SAMUEL v POLICE - [2006] SASC 135

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SAMUEL v POLICE
[2006] SASC 135
Judgment of The Honourable Chief Justice Doyle (ex tempore)
3 May 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appellant drove a motor vehicle into the rear of another motor vehicle that had stopped at a railway crossing - appellant pleaded guilty to charge of driving a motor vehicle without due care contrary to s 45 of the Road Traffic Act 1961 (SA) - Magistrate fined appellant $450 and disqualified him from holding or obtaining a driver's licence for three months - appeal on grounds that Magistrate erred in not exercising discretion to refrain from recording a conviction - appeal on further grounds that sentence was manifestly excessive - consideration of impact of licence disqualification upon appellant's business - appeal allowed in part - sentence imposed by Magistrate set aside - conviction recorded against appellant - appellant fined $450 and disqualified from holding or obtaining a driver's licence for a period of six weeks.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.

SAMUEL v POLICE
[2006] SASC 135
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): The appellant pleaded guilty before a Magistrate to a charge of driving a motor vehicle without due care contrary to s 45 of the Road Traffic Act 1961 (SA) (“the Act”). By s 164A of the Act the appellant was liable to pay a fine not exceeding $1250. The Magistrate was empowered to disqualify the appellant from holding or obtaining a driver’s licence by s 168 of the Act.
The Magistrate recorded a conviction, fined the appellant $450 and disqualified him from holding or obtaining a driver’s licence for three months. After two days the disqualification order was suspended pending the hearing of this appeal.
The facts can be stated briefly. The appellant drove his car into the rear of another car that had stopped at a railway crossing on Airport Road near Goolwa. The collision occurred in daylight. The appellant was aware of the location of the crossing. The road in question is in an open rural area. The appellant had been travelling in the same direction as the car that he hit. There is no explanation for the collision other than inattention on the appellant’s part.
The appellant says that the other driver was not obliged to stop, but merely to give way to trains. That is no excuse. It is not surprising that a driver would slow down to check whether a train was approaching. If one was approaching, the driver would stop. The appellant had no reason to assume that another driver would not slow down or perhaps stop at the crossing. I consider this to be a significant departure from the standard of care required. It could easily have had much more serious consequences.
The appellant is 40 years of age. He is self-employed. He lives at Strathalbyn. His business is tree removal and vegetation clearance. He has to drive to work sites and visit potential work sites to give a quote. Clearly enough his licence is important to him. Loss of the licence will involve real inconvenience to him, and probably result in financial loss. As was explained in submissions on appeal his business involves the use of a truck. The appellant has a licence to drive the truck, but none of his employees do. Inability to use the truck, I accept, is likely to make the business unworkable other than in the short term.
It seems to me that if the appellant is to be disqualified from holding or obtaining a licence he will have to arrange for one of his employees to obtain a licence to drive the truck, or he will have to employ someone for the period of the disqualification who can do so. I accept that this will cause him some inconvenience beyond general inconvenience and that it will result in financial loss.
They are relevant factors. However, I proceed on the basis that he should be able to arrange for someone else to drive the truck. Apart from that, I proceed on the basis that the appellant, when he can travel by ordinary motor vehicle, should be able to arrange for his employees to drive him. I accept that will come at a cost to him.
The prosecutor alleged only one previous conviction. That was also an offence of driving without due care in March 1992. The prosecutor said the appellant was convicted, fined $400 and had his licence disqualified for six months. Whether that was the penalty for that particular offence, or for that and other offences dealt with at the same time, is not clear, but I take the view that it is not necessary to try to resolve that.
The first complaint is that the magistrate erred in failing to exercise her discretion under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) to refrain from recording a conviction. I do not accept this submission. The offence is not a trifling one. There are no significant extenuating circumstances. Indeed, the offence is a significant one of its kind. There is no particular reason to conclude that the appellant is unlikely to commit the offence again. His age and other characteristics do not provide a basis to exercise the discretion. I consider that it was, in fact, appropriate to record a conviction.
The other complaint is that the Magistrate should not have disqualified the appellant from holding or obtaining a driver’s licence, or at least not for as long as three months. It is claimed on appeal, and not denied, that the Magistrate did not warn the appellant or his legal representative that she contemplated disqualifying him from holding or obtaining a licence. However, the appellant was represented by Ms Zanker. Ms Zanker put submissions to the Magistrate that dealt with the impact on the appellant of a licence disqualification.
It would have been preferable for the Magistrate to warn the appellant that she contemplated a licence disqualification as a possibility, but as Mr McDonald, counsel for the respondent, put in submissions, once the topic had been canvassed it is not at all clear that anything more could usefully have been said. When I say “once the topic had been canvassed”, I mean once Ms Zanker had made submissions that went to this point, as she did before the Magistrate.
As well, in my view, that the risk of a licence disqualification should have been evident, particularly in light of the penalty imposed in 1992. And, as I have already said, the submissions that were put did deal with the impact on the appellant and, in particular, on his business, of the loss of a licence. It seems to me that no unfairness has resulted from the Magistrate’s failure to warn that she contemplated a licence disqualification if she did fail to give that warning.
Nevertheless, in the interests of justice I gave Ms Zanker the opportunity to supplement her submissions to avoid any possible unfairness. She elaborated on the submissions she had put to the Magistrate, but raised no new matters of any significance. The main point that she brought out was the importance of the truck licence to the appellant for the purposes of his business and the fact that he was the only one who had such a licence. That was not a matter that was drawn to the Magistrate’s attention. I agree that that is of some relevance, however, in the end, it is only a way of explaining how it is that the loss of a licence will affect the appellant in the conduct of his business. I therefore do not accept that there was unfairness of a kind that requires me to revisit the penalty.
I consider, in all the circumstances, that it was within the appropriate range for this offence to impose a licence disqualification notwithstanding the inevitable impact on the appellant’s business. Such an order was justified by the substantial departure from the standard of care required of a driver and by the danger that the appellant created by his lack of due care. The danger was made more acute by the fact that the incident occurred at a railway crossing and, as Mr McDonald pointed out, had there been a train approaching, could easily have resulted in one or other of the vehicles colliding with the train.
As well, referring only to the conviction that the prosecutor alleged, the appellant cannot claim to have an unblemished record. Nevertheless, taking all the circumstances into account I am persuaded that the period of disqualification was excessive. It is not really possible to elaborate on this in any meaningful way. My impression is that in all the circumstances three months is too long.
I consider that an appropriate period of licence disqualification is a period of six weeks. Accordingly, I order:
1 That the appeal be allowed and the sentence be set aside.
2That there be substituted the following penalty, namely, that the appellant be convicted, that he be fined $450 with court costs and that he be disqualified from holding or obtaining a driver’s licence for a period of six weeks.