Police v Jachmann - [2010] SASC 345

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v JACHMANN
[2010] SASC 345
Judgment of The Honourable Justice Gray
16 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Police appeal against sentence - defendant convicted of aggravated offence of driving a motor vehicle without due care contrary to section 45(1) and (3) of the Road Traffic Act 1961 (SA) - the circumstance of aggravation was the death of a person - the Magistrate when sentencing the defendant imposed the mandatory minimum licence disqualification of six months - a fine of $250 was imposed - no term of imprisonment was imposed - whether Magistrate acted beyond power in imposing the monetary penalty - whether sentence manifestly inadequate.
Held: Appeal allowed - Magistrate acted beyond power in imposing the monetary penalty - Magistrate was obliged to sentence the defendant to a term of imprisonment - sentence imposed in any case inadequate - defendant re-sentenced to a term of imprisonment of three months suspended on the defendant's entry into a one year good behaviour bond - defendant disqualified from holding or obtaining a driver’s licence for a period of nine months.
Road Traffic Act 1961 (SA) s 45; Motor Vehicles Regulations 1996 (SA), referred to.
Nattrass v Police [2008] SASC 267; Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Thiele v Police (2009) 263 LSJS 329; Wong v The Queen (2001) 207 CLR 584, considered.

POLICE v JACHMANN
[2010] SASC 345
Magistrates Appeal
GRAY J.

This is an appeal by the Police against sentence.
Introduction
Following a trial before a Magistrate, the defendant, Raymond William Jachmann was convicted of the aggravated offence of driving a motor vehicle without due care contrary to section 45(1) and (3) of the Road Traffic Act 1961 (SA). The circumstance of aggravation was the death of a person.
Background
On 22 January 2009, the defendant was employed as a truck driver for a freight line company. He commenced his journey that day at or about 6.45pm from Renmark travelling east on the Sturt Highway. His intended destination was Goulburn, New South Wales. He was driving a B-double semi-trailer, in good condition, and fitted with a speed governor set at 106 kilometres per hour. The B-double collided with a cyclist at a location east of Yamba. The cyclist, a male youth aged 16 years died at the scene.
The collision occurred between 7.00 and 7.15pm at a time when the B-double vehicle was travelling at a speed of between 90 and 95 kilometres per hour. At the time the weather was fine, the road dry, it was daylight and the sun was low in the west but conditions of broad sunlight prevailed. The road surface was sealed and in good condition. As the B-double vehicle approached the scene of the collision it was travelling down a slight gradient in the single lane for east-bound traffic. The collision occurred on a straight section of the two-lane highway. The centre of the roadway was delineated by a broken painted white line. The speed limit in the area was 110 kilometres per hour. There were no vehicles approaching the B-double vehicle in the opposite direction.
The Magistrate accepted into evidence an affidavit from another driver who was also travelling east on Sturt Highway who described conditions of bright sunlight and good visibility. There was no sun glare and the sun was not causing any problem through rear vision mirror reflection. He described traffic as being very light.
The Magistrate concluded that the impact took place when the cyclist was close to the left hand edge of the sealed carriageway for east-bound traffic. The Magistrate found that there was no overhanging vegetation that would cast a shadow over the cyclist. The Magistrate accepted the evidence of the defendant that he did not see the cyclist at all prior to the collision. According to the defendant, he was aware of an impact, stopped the B-double, and returned to the scene.
A “B-double” is defined by the Motor Vehicles Regulations 1996 (SA)[1] to mean an articulated vehicle that has a further semi-trailer superimposed on the semi-trailer that forms part of the articulated motor vehicle. Photographs tendered at the trial demonstrate the massive bulk of the vehicle. The defendant’s evidence included a description of the problems in manoeuvring a B-double vehicle. He described his practice of driving when approaching a cyclist on a country highway. He explained that he would give the cyclist as wide a berth as possible. If there was no approaching traffic and it was safe to do so, he would move onto the incorrect side of the road. He would commence this manoeuvre well before he reached the cyclist. The B-double was so big that it was dangerous to make sudden changes of direction. As mentioned, the defendant gave evidence that he had not seen the cyclist prior to him being aware of an impact. This evidence was accepted. This confirms the defendant’s failure to keep a proper lookout. He simply did not see a cyclist who was there to be seen.
[1] These regulations were revoked by the Motor Vehicles Regulations 2010 (SA). It is to be noted that the same definition appears in the 2010 Regulations.
The Magistrate’s finding that the defendant failed to see the cyclist led to the conclusion that it had been proved beyond reasonable doubt that the defendant failed to keep a lookout, which amounted to the offence of driving without due care or attention.
