Pietkun v Police No. Scgrg-97-1539 Judgment No. S6490

[1997] SASC 6490

PIETKUN  v  POLICE

Perry J  (ex tempore)

The appellant appeals against the  penalty imposed upon him in the Magistrates Court sitting  at Christies Beach following his plea of guilty to a number  of driving offences.

Upon one complaint there were four  counts all arising out of a passage of driving on 30 March 1997 at Happy Valley and other places.  As to those matters, the appellant pleaded guilty to driving at a speed  dangerous to the public (s36 of the Road Traffic Act 1961); failing to comply with traffic lights (s75); and failing to stop when asked to do so by a member of the police force (s42). A fourth count of driving at 140 kilometres an hour in an 80 kilometres an hour zone was withdrawn.

On a separate complaint the appellant pleaded guilty to  driving at a speed dangerous to the public, that offence  having been committed on the next day, that is to say, 31 March 1997 at O'Halloran Hill.  On that complaint, following the appellant's plea to  the count to which I have just referred, a second count of   driving at 140 kilometres an hour in an 80 kilometres an hour zone was withdrawn.

On the first group of offences, that is, those committed on 30 March 1997, pursuant to s18(a) of the Criminal Law (Sentencing) Act 1988, the learned sentencing Magistrate imposed one penalty, namely, a fine of $500, together with a licence disqualification for three years.

For the offence committed on 31 March 1997 he imposed a fine of the same  amount, that is, $500 and a further licence disqualification of three years cumulative on the disqualification imposed on the other charges.

The appellant was unrepresented and appeared in person.  He is a 20 year old university student.

He first appeared on 22 September 1997 when the pleas were entered.  According to the affidavit of Mr Miller, the police  prosecutor who appeared in the court below, the learned sentencing Magistrate then advised the appellant of the range of penalties which could be imposed with respect to the charges to which he had pleaded guilty.

The court was advised that the appellant had prior convictions for like offences within five years and stood to be dealt with as a second or subsequent offender.

The learned sentencing Magistrate then advised the  appellant of the penalties which could be imposed in view  of that circumstance.  He also urged the appellant to seek legal advice and legal representation.  The matter was then adjourned for about three weeks, that is, until 13 October 1997.

On that date Mr Miller again appeared to prosecute the matter, and the appellant once again appeared  unrepresented.

There was a further discussion about the desirability  of legal representation.  Mr Miller cannot remember the  precise terms but he summarises it in his affidavit put before the court in the following way:

“The Court then had a discussion with the defendant in relation to the defendant having legal representation before the Court proceeded.  Although I cannot recall exactly what was said I believe the result of this discussion was that the defendant was aware of his right to legal representation and of the penalties the Court could impose with regard to the charges he pleaded guilty to and wished the matters to be finalised.”

As to the facts of the matters, the court was informed that on  Sunday 30 March at about 2.38 am, the police on mobile patrol on Main South Road, Happy Valley, became aware of a motorcycle, which turned out to be driven by the appellant, about 30 metres in front of their vehicle.  The motorcycle was displaying a P plate.  The appellant accelerated away and travelled at high speed along Main South Road through the intersection of Old South Road, Reynella by-pass and Kenihans Road at a speed estimated to be not less than 140 kilometres per hour.  Indeed, the police vehicle was travelling at that speed and was not gaining.  If anything, the appellant's motorcycle was moving away.

There was a pillion passenger.  Both the pillion passenger and the appellant were crouched low over the motorcycle as it approached the intersection of Panalatinga Road and Reynella Road.  At that intersection the appellant went through a red light and continued on his way.  Although the police persisted in the chase for a little further distance, eventually the appellant disappeared out of sight.

Almost exactly 24 hours later, in the early hours of  the next morning, that is, Monday 31 March, police on patrol in an unmarked police vehicle came across the appellant on his motorcycle, once again on Main South Road.  His motorcycle was in company with another motorcycle, both of them taking off and travelling, on the police case, at not less than 140 kilometres an hour as they moved away from  the police vehicle, which drove off in pursuit.

Both motorcyclists passed a group of people standing in front of the Victoria Hotel.  The police officers then turned on the emergency lights and both motorcycles stopped.

On questioning, the appellant admitted that he was the owner of the motorcycle and admitted that he had also been driving it on the previous night, in the circumstances which I have already described.

When asked why he did not stop his vehicle on the night before, he said that he had become scared.  When asked why he was travelling at such a high speed with a pillion passenger, he said that “his friend wanted to see what it was like and he opened up the throttle and away it went”.

He admitted that he was aware of the speed limit along Main South Road and Panalatinga Road and that the speed that he was travelling at was dangerous to other road users, his pillion passenger and himself.

When asked about the red light he said that he did not notice it.  When asked why he drove along Main South Road on the night of his apprehension in excess of 140  kilometres an hour, he said that he did not realise that he was going so fast, that he had no reason to do so and he was just testing the bike.  He did not think that he was driving dangerously.

The appellant had three prior convictions, details of which were given to the learned sentencing Magistrate.

In 1995 he was convicted of disobeying traffic lights and a stop sign, upon which a fine was imposed.  In April 1996 he was convicted of driving in a reckless or dangerous manner and a speeding count.  On those convictions he lost his licence for six months.

