R v MCCANDLESS - [2021] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
R v MCCANDLESS
[2021] SASC 98
Judgment of the Honourable Justice S David
17 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
On 8 December 2020, the appellant pleaded guilty to the offence of aggravated driving without due care, contrary to s 45 of the Road Traffic Act 1961. On 24 November 2019, the appellant failed to observe a red light before moving into a busy intersection and collided with the victim's vehicle. The circumstances of aggravation was that the appellant caused serious harm to another person.
On 18 February 2021, a Magistrate convicted the appellant and imposed a sentence of three months and two weeks imprisonment, wholly suspended, reduced from five months after applying a 30% discount for a guilty plea. The Magistrate disqualified the appellant from holding or obtaining a driver's licence for a period of 18 months.
This is an appeal against the length of the sentence and the period of the licence disqualification. The appellant contends that the sentence imposed was manifestly excessive and the learned Magistrate erred by failing to apply the sentencing discount to the period of licence disqualification.
Held, allowing the appeal:
1.    The order disqualifying the appellant from holding or obtaining a driver's licence for 18 months is set aside.
2.    In lieu thereof, a substituted order is made disqualifying the appellant from holding or obtaining a driver's licence for a period of eight months, from 18 February 2021.
3.    In all other respects, the sentenced imposed in the Magistrates Court is confirmed.
Road Traffic Act 1961 (SA) s 45; Sentencing Act 2017 (SA) s 5, s 36, s 39(2); Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 19, referred to.
Police v Holer [2016] SASC 187, applied.
Hili v R (2010) 242 CLR 520; House v R (1936) 55 CLR 499; Nattrass v Police [2018] SASC 267; Nagy v Police [2018] SASC 141; Police v Jachmann [2010] SASC 345, considered.

R v MCCANDLESS
[2021] SASC 98
Magistrates Appeal: Criminal

DAVID J: On 8 December 2020, the appellant pleaded guilty to the offence of aggravated driving without due care, contrary to s 45 of the Road Traffic Act1961 (‘RTA’). The circumstance of aggravation was that the appellant caused serious harm to another person. The maximum penalty for this offence is 12 months imprisonment and there is a minimum period of disqualification from holding or obtaining a driver’s licence for six months.
On 18 February 2021, the learned Magistrate heard sentencing submissions and convicted the appellant. Her Honour imposed a sentence of three months and two weeks imprisonment, reduced from five months after applying a 30% discount for a guilty plea. The sentence was wholly suspended upon the appellant entering a $500 bond to be of good behaviour for two years. The learned Magistrate disqualified the appellant from holding or obtaining a driver’s licence for a period of 18 months.
The appellant appeals the length of the sentence of imprisonment and the period of the licence disqualification and seeks orders that the sentence be set aside and that the appellant be resentenced.
The appellant requires an extension of time within which to file the Notice of Appeal. That application was not opposed and the appellant is granted the required extension of time.
In this appeal against sentence the appellant contends:
1.The sentence imposed was manifestly excessive in that:
a.     the sentence of three months and two weeks imprisonment is too high;
b.    the 18 month licence disqualification is too high;
c.     or, alternatively, the combination of the two is too high in all the circumstances.
2.The learned Magistrate erred by failing to apply the sentencing discount to the period of licence disqualification imposed.
Circumstances of the offending
On 24 November 2019, the appellant was travelling in a northerly direction on Marion Road and when entering the intersection with the Southern Expressway, the appellant failed to observe a red light before moving into the intersection. The appellant collided with the passenger side of a vehicle turning right onto the Southern Expressway on a green light in the same intersection.[1] The impact was to the passenger side of the vehicle.[2] The victim of the offence was seated in the front passenger seat of the vehicle driven by her husband. Their five children aged from seven months old to eleven years old were seated in the rear passenger seats.[3] As a result of the collision, the victim, her husband, and her children were conveyed to hospital.[4]
[1] Appeal Book at 24, [1].
[2] Appeal Book at 24, [3].
[3] Appeal Book at 24, [4].
[4] Appeal Book at 24, [7].