The Magistrate when sentencing the defendant imposed the mandatory minimum licence disqualification of six months. He imposed a fine of $250.00. His remarks made no reference to imprisonment, and included the following:
I am of the view that the offence for which Mr Jachmann is guilty taking into consideration because of the recent legislative changes, categorise it into an aggravated offence, nevertheless, Mr Jachmann’s situation would not fit into the situation which, I believe, Parliament envisaged of an aggravated offence.
He stopped as soon as he realised he had struck something. Upon finding it was a human being, he did his best to render as much assistance as he could, including mouth to mouth resuscitation which I find a very commendable act on the part of Mr Jackmann [sic].
It is my view the Court should have an unfettered discretion as regards the sentencing tariff.
To me, it was exemplary in terms of persons having trauma and shock of that nature.
His conduct and assistance with the police was at all time[s] a high standard.
I would like to add the conduct of Mr Jackmann [sic] does deserve considerable merciful intervention by the Court. I am sure he would be remorseful and contrite from the incident itself.
I record a conviction.
Taking into consideration Mr Jachmann’s personal circumstances, lack of offending history, his conduct so soon after the incident and his candour and straightforwardness in his evidence, I am of the view he deserves the leniency of a minimum penalty.
The Appeal
Two complaints were advanced on the appeal. It was contended that the Magistrate acted beyond power. It was said that the Magistrate had no power to impose a sentence other than imprisonment. Insofar as the Magistrate considered that he had power to impose a monetary penalty it was said that he had misconstrued the legislation. He had no such power. The second complaint was that even if the Magistrate had the power to impose a monetary penalty, the circumstances called for a term of imprisonment to be imposed and the Magistrate had imposed a manifestly inadequate penalty.
The defendant on the appeal accepted that the Magistrate had erred. It was accepted that there was no power to impose a monetary penalty. However, it was contended that in all the circumstances this Court should not interfere as the overall penalty was appropriate.
Section 45 of the Road Traffic Act relevantly provides:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)     For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
…
In Nattrass,[2] Bleby J considered the question of whether a Magistrate had power to impose a fine with respect to an offence of aggravated driving without due care. Bleby J observed:
The word “penalty” is not defined [in the Criminal Law (Sentencing) Act]. However, this Court has held that “sentence” as presently defined includes disqualification from holding or obtaining a driver’s licence. It follows that s 45(2) of the Road Traffic Act does not prescribe a sentence of imprisonment only for an aggravated offence, and that s 18(a) cannot be invoked to enable the imposition of a fine instead of a sentence of imprisonment.
…
The consequences of an offence of this nature will almost invariably be unintended. It may seem harsh, but Parliament has prescribed a maximum penalty of imprisonment for 12 months for an aggravated offence of this nature. Because serious consequences of driving without due care of the nature of what occurred in this case will rarely be intended, and because this section of the Road Traffic Act is not concerned with recklessness, it seems most likely that when Parliament created the aggravated offence and provided for a maximum penalty of imprisonment, it intended that generally that penalty should apply where the aggravating circumstances are as severe as they were in this case, where the driving caused the death of a person. In other words, the only explanation for the more severe penalty is, in a case like this, the severe consequences of the offending.
[Footnotes omitted]
Counsel for the defendant did not challenge the correctness of the above observations. As earlier mentioned the defendant accepted that the Magistrate erred when sentencing. The Magistrate had no power to impose a fine. He was obliged to sentence the defendant to a term of imprisonment.
[2] Nattrass v Police [2008] SASC 267.
It is to be recognised that although this is a re-hearing of a Magistrates Court matter, it equates in substance to a Crown appeal on sentence. As such, the defendant is exposed to an element of double jeopardy.[3] I have approached the appeal on the basis that the usual strictures apply in respect of such an appeal.[4] As Doyle CJ relevantly observed in Nemer:[5]
The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295 at 299[PDF].
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213[PDF] per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[Emphasis added]
[3]    Malvaso v The Queen (1989) 168 CLR 227 at 234; Everett v The Queen (1994) 181 CLR 295 at 299.
[4]    Such appeals should only be granted in “rare and exceptional cases”: see Everett v The Queen (1994) 181 CLR 295 at 299.
[5]    R v Nemer (2003) 87 SASR 168 at [23]-[24].
In the circumstances of the present case, the Magistrate did not merely make an error when sentencing; the Magistrate acted beyond power. As a consequence the sentence must be reviewed. Setting aside the fine that was imposed would leave in place a manifestly inadequate sentence. In any event, I consider the sentence imposed by the Magistrate to be manifestly inadequate. The sentence imposed should be set aside and the defendant re-sentenced.
