Police v Holer
[2016] SASC 187
•14 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HOLER
[2016] SASC 187
Judgment of The Honourable Justice Peek
14 December 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - OTHER PARTICULAR MATTERS
Appeal against penalty.
The appellant pleaded guilty to one count of dangerous driving contrary to s 46 of the Road Traffic Act 1961. The appellant, in apparent “road rage”, repeatedly and intentionally rammed the victim’s vehicle while travelling at speeds of approximately 75km/h, and intimidated the victim through prolonged tail-gating and sounding of the horn. The Magistrate sentenced the appellant to four months imprisonment and declined to suspend the sentence. The Magistrate also disqualified his driver’s licence for 3 years.
The appellant’s grounds of appeal contended that the sentencing discretion of the Magistrate miscarried in failing to suspend or partially suspend the sentence of imprisonment or to make a Home Detention Order, and that the 3 year licence disqualification was manifestly excessive. The appellant also applies to adduce fresh evidence pursuant to s 42(4) of the Magistrates Court Act 1991 in the form of two letters from his employer as to the consequences of the penalty on his employment.
Held (dismissing the appeal):
1. The Magistrate correctly approached the questions of: whether a custodial sentence should be imposed; whether the sentence of imprisonment should be suspended either wholly or in part; and whether a Home Detention Order should be made. He acted within his discretion in imposing the sentence that he did.
2. The application to adduce fresh evidence pursuant to s 42(4) of the Act is granted. However, the documents have little weight.
3. Section 10B of the Criminal Law (Sentencing) Act 1988, has no application to the mandatory drivers licence disqualification prescribed by s 46(3)(a) of the Road Traffic Act 1961 and the Magistrate was correct in not discounting the period of license disqualification due to the appellant’s guilty plea.
Road Traffic Act 1961 s 46; Criminal Law (Sentencing) Act 1988 ss 3, 9E, 10, 10B, 11, 33BB; Magistrates Court Act 1991 s 42; Acts Interpretation Act 1915 s 30; Statutes Amendment and Repeal (Sentencing) Act 1988 s 72, referred to.
Reeves v Police (1998) 70 SASR 451; D'aniello v Police [2009] SASC 172; Moore v Police [2013] SASC 30; R v Jongewaard [2009] SASC 346; R v Domarecki [2016] SASCFC 67; Graham v Police [2008] SASC 122, discussed.
R v Nemer [2003] 87 SASR 168, considered.
POLICE v HOLER
[2016] SASC 187Magistrates Appeal
PEEK J. Appeal against penalty for dangerous driving.
The subject incident occurred on 17 December 2015 when the victim was driving his Hyundai SUV vehicle (“the Hyundai”) on Port Elliot Road at Goolwa with his young children inside. He was driving at approximately 75 kilometres per hour in a 100 kilometre per hour zone. The appellant was travelling in his 4WD utility vehicle (“the 4WD”) in the same direction, initially to the rear of the victim.
The Hyundai happened to have fitted to it what is referred to as a “dash cam” recorder which recorded the whole of the event, both visually and aurally. The “dash cam recording” was played during the Magistrates Court hearing. I viewed it prior to the appeal hearing. A detailed record of its contents was made and supplied to counsel at the hearing of the appeal. Counsel for the appellant agreed that it is accurate and it is appended to this judgment.
The dash cam recording, and the factual basis of the plea of guilty, shows that this is an extremely serious case of dangerous driving. The nature of the appellant’s offending may be described accurately, if somewhat colloquially, as “road rage”. The facts asserted before the Magistrate by the police prosecutor were as follows:
The victim in this matter, Mr Vella, states that he was driving his vehicle on Port Elliott Road at Goolwa on 17 December 2015. He was travelling at about 75 kilometres an hour in a 100 zone when he observed a Nissan utility approach him from behind flashing his head lights and sounding the horn. This utility was driven by the defendant. The witness states that he saw the Nissan approach from the rear and ram and push his vehicle, causing his vehicle to increase speed and this caused his children, who were seated in the back seats of the car, to scream out in fear. He states that his vehicle was rammed three times before that vehicle overtook him to the left hand side whilst the driver was shouting abuse at him through an open window. He phoned police and was advised to drive to the nearest police station which he did and he states that his children got out of the vehicle and they were further abused by the driver of the vehicle, who states that he noted dents and scratches on the rear of his tailgate that were not there before.
… At the time of the driving the incident took place on a signed length of road at 100 kilometres an hour. It is a two lane road. There are no extra lanes for overtaking so it is just traffic travelling north and south.
At this point the following dialogue occurred:
His Honour: So the overtaking on the left hand side would that have been on the verge?
APP Hall: It is both and that will become very clear in the video. The actual verbal account isn’t very useful which is why I have sought to play the video. So I won’t go too much into the road conditions because Your Honour will see that for himself. I will, however, say that this offending occurred around Christmas time at Goolwa and near Middleton. Obviously that is a popular holiday spot for families at that time of year and there were other vehicles on the road so there were several people that were at risk at this time of driving.
His Honour: You might have said – what did he say to the police?
APP Hall: During the interview he stated that the vehicle in front of him was driving too slow and that he first tried to pass it on the right but could not and the other vehicle was at fault for slowing down when he rammed it the three times. The defendant was showed the dash cam footage during the interview which showed his vehicle ramming the victim’s vehicle and he stated that he was at fault and that the people should not drive that slow. The defendant also stated that he had no emergency, he was on his way to buy a present at Victor Harbor when he came across the victim’s vehicle and that it was simply driving too slow. He stated that he agrees that a collision at that speed was dangerous to himself and other road users, especially because the victim had children in his vehicle. He stated that his vehicle did make contact with the victim’s vehicle and that it could have caused some damage. He stated that he drove over a solid white line to pass the victim on the left and that he used his mobile phone to take a picture of the victim’s vehicle whilst doing so. He also stated that he continually used his horn to get the victim to pull over and that he understands that that was the wrong thing to do.