The victim sustained a splenic artery pseudoaneurysm and an infarction of part of her spleen.[5] She was admitted to the Flinders Medical Centre and underwent a surgical procedure. She was discharged eight days later.[6] However, the victim was subsequently re-admitted to hospital due to complications arising from the earlier procedure. She was again discharged from hospital six days later.[7] The victim now has an only partially functioning spleen, and continues to suffer from a brain injury, chronic headaches, fatigue, impaired vision, and PTSD.[8]
[5] Appeal Book at 24, [3], 25, 30-32.
[6] Appeal Book at 24, [7].
[7] Appeal Book at 24, [8].
[8] Appeal Book at 25, 30-32.
As described in her victim impact statements, the offending has had a profound and ongoing impact on the victim and her family. The injuries she sustained in the collision have caused her much physical pain, as well as emotional trauma. The cumulative effect of her injuries has had an adverse effect on her marriage, her relationships with her children, and her enjoyment of life.
Appellant’s personal circumstances
The appellant was born on 28 July 1996 and was aged 23 years old at the time of the collision. She is now 25 years old. The appellant has no prior court appearances and an unblemished driving record. The appellant is employed as a disability support worker by an organisation which provides multi-faceted assistance to persons with disabilities. The appellant’s employment involves her taking clients to various appointments and assisting with their daily tasks.[9] Her driver’s licence is necessary to perform those responsibilities.
[9] Appeal Book at 9, [6.9].
The learned Magistrate was provided with positive testimonials from family members, close friends, and clients which attest to the appellant’s reputation as a hardworking, decent and trustworthy person. The appellant also provided a letter to the learned Magistrate which spoke of her remorse for the offending, her acknowledgement of the seriousness of the offending, and her ongoing anxiety knowing the harm she has caused others. In the letter, the appellant also spoke of the impact of the loss of her driver’s licence on her ability to perform her job as a disability support worker.[10]
[10] Appeal Book at 39.
The Magistrate’s reasons
In the learned Magistrate’s reasons for sentence, her Honour outlined the circumstances of the offending, noting that the red light had been activated for some time before the appellant travelled into the intersection, and the appellant’s explanation that she simply did not see the red light.[11] The learned Magistrate acknowledged that there were no other aggravating circumstances to the driving such as the influence of drugs or alcohol. Nor was it suggested that the appellant was speeding or racing through the red light.[12] In sentencing submissions, the learned Magistrate made a specific inquiry as to whether the appellant was using a mobile telephone at the time of the collision and was informed that she was not.[13]
[11] Appeal Book at 19.
[12] Appeal Book at 19-20.
[13] Affidavit of Dianne Lynette Langton affirmed 11 May 2021 at [7].
As to the appellant’s personal circumstances, the learned Magistrate accepted that the appellant had an ‘impeccable past history, never having appeared in court’, and that she came before the Court as a person of good character.[14] Her Honour accepted that the appellant was genuinely remorseful for her offending, her anguish exacerbated by the fact that she was employed in the disability sector and two of the children in the vehicle with which she collided had disabilities.[15]
[14] Appeal Book at 21.
[15] Appeal Book at 20.
The learned Magistrate, in some detail, outlined the ongoing and serious consequences of the offending on the victim and her family.
In sentencing, the learned Magistrate identified that the first step in the sentencing process was to consider whether the only appropriate penalty was a term of imprisonment, rather than a fine or a good behaviour bond. Her Honour determined that the appellant’s lack of attention to the red light, which had been activated for some time, in combination with the significant and ongoing consequences of the collision for the victim and their family, meant that a term of imprisonment was the only appropriate penalty.[16] In reaching that conclusion, the learned Magistrate specifically referred to the appellant’s personal circumstances, previous good character, and remorse for her offending. Her Honour elaborated:[17]
The first step I have to ask myself is, is the only appropriate penalty a term of imprisonment, rather than a fine or a good behaviour bond. Ms Towler wants me to impose a good behaviour bond because she talks about all of your personal circumstances and that is a submission that I have weighed up very, very carefully.
