Police v Sperber No. Scgrg-98-1659 Judgment No. S24
[1999] SASC 24
•21 January 1999
POLICE v SPERBER
[1999] SASC 24
Magistrates Appeal: Criminal
PERRY J (ex tempore). This is a police appeal against the penalty imposed upon the respondent following his plea of guilty in the Magistrates Court sitting at Holden Hill to a charge that on 1 August 1998 at Fitzroy he drove a motorcycle at a speed dangerous to the public contrary to s46 of the Road Traffic Act 1961. A second count of driving at 120 kilometres per hour in a 60 kilometres per hour zone was withdrawn.
The respondent was represented by counsel, Ms Abbott, who called the respondent to give evidence in support of an application to have the offence declared trifling. In the result, her submission to that end was successful and the learned sentencing magistrate found the offence to be trifling, following which he recorded a conviction and imposed a fine of $300 plus some other fees. In addition, he disqualified the respondent from holding or obtaining a driver's licence for a period of five weeks to commence the next day, that is from 24 November 1998.
The finding by the learned sentencing magistrate that the offence was trifling had the effect of reducing the minimum penalty for the offence. Under s46 of the Road Traffic Act, the minimum period of suspension in the case of a first offence is not less than six months: see s46(3)(a)(i). But if the court is satisfied by evidence given on oath that the offence is trifling, it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.
In the notice of appeal, the appellant complains that the learned sentencing magistrate erred in finding that the offence in question was trivial. He further complains that the sentence, being the fine and period of five weeks disqualification, was manifestly inadequate.
At the time of the offending, the respondent was aged 32 years. He had never appeared in court before. From the evidence given in support of the application before the learned sentencing magistrate, it appears that the respondent had a long history of experience in driving motorcycles, including a period of time when he was working in Melbourne as a courier using a motorcycle for that purpose. On the occasion in question, he was driving a motorcycle which he described as a high speed Honda Twin V1000. This is a high performance sports motorcycle used in racing. It has what he described as “extreme” power, capable of accelerating to high speeds very quickly. He had bought it new some 14 to 16 months beforehand and he described its condition as “perfect”.
At the time of the offence, which occurred at about 1.46 pm on the day in question, he drove from Clifton Street to make a right-hand turn into Braund Road. He was in no particular hurry, intending to travel to Harris Scarfe in the city. It was a sunny, mild August day and the road surface was dry. Traffic conditions were light. He was not aware of any other traffic on Braund Road, except that after turning into it he became aware of a car slowly emerging from a street which he believed to be Avenue Road, which formed a junction to his right in the direction which he was travelling. When he first saw the other car he was travelling at 80 kilometres per hour. Being uncertain as to whether or not the other car would stop, he made a decision to accelerate past him. He accelerated to a speed which was timed by a police officer positioned further down the road at 121 kilometres per hour.
The officer concerned waved him down. He explained to the officer that he had accelerated to that speed in order to avoid what he perceived as a potential situation of danger imposed by the car emerging from his right.
There were pedestrians on the footpath which, as the respondent conceded in evidence, included one person walking a dog on one side of the road and two other pedestrians on the other side of the road.
The learned sentencing magistrate gave extempore reasons for his decision, in the course of which he stated:
“I accept that the defendant's decision to accelerate clear of the position was a reasonable decision in all the circumstances.”
He went on to say later in his reasons:
“In the circumstances, I am satisfied that the relatively short distance, the fact that the weather conditions were good, that there was no evidence of any traffic in the vicinity other than the car the defendant had noted, no evidence of parked cars, no evidence that the pedestrians on the footpath areas were in any sense in any danger whatsoever, no evidence of the defendant's manner of driving being in any sense an actual danger to the public, the fact that the defendant had a good lookout, had adequate control of his motorbike, had extensive experience in the manoeuvring of a motorcycle suggests, in my view, that this may be characterised as a trifling offence.”
During the course of his submissions made during the hearing of the appeal, in which the respondent appeared in person, he indicated a desire to correct one or two impressions which were given in the transcript of evidence in the court below, a copy of which I gave to the respondent so that he could acquaint himself with the record of evidence. In the result, he was allowed over the bar table to inform me that, in fact, there was a car parked in Braund Road near the junction with Avenue Road, which to a degree obstructed his view of the driver of the emerging car. He was permitted to say also that it was some 30 metres back from the junction that he accelerated in the manner in which I have described, at which stage he would have had difficulty in adopting any other course, such as braking and swerving. Those additional matters were not objected to by Mr Ahern who appeared for the appellant and, if I may say so, quite properly so.
The gravamen of Mr Ahern's submission in support of the appeal is that the learned sentencing magistrate must be taken to have given inadequate weight to the fact that the respondent was already travelling at 80 kilometres per hour, 20 kilometres per hour over the permitted maximum of 60, when he accelerated to pass the emerging vehicle and that 120 kilometres per hour in a suburban street was so dangerous that it could not be characterised as trifling.
He referred to the decision of Cox J in Craig v Dunsmore,[1] together with the well known passage in the judgment of Mitchell J in Mancini v Vallelonga[2] where she says, inter alia, that where a breach is deliberate it can rarely be characterised as trifling, and further that the contravention which is a typical instance of the offence is unlikely to qualify as trifling.
[1] (1986) 128 LSJS 293.
[2] 28 SASR 236 at 239-240.
I must say that I have vacillated during the course of the hearing of the appeal, in considering whether or not this is a case which would justify interference by this Court.
In his submissions, the respondent emphasised that he took what the magistrate accepted was a reasonable decision, given the danger which he perceived to be posed by the emerging vehicle on his right. He admits that the starting speed of 80 was unlawful, and that 120 is dangerous.
His admissions as to those matters, of course, do not take the matter very far. After all, he pleaded guilty to driving at a dangerous speed, and what s46 contemplates is that, even if someone is driving at a dangerous speed, nonetheless circumstances may properly justify the court characterising the offence as trifling.
The tension inherent in that process is very clearly described by Cox J in Craig v Dunsmore.[3]
[3] (Supra) 294 - 295.
The onus upon the Crown in appealing against sentence is, of course, a high one, as is made clear in the well-known authority of R v Osenkowski,[4]and the long line of subsequent decisions in which the question of the onus has been addressed.
[4] (1982) 30 SASR 212.
I would not like it to be thought that any court could readily accept the proposition that to travel at 120 kilometres per hour on a suburban street could generally be characterised as trifling. But here, the burst of speed which the respondent was guilty of was momentary only, and precipitated by what he perceived to be a need to avoid a situation both of danger to himself and to the emerging car.
While I might have come to a different conclusion if I had been sitting in the court below, that is not the test. The test is whether or not the appellant has demonstrated that the learned sentencing magistrate fell into error in exercising the discretion in the way in which he did and, further, whether the case is of such a kind as to satisfy the very heavy onus on the Crown in appealing against sentence.
On a fine balance, I am not satisfied that the Crown has satisfied that onus. I would not like the respondent, however, to consider that the courts would not generally regard the speed and indeed the manner in which he was driving as anything to be encouraged. He was frank enough to admit, during the course of his argument, that he recognised that it was dangerous, and that it was hardly an exemplary piece of driving. But, for the reasons which I have given, I am not persuaded that it would be right for this court to interfere.
The appeal is dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
(1986) 128 LSJS 293.
28 SASR 236 at 239-240.
(Supra) 294 - 295.
(1982) 30 SASR 212.
0