Later, the prosecutor added:
Your Honour, as I said, there were children in the car. The victim’s felt, because of the aggression involved in the incident, that they couldn’t stop their vehicle. They were concerned that, obviously, clearly, this is a situation of road rage. The victim continued to drive slowly because stopping for him wasn’t an option and then they proceeded immediately to the police station to report the matter. It is prosecution’s position that this is offending at the upper end of the scale. The incident occurs over a period. It is not simply that there is a small altercation on a road, it continues on and on and on with the defendant sitting on his horn for some period behind the vehicle obviously intimidating them.
The offending carries a maximum penalty of two years imprisonment. We say that his offending does warrant a term of imprisonment and also a licence disqualification. I would ask you to consider fixing more than the minimum.
The appellant was originally charged with the following counts on complaint:
1. On the 17th day of December, 2015 at Goolwa in the said State drove a vehicle namely a Motor Vehicle Registration Number S182-AVF on a road namely Port Elliot Road in a manner which was dangerous to any person.
Section 46 of the Road Traffic Act 1961.
This is a summary offence.
2. On the 17th day of December, 2015 at Goolwa in the said State without lawful excuse and intending to damage property, damaged a motor vehicle the property of Michael John Vella such damage amounting to not more than $2,500.
Section 85(2) of the Criminal Law Consolidation Act, 1935.
This is a summary offence.
3. On the 17th day of December, 2015 at Goolwa in the said State being the driver of a vehicle namely a motor vehicle registration number S182-AVF on a road namely Port Elliot Road, you did not drive a sufficient distance behind another vehicle that was travelling in front of you, so that you could if necessary, stop safely to avoid a collision with that vehicle.
Rule 126 of the Australian Road Rules.
This is a summary offence.
4. On the 17th day of December, 2015 at Goolwa in the said State being the driver of a vehicle on a road namely Port Elliot Road, drove over the continuous white edge line on that road.
Rule 150(1) of the Australian Road Rules.
This is a summary offence.
5. On the 17th day of December, 2015 at Goolwa in the said State being the driver of a vehicle moving on a road namely Port Elliot Road, you used a hand held mobile phone.
Rule 300 of the Australian Road Rules.
This is a summary offence.
6. On the 17TH day of December, 2015 at Goolwa in the said State being the driver of a vehicle on a road namely Port Elliot Road, used a horn or similar warning device fitted to your vehicle, when it was not necessary to use the horn or warning device to warn other road uses or animals of the approach or position of your vehicle or as part of an anti-theft device fitted to your vehicle.
Rule 224(a) of the Australian Road Rules.
This is a summary offence.
A plea of guilty was taken to count 1 alone, on the basis that the particulars of driving in a manner dangerous to the public (“dangerous driving”) were to include some of the factual matters referred to in the other counts.
The Magistrate, as he was entitled to do, accepted that asserted basis of fact. In his reasons, he briefly summarised it as follows:
Your offending was as follows. The victim was driving in his vehicle, with his children in the back seat, at approximately 75kph in a 100kph zone. You approached, travelling behind him in your vehicle, a large and powerful utility with an imposing bulbar on the front. You flashed your headlights and sounded your horn. You then rammed his vehicle from the rear, at speed, and it appears that, for a time, your vehicle became entangled with his, pushing his vehicle forward at an increased speed. His children screamed. You, however, continued to harass them in a belligerent fashion, continually sounding your horn. You then overtook his vehicle on the left hand side, over a continuous white line, hurling abuse at them as you did so. Your actions resulted in dents and scratches to the rear of the victim’s vehicle.
The offending was rightly characterized by the Magistrate as being “completely unwarranted, completely unprovoked and outrageous” and placing the victim and his children at real risk. His Honour concluded that imprisonment was required in this case and imposed a head sentence of four months imprisonment, this having been reduced from six months in view of the appellant’s plea of guilty.
Although not complained of on appeal, it may be confirmed that the Magistrate correctly approached the initial question of whether a sentence of imprisonment should be imposed here. His Honour expressly took into account the factors militating in favour of the appellant, and I will consider those matters below in the context of suspension of sentence. His Honour also reminded himself that a sentence of imprisonment should only ever be imposed as a last resort and where any other sentence would be inappropriate by reference to ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). His Honour balanced these matters and concluded thus:
[9] A sentence of imprisonment should only ever be imposed as a last resort and in your case s 11(1)(4) of the Criminal Law Sentencing Act provides that a sentence of imprisonment can only be imposed when any other sentence would be inappropriate having regard to the gravity and circumstances of the offence.
[10] In my view this is such a case. This is a very serious example of its kind. Your driving was completely unwarranted, completely unprovoked and outrageous. You placed the victim and his family at real risk. You caused damage to his vehicle. Your offending continued over a lengthy distance and over a substantial period of time, time in which you should have come to your senses and backed off, literally, but, instead, you chose to continue your appalling actions only compounding the victim’s fear. As you did so with each minute, with each sounding of your horn and by then overtaking and hurling abuse you not only placed other road users and potential pedestrians at risk, but you placed the victim at risk as he tried to keep his family safe, too frightened to pull over or speed up given your evident rage. By your intimidation he was obviously distracted in his own driving placing him at further risk.
[11] But for your plea of guilty I would have sentenced you to six months imprisonment. Given that no rational reason has been proffered for your offending and observing your body language today I do not accept that you are repentant, particularly given the overwhelming case against you, however I will give you a 30% discount on penalty, reducing your sentence to four months imprisonment.
His Honour went on to consider whether there was good reason to suspend that sentence, wholly or in part, and determined that there was not. He then imposed a driving disqualification for three years.
The amended grounds of appeal
The amended grounds of appeal are as follows:
1. The sentence is manifestly excessive.
Particulars
The 3 year licence disqualification was too long in all of the circumstances.
2. The sentencing discretion miscarried.
Particulars
2.1The Learned Magistrate erred in failing to find that good reason existed to suspend the sentence.
2.2The Learned Magistrate erred in failing to impose a partially suspended sentence.
