Speake v Police - [2008] SASC 314

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SPEAKE v POLICE
[2008] SASC 314
Judgment of The Honourable Chief Justice Doyle (ex tempore)
10 November 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appellant charged with and pleaded guilty to reckless driving contrary to s 46 Road Traffic Act 1961 (SA) - charge arose out of accident occurring while appellant driving - car driven by appellant rolled, coming to rest on its roof - car rolled due to late decision of appellant to attempt left turn at intersection - section required that offender be disqualified from holding a driver's licence for a minimum of 12 months unless Court finds, on the basis of evidence given on oath, that offence trifling - unclear whether appellant gave evidence on oath in Magistrates Court - Magistrate did not find offence to be trifling - appellant disqualified from holding a driver's licence for 12 months - appeal against sentence - whether offence trifling.
Held: appellant given opportunity to give oral evidence - offence against section could only rarely be described as trifling - the fact that reckless driving attributable to inattention or lack of care not sufficient to make offence trifling - inattention or lack of care a common aspect of driving offences - of itself, absence of injury does not lead to a finding that offence trifling - apellant drove in a proper and safe manner prior to rolling car - appellant's speed moderate in the circumstances - intersection not illuminated - case unusual, offence considered trifling - appeal allowed - appellant nevertheless disqualified from holding a driver's licence for five months.
Road Traffic Act 1961 (SA) s 46, s 46(3)(a), s 46(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18, s 34(a), referred to.
Dunsmore v Alexandrides (1988) 141 LSJS 454; Mancini v Vallelonga (1981) 28 SASR 236; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

SPEAKE v POLICE
[2008] SASC 314
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Speake appeals against a sentence imposed by the Magistrates Court.
Mr Speake pleaded guilty to a charge that on 14 May 2007 near Leigh Creek, he drove a motor vehicle on a road recklessly, contrary to s 46 of the Road Traffic Act 1961 (SA) (“the RTA”). Mr Speake appeared before a magistrate unrepresented. He pleaded guilty at the first opportunity. The Magistrate convicted him, imposed a fine of $500 and ordered that he be disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing on 19 August 2008.
The maximum punishment for the offence, which was a first offence against this section, is imprisonment for two years. That indicates the seriousness of the offence. I assume that the Magistrate exercised the power conferred by s 18 of the Criminal Law (Sentencing) Act 1988 (SA) to impose a fine instead of a sentence of imprisonment. In the exercise of that power, the maximum amount of the fine appears to be fixed by s 34(a) of the same Act.
However, there is another aspect of s 46 of the RTA that is important in this case. On convicting a person for an offence which is a first offence, the Court is required by s 46(3)(a) to disqualify the person from holding or obtaining a driver’s licence for not less than 12 months.
By s 46(3)(b), the Court cannot reduce or mitigate that punishment or substitute for it any other punishment unless the offence is a first offence, and unless the Court is satisfied by evidence on oath that the offence is trifling. In that event, the Court must order a period of disqualification of not less than one month.
On this appeal, the real issue is whether the Magistrate erred in failing to impose a shorter period of disqualification. The appeal confronts the obstacle that unless the Magistrate should have found the offence to be trifling, the Magistrate could not have imposed a shorter period of disqualification than the one that he fixed.
The circumstances of the offending as related to the Magistrate were as follows. Mr Speake worked at the Beverley Uranium Mine in the north of South Australia. On the evening in question, he had been drinking with Mr Fox. I proceed on the basis that there is no evidence to suggest that the alcohol that Mr Speake consumed impaired his ability to drive.
Mr Speake and Mr Fox decided to go for a short drive in a Toyota Landcruiser belonging to their employer. They drove a short distance from the mine and then decided to return. On the return journey, they came to the intersection where they were to turn left, if they were to re-enter the mine. Mr Speake was driving. In the course of turning the vehicle to the left, Mr Speake lost control and the Toyota Landcruiser rolled over. Fortunately, neither man was injured.
A police officer who attended the next morning said that he saw tyre marks on the road suggesting that before Mr Speake came to the point where he was to turn left, he was driving the car from side to side of the road. The road was an unsealed gravel road and it had been raining. When the police officer attended the scene, the Toyota Landcruiser was still there, upside down.
Mr Speake told the police that he was driving normally and was not swerving from side to side. He said that when he came to the left turn, he did not allow himself sufficient time to brake. He turned, presumably too sharply, lost traction and the vehicle rolled over. He said the road surface was wet and slippery at the time.