In September 1996 he was charged with driving without due care and driving whilst disqualified.  He was convicted on both counts and sentenced to seven days imprisonment which was suspended on his entering into a six month bond.

At the hearing in the court below the appellant was specifically asked whether he agreed with the facts as asserted by the prosecutor and with the record of prior convictions.

During the course of his remarks on penalty the learned sentencing Magistrate commented:

“It seems to me I have a duty of (sic) the public to take you off the road for an appreciable period of time, hopefully during which time you will mature and come to realise you have no right to have a driver's licence but rather that it is a privilege which will only be extended to those members of the community prepared to obey the rules of the road.”

In his notice of appeal as originally lodged in this Court, the appellant complains that the sentence was manifestly excessive and that the appellant was “unrepresented and did not make submissions” about a number of personal circumstances, his antecedents and the circumstances surrounding the alleged offending.  The notice of appeal also calls in aid the so-called “totality” principle.

Before the hearing of the appeal there was lodged with  the Court a proposed amended notice of appeal which incorporated a number of other grounds.  The principal point of departure between the proposed amended grounds of appeal and those in the notice of appeal as originally filed are allegations that go to what might fairly be described as the procedural fairness of the hearing in the  court below.

In particular, Ms Hicks, who appeared for the appellant, sought leave to amend the notice of appeal to assert that the learned sentencing Magistrate had failed to inform the appellant of the seriousness of the charges and of the penalties which might be imposed, failed to inform the appellant that he might put matters in mitigation, and failed to comment on the disqualification upon him.

The plea that an amendment should be allowed to enable those matters to be raised is not supported by any affidavit in which there is any allegation that the learned sentencing Magistrate failed to deal with those matters adequately at the hearing before him.  On the contrary, the only affidavit which goes into any detail as to those matters is the affidavit of  Mr Miller, to which I have referred, which sets out the course of the proceedings as I have outlined them.

It is clear from the detail given by Mr Miller, and accepting what he deposes to in his affidavit, that there is simply no ground for asserting any lack of procedural fairness.  Given the absence of any affidavit joining issue with the matters set out in Mr Miller's affidavit at the outset of the hearing, I rejected the application to amend by asserting those grounds.

On the other hand, in her outline of argument Ms Hicks sets out a number of personal circumstances which were  obviously not put to the learned sentencing Magistrate.  Quite properly, Ms Gray for the respondent did not object to this Court taking those matters into account in determining the fate of the appeal.

Amongst those matters it was suggested that the appellant is the only child of his widowed mother who suffers from a serious health problem and had, as at the time of the offences, recently undergone surgery.  She was on chemotherapy.  She depends in part upon the support of the appellant, who works part-time, to help support her and help pay the expenses associated with his university course.

While one may well sympathise with the appellant's situation and the problems with his mother, I am quite unable to see any connection between any concern he might have as to her condition and his conduct in driving furiously on South Road in the early hours of the morning, on two occasions in succession.

In expressing that view, I take into account the  explanations which he gave to the investigating police when  he was apprehended following the second episode.

There is no question but that the appellant's offences now in question are serious and deserved a substantial penalty.  He has obviously failed to learn, despite the suspended term of imprisonment and the period of disqualification previously imposed upon him, that he must comply with the rules of the road.

Apparently, he bought the motorbike two or three months before this offending, and has incurred substantial debts with respect to its purchase price.  As I was informed  this morning, it has now been stolen, leaving him in a precarious financial position bearing in mind other debts.

I put, in arguendo, to Ms Hicks that it appears to me that this young man is obviously living beyond his means and needs to be brought to a realisation of what he is able to do as a student in his situation.

Despite those observations, it does, however, seem to me that the cumulative nature of the two periods of suspension operates excessively harshly in all the circumstances.

Ms Gray, who said everything which could be said in opposition to the appeal, put the submission that the offending was at the higher end of the scale.  Against that, however, it must be recognised that no one was actually injured and there was no accident, which is just as well for the appellant.

The appellant is a young man who has most of his life still in front of him.  He has apparently three years to go in the engineering course which he is studying at Flinders University.  It seems to me in all those circumstances that it would be fair to moderate sentence, so that by the time he finishes his course, when no doubt he will be looking for employment, he will not suffer what would then be the substantial impediment of being unable to drive.

Viewed discretely, the sentences could not be said to be excessive.  Indeed, for a second offence three years suspension or licence disqualification was the minimum provided for.  But it seems to me that in all the circumstances the justice of the case would best be met by allowing the appeal to the intent that both periods of licence disqualification should be served concurrently.

The appeal therefore will be allowed and the order that the two periods of licence disqualification be served cumulatively is quashed.  In lieu thereof both periods of  licence suspension will be ordered to be served concurrently, that is to say, from 13 October 1997, which is the day upon which the appellant was dealt with in the Magistrates Court.

All other orders and penalties made and imposed by the learned sentencing Magistrate are to remain in full force and effect.

As the appellant is present in Court, I remind him of his obligation not to drive whilst disqualified.  He has already displayed a disregard for the obligations imposed by a licence disqualification and must realise that it is unlikely that, in the event of any driving occurring during the three year period of his disqualification which is now imposed upon him, any term of imprisonment then imposed would be suspended.

[FOLLOWING FURTHER DISCUSSION WITH COUNSEL.]

HIS HONOUR:          I order the respondent pay the appellant's costs of the appeal which I fix at $150.