Police v BENNETT - [2005] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BENNETT
Judgment of The Honourable Justice Duggan
31 March 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
Appeal against determination of triviality by Magistrate - respondent pleaded guilty to driving motor vehicle at speed which was dangerous to public contrary to Road Traffic Act 1961 - s 46(3)(b) Road Traffic Act does not confer a general discretion to depart from minimum penalty - no justification for conclusion that offence was trifling - appeal allowed - period of licence disqualification increased to the minimum period of 6 months prescribed by the Act.
Road Traffic Act 1961 s 46, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Merrill v Police (1996) 24 MVR 555, applied.
Firth v Prestwood (1987) 44 SASR 427, considered.

POLICE v BENNETT
[2005] SASC 120
Magistrates Appeal

DUGGAN J. The respondent pleaded guilty to driving a motor vehicle at a speed which was dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (the Act). The magistrate found that the offence was trifling and that a reduction in the minimum penalty prescribed by the section was justified. She fined the respondent $300 and disqualified him from holding or obtaining a driver’s licence for a period of six weeks. The prosecution has appealed against the determination of triviality and the consequent reduction in the period of disqualification.
The offence took place at approximately 7.30 pm on 21 December 2003. The respondent was driving in a southerly direction along Cheltenham Parade, Cheltenham. A speed camera recorded that the respondent’s vehicle was travelling at a speed of 109 kilometres per hour in a 60 kilometres per hour zone.
At this location Cheltenham Parade is a dual carriageway. Each carriageway comprises two traffic lanes and a parking lane. The carriageways are separated by a median strip. Cheltenham Racecourse is located on the side of the road along which the respondent was driving. Side streets and private driveways lead off from the other side of the road. There was a long line of southbound traffic at the time of the offence and the respondent’s vehicle was overtaking cars while he was exceeding the speed limit.
The respondent said in evidence given before the magistrate that he was aware of the speed at which he was travelling and that he had no reason for exceeding the speed limit. At the time of the offence he had been driving for two years. He said there were no passengers in the vehicle.
In the course of her remarks on sentence the magistrate said:
“This is one of those matters where it’s purely the speed itself that creates the potential danger, not the circumstances surrounding it.
The test on triviality applications is whether the consequences of the penalty are out of all proportion to the offence that’s been committed and in my view given the peculiar circumstances of the particular area in this particular…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v BENNETT

Details

AGLC: Police v BENNETT [2005] SASC 120
Case: [2005] SASC 120
Decision Date: 31 March 2005

CaseChat Overview and Summary

In Police v Bennett, the respondent was charged with driving a motor vehicle in a manner that was dangerous to the public, in contravention of the Road Traffic Act 1961. The respondent pleaded guilty, and the magistrate determined the offence to be trivial, imposing a licence disqualification period of three months. The police appealed the triviality determination. The central issue before the court was whether the magistrate had erred in law by concluding that the offence was trivial, and if so, whether the licence disqualification period should be increased to the statutory minimum of six months.

The court examined the relevant provisions of the Road Traffic Act 1961, particularly s 46(3)(b), which outlines the offence of dangerous driving and the prescribed penalties. The court noted that the statute did not confer a general discretion to depart from the minimum penalty for dangerous driving. The court found that there was no basis in law for the magistrate to conclude that the offence was trifling. The court emphasised that dangerous driving is a serious offence that endangers public safety and warrants strict enforcement of the prescribed penalties. Consequently, the court allowed the police's appeal and increased the period of licence disqualification to the minimum period of six months prescribed by the Act. This decision underscores the importance of adhering to statutory penalties for serious driving offences and ensuring that such offences are not trivialised.

Orders