The factors that have led me to say that the imposition of a term of imprisonment is the only appropriate disposition is the combination, obviously, of your lack of attention to the fact that there was a red light there and the catastrophic consequences for this family whose lives have been irrevocably changed. The combination of those two things leads me to say that only a term of imprisonment is the appropriate penalty; but as I have just indicated to you, there are ample grounds upon which that term of imprisonment should be suspended and I have already summarised them.
[16] Appeal Book at 21.
[17] Appeal Book at 21.
The learned Magistrate considered that an appropriate starting point was five months imprisonment and after reducing the sentence by 30% for the guilty plea, imposed a sentence of three months and two weeks imprisonment. The sentence was wholly suspended upon the appellant entering a $500 bond to be of good behaviour for two years.[18]
[18] Appeal Book at 21.
As to the period of licence disqualification, the learned Magistrate imposed a period of 18 months to commence from the date of sentence. Her Honour said:[19]
… I do not consider that the minimum licence disqualification is an appropriate period of licence disqualification, and considering all of the factors that I have mentioned, I consider that there should be a licence disqualification for a period of 18 months. …
[19] Appeal Book at 22.
The appeal
Earlier I set out the two grounds of appeal relied upon by the appellant. The first of these grounds complains of an outcome error in the exercise of the learned Magistrate’s sentencing discretion and is thus subject to the well-established principles set out in House v R.[20] In establishing error, it is insufficient to show that an appellate court might have reached a different conclusion or would have imposed a less or more severe sentence. Rather, it must be established that the sentence imposed was unreasonable or plainly unjust.
[20] (1936) 55 CLR 499 at 505.
Manifest excess
The appellant contends that a starting point of five months imprisonment, and a licence disqualification for a period of 18 months for an offence of aggravated driving without due care caused by inattention resulting in serious harm, rather than death, is manifestly excessive. The appellant further contends that if either individual component of the sentence is outside of the available range, the totality of the sentence is manifestly excessive.
In considering whether a sentence is manifestly excessive, it is appropriate to adopt the approach explained in Hili v R.[21] This involves taking into consideration a broad range of matters relevant to sentence including the maximum penalty for the relevant offending, the standards of sentencing customarily observed for the crime, where the objective circumstances of the offending fall in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
[21] (2010) 242 CLR 520 at [59]-[60].
As to the maximum penalty, it is important to recognise that s 45 of the RTA was amended in 2005 to introduce new aggravated offences of driving without due care with increased penalties from those previously imposed for careless driving.[22] Prior to the amendments, an offence of driving without due care carried a maximum penalty of a fine up to $1,250 and the sentencing court had a discretion as to whether to impose a period of licence disqualification at all.
[22] Statutes Amendment (Vehicle and Vessel Offences) Act 2005 s 19.
In Police v Jachmann,[23] Gray J identified the rationale behind the amendments to the RTA that created the offence of aggravated driving without due care. His Honour said:[24]
… 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. …
(footnotes omitted)
[23] [2010] SASC 345.
[24] [2010] SASC 345 at [16].
As Bleby J also observed in Nattrass v Police:[25]
… 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.
[25] [2008] SASC 267 at [18].
In this appeal, the appellant submits that upon reviewing comparable authorities, the sentence imposed by the learned Magistrate is seen to be manifestly excessive, having regard to the circumstances of the offending and those matters personal to the appellant.
The Court was referred to numerous authorities relating to the offence of aggravated driving without due care. Those authorities reveal that there are many different circumstances in which this offence can be committed and many different factors affecting an assessment of the objective seriousness of the offence and the offender’s level of culpability. For that reason, there is little merit or utility in traversing the detail and circumstances of the many authorities to which the Court was referred. However, there are two authorities which bear some general resemblance to the circumstances of the driving in this case, and to that extent are instructive as to the question of the objective seriousness of the offence.
