Pitt v Police - [2009] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PITT v POLICE
[2009] SASC 244
Judgment of The Honourable Justice Kelly (ex tempore)
12 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
Appellant pleaded guilty in the Elizabeth Magistrates Court to causing harm by dangerous driving contrary to s 19A of the Criminal Law Consolidation Act 1935 - Magistrate sentenced the appellant to fifteen months imprisonment with a non-parole period of eight months - sentence was suspended upon the appellant entering into a good behaviour bond for three years - appellant was disqualified from holding driver's licence for four years - appeal against the sentence - whether the Magistrate took into account irrelevant considerations and failed to take into account relevant considerations - whether the Magistrate erred in not disqualifying himself from sentencing the appellant when there was an appearance of bias - whether the sentence was manifestly excessive - whether Magistrate did not give adequate consideration to s 11 of the Criminal Law (Sentencing) Act 1988 - appellant was aged eighteen years - appellant entered a plea of guilty at earliest opportunity - no aggravating elements like alcohol or hoon driving - appellant displayed remorse.
Held: No evidence to support the submission that the Magistrate did not bring an impartial mind to the sentencing process - Magistrate was entitled to take into account all circumstances surrounding appellant's driving at the time of the offence - Magistrate justified in imposing a sentence of imprisonment - head sentence held to be manifestly excessive - appeal allowed - Magistrate's sentence set aside - appellant re-sentenced to six months imprisonment, suspended upon appellant entering into a bond of $20 to be of good behaviour for two years - appellant's driver's licence suspended for two years.
Criminal Law Consolidation Act 1935 (SA) S 19A; Criminal Law (Sentencing) Act 1988 (SA) s 7, s 7A, s 10, s 11, referred to.
R v Goodall (2006) 169 A Crim R 440; Chapman v Police [2009] SASC 196, applied.

PITT v POLICE
[2009] SASC 244
Magistrates Appeal
KELLY J (ex-tempore)

On 10 February 2009 the appellant entered a plea of guilty to one count of causing harm by dangerous driving contrary to Section 19A of the Criminal Law Consolidation Act 1935. On 22 May 2009 sentencing submissions took place in the Elizabeth Magistrates Court and later that day the Magistrate sentenced the appellant to fifteen months imprisonment with a non-parole period of eight months. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years. She was disqualified from holding or obtaining a licence to drive for a period of four years from 22 May 2009.
The appellant has appealed against the sentence. The notice of appeal filed contains nine separate grounds of appeal however, both counsel at the hearing of the appeal sensibly conceded that the appeal grounds can really be distilled down to three distinct matters. The first is whether the Magistrate took into account irrelevant considerations or, conversely, failed to take into account relevant considerations in arriving at the sentence. The second is whether the Magistrate, in the circumstances which arose at the hearing of the matter, was obliged to recuse himself from sentencing the appellant. The third is whether the sentence, in all of the circumstances, is in any event, manifestly excessive.
The circumstances of the appellant’s offending relied on by the Magistrate can be summarised as follows.
At about 3.30 pm on Monday 25 June 2007, the appellant was driving a Ford Falcon in a southerly direction along a dirt road near Kapunda known as Hawkers Creek Road. That road is apparently known to locals as the roller coaster road because of the nature of the undulating terrain it crosses.
At a point on the road, the appellant was driving at high speed as she approached a blind crest on a hill, when the vehicle temporarily became airborne. She then lost control of the vehicle, collided with a fence and some trees and rolled over.
Her passenger, Ms Lauren McCard, and the appellant were both conveyed to the Kapunda Hospital for treatment. At that time it was thought that neither of the women had sustained any serious injuries; however, Ms McCard was at the time twenty four weeks pregnant. On the same night as the collision she was transferred to Adelaide, first to Flinders Medical Centre and later to the Women’s and Children’s Hospital. Labour was induced and the next day she gave birth to a stillborn child. A post-mortem examination revealed that the child was stillborn as a result of trauma sustained in the collision.
At the hearing in the court below, the appellant did not dispute that she was driving at speeds of about 100 kilometres per hour at the time of the collision and that the vehicle had become airborne as she approached that blind crest of the hill. She realised she could not see oncoming traffic as the road was a narrow dirt road and the hill obscured the view of the road below. I might add that I observed the photographs on the lower court file and the photographs are consistent with the concession made by the appellant. At the time of the collision, the appellant had only held a driver’s licence for about seven months and had very little driving experience on dirt roads.
I need to deal with some of the procedural history as it is relevant to the appeal. Sentencing submissions were scheduled to take place on 22 May 2009 at 2.15 pm. Whether or not it was because the proceedings had by then apparently been transferred from Tanunda to Elizabeth, or for whatever reason, the appellant did not arrive at court in time and proceedings commenced before her arrival. Early in the proceedings the prosecutor tendered a photograph of the victim’s stillborn child. Although counsel for the appellant was present at that time, the appellant was not. That photograph was tendered over objection from counsel for the appellant.
