Nilsen v Police No. Scgrg-97-1347 Judgment No. S6432

[1997] SASC 6432

NILSEN v POLICE

Matheson J (ex tempore)

On 4 September 1997, the appellant pleaded guilty in the Magistrates Court at Adelaide to charges of driving an unregistered motor vehicle and of driving an uninsured motor vehicle at Adelaide on 3 May 1997. The learned Chief Magistrate, invoking his powers under ss16 and 18A of the Criminal Law (Sentencing) Act, did not record convictions against the appellant and imposed one fine, namely, $300, with $165 costs, and disqualified him from holding or obtaining a driver's licence for a period of three months to commence at 12.01 a.m. on 8 September 1997. On 16 September 1997, pursuant to s.173 of the Road Traffic Act, his Honour suspended the operation of the disqualification until the determination of the appeal.

On appeal before me, the appellant’s counsel has strenuously argued that the period of disqualification was manifestly excessive. The appellant was not represented by counsel before the learned magistrate.  His Honour was informed that the appellant admitted that he drove the vehicle on the date and at the place alleged, that it had been unregistered since 5 June 1995, and that the insurance expired 30 days after the registration. When asked for a reason for driving an unregistered motor vehicle, the appellant said "I moved around a few times and I didn't get a renewal notice".  When asked why he was driving an uninsured vehicle, he said "I didn't know". The learned Chief Magistrate did not give reasons for the penalty he imposed, but I do not criticise him for that, having regard to the very busy lists that his court has to deal with. 

By consent, I admitted the appellant's affidavit sworn on 10 November 1997, and it included the following facts:

1. [The] Magistrate ... further asked me what my reasons were for failing to renew the registration.  I responded with words to the effect that I did not receive the renewal notice due to the fact that I had changed my residential address twice within two years and because I was in the process of registering and comprehensively insuring at least two vehicles at any one time, the payment was missed.  I did however admit that I acknowledged that it was my responsibility to renew the registration despite the fact that I had not received any notification from the Department of Motor Vehicles and Transport.

1. I recall [the] Magistrate ...asking me my age, marital status and occupation to which I replied that I was 23 years old, single and employed as a structural engineer by Connell Wagner.

1. I recall [the] Magistrate ... questioning me as to the importance of maintaining my driver’s licence for work purposes.

1. I responded with words to the effect that my licence was required to travel to and from various building sites to attend meetings and conduct inspection work.

1. I recall [the] Magistrate ... asking me what projects I was presently working on to which I responded that I was principally working on Holdfast Shores at Glenelg.

1. I then recall [the] Magistrate ... asking me how I would travel to and from work and building sites without a driver’s licence to which I replied that I had not really thought about it but that I may be able to catch a taxi.

1. At the time of the hearing my site visitation included:

11.1  Mypolonga (near Murray Bridge) Pump Station - site visit once every three weeks;

11.2  Payneham Aged Care Development - weekly;

11.3  Holdfast Shores Glenelg - every week.

1. Since the hearing of this matter my site visitation has increased and I now find that my licence i[s] required for the following site visits;

12.1  Mypolonga (near Murray Bridge) Pump Station - site visit once every three weeks;

12.2  Berri High School Civil Works - once a month;

12.3  Payneham Aged Care Development - weekly;

12.4  Holdfast Shores Glenelg - every second or third day within weeks.

1. I did not drive for a total period of eight days following my disqualification following the aforesaid hearing."

The maximum penalty for driving an unregistered motor vehicle is $500, and for driving an uninsured motor vehicle the maximum penalty is a fine of $500 and disqualification for not more than 12 months.

Those penalties reveal that Parliament regards such offences as very serious, and having regard to the fact that the vehicle in question was unregistered for 23 months and uninsured for 22 months, I regard the subject offences as very serious.  Mr Georgiadis, counsel for the appellant, said, quite properly, that there was no evidence as to how often the appellant drove the vehicle during those periods, but even if this was the only occasion, I would still regard the lapse of time as very relevant. 

The only thing that in the end has persuaded me to interfere to some extent with the period of disqualification his Honour imposed is the fact that he was unrepresented before the learned Magistrate, and it would appear that his Honour was not informed by the appellant that, because of his employment, he was required to travel to the country, including Mobilong and now apparently Berri.  If it had been the fact that the appellant only had to travel from Glenunga, where he lives, to Holdfast Shores at Glenelg, I would have no hesitation in dismissing the appeal.  I think some regard must be had to the extent of the hardship and inconvenience which would result from his Honour’s order, even though there is no plea before me that the appellant's present employment was conditional on him having a driver's licence.

In all the circumstances, I have decided to allow the appeal, but only for the purpose of reducing the period of disqualification to 2 months with credit to be given to the eight days already served.

I order the respondent to pay the appellant’s costs and disbursements which I fix at $150.