2.3 The Learned Magistrate erred in failing to make a Home Detention Order.
3. The learned sentencing Judge (sic) erred in the application of section 10B of the Criminal Law (Sentencing) Act 1988
Particulars
a. The sentence arrived at in respect to the 3 year licence disqualification does not or does not adequately reflect the sentencing discount the applicant was entitled to pursuant to section10B of the Criminal Law (Sentencing) Act 1988
The grounds of appeal are a little unusual in that while ground 1 of appeal complains that the “sentence is manifestly excessive”, the particulars make it plain (as was confirmed on the appeal hearing) that that complaint is directed only to the length of licence disqualification, and not to the fact that imprisonment was imposed, or to the period of imprisonment. However, I agree with that approach in the present case. As noted above, there is clearly no error associated with the Magistrate’s decision to impose a period of imprisonment and the length of that period (six months prior to reduction to four months for the plea) could well have been greater, given that the maximum sentence for this offence is two years imprisonment.
I will therefore first deal with ground 2 of appeal which complains that the sentencing discretion miscarried in that the sentence of imprisonment should have been wholly or partially suspended or replaced with a home detention order. I will then deal with grounds 1 and 3 of appeal which each address the licence disqualification. However, before doing so, I will consider an application for the Court to receive fresh evidence.
An application to adduce fresh evidence pursuant to s 42(4) Magistrates Court Act 1991
As part of the appeal process, the solicitor for the appellant sent to this Court by email dated 30 November 2016 (together with other documents) a letter of six paragraphs on Maritime Constructions Pty Ltd letterhead dated 7 November 2016 and signed by “Carolyn Smith, HR Advisor”, to which he referred as “a character reference”. The email ended “Please advise if there are any problems with accessing the attached documents”.
On the hearing of the appeal on 7 December 2016, counsel for the appellant made the application to adduce fresh evidence and sought to tender a letter of six paragraphs on Maritime Constructions Pty Ltd letterhead dated 7 November 2016 and signed by “Carolyn Smith, HR Advisor” which appears thus:
7th November 2016
To the Presiding Judge
Re: BENJAMIN JAMES HOLER – Charge: Driving in a Manner Dangerous
I am aware that Ben Holer is pleading guilty to the charge of “Driving in a Manner Dangerous”.
Ben Holer has been employed by Maritime Constructions since 2nd August 2011 initially as a Casual General Hand before being appointed full time in February 2014. His appointment to permanent full time was as a result of consistently great feedback from his peers regarding his great work ethic, exemplary performance, teamwork and reliability.
I have personally always found Ben pleasant and amiable in all my dealings with him. He is well liked amongst our workgroup and he is often the first choice by Project Managers and Supervisors when selecting crew for upcoming projects, particularly within the Harbours and Marine business unit where Ben is a specialist Wharf & Jetty crew member.
Whilst we don’t condone his actions and the seriousness of the charges, this recent misdemeanour appears totally out of character and since speaking to Ben about it I believe that it is unlikely that he will reoffend. He has expressed extreme remorse for his actions and the situation he now finds himself in.
We see Ben as a long term employee and have invested in his training and development, gaining his marine qualification (Coxswain) as well as a range of other relevant tickets for the marine construction industry including dogging, confined spaces, workzone traffic management, front end loader, skidsteer and HR Truck licence. Ben’s licence is extremely important to his job and the specialist work he does for us, and whilst we are prepared to accommodate him as far as practicable, we ask that due consideration be given to the length of any licence disqualification, as a longer term disqualification could significantly impact on his ability to remain productively employed at our sites. We would like to highlight that Ben was a crucial member of a 4 man team that was highly commended by DPTI and the local Council following completion of urgent repairs to the storm damaged Port Germein Jetty recently.
Finally, as Ben’s employer, we believe that in determining an appropriate penalty, strong consideration should be given to allowing him to remain productively employed. He has a strong family support network around him as well. We are fully supportive in providing him with ongoing employment but any long term absence from the work place may make it hard for us to keep his position open longer term and any incarceration in a Government correctional facility could be detrimental to his overall wellbeing and mental health.
Yours faithfully
[signed]
Carolyn Smith
HR Advisor (Emphasis added)
This version of the letter has a considerably longer fifth paragraph than the original version supplied on 30 November 2016, the difference being the inclusion of the additional sentence emboldened above; apart from that addition, the two versions are the same.
It is to be noted that in the original version, there was no suggestion that loss of licence might lead to dismissal; comment concerning possible dismissal was there confined to the italicised sentence in the final paragraph above (which is common to both versions).
On the appeal, counsel applied to tender both versions of the 7 November 2016 letter pursuant to s 42(4) Magistrates Court Act 1991. Quite understandably in all of the circumstances, counsel for the respondent opposed the tender. I reserved judgment on that application.
It is to be noted that there was no explanation advanced as to why a letter of this sort could not have been obtained and tendered before the Magistrate. However, what is plain is that the tone and emphasis of counsel’s submission to the Magistrate concerning the impact of licence disqualification reproduced below at [35] “that employment will be terminated the moment that Your Honour disqualifies him” - was strikingly different to either of the two versions of the 7 November 2016 letter.
Further, the content of the letters by itself is puzzling; it strongly evinces the signatory’s unfamiliarity with the true situation. Thus, the offence is referred to as “this recent misdemeanour” - but it had occurred on 17 December 2015, almost a year prior to the date of the 7 November 2016 letters. And the letters commence with the sentence “I am aware that Ben Holer is pleading guilty to the charge of “Driving in a Manner Dangerous” - but the appellant had previously pleaded guilty to that charge on 16 September 2016, and been sentenced on the same day; the November letter was being sought in connexion with an appeal from that sentence.
Further, the additional emboldened sentence in the second version of the 7 November 2016 letter belatedly raises, in the most vague of terms, a suggestion that some degree (length unstated) of disqualification might not lead to dismissal, but that a “longer term” (length again unstated) of disqualification might lead to dismissal. But surprisingly, there is no attempt to address the employer’s attitude concerning dismissal having regard to the very concrete periods that were then well known to the appellant’s advisers (but were apparently unknown to the signatory), namely the three year period that was in fact imposed by the Magistrate and the 12 month minimum period that had to be imposed on a successful appeal, or to any particular period in between.
