Snuggs v Police No. Scgrg-97-1700 Judgment No. S6524

[1998] SASC 6524

SNUGGS V POLICE

Magistrates Appeal
Olsson J (ex tempore)

The appellant appeals against orders made against him, on 4 December 1997, by a stipendiary magistrate.  He complains that, in their totality, they constituted a penalty upon him which was manifestly excessive in all the circumstances.  In reality, it is one aspect of the orders made that is the real subject of complaint. 

The appellant pleaded guilty to two offences committed by him on 18 June 1997, at Paracombe Road, Paracombe. He conceded that he had driven a motor vehicle without due care and had commenced to pass another vehicle proceeding in the same direction when a vehicle was approaching from the opposite direction, so as to create a risk of collision. This was, of course, an offence pursuant to s.58 of the Road Traffic Act. He had also been charged with driving in a manner dangerous to the public. However, that charge was withdrawn on entry of his pleas to the other two counts.

Saying that offences of the type pleaded to gave rise to circumstances in which serious accidents occur, the learned magistrate imposed a single composite penalty in respect of both offences.  He fined the appellant a total of $400 and also disqualified him from holding or obtaining a driver's licence for a period of three months, operative from 1 July 1998. 

It seems common ground that this disqualification was imposed in relation to the passing offence, rather than the due care offence. It was, of course, a penalty which was imposed pursuant to the provisions of s.168(1) of the Act. Section 58(1) does not refer to any primary penalty of disqualification.

The appellant asserts that the disqualification was, in effect, disproportionate to the gravity of his offending conduct.  As I understand what was put to me,  Mr Day, of counsel for the appellant, argues that there should not have been any period of disqualification imposed at all.  Alternatively, if the offence did warrant imposition of a period of disqualification, then three months was simply too great, having regard to all of the relevant circumstances, including the mitigating aspects related and the background of the appellant.

The relevant facts may readily be extracted from an affidavit which has been sworn by the police prosecutor and tendered on the appeal. 

It appears that the appellant, who was a forklift driver aged 40 years with no prior convictions, was driving his motor car in an westerly direction along Paracombe Road, Paracombe, at about 6.40 am on 18 June 1997.  It was still dark at the time, and his headlights were on. 

At about the time in question, police on uniform mobile patrol were travelling in an easterly direction along Paracombe Road, that is to say, in the opposite direction. 

At this time they observed the headlights of oncoming vehicles travelling west towards them.  These were approximately 300 metres in front of the police vehicle when they were first observed. 

As the police approached these vehicles, a red Holden sedan - which, in fact, was being driven by the appellant - travelling at what was considered to be a fast rate of speed, attempted to overtake the slower vehicles in front of it.  As a result the Holden moved onto its incorrect side of the road and approached the police vehicle (still on that side of the road) at a fast rate of speed. 

Police officers said that they were forced to brake heavily to avoid a front end collision with the approaching vehicle, and also had to move to the left of the east bound lane to allow the Holden to pass through with safety.  As they did, they flashed their headlights at the appellant to warn him of their presence. 

As a result of their so doing, the appellant did not attempt to get back onto the correct side of the road, or to slow down.  He simply flashed his high beam at the police in acknowledgment. 

As a result of this incident the police officers pulled over to the side of the road.  When it was safe to do so, they executed a U-turn, and attempted to follow the Holden driven by the appellant.  They were not very successful in pursuing him, due to the presence of other vehicles ahead of them on the road and the fact that the section of road in question was not safe to overtake other vehicles. 

After turning, the police vehicle travelled west along Paracombe Road, for a distance of approximately two kilometres, during which they had lost sight of the vehicle driven by the appellant. 

Some two kilometres after they turned, they approached a left-hand bend in the road, approximately 250 metres east of the lower North East Road/Paracombe Road junction.  

As they rounded that bend they saw the appellant's Holden with accident damage to its front end, as a result of an apparent collision with a tree on the northern side of the road.  On arriving at the accident scene, the police officers observed the appellant leaning over the boot of his vehicle and appearing to be in some discomfort as a result of the collision.  There were no other persons in his vehicle or the near vicinity. 

The police had a conversation with the appellant.  He told them that the accident had occurred due to the fact that he was having problems with his LPG indicator lights.  He took his eyes off the road for a short time, veered off the carriageway and collided with a tree.  When spoken to about the earlier incident involving the police vehicle, he said that he had executed the manoeuvre in question because a vehicle in front of him had been travelling at about 40 kilometres an hour, and was speeding up and slowing down.  He said that he overtook that vehicle believing, in the circumstances, that it was then safe to do so. 

Against that background, the learned magistrate clearly took a jaundiced view of the situation.  It led him to impose the period of disqualification which is now sought to be impugned. 

At the time the appellant was not represented by counsel.  It is fair to derive from the material before him that, probably, he scarcely did himself justice in making appropriate submissions, although he was, apparently, aware that there was a possibility that an order of disqualification might be made. 

An important feature, apart from his age and total lack of prior convictions, was that he apparently lives at Lobethal and has to commute, on a daily basis, to his work as a forklift driver at Albert Park.  This is a distance of some 50 kilometres each way.  Therefore, the loss of licence would necessarily impose upon him a degree of hardship which was, perhaps, rather greater than that of many other people.  The magistrate appears to have been informed of the need to commute to work, but does not appear to have placed much emphasis upon it in the very brief remarks as to penalty which he expressed at the time. 

Mr Day, of counsel for the appellant, strongly urges upon me that the circumstances of the offending, coupled with the background of the appellant and the impact of a disqualification upon him, simply did not warrant a period of disqualification of the order of three months.  As I have said, he contended that the circumstances did not warrant any order of disqualification at all. 

As to the latter aspect, I have difficulty in accepting that the magistrate fell into error in imposing some period of disqualification. As always, the approach proper to be adopted depends upon the gravity of the particular offence. There will be many s.58 offences which would not, remotely, warrant the imposition of a period of disqualification. However, there will be others where the consequences, or potential consequences, of the driving conduct are or could be so serious that they may well warrant a period of disqualification.

It is not to be forgotten that, in this case, had it not been for quite severe and rapid evasive action on the part of the police driver, a serious accident may well have occurred.  I think that this was a situation in which the offending was sufficiently serious to warrant imposition of some period of disqualification.  After all, it was an offence which took place in darkness, when particular care was obviously required and at a time when there were a number of vehicles travelling along the road.  The fact that, but for prompt reaction on the part of the police officers, a serious accident could have occurred, speaks for itself. 

I, therefore, do not think that the learned magistrate proceeded inappropriately in imposing an order for disqualification. 

I consider that the real question in this case is whether an order for three months’ disqualification was warranted in all of the circumstances.  Due recognition must be given to the excellent prior record of the appellant at age 40 and the obvious very serious hardship which is caused to him by any order of disqualification.  It must be a matter of considerable difficulty for him to commute to and from work by some means other than he, himself, driving his vehicle. 

I think that, looking at the situation objectively, although the appellant's conduct left a good deal to be desired in the circumstances, three months was manifestly excessive. 

I am, therefore, disposed to allow the appeal for the purpose of setting aside the order of disqualification which was made and substituting for it an order of disqualification for a period of six weeks, which will run from the date originally prescribed by the learned magistrate.  There will be an order accordingly. 

MR DAY:  I apply for costs. 

MS CHAPMAN:                  Fixed in the sum of $150?

HIS HONOUR:  The respondent will pay the appellant $150 for the costs of the appeal.