Police v Gibbs No. Scgrg-98-1662 Judgment No. S14

POLICE v GIBBS
[1999] SASC 14

Magistrates Appeal: Criminal

PERRY J (ex tempore) This is a police appeal against the sentence imposed upon the respondent following his plea of guilty in the Magistrates Court sitting at Christies Beach to a charge that on 19 July 1998 on Flaxmill Road at Morphett Vale he drove a motor vehicle at a speed which was dangerous to the public contrary to s46 of the Road Traffic Act 1961. On the respondent's plea of guilty to that charge, a second count that on the same occasion the respondent drove at a greater speed than 60 kilometres per hour, namely, at 170 kilometres per hour, was withdrawn.
The respondent was represented by counsel who submitted that the offence should be dismissed as trifling. The learned special magistrate rejected that submission and went on to impose a fine of $300. As well, he disqualified the respondent for six months.
There are two grounds set out in the notice of appeal. They are:

1...... The sentence imposed (both the amount of the fine and the period of licence disqualification) was manifestly inadequate.

The learned magistrate erred in not given the prosecutor an opportunity to make submissions as to the penalty after the trifling application was rejected.
I have the benefit of an affidavit sworn by the police prosecutor Mr Forster who presented the matter on behalf of the appellant in the court below, and also an affidavit from Mr Timothy White, the appellant's solicitor who was counsel for the appellant in that court.
It appears from Mr Forster's affidavit that the facts as narrated to the learned sentencing magistrate were that the police were performing what were described as “laser duties” on Flaxmill Road on the day in question at about 1.24 pm when they observed a Mazda RX4 sedan travelling east on that road. It turns out that the vehicle was driven by the respondent. The respondent's speed as tracked by laser was 170 kilometres per hour as against a speed limit in that area of 60 kilometres per hour. The respondent was stopped. When challenged at having been timed at 170 kilometres per hour, the respondent said that he did not think that he had been travelling at that speed and asked when the laser had been calibrated. He was informed that it had been calibrated on 24 February 1998. When the investigating police officer then asked him for an explanation as to why he was driving at that speed he said:
“I don't normally drive like this, my car registration runs out today and I wanted to give it a last run before I put it in the garage.”
The police examined the vehicle. They noticed that it was turbo charged. The defendant said that he had taken the vehicle to “the drags” the previous night. The vehicle appeared to be in good mechanical condition.
As Mr Boucaut emphasised in his submissions on behalf of the respondent before me this morning, Flaxmill Road has a bitumen surface in good condition with two lanes for traffic travelling in either direction. The lanes were separated, that is to say, the up- and down-tracks were separated by a median strip. There were two junctions on the left and two on the right of the respondent over the period during which the passage of driving in question was observed. Furthermore, there were two pedestrians walking along the footpath and three vehicles travelling in the opposite direction from the respondent. There were no vehicles observed travelling in the same direction as the respondent. The traffic conditions were described as light and the weather fine and dry. The respondent does not have any relevant prior convictions.
After those facts had been narrated to the learned sentencing magistrate, Mr White developed his submissions directed towards the dismissal of the charges as trifling. In support of that application, Mr White tendered an engineering report prepared by Mr Douglas Potts. It seems clear enough that he also relied on that report generally with respect to his submissions for leniency.
The report is a quite extraordinary document. Mr Potts first indicates that he had verified the accuracy of the laser instrument which was used. He then directs attention to the mechanical condition of the Mazda car driven by the respondent. He states:
“The results of tests on similar vehicles have justified this author in declaring to the South Australian Department of Transport that the ‘vehicles are potentially capable of being safely driven on public roads’, and that in areas of braking, directional control and directional stability, the vehicles are at the extreme upper end of motor vehicle performance and stability.”
He goes on to explain that the vehicle is capable of emergency braking at a high level of efficiency. He concluded:
“The vehicle has been restored, modified and maintained to a very high level of perfection, and it is possible that it is one of the best examples of its type.”
Having described the vehicle in such laudatory terms, he then goes on to speak of what he describes as his impressions of Mr Gibbs' ability to control the motor vehicle. He states that the latter was trained as, and is an expert practitioner of, the martial art of karate. He goes on to say that this discipline trains eye and limb co-ordination. He ventures the opinion that if corrective action was required, Mr Gibbs would be capable of responding to it in one third of the average response time for the general population. He suggests that Mr Gibbs was not driving dangerously with respect to his own behaviour on the road, but drove in a way that relied upon others behaving in a predictable manner. He then expresses the quite extraordinary opinion that it was statistically unlikely that a hazardous event would occur during the period the respondent was travelling beyond 60 kilometres per hour, and that during that period the public was not put in danger. But somewhat paradoxically at the end of his report he states:
“4.5.. The vehicle was being tested, and the decision to test on a speed restricted road was imprudent. The chosen occasion reflected immature professional engineering judgment.”
As I observed to Mr Boucaut, I am surprised that that report was ever tendered before the learned sentencing magistrate. However, it is clear that the magistrate paid it little regard, and rightly so. What it does serve to illustrate, however, is that the respondent was behind the wheel of a finely engineered vehicle and was testing it on a public road during the course of a day when other vehicles were on the road, pedestrians were nearby, and as was pointed out to the learned sentencing magistrate, he passed four junctions.
It is not uncommon for defendants defending charges of driving at a speed or in a manner dangerous to suggest that they are better than average drivers and that the vehicle was in better than average mechanical condition. For example, those lines of argument were developed by way of a defence to a charge of driving at a speed dangerous to the public in the case of a magistrate's appeal heard by me in 1996, Merrill v Police.[1] In that case I remarked:
“Impressive though the safety features with which this vehicle was fitted were, and impressive though the evidence as to the appellant's driving skills might have been, they were not matters which could insulate the appellant from the risk of an accident occurring in situations of the kind alluded to by Johnson J.”