Finally, I take it that the letters are relied upon in relation to suspension of sentence as well as licence disqualification. But again, the impact of custodial imprisonment is treated in the most vague of terms: “We are fully supportive in providing him with ongoing employment but any long term absence from the work place may make it hard for us to keep his position open longer term …”
Again, it is to be remembered that this letter is said to have been signed on 7 November 2016. At that time, it was perfectly well known that the period of imprisonment imposed was four months. It would also have been known that there was no prosecution appeal and that this was therefore the maximum period faced. There was simply no justification for talking in terms of a vague “long term absence from the work place” when the known maximum absence was four months, the impact of which on continued employment could have been commented upon.
Finally, it is evident from the 7 November 2016 letter itself, that the employer had a strong commercial interest in retaining the services of the appellant and was therefore not a neutral or disinterested witness concerning the character of the appellant. There was no attempt by the appellant’s representatives to tender before the Magistrate or this Court, any good character evidence or material from a wider range of acquaintances of the appellant, or even from family members.
I will, with considerable hesitation, admit those documents, but I consider that they have little weight and are to be treated with caution.
Grounds 2.1 and 2.2 of appeal: Asserted failure to suspend the sentence of imprisonment, wholly or in part
As to this type of “road rage” offending, Doyle CJ stated in Reeves v Police:[1]
The magistrate considered that Parliament and the community expect a stern response to what he described as “road rage”. I agree that, in cases such as this, where the conduct involves a loss of temper in the course of driving, the need for general deterrence necessitates a stern response. A clear message needs to be given to the community that frustration on the road is not to be translated into violence. Especially is this so in cases such as the instant one, where the appellant acknowledges he struck the car, not once, but on two or three occasions. The offence was committed in circumstances such that the magistrate was entitled to consider imprisonment as an option.
[1] (1998) 70 SASR 451, 453-454.
And in D’aniello v Police, a case involving facts comparable with the present case, Gray J stated:[2]
[19] The defendant’s conduct was serious. He decided to harass another road user because of alleged driving misconduct toward his girlfriend on an earlier occasion. The defendant used his vehicle as an instrument to give effect to his anger. He caused his vehicle to collide with the other vehicle on two occasions. …
[20] Road rage has become conduct of serious concern. General deterrence is a material consideration. The conduct of the defendant endangered the safety and lives of passengers in his vehicle as well as other road users. The gravity of the defendant’s conduct was such that the Magistrate was entitled to take the view that a sentence of imprisonment should be imposed.
[2] [2009] SASC 172.
Finally, in Moore v Police, Kourakis CJ stated:[3]
[27] It is, as the Magistrate observed, important that penalties deter dangerous driving which carries with it a risk to life and limb. Substantial periods of imprisonment are imposed for offences of causing serious harm or death by dangerous driving to deter such driving and in the hope that the unacceptable road toll might be reduced. That objective will not be achieved only by imposing punitive and deterrent penalties on offenders when the driving does actually result in death or serious harm. It is important that offenders who have dangerously driven in a manner which creates a great risk of death or serious harm do not escape condign punishment for the manner of their driving merely because of the fortunate happenstance that no-one was in fact injured or killed. It is plain enough, but I should emphasise, that such an offender is not likely to be sentenced as if his or her offence caused harm or death. However, generally speaking, the degree of risk of death or serious harm should be reflected in the penalty imposed for dangerous driving. The circumstance that those persons who were put at risk were fortunate enough to escape unharmed is not a reason to ignore the dangers posed by the offender’s driving.
[3] [2013] SASC 30.
Appellate review of the suspension of sentence decision
As to the general approach on appellate review of a suspension of sentence decision, Doyle CJ (with whose reasons Layton J and Kourakis J (as his Honour then was) agreed) said in R v Jongewaard:[4]
[T]he issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence.
[4] [2009] SASC 346, [40].
More recently in R v Domarecki, Nicholson J (with whom Parker and LovellJJ concurred) stated:[5]
[23] … As the former Chief Justice also indicated in Jongewaard,[6] the argument that a sentencing Judge has erred in failing to suspend a prison sentence “will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not ‘good reason’ for suspending the sentence, in exercise of the power conferred by ss 38(1) of the Sentencing Act”.
…
[26] The issue of whether or not the sentence imposed was manifestly excessive requires consideration of whether the Judge’s starting point was “unreasonable or plainly unjust” in all of the circumstances such that it fell outside the sentencing discretion available to the Judge. It also requires a consideration of whether or not the decision to suspend fell outside the discretion available to the Judge. In The Queen v Morse,[7] King CJ indicated that the factors to be considered when addressing the question of manifest excess are:
(i) the maximum sentence prescribed by law for the offence;
(ii) the standards of sentence customarily observed for offences of the kind in question;
(iii) the seriousness of the offence committed when compared to other offences of its kind; and
(iv) the personal circumstances of the offender. [Emphasis added]
[5] [2016] SASCFC 67.
[6] At [42].
[7] (1979) 23 SASR 98, 99.
The approach of the Magistrate to the suspension decision
The present offending constituted deliberate and dangerous harassment of other road users which put the driver and his children at risk. It was a prolonged incident in which the appellant tail-gated, sounded his horn and intimidated the victim and his children over the course of a number of kilometres, including through the township of Middleton. It occurred during the busy Christmas period when there were many people on the road. It was extremely serious in that the appellant quite deliberately drove up behind the victim’s car and rammed it from the rear a number of times. The appellant used his vehicle as an instrument to give effect to his anger. This was extremely frightening to the occupants, as well as being highly dangerous. It demonstrates a strong need for personal deterrence, the positive opinion proffered by others as to the appellant’s good character and his recent apologies notwithstanding. This was truly outrageous conduct. It simply cannot be tolerated and requires strong denunciation by the Court.
In the present case, the Magistrate correctly approached the question of whether the sentence of imprisonment should be suspended (either wholly or in part). His Honour stated, “I now revisit all of the considerations again to determine whether good reason exists to suspend this sentence either wholly or in part.” In that earlier part of his judgment, in the context of imposing a sentence of imprisonment and assessing its duration, his Honour had referred to all relevant considerations put to him by counsel, including: the appellant’s age of 39 years; that he had virtually no prior offending (two minor matters being treated as irrelevant); his plea of guilty; and his submission that he had been shaken by the court process which he had not been involved in previously.
