Pascoe v Police No. Scciv-03-1639

[2004] SASC 6

PASCOE v POLICE
[2004] SASC 6

Magistrates Appeal:  Criminal

1. PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to a charge that on 18 July 2003 at Old Reynella, he drove a motor sedan at a speed which was dangerous to the public, contrary to s 46 of the Road Traffic Act 1961 (“the Act”).

2. The sentencing magistrate imposed a fine of $300 and a licence disqualification for six months. It is from that sentence, more particularly the order of disqualification, that the appeal is brought.

3. The appellant was unrepresented in the court below and remained unrepresented when prosecuting the appeal to this Court, which he argued in person.

4. In his notice of appeal the appellant complains, in effect, that the sentence was manifestly excessive. His grounds of appeal read:

   “This is my first offence. I have to catch two buses to get to work by 7.30 am to open up. But buses do not start early enough. I am a mechanic and need to test drive vehicles before and after work is done.”

5. I had the benefit of an affidavit furnished by Ms Yeomans, who was the police prosecutor in the court below. She states in her affidavit that she does not recall whether the magistrate advised the appellant of his rights and of the possible penalties associated with the charge.

6. At all events, she says that the substance of her submissions were that at about 6.35 pm on the day in question a Daihatsu sedan, which turned out to be driven by the appellant, was photographed by a speed camera travelling south on the Reynella Bypass at a speed of 140 kilometres per hour in an 80 kilometre zone. The Reynella Bypass is a main arterial road, comprising two bitumen lanes. There is no street lighting and it appears that there was no other vehicle in the vicinity when the speed camera was activated.

7. Three weeks later the appellant attended voluntarily at the Christies Beach Police Station with his mother. When he was interviewed he admitted that he was the driver of the vehicle. When questioned he could offer no explanation as to why he was travelling at that speed.

8. Ms Yeomans has no recall of the submissions made by the appellant.

9. In his sentencing remarks the magistrate referred to a letter from the appellant’s employer, Mr Trembath.

10. The appellant is a 22 year old young man employed as a motor mechanic, with about one and a half years to go in his apprenticeship. He is obliged to arrive at work at about 7.30 am to open up, and during the course of his work he is called on to test drive vehicles. He has difficulties with both of those facets of his work in that there are no buses which can get him to work early enough to open up, and obviously is not able to test drive, at least on a public road.

11. In the letter, his employer, Mr Trembath, speaks well of him and it is clear that he has been a good apprentice.

12. Although Mr Trembath does not indicate in that letter that the appellant’s employment was at risk, with the consent of Ms Linn, who appeared on behalf of the respondent on the hearing of the appeal, I have had regard to a further letter from Mr Trembath.

13. In that letter he says that the appellant’s inability to fully carry out his duties:

    “... is placing the business under considerable financial pressure. This in turn is putting severe mental and physical strain on me. It is doubtful whether I will be able to continue in business with employees unable to drive. The alternative is to dismiss Adam [the appellant].”

14. In another letter, which the appellant himself wrote and which was also tendered on the hearing of the appeal, the appellant confirms that he is seriously concerned that his employment is in jeopardy.

15. At the same time, the appellant confirms in his letter and also in his submissions to me on the hearing of the appeal that, he now realises that the passage of driving in question was “extremely immature and wrong”.

16. When I questioned the appellant on the hearing of the appeal in order to elucidate some more detail as to the immediate circumstances of the driving, he explained that he was driving on what was a straight stretch of road for about a kilometre at the offending speed; that there were no other vehicles around; and that he did not pass any intersections or junctions. He said that it was not completely dark, but that the accident occurred at dusk.

17. Returning for a moment to the magistrate’s sentencing remarks: he made some observations which were entirely inappropriate. He said:

    “Anyone can commit a speeding offence. If a driver goes five years, 10 years, 20 years, six months without committing a speeding offence he or she is lucky. Everyone does it.”

18. It was inappropriate for the magistrate to suggest that everyone commits this offence. In giving remarks on sentencing, the emphasis from the court should be that it is an offence and that there is no excuse for any driver to commit it.

19. He went on to say, “It is about revenue”. Again this was an entirely inappropriate remark.

20. The magistrate further observed that he would impose the minimum penalties. He added:

    “I cannot do any better than that. If I were to hear your evidence on oath and find that the offence was trifling, I would be entirely neglecting the duty I have to the community for the sake of doing a little private deal with you. That would be outside the law.”

21. The reference to “a little private deal” was also entirely inappropriate.

22. If there is any possibility that the appellant might have been able to satisfy the onus of leading evidence to demonstrate that the offence was trifling, given that the appellant was unrepresented, the magistrate owed a duty to inform him of his rights under s 46(3)(b) of the Act and afford him an opportunity to give evidence on oath.

23. The magistrate did not give to the appellant an opportunity to give evidence on oath for the reason which appears in the passage I have just cited.

24. While the language used by the magistrate was inappropriate, I am unable to be satisfied that he erred in doing so. That is because, despite the mitigating circumstances associated with the effect of the suspension on the appellant’s employment, it is doubtful that the case could properly be characterised as trifling.

25. I have carefully questioned the appellant and obtained, as I have explained, a better understanding of the immediate circumstances of the offending.

26. Further, it appears from the evidence now before this Court that there is a serious risk that the appellant may lose his employment if his suspension remains in effect.

27. There was no suspension of the order for disqualification, with the result that he has now served close to three months of the six months disqualification.

28. It must be accepted that the appellant’s personal circumstances and the threats to his employment are serious matters. If they were matters which could properly be taken into account so as to ameliorate the rigour of the sentencing regime imposed under the Act, I would certainly consider taking some other course, but the application of the sentencing provisions relating to this offence often give rise to hardship.

29. The appellant’s driving has not been excused by anything which he has said in the court below or to me. He has explained in this Court that he was a little late getting home and that there was some other function that he was due to attend that evening. But the plain fact is that his speeding, at a grossly excessive speed, is a typical offence of its class. There is nothing in the circumstances which could properly lead to its characterisation as trifling.

30. It is clear from authorities such as Merrill v Police[1] and Siviour-Ashman v Police[2] that it is the nature of the act of driving rather than any personal circumstances of the offender or his or her explanation for the driving which must be taken into account in determining whether the offence is trifling.

    [1] (1996) 24 MVR 555.

    [2] (2003) 85 SASR 23.

31. It follows that although there may be some doubt that the appellant was given a reasonable opportunity to give evidence on oath in support of an application to have the matter characterised as trifling, in the circumstances, that is not a matter which should lead to the allowance of the appeal. There was no reasonable prospect that even if that course had been followed, the offence could be so characterised.

32. I have considerable sympathy for the appellant, but in all the circumstances, having regard to the terms in which the legislation is cast, the appeal must be dismissed.

33. I so order.

34. There is no order as to the costs of the appeal.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE

    1. (1996) 24 MVR 555.

    2. (2003) 85 SASR 23.