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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 case, it is.”

6. Section 46(3)(b) of the Act provides that the disqualification prescribed by the Act:

   “… cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month”.

7. Provisions of this nature do not confer a general discretion to depart from the minimum penalty: Siviour-Ashman v Police (2003) 85 SASR 23 at [22]. The court must have regard to the offending alleged. “Trifling” in this context means “of slight importance, insufficient or of little moment”: Siviour-Ashman at [24]. An offence does not answer to this description if it is a typical offence of the class prescribed: Merrill v Police (1996) 24 MVR 555 at 559.

8. The magistrate seems to have attached significance to the location at which the offence was committed.  She did not say so in as many words, but she appears to have regarded as significant the fact that there was a racecourse on the respondent’s side of the road.  But this circumstance could not justify finding that the offence was trifling.  There was a built-up area on the other side of the road and the respondent was overtaking other vehicles on his side of the road while he was exceeding the speed limit.  The speed at which he was travelling was far in excess of the speed limit and it was conceded by the plea of guilty that it created a danger to the public.  As Johnston J said in Firth v Prestwood (1987) 44 SASR 427 at 432:

   “To travel at a speed greatly above the maximum is to increase incidence of risk and to increase the likely consequences of an untoward event to an extent which is unreasonable and unwarranted.”

9. In my view, there was no justification for the magistrate’s conclusion that the offence was trifling.

10. The appeal will be allowed and the period of licence disqualification will be increased to the minimum prescribed by the Act, namely, six months.  In all other respects the orders made by the magistrate will remain in force.