As appears from the Court transcript of the sentencing proceedings, Ms Fantis, counsel then appearing for the appellant, emphatically stated to his Honour:
Your Honour, he is 39 years of age. He has full time employment in the Maritime Construction industry. That employment will be terminated the moment that Your Honour disqualifies him. He resides in Hewitt and therefore to travel to any employment, let alone his present employment, is simply out of the question. He is also, in the course of that employment, required to work away in places such as Mount Gambier which simply won’t be an option. (Emphasis added)
The Magistrate expressly referred to the facts that the appellant was engaged in full time employment and earning a very good income but that, as unequivocally stated by his counsel, he would lose that employment if he lost his driving licence; and further, that that loss of employment would result in hardship to his partner and his two dependent children. His Honour also noted that he also had a nine year old daughter (presumably from a previous relationship) living in Mount Gambier, who he regularly visits (by air travel) and for whom he was paying child support.
The Magistrate took into account all of the above matters, but concluded that there was not good reason to suspend the sentence. His Honour stated:
On rare occasions an offence is so serious, so unnecessary, so dangerous, so outrageous and so fear provoking that the gravity and circumstances of such an offence outweigh, even overwhelm factors personal to the offender, particularly where general deterrence is a prominent feature. The message needs to be sent to drivers that, if they choose to commit serious road rage offences, then courts will deal with them seriously.
It was clearly within the discretion of the Magistrate to so conclude. Taking the matters favouring the appellant at their highest, it must also be taken into account that at 39 years of age the appellant does not have the excuse of youth or immaturity. It is to be noted that the appellant was not responding to any sort of an emergency but was simply on an errand to buy a Christmas present in Victor Harbor. He displayed little contrition for his behaviour in his police interview and he proffered no rational explanation for his offending at that time; rather, he demonstrated a serious lack of insight into the seriousness of his offending by suggesting that the conduct was not his fault because people should not drive so slowly.
The attitude of the prosecution to suspension of sentence
As the Magistrate specifically noted in his reasons, the prosecution submitted that imprisonment was warranted but “they are not opposed to its suspension”. The appellant emphasised this matter on appeal.
However, the point is that the decision was one for the Magistrate. Graham v Police was a case rather similar to the present. The appellant there complained as to the Magistrate’s refusal to suspend and relied inter alia on the facts that prosecution counsel had positively “supported” that defence submission and that the Magistrate had not warned the appellant that he was contemplating a custodial sentence despite that support. Kelly J stated:[8]
[8] [2008] SASC 122.
[28] The appellant also complained that the prosecutor’s support for a suspended sentence was a relevant and important factor which had not been accorded sufficient or any weight, by the magistrate.
[29] It is true that at the hearing before the magistrate, the prosecutor did support a suspended sentence. Upon the hearing of this appeal counsel then appearing for the respondent, conceded that this concession was “generous”.
[30] Some reliance was placed on the comments of Olsson J in Ienco v Kraft and Modra (1990) 53 SASR 40. Those comments concerning the weight to be given to a joint suggestion by both the prosecution and defence, that leniency be extended, must now be read in the light of more recent decisions of the Court of Criminal Appeal.
[31] In R v Nemer [2003] 87 SASR 168 at 173, Doyle CJ said:
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509-510 per King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso (at 233)
The court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.
[32] Although the Chief Justice was in the minority in that case as to the disposition of the appeal, the court was in agreement as to that statement of general principle.
[33] Obviously there will be cases where a submission by the prosecution supporting a suspended sentence will be accorded great weight. In other cases such a submission may not carry much weight at all. It all depends on the circumstances.
[34] In this case I consider that it was open to the magistrate to conclude, as he must have, that none of the circumstances either alone or in combination, amounted to good reason to suspend.
I agree with her Honour’s analysis of the position.
As to ground 2.2, there is no reason to believe that the Magistrate overlooked his power to partially suspend the sentence, since his Honour stated “either wholly or in part”. For the reasons stated above, the decision to decline to suspend, either wholly or in part, was well within his Honour’s discretion in this case.
Ground 2.3: The home detention order
As to ground 2.3, the Magistrate specifically addressed the possibility of making a home detention order (an HDO) pursuant to s 33BB of the Sentencing Act and declined to do so.
In exercising the discretion of whether to make an HDO, all of the usual considerations relevant to the imposition of a sentence of imprisonment and the suspension of such a sentence must be taken into account. Of course, ex hypothesi, an HDO may be made in cases where the court will refuse to suspend a sentence of imprisonment. However, it remains the position that in many cases, the combination of factors militating against suspension of sentence will not only lead to rejection of whole or partial suspension under s 38 of the Sentencing Act but will also lead, on balance, to rejection of a submission that an HDO should be made.
Here, the Magistrate considered that this was such a case in that the matters of denunciation, general deterrence and personal deterrence which necessitated both a sentence of imprisonment and the non-suspension of it, also here required that such a sentence not be suspended on the basis of an HDO being made. No appellable error has been demonstrated.
Ground 1: Was the period of driving disqualification manifestly excessive?
This was a case where the Magistrate was required to impose driving disqualification for at least one year, with no maximum period specified. On a second offence, a Magistrate would be required to impose driving disqualification for at least three years.
As noted above, the appellant’s driving behaviour was truly egregious. Accepting that the effect of a concurrent penalty of imprisonment is not to be disregarded, I nevertheless consider that the period of three years disqualification was very much within the ambit of the Magistrates discretion in the present case; other judicial officers might well have imposed a significantly longer period.
Ground 1 of appeal is rejected.
Ground 3: Did the Sentencing Act “guilty plea discount regime” apply to the period of driving disqualification imposed in this case?
The appellant submits that the Magistrate was required by s 10B of the Sentencing Act to give a discount of up to 30 per cent off the length of the licence disqualification for the appellant’s plea of guilty, but failed to do so.
