Police v Hall - [2008] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HALL
[2008] SASC 304
Judgment of The Honourable Justice David
7 November 2008
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING AT SPEED DANGEROUS TO PUBLIC
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Prosecution appeal against penalty - respondent pleaded guilty to driving vehicle at speed dangerous to public - magistrate characterised as trifling - whether offence trifling.
Held: Appeal allowed - offence could not be characterised as trifling.
Road Traffic Act 1961 (SA) s 46, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Senior v Police [2005] SASC 88, considered.

POLICE v HALL
[2008] SASC 304
Magistrates Appeal
DAVID J.
Introduction

This is a prosecution appeal against penalty. The respondent pleaded guilty to driving a vehicle at a speed dangerous to the public, contrary to s 46 of the Road Traffic Act 1961 (SA) (“the RTA”). Having pleaded guilty, he gave evidence on oath, pursuant to s 46(3)(b) of the RTA. As a consequence of that evidence, the sentencing magistrate found the offence trifling. The prosecution now appeals against that finding.
I set out the relevant section of the RTA:
46—Reckless and dangerous driving
(1)A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Maximum penalty: Imprisonment for 2 years.
(2)In considering whether an offence has been committed under this section, the court must have regard to—
(a)     the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b)     the amount of traffic on the road at the time of the offence; and
(c)     the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d)     all other relevant circumstances, whether of the same nature as those mentioned or not.
(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)     the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)     the disqualification prescribed by paragraph (a) 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.
…
On finding that the offence was trifling, pursuant to s 46(3)(b) of the RTA, the magistrate imposed a fine of $600 and disqualified the respondent from holding or obtaining a driver’s licence for a period of four months, such disqualification to commence at 12.01 am on 29 June 2008.
The undisputed facts on which the magistrate made his finding that the offence was trifling were that on the evening of 6 December 2007 at about 9 pm, the respondent was driving his motor vehicle on the Balaklava to Mallala Road. The road upon which he was travelling was two-way bitumen; there was a strong wind; and there was light traffic (the respondent had seen one vehicle pass travelling in the opposite direction and another turn off the road ahead of him)[1] in the near vicinity. Nearby there were at least six dirt tracks leading onto the road from farm properties, and there was one dirt road intersecting the road upon which the respondent was driving. The respondent was detected driving at 174 km per hour in a 110 km per hour zone. When giving evidence to support his application that the offence was trifling, the respondent said he did not know for how long he had been travelling at such a speed and, in fact, nor did he know what his exact speed was at the time. He also said that he was tired and that because of his tiredness he “shouldn’t have been on the road at that stage”.[2]
[1] Transcript of Proceedings, Police v Hall (Magistrates Court of South Australia, Magistrate Snopek, 25 June 2008) 2.24-2.26.
[2] Ibid 5.18-5.19.
In his reasons, the magistrate considered the offence was trifling because:
whilst the speed was high the chance of misadventure on this straight road at this time of the night in these traffic conditions was so slight that the breach is of a technical nature and can be reduced on the basis of trifling.
Mr Jacobi, on behalf of the prosecution, argues that such reasoning is clearly wrong. He argues the combination of the speed and the admitted tiredness of the appellant precludes the driving from being characterised as trifling. He argues that the magistrate placed insufficient weight on the respondent’s fatigue.
Mr Neagle, on behalf of the respondent, argues that the driving could be characterised as trifling as there was no danger to any other road users (of which the magistrate inferred from the respondent’s evidence there were none) and the only untoward aspect to the respondent’s driving was its high speed.
In Siviour-Ashman v Police,[3] Doyle CJ with whom Besanko J agreed, made the following observations as to the meaning of an offence that is trifling:
[3] (2003) 85 SASR 23, 27-28; [2003] SASC 29 [24]-[25], [29].
What is a trifling offence?
… one should begin by bearing in mind the ordinary meaning of "trifling". That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side: see Verran v Roberts [1938] SASR 256 at 259-260; Mancini v Vallelonga (1981) 28 SASR 236 at 239. …
…
In a number of cases the courts have treated the circumstances of the offence in this sense as relevant. I consider that this is correct. In the application of remedial legislation like this, it would be too narrow an approach to confine attention exclusively to the offending conduct. In Walden v Hensler Brennan J referred to the circumstances of the offence …
In Senior v Police,[4] Sulan J considered the meaning of the terms “public” and “trifling” in the context of an offence contrary to s 46 of the RTA. He concluded that the term “public” is intended to include the driver who commits the offence.
[4] [2005] SASC 88 [20].
In my view, the magistrate was incorrect in the finding that he made. The speed of 174 km per hour, being more than 60 km per hour above the speed limit, of itself amounts to driving at a speed dangerous to the public. Added to that fact was that the respondent was not on a freeway, but on a two-lane country road in windy conditions at night. Furthermore, there was the respondent’s admission that he was feeling tired at the time. Even without that evidence, driving at such a speed could not be characterised as a breach of a technical nature. The potential harm to road users, let alone the respondent himself, was not technical but real.
I allow the appeal. I set aside the penalty imposed by the magistrate and impose a fine of $600. I impose the minimum disqualification of 12 months, to be deemed to have commenced from 12.01am on 29 June 2008.