Sotirios Portellos v SA Police No. SCGRG 96/1474 Judgment No. 5734 Number of Pages 5 Traffic Law

[1996] SASC 5734

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Traffic law - speeding - demerit points - the appellant appealed against the failure by a Magistrate to exercise his discretion to order a reduced number of demerit points, or no demerit points, following the appellant's plea of guilty to speeding - the appellant drove his motor car at night at 109 kilometres per hour in a built-up suburban area in which the limit was 60 kilometres per hour - the appellant gave evidence that he was answering a security alarm call at a supermarket of which he was a co-owner and which was some kilometres away - observations as to the principles applicable to the exercise of the discretion under s98B(4) of the Motor Vehicles Act 1959. Motor Vehicles Act 19959 s98B(4), referred to. Scuteri v Fuss (1987) 136 LSJS 115; Hepworth v Rowbottom (1979) 22 SASR 394, considered.

HRNG ADELAIDE, 5 August 1996 #DATE 5:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr D Georgiadis

Solicitors for appellant:    Georgiadis and Co

Counsel for respondent:     Ms L Kudelka

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against the penalty imposed upon the appellant following his plea of guilty in the Magistrates Court sitting at Adelaide to a charge that on 30 November 1995 at Adelaide he drove a car on Hackney Road at a speed in excess of 60 kph, namely at about 109 kph. The penalty imposed was a fine of $270 plus various court fees and costs, which came to an overall total of $380.

2. The appeal is not directed at the fine but only at the failure of the learned sentencing Magistrate to exercise his discretion pursuant to s.98B(4) of the Motor Vehicles Act 1959 to order that a reduced number of demerit points or no demerit points be incurred by the appellant in respect of the offence.

3. The appellant is the owner of a supermarket at Frewville and is a co-owner with a Mr Pappas of a supermarket at Windsor Gardens.

4. On the night in question he was on his way home from the Frewville supermarket when, at about 10.45 pm., he received a telephone call from a security firm responsible for a monitoring service at the Windsor Gardens supermarket. They advised him that an alarm had been triggered off at that store. He was surprised to receive the call as at that time his partner, Mr Pappas, would only just have locked up the premises. His immediate thought was that Mr Pappas might have been in some sort of danger. Not long beforehand there had been a rape in the car park at the Windsor Gardens store.

5. At the time he received the call he was at the roundabout on Fullarton Road, at the intersection of Greenhill Road. This was between ten to twelve kilometres away from the store, or at least that was the estimate given by the learned sentencing Magistrate. It was apparently not an infrequent occurrence that he received such calls. Often he would respond to them by arranging the attendance of the police rather than by going to the store concerned himself.

6. On this occasion, however, because of the concern he had as to his business partner and the fact that the alarm was set off so close to closing time, he made off to attend at the store. He was in Hackney Road when he was timed by police radar at a speed of 109 kph.

7. There was no evidence which established how far he had maintained such a speed or, indeed, how far he had travelled after setting off for the Windsor Gardens store.

8. When questioned by the police he said that an alarm had gone off at his supermarket and that he "had to get there quick". S.98B(4) provides as follows: "If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence."

9. It was a matter of some concern to the appellant that he receive no further demerit points, as he had already accumulated nine points. If he incurred an aggregate of twelve or more he stood to suffer a mandatory disqualification of his licence pursuant to s.98B(c) of the Act for a period of three months. It appears that the offence in question attracted six points.

10. In support of his application that no demerit points be incurred, the appellant gave evidence on oath. He explained the circumstances to which I have already referred. He said that he was not aware at the time that he was speeding. He admitted that he made an error of judgment in his decision to go to the store rather than call the police. He conceded that there was a police station only two kilometres from the store at Windsor Gardens, namely the Holden Hill Police Station.

11. He said that he had never lost his licence before, that his car was in perfect condition; that the road was wide and had a number of lanes; that it was well lit; and that so far as he knew he had not caused any embarrassment to other traffic.

12. In rejecting the application, the learned sentencing Magistrate, after explaining the circumstances of the offence, noted that the appellant's counsel had accepted that it was not trifling within the meaning of the sub-section. Accordingly, it was incumbent upon him to determine whether other proper cause existed. He said that he had referred to various paragraphs in a textbook in which examples were given as to what this court had on occasions taken into account in determining whether proper cause existed. He went on to say:
    "I gained the distinct impression that the defendant embarked
    upon this speed and was continuing to travel at a similar
    speed, circumstances permitting, until he reached his
    destination, which was Windsor Gardens. He had to travel, as
    he freely admitted, some ten or thereabouts kilometres to get
    to that position. Police, whom he had already instructed the
    monitoring service to contact, are situated at Holden Hill
    which would be approximately only two kilometres from where
    the alarm was set off. In other words, the police would have
    been in a far better position to attend such a scene than the
    defendant and I might say far more equipped to deal with any
    difficulty, if in fact there was a difficulty".