There is a threshold question here as to whether s 10B ever applies to a licence disqualification. Whatever the correct answer may be, the present appellant cannot succeed on this ground of appeal in the circumstances of the present case. My reasons follow.
The correct construction of s 46 of the Road Traffic Act 1961: Imposition of the mandatory licence disqualification is not the imposition of a “sentence”
Section 46 of the Road Traffic Act 1961 relevantly provides:
(1) A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person.
Maximum penalty: Imprisonment for 2 years.
…
(3) If 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.
It is to be noted that the words “Maximum penalty: Imprisonment for 2 years” appear at the foot of s 46(1), which subsection contains words creating the subject offence. Accordingly, reference must be made to s 30 of the Acts Interpretation Act 1915, which provides:
30—Penalties
(1)A penalty set out at the foot of a section or subsection that contains words creating an offence indicates that the offence is punishable on conviction by a penalty not exceeding the penalty so set out or, where a minimum as well as a maximum penalty is so set out, by a penalty not less than the minimum and not more than the maximum.
(2)A penalty set out at the foot of a section or subsection that does not contain words creating an offence indicates that contravention of the section or subsection (whether by act or omission) constitutes an offence punishable on conviction by a penalty not exceeding the penalty so set out or, where a minimum as well as a maximum penalty is so set out, by a penalty not less than the minimum and not more than the maximum.
(3) In this section—
penalty includes punishment.
Reference should also be made to the legislative history of s 46 which may be briefly summarised as follows.
In 1976, Road Traffic Act Amendment Act (No 3) 1976 s 19 inserted licence disqualification in the penalty provision of s 46(1). Prior to this amendment, the s 46(1) penalty provision provided for a fine (for a first offence), and a fine or imprisonment (for a second offence). This amendment introduced a new penalty provision including licence disqualification and a fine (for a first offence), and license disqualification and a fine or imprisonment (for a second offence). Section 46(3) was also inserted and stated that: “notwithstanding any other Act, the minimum license disqualification period prescribed in s 46(1) shall not be reduced or mitigated”. Equivalent amendments were made to ss 47, 47B, 47E and 47I.
In 1981, Road Traffic Act Amendment Act (No 3) 1981 s 4 removed licence disqualification from the penalty provision (s 46(1)), and explicitly stated that ‘the order of disqualification shall, for the purposes of the Offenders Probation Act, 1913-1971, be deemed not to constitute a sentence or the imposition of a penalty.’ Equivalent amendments were made to ss 47, 47B, 47E and 47I. The second reading speech (pages 3915-16) states that the clause ‘sets out mandatory license disqualification requirements separately from the penalty provision’ and that the new sub-s 46(3)(c) was ‘designed to ensure that the powers under the Offenders Probation Act 1913 (“OPA”) may be exercised in appropriate cases in relation to the penalties of a fine or imprisonment, notwithstanding the fact that it will continue to be mandatory for courts to impose a license disqualification. That is, where a court convicts a person of an offence against sub-s (1), it is proposed that the court must impose appropriate licence disqualification, but then may … discharge the offender without penalty’.
In 1988, Statutes Amendment and Repeal (Sentencing) Act 1988 s 72 amended the language of s 46(3) to state that licence disqualification cannot ‘be substituted by any other penalty or sentence’, and removed the express clause of s 46(3)(c). Equivalent amendments were made to ss 47, 47B, 47E and 47I. In Parliamentary debate which took place following the second reading speech, the amendments to these provisions were described by the Minister as ‘housekeeping’ amendments, and intended to clarify that the new Criminal Law (Sentencing) Act 1988 ‘refers to drink driving provisions in lieu of the Offenders Probation Act, which is repealed’ by this Amending Act. Although it would have been preferable had Parliament simply replaced the reference in s 46(3)(c) to the repealed ‘Offenders Probation Act’ with the Criminal Law (Sentencing) Act 1988, I consider it clear that this was not intended to amend the treatment of licence disqualification as previously stated in that subsection.
The wording of s 30 of the Acts Interpretation Act 1915 was amended once during this period but with no material effect in the present circumstances.[9]
[9] The wording of s 30 of the Acts Interpretation Act 1915 changed only once during the whole of this period, by virtue of the Acts Interpretation Act Amendment Act 1986 (assented to on 20 March 1986). Prior to this, s 30 read as follows:
30.The penalty or punishment, pecuniary or other set out—
I. in, or at the foot of any section of any Act ; or
II. in, or at the foot of any part of any section of any Act,
Shall indicate that any contravention of such section or part, whether by act or omission, shall be an offence against such Act, punishable upon conviction by a penalty or punishment not exceeding that so set out; or, where a minimum as well as a maximum penalty or punishment is so set out, by a penalty or punishment not less than such minimum, and not more than such maximum:
Provided that where the penalty or punishment is expressed to apply to a part only of the section it shall apply to that part only.
Little turns on the amendment of this section in the present context.
I consider that the combined effect of the legislative history of s 46 of the Road Traffic Act 1961 and s 30 of the Acts Interpretation Act 1915 is to demonstrate the legislative intention that licence disqualification in the context of s 46 is not to be regarded or treated as a “penalty”. But, in any event, I consider that the correct interpretation of the current s 46 as it now stands (quite irrespective of reference to historical considerations) is that licence disqualification in the context of s 46 is not to be regarded or treated as a “penalty”.
Of course, the discount regime in the Sentencing Act enacted by Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 speaks in terms of reduction of “sentence”. The definition of “sentence” (which is exhaustive rather than inclusionary) for the purposes of the Sentencing Act appears in s 3 as follows:
sentence means—
(a) the imposition of a penalty; or
(b) the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c) the fixing, extending or negating of a non-parole period; or
(d) the making of any other order or direction affecting penalty;
I consider that, in the context of s 46 of the Road Traffic Act 1961, the imposition of a driving disqualification cannot constitute “the imposition of a penalty” under paragraph (a) of the definition of “sentence” because of the manifested legislative intention that licence disqualification in the context of s 46 is not to be regarded or treated as a “penalty” as outlined above.