The Magistrate, having looked at the photograph, according to the material contained in the affidavits I have read, then became somewhat emotional and left the bench. When he returned, he commented that his sister had recently given birth to a stillborn child, but that the photograph that he just viewed would have no bearing on the sentence he imposed.
Eventually the appellant arrived at the court and the proceedings then continued. There seems to be some discrepancy between the affidavits of counsel for the appellant and the police prosecutor about whether the appellant was three-quarters of an hour late or two hours late, and it probably does not really matter, except that the appellant was definitely not present at the time when the photograph was tendered.
After the appellant arrived, the victim impact statement was read to the court and the submissions were made by the prosecutor and counsel for the appellant. No application was made on that day by the appellant or her counsel to ask the Magistrate to recuse himself due to bias. His Honour then proceeded to sentence the appellant.
I make the following comments about the Magistrate’s reasons and procedure. It is obvious that his Honour was endeavouring, in an appropriate way, to balance all of the responsibilities, some of them competing, which arise by virtue of the various provisions in the Criminal Law (Sentencing Act) 1988, in particular Sections 7, 7A and 10.
Strictly speaking, the tender of the photograph of the stillborn child was unnecessary; however, it is perfectly understandable why the Magistrate, in a small country court, with the families of both sides present, determined to accept it in the context of those proceedings.
After explaining in open court that the photograph would have no bearing on any penalty he imposed, the Magistrate did not again refer to that photograph in the course of his sentencing remarks. The Magistrate was entitled, indeed, it seems to me he was obliged, to allow the prosecutor to furnish the court with the victim impact statement setting out the impact of the appellant’s offending on the victim and her family.
Viewed in that way, the receipt of the photograph was doing no more than acknowledging that the victim’s loss of her unborn child had caused untold devastation and grief and was a part of the consequences of the appellant’s conduct. In my view, there is nothing else to indicate that the Magistrate gave undue weight to this aspect of the victim impact statement.
The basis upon which the appellant now argues that the Magistrate ought to have disqualified himself arises out of the events which occurred after he received the photograph. After leaving the bench for ten minutes or so, the Magistrate returned and announced to the court, unfortunately in the absence of the appellant still, that he had had a life experience of a similar nature. I agree with the submission of counsel for the respondent, by itself, that is not sufficient to give rise to any apprehension of bias.
The test of apprehended bias is well established. A judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
In R v Goodall (2006) 169 A Crim R 440, in a different context, Neaves JA commented that just because a person has had a particular life experience does not mean that that person cannot serve on a jury in a trial which concerned that matter to which the life experience the juror had was directly relevant.
In my view, an equally robust approach ought to be applied to the case of judicial officers called upon to impose a sentence related to circumstances in which he or she may have personally had experienced. It is unreasonable to expect that at times judicial officers may not become affected in some way as a result of the presentation of facts on which they are required to pass sentence.
In my view, that is simply to recognise that judicial officers, like any other human being, are ordinary human beings who at times may have reactions of distress or revulsion at some of the material before them.
In this case, the Magistrate explained to the appellant that the presentation of the photograph would not impact on the penalty he imposed. There is nothing in his remarks and subsequent conduct which would support the submission that is being made now that he did not bring an impartial mind to the sentencing process. I would, therefore, reject those grounds of appeal which complain against the reception of the photograph and the failure of the Magistrate to recuse himself.
I turn now to the remaining two issues; that is, whether the Magistrate took into account irrelevant considerations or failed to take into account relevant matters and whether the sentence itself was manifestly excessive.
Counsel for the appellant submitted that the Magistrate incorrectly categorised the appellant’s offending at the higher end of the scale. He did this, in the appellant’s submission, by incorrectly taking into account the significance of the harm caused as a result of the appellant’s conduct in circumstances where there was no dispute that the characterisation of the appellant’s driving in itself, might properly be characterised as at the lower end.
The short answer to this complaint in my view, is that the Magistrate was entitled to take into account all of the circumstances surrounding the appellant’s driving that day, including the consequences of her conduct, in assessing the seriousness of the offending. The appellant’s excessive speed and her recklessness as she approached the crest of the hill were not the only elements of the offence. An equally important element in the offence of causing harm by dangerous driving is the harm that is actually caused by the driving.
Here the fact that on the same night of the collision the victim was airlifted to hospital in Adelaide and subsequently gave birth to a stillborn child is a matter properly taken into account by the Magistrate. Those consequences were relevant to the seriousness of the appellant’s offending as a whole.
It must be accepted however that the offence charged here, in itself, is at the lower end of the scale of offences of dangerous driving. Nonetheless even for a basic offence, which this offence was, the maximum penalty prescribed by the Parliament is a penalty of five years imprisonment accompanied by mandatory licence disqualification for a period of not less than twelve months.