13. Mr Georgiadis, who appeared for the appellant before me, challenged the estimate of some ten or thereabouts kilometres. As I have said, no evidence was given as to the distance involved. I assume that the learned sentencing Magistrate was simply taking judicial notice of the distance. Even if he was wrong about that, I do not think it would matter, as the distance was not insubstantial and it was conceded on the appeal that the police were in fact much closer.

14. The learned sentencing Magistrate went on to say:
    "The court should scrutinise these matters very carefully.
    However, I accept for the purposes of this application that
    the defendant was truthful in that there was an alarm set off
    but I do not believe that that then permitted him to embark
    upon a speed so excessive in the circumstances."

15. He went on to remark that such speeds created an enormous amount of danger.

16. Although Mr Georgiadis has said everything which could be said in favour of the appeal, it does not seem to me that there is any reason to question or find fault in the observations made by the learned sentencing Magistrate to which I have referred so far.

17. Mr Georgiadis submitted that the learned sentencing Magistrate erred in suggesting that the police had been very benevolent to the appellant and that the appellant "should have counted his lucky stars that at the time of being detected by the radar he was not, as would normally be the case for most travelling at 109 in a 60 zone, reported for a driving at a speed dangerous to the public".

18. He also criticised the learned sentencing Magistrate for making the observation that the matter came before him that day because justices had disqualified themselves from hearing it any further. Furthermore, he criticised the learned sentencing magistrate's observation that it was unusual for the appellant to be proceeding along Dequetteville Terrace.

19. In my opinion the observations criticised by Mr Georgiadis were very much remarks made in passing. It does not seem to me that they were matters which went into the scales in the exercise of the discretion which the learned sentencing Magistrate was called upon to discharge.

20. It is true, as Mr Georgiadis pointed out, that the appellant should not be criticised too harshly for having made a spur of the moment decision to return to the Windsor Gardens store. In that respect he quoted the observations made by Bollen J in Scuteri v Fuss (1987) 136 LSJS 115 at 118 when his Honour said:
    "Here there was something rather more than a momentary lapse.
    Indeed it was not really a lapse but the appellant did
    something which I think only the most censorious would
    seriously criticise It may well be that another course could
    have been taken but we must not look too stringently after the
    event at something which a motorist has done".

21. The fact remains, however, that this was not the first alarm call which the appellant had received. He was an experienced businessman well able to assess the situation. He could easily have followed his usual course of leaving it to the police to attend.

22. In my opinion the evidence which he gave, although providing an explanation for the occurrence of the offence, did not necessarily oblige the learned sentencing Magistrate to yield to the appellant's application.

23. I have not paused to detail every argument put by Mr Georgiadis but in my opinion this was a straightforward case in which the learned sentencing Magistrate was entitled to make the decision which he did. In doing so he was exercising a broad discretion. It would only be in a rare case where, absent any patent error, this Court would find it proper to interfere in such circumstances.

24. In reaching that view I would not want to categorise or try to define what amounts to "other proper cause" within the meaning of s98B(4). The words speak for themselves. To attempt further to define them would tend to circumscribe the meaning which they must be given. What is clear, however, is that the relevant circumstances must relate to the offence itself, and the fact that a convicted person will suffer hardship from the recording of demerit points does not amount to a proper cause within the meaning of the sub-section: See Hepworth v Rowbottom (1979) 22 SASR 394.

25. True it is that the appellant had good reason in his own mind for speeding, although he did not admit to knowing that he was speeding. The fact remains that 109 kph is a very high speed in a built-up suburban area. Despite the appellant's suggestion that he did not embarrass any other traffic, the plain fact is that he created a situation of no little danger to others who might have encroached upon his path. I think it significant that, as the learned sentencing Magistrate observed, the appellant not only embarked on that speed, but must be taken to have intended to continue to travel at a similar speed, circumstances permitting, until he reached the Windsor Gardens store. I do not accept the submission that it is not a proper inference to draw that inference from the circumstances disclosed by the evidence.

26. I have to say that I might have been prepared to deal with the matter differently had I been seized of the matter at first instance. But that is irrelevant in determining whether the learned sentencing Magistrate's exercise of the discretion miscarried.

27. The appeal is dismissed.