I further consider that, in the context of s 46 Road Traffic Act 1961, the imposition of a driving disqualification cannot fall under paragraph (d) of the definition of “sentence” because of the manifested legislative intention that licence disqualification in the context of s 46 is not to be regarded or treated as a “penalty”; and therefore the mandatory imposition of licence disqualification pursuant to the separate sub-section, s 46(3), cannot constitute “the making of any other order or direction affecting penalty”.
This conclusion is alone sufficient to determine ground 3 of appeal in favour of the respondent.
The correct construction of s 46 of the Road Traffic Act 1961: The effect of s 46(3)(a) is to oust the application of the discount regime
In the alternative to the above construction of the definition of “sentence” in s 3 of the Sentencing Act, counsel for the respondent submits in her outline of argument as follows:
The prescribed period [in s 46(3)(a)(i)] is the period of disqualification which a sentencing Court fixes which can be any period not less than 12 months. Thus, the reduction made available by s 10B is excluded by operation of s 46(3)(b) regardless of the duration of the period of disqualification prescribed by the Magistrate. The Learned Magistrate was therefore not entitled to apply any discount to the period of disqualification.
I agree. To express the position in my own words, I consider that the following propositions are correct.
First, s 46(3)(a) prescribes that in the case of any conviction of this offence, the Court must order a period of driving disqualification; the length of such disqualification is at the discretion of the Court, subject only to the stated minimum periods.[10]
[10] The minimum periods are in turn subject only to the trifling application referred to in s 46(3)(b), which is not presently relevant.
Secondly, the correct construction of the language in s 46(3)(b) “the disqualification prescribed by paragraph (a)” refers to the Court order of driving disqualification that must be made as a consequence of the prescription in s 46(3)(a) that the Court must order that the person be disqualified from holding or obtaining a driver’s licence.
Thirdly, if in the case of a first offence, the Magistrate makes an order of licence disqualification of three years, then that order is “the disqualification” which is prescribed by paragraph (a) and which is referred to in s 46(3)(b).
Fourthly, the following very wide words in s 46(3)(b) “cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence” mean what they say. Those words of this special Act concerning the prescribed licence disqualification process for this particular offence take precedence over general provisions in statutes exterior to the framework of the Road Traffic Act 1961, such as s 10B of the Sentencing Act.
It should also be noted that the prelude to Division 2 of the Sentencing Act, within which s 10B lies, is relevantly as follows:
9E—Purpose and application of Division
...
(2) Except where the contrary intention expressly appears, this Division is in addition to, and does not derogate from, a provision of this Act or any other Act—
(a)that expressly prohibits the reduction, mitigation or substitution of penalties or sentences; …
There is nothing in s 10B to suggest that there is any contrary intention, express or otherwise, to derogate from s 46(3)(b).
Understandably, the appellant submitted that the discount regime can apply in so far as it does not reduce a disqualification period below the minimum period. Thus, it was submitted that, in the case of a first offence, if the Magistrate imposes the minimum period of 12 months, that cannot be reduced by reference to s 10B of the Sentencing Act whereas if, as in the present case, the Magistrate imposes three years disqualification that could be reduced by 30 per cent for the plea of guilty and still be in excess of the minimum period of 12 months disqualification.
I understand that submission, but I reject it. For the reasons explained above, I consider that the correct interpretation of s 46 of the Road Traffic Act 1961 is that the Magistrate is to determine and order (subject to the relevant mandatory minimum period) the appropriate period of licence disqualification, and it is that order for disqualification that is not to be reduced by the application of the general provisions of any other statute. Accordingly, I accept the respondent’s submission that the “discount regime” has no application to driving licence disqualification imposed consequent upon a conviction of an offence against s 46 Road Traffic Act 1961.
A re-sentencing concerning the licence disqualification
However, I accept that if, contrary to my above conclusions, s 10B Sentencing Act does apply to licence disqualification in the context of s 46 Road Traffic Act 1961 and if I am also wrong in relation to the correct construction of s 46(3), then there is a need for a re-sentencing concerning the period of disqualification.
I have undertaken a notional re-sentencing on the basis that regard is to be had to all of the facts and circumstances of the case, but that the appellant is entitled to have the fresh evidence tendered on this appeal taken into account in his favour (as well as all the mitigatory matters placed before the Magistrate and this Court). I have come to a notional fresh sentence on that basis and I indicate that such a sentence includes a period of disqualification that, after being reduced by a period of 30 per cent, still exceeds three years.
It would, of course, be inappropriate to allow a defence appeal so as to produce a greater penalty than originally imposed by the Magistrate. That being so, the present appeal should also be dismissed on that alternative basis.
Orders
1The original grounds of appeal are withdrawn and replaced with the amended grounds of appeal dated 9 December 2016.
2The appeal is dismissed.
Schedule: Dash Cam Footage
Time Events 14:25:51 Video commences. The speed limit is 100km/h; the victim is travelling in “the Hyundai” at 75km/h. The appellant’s vehicle, “the 4wd” is visible, but quite a distance behind the Hyundai. 14:26:17 The 4wd has rapidly approached the Hyundai, which is travelling at 71km/h. The 4wd is now roughly two and a half car lengths behind the Hyundai, and dips its high beam lights. 14:26:21 The 4wd sounds its horn for the first time and continues to edge closer to the Hyundai, which is travelling at 67km/h. 14:26:24 The 4wd swerves onto the verge, before correcting; the Hyundai is by now travelling at 59km/h. 14:26:26 The 4wd sounds its horn again. 14:26:30-14:26:46 The 4wd drops back slightly and is roughly two car lengths behind the Hyundai, which increases speed from 59km/h to 68km/h. 14:26:47-14:26:50 The 4wd increases speed and approaches close to the rear of the Hyundai. 14:26:51-14:26:57 The 4wd flashes its right indicator while the Hyundai is travelling 63-64km/h. The 4wd attempts to overtake; he is entirely in the right lane at 14:26:52, and remains there until 14:25:55. The Hyundai speeds up to 81km/h. The 4wd then slows down and moves back into the left lane behind the Hyundai.
A third car travels in the opposite direction at 14:27:10, possibly explaining why the 4wd did not continue to overtake the Hyundai.
