Police v Pimlott - [2011] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PIMLOTT
[2011] SASC 214
Judgment of The Honourable Justice Gray
9 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Police appeal against sentence - defendant convicted following a trial in the Magistrates Court of the offence of driving at a speed which was dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA) - where the defendant's vehicle was detected as travelling at 176 kilometres per hour while overtaking another vehicle - the Magistrate imposed a fine of $700.00 and disqualified the defendant from holding or obtaining a driver's licence for a period of 12 months - the defendant was also ordered to pay an impounding fee, court fees, a prosecution fee and a victim of crimes levy - where the Magistrate sentenced the defendant on the basis that he had an unblemished record apart from one conviction for excess speed - whether the amount of the fine and the length of the driver's licence disqualification were manifestly inadequate - whether the Magistrate failed to have proper regard to the seriousness of the offending.
Held: Appeal allowed - the Magistrate was correct to exercise her discretion under section 18(a) to impose a fine in lieu of a term of imprisonment - no basis has been advanced to increase the amount of the fine imposed - however, the Magistrate was in error in ordering that the defendant only be disqualified from holding or obtaining a driver's licence for the mandatory minimum period of 12 months - that order was set aside and the defendant was resentenced to a period of 18 months driver's licence disqualification, taking effect from 27 May 2011 - the other orders of the Magistrate were confirmed.
Road Traffic Act 1961 (SA) s 46; Criminal Law (Sentencing) Act 1988 (SA) s 18, referred to.
Police v Berzins [2011] SASCFC 146; House v The King (1936) 55 CLR 499, considered.

POLICE v PIMLOTT
[2011] SASC 214
Magistrates Appeals
GRAY J.

This is an appeal against sentence.
The defendant and respondent, Adam Lloyd Pimlott, following a trial before a Magistrate was convicted of the offence of driving at a speed which was dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA).
The offence was committed at or about 7.05pm on 18 June 2010 on Main South Road, Tatachilla. At that time the defendant was driving a Commodore motor vehicle in a southerly direction on Main South Road. A police officer, stationed at the corner of Sheriff Road and Main South Road, was performing static laser duties. The officer observed the defendant’s vehicle travelling at high speed towards his position. At this point on Main South Road, there were two lanes for southbound traffic. The lane nearest to the centre of the road was described as an overtaking lane. The officer observed the defendant’s vehicle overtaking another vehicle which was also travelling at high speed.
The officer used his laser speed gun to detect the speed of both vehicles. The defendant’s vehicle was detected as travelling at 176 kilometres per hour and the other vehicle at 140 kilometres per hour. There was no suggestion made that the vehicles were racing. There was no suggestion of any embarrassment or danger to any other road user. However, there were some driveways and the potential for danger arising from high speed.
The police officer took up pursuit of the vehicles with flashing lights in operation. Both vehicles stopped on the left side of the road some distance apart. The police officer proceeded to apprehend the defendant, who on his view, was the driver of the vehicle which had been travelling at the higher speed. When questioned, the defendant admitted to having a “lead foot”, but expressed surprise at the suggestion that he had been travelling as fast as 176 kilometres per hour.
The Magistrate concluded that the defendant was truthful in the trial but unreliable when giving evidence. The Magistrate accepted the evidence of the police officer and reached the conclusion that the offence had been proved beyond reasonable doubt.
The Magistrate acting under section 18 of the Criminal Law (Sentencing) Act 1988 (SA) departed from the penalty of a term of imprisonment and imposed a fine of $700.00. In addition to the fine, the Magistrate imposed an impounding fee of $220.25 and ordered that the defendant pay court fees, a prosecution fee and a victims of crime levy. The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for the mandatory minimum period of 12 months.
Initially the police, in advancing the appeal, asserted that the Magistrate did not have power to act under section 18(a) to impose a fine in lieu of a term of imprisonment. Following the lodging of the appeal, the Full Court delivered judgment in the matter of Berzins[1] confirming that the Magistrate did have power under section 18(a). This aspect of the appeal has been abandoned.
[1] Police v Berzins [2011] SASCFC 146.
In regard to the circumstances of the offending, the Magistrate remarked:
I took into account it was a straight road in a semi-rural location. The traffic was light to medium. There were no street lights present and the road was wet from earlier rain. I do accept that the stretch of road where you were detected had an overtaking lane. There is no suggestion in the police evidence that you were travelling at 176 km/h for a lengthy distance. It was only at the time you were overtaking another vehicle when you were detected. I accept [counsel for the defendant’s] submissions in that regard. I accept that there was no embarrassment to other road users, no accident was caused and you were not travelling at that speed for any lengthy distance.
In relation to this type of matter, the law is more serious and it became more serious after 30 July 2006 following an increase in penalty to s 46. The previous penalty for these types of matters involved simply a fine and a mandatory period of licence disqualification. Since 30 July 2006, as a result of a change in attitude to this type of matter by Parliament there has been the introduction of a term of imprisonment, namely, a maximum of two years.
The defendant, aged 37 years, lives at Sellicks Beach with his parents. He is engaged to be married. He is self-employed as a landscape gardener. The loss of his driver’s licence will cause him great difficulty. Driving is an essential part of his work. He has to rely on others to undertake driving duties so that he can maintain his employment. The Magistrate noted the limited availability of public transport at Sellicks Beach. The driver’s licence disqualification would also impact on the defendant’s ability to engage in social activities. The Magistrate rejected the police submission that a term of imprisonment should be imposed.