In Police v Jachmann,[26] a truck driver of a B-double semi-trailer collided with a cyclist on the Sturt Highway. The cyclist died.[27] The driver was travelling within the speed limit, at a speed of between 90 and 95km per hour.[28] Following a trial in the Magistrates Court the defendant was convicted of the aggravated offence of driving without due care. The circumstance of aggravation was the death of a person. The Magistrate concluded that the impact took place when the cyclist was close to the left‑hand edge of the sealed carriageway for eastbound traffic.[29] The Magistrate found that there was no overhanging vegetation that would cast a shadow over the cyclist.[30] The Magistrate accepted the defendant’s evidence that he did not see the cyclist at all prior to the collision.[31] 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 proper lookout, which amounted to the offence of driving without due care or attention.[32]
[26] [2010] SASC 345.
[27] [2010] SASC 345 at [3].
[28] [2010] SASC 345 at [4].
[29] [2010] SASC 345 at [6].
[30] [2010] SASC 345 at [6].
[31] [2010] SASC 345 at [6].
[32] [2010] SASC 345 at [8].
The Magistrate convicted the defendant and imposed a fine of $250. The defendant was disqualified from holding or obtaining a licence for the minimum period of six months. The police appealed the Magistrate’s sentence.
On appeal, Gray J set aside the penalty imposed by the Magistrate and imposed a term of imprisonment of three months, wholly suspended upon the defendant’s entry into a one year good behaviour bond.[33] The defendant was disqualified from driving for nine months.[34] In respect of the objective seriousness of the offence, Gray J said:[35]
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.
[33] [2010] SASC 345 at [26].
[34] [2010] SASC 345 at [26].
[35] [2010] SASC 345 at [17].
In the matter presently before the Court, the aggravating circumstance is serious harm to the victim, rather than the death of a person, and to that extent the consequences of the offending are less significant. However, the objective seriousness of the driving by this appellant is to my mind greater because the appellant drove through a red light into a busy intersection leading onto the Southern Expressway, and that driving constitutes a more serious example of defective lookout.
In Nagy v Police,[36] the appellant had pleaded guilty to the charge of aggravated driving without due care. The aggravating circumstance was that the appellant caused the death of a motorcyclist. The learned Magistrate recorded a conviction and ordered the appellant enter a bond to be of good behaviour for two years. A licence disqualification of 18 months was also imposed. The appellant appealed against the length of the licence disqualification on the grounds that it was manifestly excessive.
[36] [2018] SASC 141.
The circumstances of the offending in Nagy involved the appellant travelling south along Copperhouse Road and approaching its intersection with the Barrier Highway, at which there was a give-way sign.[37] The appellant entered the intersection and collided with a motorcyclist travelling north-east along the Barrier Highway, causing the motorcyclist’s death.[38] The victim was exceeding the speed limit at the time of the collision.[39]
[37] [2018] SASC 141 at [5].
[38] [2018] SASC 141 at [5]-[6].
[39] [2018] SASC 141 at [13].

The appellant was a 72-year-old man with no prior convictions and an unblemished driving record.[40] The appellant could provide no explanation for not having seen the motorcyclist with whom he collided, nor could the layout of the intersection or the weather conditions provide any such explanation.[41] The appellant had a clear and unobstructed view of the highway upon approaching the intersection and the weather on that day was fine.[42]
[40] [2018] SASC 141 at [8].
[41] [2018] SASC 141 at [53]-[54].
[42] [2018] SASC 141 at [53].
On appeal, and as to the appellant’s challenge to the lengthy period of disqualification imposed, Kelly J said:[43]
Here, after consideration of all of the appellant’s personal circumstances, the Magistrate came to the conclusion that it was not a case which required his Honour to impose a sentence of imprisonment at all, whether immediate or suspended.
It was a legitimate approach to balance that leniency with a higher period of disqualification than his Honour might otherwise have done. The section prescribes a minimum period. That does not mean a Magistrate is obliged to impose a minimum. While the circumstances of this appellant’s driving might be said to constitute a typical example of an offence of this nature, that does not necessarily mean that it is either at the upper end or the lower end of the range of seriousness for the offence of aggravated due care. It simply means it is typical.
…
While it can be accepted that the sentence as a whole in respect of both components needed to be within the available range, nevertheless there was nothing to prevent the Magistrate balancing as he did a higher disqualification period with the decision not to impose any term of imprisonment at all.
[43] [2018] SASC 141 at [63]-[64], [66].