14:26:58-14:28:00 The 4wd increases speed and draws closer to the rear of the Hyundai, which is travelling at 85km/h. 14:27:01-14:27:04 First contact is made: the 4wd bumps the rear of the Hyundai, which is travelling at 81km/h. Bumps occur at 14:27:01 and 14:27:03, and both vehicles have slowed to 74km/h.
At 14:27:02, a child is heard in the background to say, “woah”.
14:27:05-14:27:11 The 4wd bumps the Hyundai again, and the two cars appear to become attached. They are travelling at 72-74km/h while appearing attached for approximately 5 seconds. 14:27:11 The vehicles separate, and the Hyundai slows to 61km/h; the 4wd pulls left onto the verge and continues at speed. 14:27:15-14:27:17 The Hyundai travels at 59km/h while the 4wd increases speed, possibly attempting to overtake on the verge. The nose of the 4wd edges beyond the rear of the Hyundai, and the drivers-side window of the 4wd is wound down. 14:27:18-14:27:19 While continuing to travel along the verge, the appellant gesticulates and yells out of the open window: “get off the road!”
A child speaks inaudibly.
14:27:20 The vehicles pass a 60km/h speed sign; the Hyundai is travelling at 48km/h. 14:27:20-14:27:35 The 4wd then slows down and moves back into the left lane behind the Hyundai, which is travelling at 47-50km/h.
There is partially inaudible talk from the children, which appears to include:
-- “what?”
-- “he’s bumping us”
-- “yeah he’s bumping us”
-- “was it on purpose?”
-- “is he?”By the end of this exchange the Hyundai has slowed to 42-44km/h.
14:27:35-14:28:12 The 4wd sounds its horn continuously for this time while the Hyundai travels at between 40km/h and 45km/h.
At 14:27:45 the Hyundai travels past a 60km/h speed sign at 46km/h.
At 14:28:05 a child asks something similar to, “is he doing that on purpose?”
The victim responds, “yes.”
The child asks, “why?”
The response if any, is inaudible.14:28:11-14:31:09 A phone rings; the victim calls emergency services. The Hyundai is travelling at approximately 40-44km/h.
The 4wd continues to sound its horn, virtually without pause, for the duration of this call, which is as follows:
V: “Hello, I have an absolute emergency.”
ES: “What’s happening?”
V: “Um I’m in my car driving the car behind me came close, flashing his lights and then he deliberately hit me and he [inaudible] the car.”
ES: “Okay where are you, what road are you on sir?”
V: “I’m on, hang on, the Victor Harbour-Goolwa road. He’s still behind me, he’s beeping and I’m not pulling over I’m driving and –”
ES: “So you’re on Victor-Harbour-Goolwa Road, I don’t know that one, what is it called?”
V: “Victor-Harbour-Goolwa Road.”
ES: “It is called victor harbour Goolwa road?
V: “That’s correct.”
ES: “Victor Harbour road yeah? That’s it?”At 14:29:07 the Hyundai travels past a 60km/h speed sign at 38km/h.
V: “Yep yep and I’m about to head into Middleton, yep, I’m coming from Goolwa, I’m right now heading into Middleton and he’s still behind me and–”
ES: “Yeah, Yep look Sir it’s got [inaudible] I’ve got to look it up, its not called Victor-Harbour Road, I don’t think –”At 14:29:20 the Hyundai enters a 50km/h zone at 34km/h.
V: “Well my Sat-Nav– “
ES: “—cause that’s not in Middleton”
V: “Victor-Harbour and Goolwa Road. It’s the road that runs from Victor Harbour to Port Elliott to Middleton to Goolwa.”
ES: “Yes it’s probably got –“
[inaudible]At 14:29:44 the two vehicles enter a more densely populated area, the Middleton township.
ES: “You’re going towards Goolwa aren’t you?”
V: “Yep I can give you my GPS if you think—”
ES: “No that’s fine.”
V: “I’m heading back to Victor Harbour. I’m in Middleton.”
ES: “Yep alright just –”At 14:29:56 the vehicles travel past a 50km/h speed sign.
[inaudible]
V:“Yeah I have children [inaudible] in the car.”
[inaudible]
V: “I’m driving in a 100 zone I’m travelling 80 he came right up my rear end flashing his lights— ”
ES:“ – and there was no sort of – you know – distraction – or anything?”
V: “No, and then he [inaudible] and then he rammed me with his car and now he’s still at the back of my car tooting his horn.”
ES: “Oh—alright sir—“
[inaudible]
ES:“I am looking—“
[inaudible]
ES: “can you see a rego?”
V:“It’s too close, so my car’s recording video now.”
ES: “yeah excellent that’s brilliant.”The remainder of the conversation (from 14:30:57 onwards) is inaudible; by 14:31:09 the Hyundai is travelling at 26km/h.
14:31:10-14:31:22 The 4wd pulls to the left of the Hyundai, and overtakes to the left at an intersection. The 4wd ceases sounding the horn approximately one second before veering to the left.
While the 4wd is virtually parallel, although slightly behind the Hyundai, the appellant appears to ask “what are you on the road for?” The victim also yells “pull over” twice; there is no audible response from the appellant. As the 4wd overtakes, the appellant looks back through the open car window and says something, which is inaudible. At this time the Hyundai is travelling at 20km/h.
The front end of the 4wd appears in the front dash cam at 14:31:15; the 4wd disappears from the sight of the rear dash cam at 14:31:23.
At 14:31:21, the 4wd rapidly accelerates to complete the overtaking manoeuvre, while the Hyundai is travelling at 19km/h.
14:31:23- end of recording The 4wd accelerates while the Hyundai is travelling at 19km/h. At 14:31:23 one child asks, “what’s wrong with him?’
At 14:31:28 the Hyundai goes from a 50km/h zone into a 80km/h zone while it is travelling at 40km/h. By 14:31:38 the Hyundai’s speed has increased to 80km/h.
There is partially inaudible talk from the children, which includes when one asks (at 14:31:35),“what’s the number?”
The other responds (at 14:31:37), “S 182 AVF.”By the end of the recording, the Hyundai is travelling at 91km/h (at 14:31:57).
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