Roder v Police

RODER v POLICE
[2000] SASC 432

Magistrates Appeal (ex tempore)

1................ DUGGAN J....... The appellant pleaded guilty to an offence of driving without due care, contrary to s.45 of the Road Traffic Act (1961). The complaint alleged that the offence took place at Torrens Park on 9 July 2000. The appellant was convicted and fined $50. He was ordered to pay costs totalling $126. He now appeals against the order whereby a conviction was recorded.

It is argued that the learned magistrate should have acceded to the submission that the offence was “trifling” within the meaning of s 15 of the Criminal Law (Sentencing) Act, 1988 (the Act) or, alternatively, that he should have imposed a penalty without conviction pursuant to s 16 of the Act.
The circumstances in which the offence took place are not in dispute. The appellant was 19 years of age at the time of the offence. He was driving a vehicle along Ayr Avenue, Torrens Park at about 1.30 pm on Sunday, 9 July 2000 when he lost control of the vehicle. There were three passengers in the vehicle at the time. The vehicle hit the kerb on the northern side of the road, then collided with a tree on the southern side of the road.
It would appear that the accident occurred when the appellant heard his mobile telephone ringing. He took one hand off the steering wheel and reached for the telephone. It would also appear that he took his eyes off the road when reaching for the telephone. The telephone stopped ringing, but at this point the vehicle hit the kerb and spun around so that the rear of the vehicle hit a tree on the other side of the road. The vehicle was extensively damaged.
When imposing penalty, the learned magistrate said:
“Mr Roder, you have pleaded guilty to a charge of driving without due care and I accept without hesitation that this type of careless driving is out of character for you. A ringing phone distracted you and the consequences were an accident. Fortunately, nobody was hurt. I have no doubt whatsoever that you have learnt from this and you will not use a phone again while you are driving. Your personal circumstances and those of the offending do not, I believe, permit me to proceed without recording a conviction, but I will underline your previous good character by imposing a minimum penalty. You will be convicted and fined $50 with costs totalling $126.00”
The prosecution did not allege any previous convictions. No other motor vehicle was involved in the accident. No person was injured. There was positive evidence of good character provided by written testimonials which were admitted into evidence.
According to the affidavit of the solicitor who represented the appellant before the learned magistrate, his Honour indicated while submissions were being made, that the offence was one of strict liability and that, as a result, he could not refrain from recording a conviction. This assertion has not been challenged by the respondent. The remarks of the learned magistrate in his sentencing remarks do not throw any further light on his views in this respect.
It would not be correct to say that ss 15 and 16 could never be applied to a breach of s 45 of the Road Traffic Act. If the learned magistrate did hold that view, it would fall to this Court to consider afresh the discretion, which is vested in the court by reason of these sections.
However, it is unnecessary for me to decide whether his Honour made the statement attributed to him in the affidavit of the appellant’s solicitor because I am of the view that there was no justification for applying either s 15 or s 16 in this particular case.
According to the comprehensive and well-presented submissions made by Ms Davey on behalf of the appellant, the offence was so trifling as to render it inappropriate to record a conviction.
In Coles Myer Ltd v Catt (1992) 58 SASR 298 at 308, in a judgment concurred in by other members of the Full Court, Olsson J commented on the use of the word “trifling” in the sentencing legislation:
“The law reports are littered with cases which discuss this type of concept. As was pointed out by Legoe J in Gagliardi v Medwell (1983) 35 SASR 124, it is impractical to attempt a precise definition of the concept.
However, at least it may be said that, in essence, what is in contemplation is a situation which must be so far out of the ordinary or typical case of its type that Parliament cannot have contemplated it as falling within the statutory prohibition, so as to invoke the full rigour of the law. There must, clearly, be circumstances which distinguish the case from the general run of its type, so that the court may properly come to the conclusion that it would be manifestly unfair and unreasonable to penalise the offender and bring about the imposition of the stigma of a criminal conviction.”
In order to make the assessment referred to in the Coles case, it is necessary to have regard to the nature of the offence of driving without due care. In Crispin v Rhodes (1986) 40 SASR 202 at 204, O’Loughlin J pointed out that the conduct must be viewed objectively. He referred to Dunnsmore v Dawson (Walters J, 18 June 1981, unreported) where it was said that the obligation to drive with due care “... is the duty to exercise the standard of care that one would expect of a reasonably prudent driver in the like or similar circumstances”. O’Loughlin J also referred to the fact that it will rarely, if ever, assist a driver to plead “bad luck” or “error of judgment”.
This was not a case in which a sudden emergency arose which provoked a quick response from a driver (Simpson v Peat (1952) 1 AER 447 and 449). The appellant must have heard the telephone ringing, decided to answer it, and withdrawn his attention from what he was doing. It is not suggested that he was speeding, but he was obviously travelling at a rate of speed which required close attention to his driving. The directing of attention away from the act of driving, for one reason or another, is an act which is typical of offences of this class. Conduct of this nature is not properly described as “trifling”, in the context of offences of driving without due care. In my view, s 15 of the Act has no application to the circumstances of this case.
There remains the argument that the learned magistrate should have imposed a penalty without conviction by applying s 16 of the Act. Section 16 provides as follows:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion -
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to -
(i).... the character, antecedents, age or physical or mental condition of the defendant;
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
I agree with the view expressed in Sims v Police ([2000] SASC 102) that the assumption behind s 16 is that, in most cases, a conviction will be recorded, and that the exercise of the discretion in favour of a defendant under this section is by way of exception to the general rule.
I do not suggest that s 16 should never be applied to an offence of driving without due care, just as I do not suggest that s 15 should never be applied to such an offence. However, the circumstances in which it would be appropriate to apply s 16 to a case such as the present must be rare. The requirement that the court be of the opinion that the defendant is unlikely to commit such an offence again is difficult to establish in the case of an offence of driving without due care. Such acts are often committed unintentionally, as was the case here. It would seem difficult to reach an opinion that any driver was unlikely to commit an offence of this nature in the future. In my view it cannot be said that, in the case of this appellant, he is unlikely to commit an offence of driving without due care at any time in the future.
Furthermore, I am of the view that there is nothing in the circumstances of this case which would justify bringing it within one or other of the additional alternative criteria in s 16(b). This is not to say that the appellant does not possess an excellent character which might otherwise be relevant to the circumstances referred to in this subsection. However, I regard such a consideration as being of less relevance in the case of a traffic offence such as this as compared with cases where the recording of a criminal conviction is under consideration. In my view, the circumstances of this offence provide an appropriate illustration of the purpose for which this offence exists. I can see no reason to put the case in any exceptional category.
For these reasons, I am of the view that it was appropriate to impose a conviction.
The low fine adequately reflects the appellant’s undoubtedly good character, and the other matters put forward in mitigation at the hearing. The appeal will be dismissed.

[2000] SASC 432

5 December 2000