In support of his appeal, Mr Speake relies on a letter from his employer, McMillan Contracting Pty Ltd. The letter makes it plain that Mr Speake is a valued employee. His employer carries out civil engineering works at various places in the State. For Mr Speake to maintain his employment, he must have a driver’s licence. If the suspension is to stand, he will not be able to continue in his employment with the company, but his prospects of re-employment at the end of the period of suspension are good. Mr McMillan, who is a director of the company, attended court and confirmed what was in the letter.
I return to the question of whether the offence should have been found to be trifling. It is unclear whether Mr Speake gave evidence before the Magistrate. The record suggests that he did not. Accordingly, having regard to the significance of the licence disqualification, I granted him leave to give evidence on the hearing of the appeal. I then heard evidence from Mr Speake about the circumstances of the driving in question.
I accept his evidence as truthful. In particular, I accept his evidence that he was driving at about 60 km to 70 km an hour, on a road on which the speed limit was 100 km an hour. I accept his evidence that in the dark and in the rain he almost missed the turn to the left he was to make and, in a momentary error of judgment, attempted to take the turn when it was unsafe to do so. I accept his evidence that the tyre marks that the police officer observed were not attributable to dangerous or foolish driving prior to the accident, but were attributable, by and large, to dodging potholes and puddles on the road.
Accordingly, I am prepared to find that the accident was due to a momentary error, in fact, an error made in a split second, and that it was not due to driving in a manner that Mr Speake knew was dangerous. In particular, I am prepared to accept that he was not driving in a dangerous manner in the lead up to the moment when he had to decide, instantaneously, whether to attempt to take the left turn or not.
Having regard to those findings, I return to the question of whether the offence should have been found to be trifling. I have had regard to the decision in Dunsmore v Alexandrides (1988) 141 LSJS 454 and to the decision of Mitchell J in Mancini v Vallelonga (1981) 28 SASR 236. I have also had regard to my own decision in Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23.
I am prepared to accept that Mr Speake was not doing anything dangerous prior to the moment when he lost control and in particular, that he was not swerving from side to side of the road before he lost control, other than to avoid puddles and potholes.
The fact remains that he approached the intersection at a speed that was too high to permit a safe turn to the left. While the lack of care and inattention may have been brief, that will be a common aspect of driving offences, and so the fact that the incident was due to inattention or lack of care is not decisive. It will usually be the case in driving offences, or at least often be the case, that the inattention is momentary.
I also accept that only rarely could a case of an offence against this section be described as trifling. The purpose of the section is to deter drivers from failing to exercise proper care. However, it is relevant, as I have already emphasised, that the dangerous driving can be said to be the momentary inattention, or the decision to make a left turn at a moment and in circumstances in which it was not safe to do so.
I also have to bear in mind that what Mr Speake did exposed himself and his passenger to the risk of injury. It was purely good fortune that neither of them was injured. I do not consider that the absence of injury of itself enables me to describe the offence as trifling, but the fact that no-one was injured makes it somewhat easier than it otherwise would be to describe the offence as trifling. I have to have regard to the fact that the driving in question did give rise to a real risk of injury.
I also have to bear in mind that it cannot be said that the offence was committed under circumstances where Mr Speake was under some pressure or urgency causing him to take less than usual precautions. This was a casual drive with a friend. Moreover, as the road was wet and slippery, this was all the more reason to take additional precautions.
So, as I have already said, the appeal turns on the significance of me accepting that the accident was due to momentary inattention on Mr Speake’s part, and on the significance of me accepting that in the lead up to the accident, there was nothing about his driving that could fairly be criticised.
Having reflected on the circumstances, I regard this as an unusual case and I am satisfied that the offence can be considered trifling. I base my decision on the fact that Mr Speake’s speed was moderate in the circumstances, the fact that the intersection was not illuminated, and on my finding that he was driving in a proper and safe manner until the very moment occurred when he made the wrong decision and attempted to take a left turn that he should not have attempted to take.
However, I must nevertheless impose a licence suspension. Parliament has made it clear that breaches of s 46 are to be punished in this way. Even if satisfied, as I am, that the offence can be described as trifling, there is a minimum period of not less than one month’s suspension.
Accordingly, I allow the appeal and I set aside the sentence imposed by the Magistrates Court.
I now re-sentence Mr Speake. I record a conviction and I impose a fine of $500 being the amount fixed by the Magistrate, which I understand Mr Speake has already paid. I impose court fees of $131, victim of crime levy of $70, and prosecution costs of $16: a total of $717 which I again emphasise is the same amount as was fixed by the Magistrate and has already been paid.
I order that Mr Speake be disqualified from holding or obtaining a driver’s licence for a period of five months, commencing on 19 August 2008, the day on which the licence suspension imposed by the Magistrate commenced.