The appellant maintained the contention that the Magistrate ought to have imposed a sentence other than a sentence of imprisonment. In making that submission, counsel for the appellant complain that the Magistrate did not give adequate consideration to the provisions of Section 11 of the Criminal Law (Sentencing) Act 1988.
Counsel for the appellant suggested that neither personal nor general deterrence in this case was important as the appellant’s offending was not accompanied by any of the usual aggravating elements associated with dangerous driving. By that, counsel was referring to aggravating elements like alcohol and more outrageous examples of hoon driving with which unfortunately this Court is very familiar.
Whilst I understand the basis of that submission I cannot accept it. The clear intent of Parliament in providing for an ascending scale of offences was to sheet home the message that dangerous driving, whether or not accompanied by aggravating circumstances is an offence that ordinarily would attract a sentence of imprisonment.
In this conclusion I respectfully adopt the comments of Bleby J in Chapman v Police [2009] SASC 196 where he said at [25] and [26]:
…
The clear object of Parliament in the prescription of this offence was the protection of the public from the obvious dangers of driving which is culpably negligent, reckless, or at a speed or in a manner which is dangerous to the public. Deterrence is a critical factor for consideration when determining appropriate sentences for crimes sanctioned in order to protect the public safety. As King CJ said of dangerous driving offences in R v Johnston:
The penalties imposed by the Courts must be such, within the limits imposed by reason and considerations of justice, as to operate as a deterrent to those who might be inclined to engage in dangerous driving.
That is even more so in the case of youthful and inexperienced drivers whose confidence in controlling a motor car often outweighs their ability to do so. In some cases of this nature, “the deterrent principle must take priority and … sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour.”
As Bleby J went on to say at [28]:
The maximum penalty prescribed for this offence is an indicator of the seriousness with which Parliament expects the courts and the public to take offences of this nature. The conduct of the appellant went beyond mere carelessness or negligence. It fell into the category of culpable negligence or recklessness. Inexperience or lack of familiarity with the vehicle are no excuse. They require even greater care and more defensive rather than excessively confident driving. The only way that courts can convey that message to youthful and over-confident drivers is by adhering to the penalty regime set by the Parliament.
Footnotes omitted
In Chapman, the court was dealing with a very youthful offender who lost control of a motor vehicle in circumstances where he was driving at excessive speed in a vehicle he was not familiar with and lost control and collided with a tree. In my view, the facts of Chapman are not dissimilar to the facts of this offending.
For these reasons, I consider that the Magistrate was wholly justified in imposing a sentence of imprisonment. The only question which remains is whether the penalty he imposed was, in all of the circumstances, manifestly excessive.
The appellant was eighteen years old. She had no relevant prior convictions. She entered a plea of guilty at the earliest opportunity and it is evident from the pre‑sentence report, notwithstanding some suggestion to the contrary in the victim impact statement, that she, in fact, did display a great deal of remorse and contrition for her offending.
In addition, the effects of the offending also had some fairly devastating consequences in her own life. She has to some extent, been ostracised in her local community, she has lost her friend and, in fact, she has had to leave the town. There is no need to go into any further detail about the personal circumstances of the appellant. They are set out in the reasons of the Magistrate.
Suffice it to say that those factors, combined with the objective seriousness of the appellant’s driving on the day in question, justify a degree of leniency in imposing sentence.
I recognise that this Court should only interfere with the exercise of a magistrate’s sentencing discretion in circumstances where error has been demonstrated, or, if no error has been demonstrated, where the sentence is so manifestly excessive that it warrants the conclusion that it must have been infected by error. I acknowledge as well that there is, to some degree, always a degree of subjective assessment in making these decisions. However, in this case I have reached the conclusion that the imposition of a head sentence of fifteen months imprisonment was, in all the circumstances, manifestly excessive. For these reasons, I have concluded that the sentencing discretion has miscarried and it falls to me to re-sentence the appellant.
In resentencing the appellant, I consider, having regard to exactly the same circumstances, and taking into account the submissions that were made by both counsel, that the interests of justice would be served by the imposition of a sentence of imprisonment of six months, suspended upon the appellant agreeing to enter into a bond in the sum of $20 to be of good behaviour for a period of two years. I also consider that disqualification from holding or obtaining a driver’s licence for a period of two years would be appropriate in this case.
Taking into account the period of almost three months which has already elapsed since the appellant was sentenced by the Magistrate, I fix a sentence of six months imprisonment. That sentence is to be suspended upon the appellant agreeing to enter into a bond in the sum of $20 to be of good behaviour for a period of twenty one months. The appellant is disqualified from holding or obtaining a driver’s licence for a period of twenty one months. Those orders will be effective from today.