Police v Jachmann

Case [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.

  1. This is an appeal by the Police against sentence.

    Introduction

  2. 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

  3. 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. 

  4. 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.…

Continue reading Police v Jachmann

Sign in free to access the full text

Details
AGLC
Police v Jachmann [2010] SASC 345
Case
[2010] SASC 345
Decision Date

CaseChat Overview and Summary

The case of Police v Jachmann involved the defendant, Raymond William Jachmann, who was convicted of driving a motor vehicle without due care, leading to the death of a person, contrary to section 45(1) and (3) of the Road Traffic Act 1961 (SA). The appeal by the Police was against the sentence imposed by the Magistrate, which consisted of a mandatory minimum licence disqualification of six months and a fine of $250, with no term of imprisonment. The Police argued that the Magistrate had acted beyond their power in imposing the monetary penalty and that the overall sentence was manifestly inadequate.

The legal issues before the court were whether the Magistrate had acted beyond their power by imposing the monetary penalty and whether the sentence was manifestly inadequate. The court considered whether the Magistrate was obliged to sentence the defendant to a term of imprisonment and whether the sentence imposed was adequate in the circumstances.

The court found that the Magistrate had indeed acted beyond their power in imposing the monetary penalty. The court concluded that the Magistrate was obliged to sentence the defendant to a term of imprisonment. The sentence imposed was also considered inadequate. The court re-sentenced the defendant to a term of imprisonment of three months, suspended on the defendant's entry into a one-year good behaviour bond. The defendant was also disqualified from holding or obtaining a driver's licence for a period of nine months, to commence on 6 September 2010.

The court allowed the appeal and set aside the penalty imposed by the Magistrate. The defendant was re-sentenced to a term of imprisonment of three months, suspended on his entry into a one-year good behaviour bond. The defendant was also disqualified from holding or obtaining a driver's licence for a period of nine months, effective from 6 September 2010.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J
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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.