Turning to the exercise of the sentencing discretion in this case, the learned Magistrate was correct in finding that the offending was ‘not the worst case of its kind’ but nonetheless emphasising the serious aspects of the offending.[44] It can be accepted that the appellant’s driving was not attended by other features which would have exacerbated her culpability, such as the consumption of alcohol or drugs, speeding or racing the red light, or the use of a mobile phone whilst driving.[45] However, the appellant was turning into a major intersection leading onto the Southern Expressway which called for particular care in her driving. That she was not familiar with that section of roadway required an even more heighted level of care and attention in her driving.[46] Other vehicles had preceded the victim’s vehicle through the green light into the intersection, and the red light had been activated for some time before the appellant travelled into the intersection and collided with the victim’s vehicle.[47] There was no explanation for the appellant having not seen the red light. Whilst the driving was not in the higher range of seriousness for this type of offence, it still involved a grossly inadequate failure to keep a proper lookout and for that reason was objectively serious.
[44] Appeal Book at 21.
[45] Appeal Book at 19-20.
[46] Affidavit of Dianne Lynette Langton affirmed 11 May 2021 at [11].
[47] Appeal Book at 19.
The offending has also had significant consequences for the victim and her family which are ongoing.[48] The learned Magistrate correctly and appropriately noted that this was not a case in which the victim had been seriously harmed but had, or would, subsequently recover from those injuries.[49] The significant injuries sustained by the victim and their adverse impact on her mental health and that of her family, which continues, added to the seriousness of the offending.
[48] Appeal Book at 25-29.
[49] Appeal Book at 20.
As the appellant submitted at first instance and on appeal, there was much in the appellant’s personal circumstances in her favour. She is a young woman with no prior convictions or court appearances with an unblemished driving record who holds a responsible and necessary job in the community assisting persons with disabilities.[50] She is held in high regard by her family, work colleagues, and associates.[51] It is to be accepted that the appellant is genuinely remorseful for her offending. However, unfortunately, as was recognised by the learned Magistrate, this type of offence is often committed by good people who make a poor error of judgement which can result in significant consequences for their victims.[52]
[50] Appeal Book at 21.
[51] See Appeal Book at 38-43.
[52] Appeal Book at 20.
The question on appeal is not whether this Court would have imposed a different sentence but rather, the question is whether a starting point of five months imprisonment reduced to three months and two weeks for her guilty plea, and wholly suspended, was within the range available to the Magistrate as a component of the sentence imposed. Bearing in mind the seriousness of the offending due the appellant’s gross inattention in driving through a red light which had been activated for some time into a busy intersection leading into a major road, and the significant consequences of the conduct on the victim and her family, I consider a starting point of imprisonment for five months, whilst a severe sentence, is not outside the available range and is not manifestly excessive.
As to the licence disqualification of 18 months, the learned Magistrate remarked that all of the factors that she had mentioned that related to the appellant’s personal history, the driving itself, and the impact on the victims were to be taken into account in that aspect of the penalty as well.[53] However, at no stage during the sentencing remarks, or in the more specific context of considering the appropriate period of licence disqualification, did the learned Magistrate specifically mention the impact of a period of licence disqualification on the appellant’s employment.
[53] Appeal Book at 21-22.
There was material before the learned Magistrate which established that the appellant required her driver’s licence to complete her employment and functions as a disability support worker, and a loss of her licence would adversely affect her ability to transport clients and attend to an emergency should it arise.[54] Bearing in mind the effect of a loss of licence on the appellant’s employment, and her otherwise unblemished driving record, I consider a licence disqualification of 18 months or triple the prescribed minimum, was outside of the range available to the learned Magistrate.
[54] Appeal Book at 39.
Further, the licence disqualification of 18 months needs to be considered in conjunction with the other component of the sentence, namely the period of three months and two weeks imprisonment, wholly suspended, which is in itself a significant penalty. In doing so, the sentence looked at as a whole, is in my view manifestly excessive. In all the circumstances, I would reduce the licence disqualification to a period of eight months.