[1] 5 September 1996, unreported, judgment No S5796.
The latter reference was to remarks made by Johnson J in the case of Firth v Prestwood.[2] That case concerns a driver travelling in his motor car in the Willunga by-pass at a timed speed of 169 kilometres per hour. In that case, the speed limit was 110 kilometres per hour. During the course of his judgment Johnson J said:
“In my opinion the magistrate was right to regard the speed which was proved against the defendant (and indeed and it is to his credit as admitted by him) constituted driving at a speed which was dangerous to the public in the circumstances in which the driving occurred ... In my opinion there was danger associated with the defendant's driving, given the nature of the location in which he was driving. His very speed reduced his power to make accurate observations of what was going on: .... Driving at that speed could easily give rise to a situation of acute danger to others if for some reason the defendant himself was temporarily less able to control the vehicle than he normally would be, by some fainting turn, a coughing fit, or by some small event of that sort. A vehicle that stopped on the side of the road, perhaps because it had been called on to stop by the police unit, will eventually make its way back into the stream of traffic. The driver might look and observe an oncoming car but the driver would not assume or be able to discern that the vehicle further back along the road was travelling at 169 kilometres per hour. The fact that none of these events occurred is not to the point. What is to the point is the risk. Another risk is the problem arising from a blow-out. It may have cause to be said that some of these risks attend an act of driving at 110 kilometres per hour, and so they do; but the risk is not an unreasonable or unwarranted risk in the ordinary circumstances of this road because society says that that is the speed which in the ordinary circumstances can be reached on this sort of road. 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.” (emphasis added)
[2] (1986) 44 SASR 427 at 431-432.
The gratuitous remarks made by Mr Potts in the course of his report suggesting that Mr Gibbs was not driving dangerously are remarks which belie an ignorance both of the legal tests involved in the concept of dangerous driving, and the practicalities of the situation in which Mr Gibbs was placed at the relevant time.
Mr Boucaut on behalf of the respondent has drawn attention to a number of features which in his submission justifies the sentence imposed, or at least renders it inappropriate for this Court to intervene on a Crown appeal. He emphasised the short-lived duration of the speeding, the wide road, the fact that there were two carriages in both directions separated by a median strip, that there was light traffic, there were no vehicles travelling in a similar direction, and that it was broad daylight in fine weather conditions on a dry, good road surface, and that the car was finely engineered. The respondent has no previous record and is 26 years of age. As Mr Boucaut put it, in those circumstances he could expect some leniency.
The leniency which was extended to him was in fact the imposition of the minimum fine of $300 and the minimum licence disqualification of six months. The section provides that there is a maximum fine for a first offence of $600 and there is no upper limit defined as to the licence disqualification. True it is that on a second offence the licence disqualification is subject to a minimum of three years, but that does not indicate the maximum which maybe imposed for a first offence.
The problem with Mr Boucaut's argument is that there are occasionally cases where the seriousness of the actual act of offending transcends whatever allowance may be made for the personal circumstances of the offender and the other circumstances surrounding the commission of the offence.
A speed of 170 kilometres per hour in a zone which was subject to a maximum of 60 kilometres per hour is a very dangerous act of driving indeed ,and in my opinion a failure to impose other than the minimum sentence prescribed by the statute would be a most unfortunate precedent to allow to stand.
One of the functions of a Crown appeal is to define the appropriate approach to sentencing by lower courts. I do not use the word “tariff” in this case as I think it is inappropriate to talk about a tariff for this particular offence. The circumstances in which it maybe committed are such that the penalty is substantially at large, subject to the minimum licence disqualification defined in the section and the maximum fine referred to.
It is not the fine so much as to which the appellant complains. Ms Hodder for the appellant has indicated that the main concern is with respect to the licence disqualification. That is a justifiable concern.
It seems to me that even having regard to the stringent test which applies to appeals by the Crown or by the police, and having regard to what fell from the Full Court in the case of Osenkowski,[3] that test is amply satisfied in this case with respect to the licence disqualification.
[3] (1982) 30 SASR 212.
In all the circumstances, in my opinion the licence disqualification should not be allowed to stand. I will allow the appeal for the purpose of increasing it to a licence disqualification of ten months. The disqualification of six months is therefore increased to ten calendar months, to run from the date upon which the disqualification under the order made by the magistrate is effective.
I pause only to mention one other aspect of the matter, and that is the complaint by the appellant which finds expression in the second of the two grounds of the appeal. It is perhaps unfortunate that the police prosecutor was not given an opportunity to make submissions, having indicated a desire to do so. However, having regard to the course of the proceedings in the court below it seems to me that what occurred was that the police prosecutor was understood by the learned sentencing magistrate to have evinced a wish to be heard on the question of the trifling application. In view of the magistrate's decision to dismiss it, it is not surprising that in those circumstances he did not thereafter call upon the police prosecutor. I do not think that there is anything more in that point than I have indicated, although as I have said, I think it unfortunate that at the end of the day the police prosecutor was not called upon to make general submissions as to penalty.
Be that as it may, I in no way base the decision which I have reached on that circumstance. It seems to me that the function of this Court on appeal is simply to have regard to the penalty which was in fact imposed, and determine whether it fell so far short of an appropriate penalty as to justify intervention on an appeal by the police.
For the reasons which I have indicated, intervention is justified, the appeal will be allowed and an order substituted in the terms which I have expressed.
There will be no order for costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

5 September 1996, unreported, judgment No S5796.
(1986) 44 SASR 427 at 431-432.
(1982) 30 SASR 212.

[1999] SASC 14

15 January 1999