It should be noted that in the extracted remarks of the Magistrate he spoke of the defendant’s situation not fitting into the situation which be believed Parliament envisaged as an aggravated offence. This observation demonstrated further error on the part of the Magistrate. Section 45 of the Road Traffic Act was amended in 2005 following on recommendations arising as a result of the Kapunda Royal Commission. One of the recommendations of that Royal Commission was that there should be a new level of culpability between that of dangerous driving causing death or injury and drive without due care, or a graduated scale of aggravation, reflecting more severe penalties for more aggravated versions of the lesser offence.[6] When introducing the legislation, the Minister noted that the Bill was consistent with the Royal Commission recommendations.
[6] South Australia Kapunda Road Royal Commission, Report of the Kapunda Road Royal Commission, (2005) Ch 3, p 41; see Thiele v Police (2009) 263 LSJS 329 at [38].
It is to be recognised that more serious degrees of culpability may be envisaged than a simple case of a defective lookout, such as a defective lookout arising from a high blood alcohol reading. However, the present offence was nevertheless an aggravated offence and as the remarks of Bleby J in Nattrass demonstrate, the amendments to the Road Traffic Act and in particular section 45, were specifically designed to address the serious consequences that may flow from driving without due care.
Further, the Magistrate was in error in expressing the view that the Court should have an “unfettered discretion as regards the sentencing tariff”. There is no sentencing tariff.[7] This is particularly so in regard to the wide range of circumstances that can give rise to an offence against section 45 of the Road Traffic Act. Further, the sentencing discretion is fettered by the mandatory minimum licence disqualification that is to be imposed and by the lack of a discretion to impose a fine. Parliament did intend to fetter the sentencing discretion and did so by the terms of the legislation.
[7] Wong v The Queen (2001) 207 CLR 584 at [77]-[88] (Gaudron, Gummow & Hayne JJ).
In my view the defendant’s offending conduct was serious. He was driving a B-double vehicle on a country highway with only one lane for his direction of travel. His vehicle was of considerable bulk, of extended length and occupied a major part of that lane. The vehicle was difficult to manoeuvre. The vehicle was capable of causing massive damage to anything in its path – whether to another vehicle or an object on the road. The cyclist was a 16 year old youth who was lawfully on the highway and correctly positioned on the highway. He was there to be seen. The impact severed his right arm at the shoulder. He died at the scene. This was a direct consequence of the defendant’s breach of his duty to drive with due care and attention. Drivers of heavy vehicles should be aware of the devastation that their vehicles may cause in a collision.
The defendant now aged in his fifties is a long-term resident of Loxton. He has family and friends in the town. He is well thought of. He has been a heavy vehicle driver for many years. He has no relevant prior convictions. The licence disqualification that must be imposed has an immediate impact on his employment. However, much to his credit, he has set about obtaining casual employment in and about Loxton. Personal deterrence is unnecessary. Immediately following the collision, the defendant stopped his vehicle and went to the aid of the cyclist. He applied mouth to mouth resuscitation. Although he pleaded not guilty to the charge, he did not seek to contest the prosecution case that he had not seen the cyclist before the collision. He has continued to express contrition and remorse.
This is a sad case. A youth has been killed as a result of a want of due care. However, it is difficult to characterise the defendant’s conduct as criminal. But for the death that resulted, it may well be that this matter would have been dealt with as a minor traffic offence. However, as earlier noted, Parliament responded to the recommendations of the Kapunda Royal Commission and created the offence of aggravated driving without due care, with a maximum punishment for a first offence, of 12 months imprisonment.
Notwithstanding the defendant’s antecedents I consider that a term of imprisonment should be imposed. As earlier discussed, drivers of heavy vehicles, in particular vehicles of the vast bulk of a B-double semi-trailer, carry a particular responsibility. A want of care in the driving of such vehicles may, as evidenced by this collision, cause very grave consequences to other lawful users of the road.
The defendant is not entitled to any reduction on account of a plea of guilty. However, his genuine distress, and remorse and contrition are relevant matters to bring to account. In the circumstances I would impose a term of imprisonment of three months.
Given the defendant’s personal circumstances as outlined above, I consider that there is good reason to suspend that sentence on the defendant’s entry into a one year good behaviour bond.
I also consider it appropriate to order that the defendant be disqualified from holding or obtaining a driver’s licence for a period of nine months. There are important issues of general deterrence that arise.
Conclusion
The penalty imposed by the Magistrate is set aside. The defendant is sentenced to a term of imprisonment for a period of three months. That sentence is suspended on his entry into a one year good behaviour bond. The defendant is disqualified from holding or obtaining a driver’s licence for a period of nine months. The order for licence disqualification is to commence on 6 September 2010.