Application of sentencing discount to a licence disqualification
The appellant contends that the learned Magistrate was required by s 39(2)(b)(ii) of the Sentencing Act 2017 (the ‘SA’) to reduce the licence disqualification by 30%. There was no such reduction applied to the period of licence disqualification.
The appellant puts the argument in the following way.
Section 39(2) of the SA states:
(2) Subject to this section, if a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but—
(i) if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or
(ii) in any other case—before the commencement of the trial for the offence or offences,
the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that the defendant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(d) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
Section 5 of the SA provides that ‘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, including the decision of a court to discharge a defendant—
(i) without imposing a penalty; or
(ii) without recording a conviction;
The appellant submits that the imposition of a period of disqualification from holding or obtaining a licence is a ‘sentence’[55] and thus, the sentencing discount regime applies to the licence disqualification imposed upon the appellant’s conviction for an offence contrary to s 45(2) of the RTA.
[55] Nattrass v Police [2008] SASC 267; Janz v Woolven (1990) 55 SASR 239; Philp v Bonney (1989) 50 SASR 531 cf Police v Holer [2016] SASC 187 at [46]-[62] in the context of s 46 of the RTA.
However, the respondent submits that the application of s 39 of the SA is subject to s 36 of the SA which provides:
36—Application of Subdivision
Except where the contrary intention expressly appears, this Subdivision 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; or
(b)that limits or otherwise makes special provision in relation to the way a penalty or sentence for a particular offence under that Act may be imposed.
Section 45(2) of the RTA contains an express prohibition on the reduction, mitigation or substitution of a penalty or sentence. That section provides:
(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.
The respondent contends that the application of the discount regime provided by s 39 of the SA is excluded by the operation of s 36 of the SA and s 45(2)(c) of the RTA. Accordingly, the learned Magistrate was not entitled to apply any reduction to the period of disqualification.
This issue was considered by Peek J in Police v Holer in the context of an offence of dangerous driving contrary to s 46 of the RTA and the now repealed ss 10B and 9E of the Criminal Law (Sentencing) Act1988 (the ‘CLSA’).[56] Justice Peek accepted the contention that any reduction in a ‘sentence’ made available by s 10B is excluded from applying to a period of licence disqualification imposed upon conviction for an offence contrary to s 46 of the RTA by operation of s 9E of the CLSA (mirrored in s 36 of the SA) and s 46(3)(b) of the RTA (an equivalent provision to s 45(2)(c)). His Honour held that the s10B ‘discount regime’ had no application to a driving licence disqualification which is imposed consequent upon a conviction of an offence against s 46 of the RTA.[57]
[56] [2016] SASC 187 at [63]-[72].
[57] [2016] SASC 187 at [72].
I respectfully agree with the analysis and conclusion of Peek J.
Adopting that reasoning to the relevant provisions before the Court in this appeal, I consider s 45(2)(b) of the RTA prescribes that in the case of a conviction for an offence against s 45 the Court must order a period of driving disqualification, the length of which is at the Court’s discretion subject only to the stated minimum of six months.
The words in s 45(2)(c) ‘the disqualification prescribed by paragraph (b)’, refers to the licence disqualification that must be made as a consequence of the prescription in s 45(2)(b), which provides that the court must order that the person be disqualified from holding or obtaining a driver’s licence for a minimum of six months.
The words in s 45(2)(c) which read ‘… cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence’ mean what they say.
I consider that there is nothing in s 39 of the SA, either expressly or impliedly, which indicates a contrary intention to s 45(2)(c) and therefore, s 36 of the SA is clear that s 39 does not derogate from the wording of s 45(2)(c) of the RTA.
Accordingly, s 39(2) of the SA has no application to the mandatory driver’s licence disqualification prescribed by s 45(2) of the RTA. The learned Magistrate was correct in not discounting the period of licence disqualification for the appellant’s guilty plea.
Conclusion
The appeal is allowed.
The order disqualifying the appellant from holding or obtaining a driver’s licence for 18 months is set aside. In lieu thereof, I make a substituted order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of eight months, from 18 February 2021. In all other respects, the sentence imposed in the Magistrates Court is confirmed.