presently defined includes disqualification from holding or obtaining a driver’s licence.[1] It follows that s 45(2) of the Road Traffic Act does not prescribe a sentence of imprisonment only for an aggravated offence, and that s 18(a) cannot be invoked to enable the imposition of a fine instead of a sentence of imprisonment.
[1] Philp v Bonney (1989) 50 SASR 531, 539-40, Legoe J; Janz v Woolven (1990) 55 SASR 239, 241, King CJ, Duggan and Mullighan JJ agreeing.
Mr Boucaut did not suggest that the Magistrate should have exercised his discretion under s 15 of the Criminal Law (Sentencing) Act by discharging Mr Nattrass without penalty. Nor was it suggested that it was appropriate to exercise the power to impose a penalty without conviction in accordance with s 16 of the Criminal Law (Sentencing) Act. The Magistrate declined to exercise his discretion pursuant to s 39 of the Criminal Law (Sentencing) Act by discharging Mr Nattrass without sentence upon his entering into a bond to be of good behaviour. I agree that, in all the circumstances, that was not an option properly open to the Magistrate.
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.
Even if the option of a fine were available the Magistrate would still have been entitled to impose a sentence of imprisonment. Section 11 of the Criminal Law (Sentencing) Act provides that a sentence of imprisonment may only be imposed, so far as is relevant to this case, if, in the opinion of the Court, any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence,[2] or if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in s 10.[3] The only relevant policy stated in s 10 is that a primary policy of the criminal law is to protect the safety of the community.[4] It would have been open to the Magistrate to conclude that one or both of those circumstances had been met, and that a sentence of imprisonment was therefore appropriate.
[2] Criminal Law (Sentencing) Act 1988, s 11(1)(a)(iv).
[3] Section 11(1)(b).
[4] Section 10(1b).
Also relevant was the nature of the breach of s 45 of the Road Traffic Act. The Magistrate pertinently and, with respect, correctly observed:
It seems to me to drive on a roadway that the defendant was well aware posed the hazards of the sun in his eyes and to do it over a protracted period of time or distance in circumstances where he well knew he couldn’t see who was on the roadway and further to do so at 80 – 95 kilometres a hour is a very serious offence of its kind. His ability to see would have been plainly obvious to him and to the prudent driver. There were many other alternatives in those circumstances available to the defendant other than merely driving onwards, in circumstances where he couldn’t see. Not the least of which alternatives was to stop and clean the windscreen and to see where that took him then in terms of visibility. A prudent driver would have done that. He did not do that. The defendant drove on without being able to see at all.
Although the last sentence somewhat overstates the position, Mr Nattrass’ vision was severely impaired in circumstances where he could have done something about it.
The Magistrate did give significant emphasis to the circumstances of the previous offence. Those circumstances were not dissimilar, although on the earlier occasion it appears to have resulted from the appellant turning onto another road into unexpected sun glare. The appellant’s driving on that occasion caused substantial and permanent injuries to three people. That conviction was a relevant factor, although its weight was significantly reduced by the age of the offence and in the context of the appellant driving approximately 120,000kms per annum over the past 50 years without any other incident, apart from one speeding fine. I would not, in all the circumstances, have given it the weight that the Magistrate appears to have given it. Nevertheless, the appellant, from that experience, should have been aware of the severe consequences that sun glare can have.
There must also be brought into account the severe disruption that the death of Ms Evans caused to her parents. She was operating a small farm adjacent to and in connection with that run by her parents. Her death has meant that they are no longer able to carry on that business, and that they have been required to sell their farm for various reasons associated with her death, quite apart from having to live with the tragic loss of an enterprising and devoted 28-year-old daughter.
Taking all these circumstances into account, in my opinion, it was open to the Magistrate to impose the sentence of imprisonment that he did. For this type of offence it was serious offending, and I can see no justification for interfering with that element of the penalty.
The licence disqualification
So far as the licence disqualification is concerned, disqualification for a period of 18 months will have a devastating effect on the appellant’s business, as it will affect his ability to manage his three farming properties, particularly those in Victoria. It will have an obvious effect on his trucking business. The financial hardship as a consequence of the licence suspension will be very significant and must be brought into account.
As mentioned above, Mr Nattrass’ wife suffers from cancer. She is required to attend hospital in Mt Gambier and Adelaide for treatment on alternative fortnights. Her only available family support is her husband. They live remote from any town centre.
I agree with the appellant’s submission that Mr Nattrass’ personal situation, especially with respect to his wife, calls for a merciful approach in considering a licence suspension. While these personal circumstances are not relevant mitigating circumstances in relation to the offending, they are circumstances of the type which sometimes arise which requires the tempering of justice with mercy.[5] They are of particular relevance in this case when considering the effect of the licence suspension.
[5] See Cobiac v Liddy (1969) 119 CLR 257, 269, Windeyer J; R v Lowery (1992) 14 Cr App R 485; R v Penno [2004] SASC 354, [54]; (2004) 236 LSJS 457, 468 Gray 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.