The Magistrate proceeded to sentence the defendant on the basis that he came “before this court with an unblemished record other than one conviction for excess speed”. This observation failed to pay proper regard to the submissions put by the prosecutor and to the defendant’s antecedent record. I will return to this matter later in these reasons.
On the hearing of the appeal, it was contended that the Magistrate failed to have proper regard to the seriousness of the offending. It was pointed out that the offence carried a maximum penalty of two years imprisonment and a minimum driver’s licence disqualification of 12 months. It was claimed that the sentence imposed was manifestly inadequate as to the amount of the fine and the period of licence disqualification. It was claimed that the manifest inadequacy amounted to an error[2] and that this Court should allow the appeal to correct that error.
[2] That of the kind identified in House v The King (1936) 55 CLR 499.
It is to be accepted that the defendant drove at a speed that was grossly excessive. Such conduct puts at risk the safety of the public. It is to be further accepted that a primary policy of the criminal law is the protection of the community. The courts when sentencing should have proper regard to the need for personal and general deterrence.
In my view, the defendant’s conduct did not call for the imposition of a term of imprisonment. The Magistrate was correct to exercise her discretion under section 18(a) and to proceed by way of a fine in lieu of imprisonment. When fixing a fine regard should be had to the defendant’s circumstances and in particular, to the consequences of the driver’s licence disqualification that would be ordered. In the case of this defendant, there will be a considerable impact on his financial position. The operation of his landscaping business requires constant use of a vehicle and the defendant will make arrangements for a driver to be engaged. Further, as noted by the Magistrate, limited public transport is available in the Sellicks Beach area. The loss of licence is likely to lead to further expense in regard to general transport arrangements. It is also relevant that the defendant was required to pay monetary penalties beyond the $700.00, being the earlier referred to impounding fee, court fees, prosecution fee and victims of crime levy. In all the circumstances, I consider that no basis has been advanced to increase the amount of the fine imposed.
Counsel for the police complained that the Magistrate erred in ordering the minimum period of licence disqualification. It was said that a speed of 176 kilometres per hour was such a grossly excessive speed that something more than the minimum period should have been ordered. It is to be accepted that the defendant’s speed was grossly excessive. However, as the Magistrate noted in her remarks, the speeding occurred while the defendant was in an overtaking lane and there was no suggestion that the speed had continued for a lengthy distance. It was further noted that the speeding occurred while the defendant was overtaking another vehicle. The Magistrate made a particular note that no accident occurred and further no embarrassment was caused to any other road user.
As earlier discussed, the Magistrate proceeded to sentence the defendant on the basis that he had an unblemished record apart from one conviction of driving with an excessive speed. This was incorrect. On 7 June 2004, the defendant was apprehended driving an unregistered and uninsured motor vehicle. Convictions for these offences were recorded on 9 August 2004. On 3 August 2008, the defendant committed the offences of driving at an excessive speed and in particular, at a speed in excess of the limit by 30 kilometres per hour or more. At the time of this offence, the defendant was driving with an excess blood alcohol concentration. He was convicted of both offences on 20 October 2008, a fine was imposed and it appears that he was disqualified from driving for a period of 3 months and 2 weeks. This period was fixed taking into account an immediate disqualification order taking effect from the time of the offending.
On 23 October 2008, the defendant committed the offences of driving an unregistered motor vehicle and driving whilst disqualified. He was convicted of both charges on 25 March 2009. He was fined and given a suspended term of imprisonment of 14 days. The suspended sentence bond was for a period of 12 months.
On 25 September 2009, the defendant was convicted of the offence of non-aggravated serious criminal trespass (non-residential) and was sentenced to a suspended term of imprisonment of 12 months. The length of the suspended sentence bond was two years. An unusual feature of this matter was that the offence had occurred almost eight years earlier on 9 February 2001.
A review of the defendant’s antecedent record demonstrates that the Magistrate proceeded to sentence on a misunderstanding of fact when she described the defendant as having an unblemished record subject only to one conviction of excessive speed. It is to be accepted that the defendant had only the one offence of driving at an excessive speed, but it is to be noted that at that time, the defendant also had an excess blood alcohol reading. The other offending of the defendant precludes the conclusion that he otherwise had an unblemished record. More particularly, the defendant’s criminal antecedents would have made him aware of the consequences that followed from breaches of the road traffic law and in particular, the loss of his driver’s licence.
Having regard to these matters, I consider that the Magistrate was in error in ordering that the defendant only be disqualified for the mandatory minimum period of 12 months. In my view, a lengthier licence disqualification was called for.
I consider that the appeal should be allowed for the limited purpose of setting aside the disqualification of the defendant’s driver’s licence as ordered by the Magistrate and in lieu ordering that the defendant be disqualified from holding or obtaining a driver’s licence for a period of 18 months taking effect from 27 May 2011.
The appeal is allowed. The order of the Magistrate disqualifying the defendant from holding or obtaining a driver’s licence for a period of 12 months is set aside. I order that the defendant be disqualified from holding or obtaining a driver’s licence for a period of 18 months taking effect from 27 May 2011. Otherwise, the orders of the Magistrate are confirmed.