Sprigg v Police - [2011] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPRIGG v POLICE
[2011] SASC 10
Judgment of The Honourable Justice Anderson
17 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS
Appeal from decision of a magistrate - appellant convicted of driving without due care - aggravating circumstance being death of another driver - the magistrate sentenced the appellant to 4 months imprisonment which was wholly suspended - appeal to Supreme Court against conviction and sentence - appeal out of time - circumstances of delay being time taken for appellant to be granted legal aid - extension of time granted - whether the magistrate erred in failing to exclude record of interview - whether the magistrate erred in determining the appellant failed to drive with due care - whether the sentence was manifestly excessive.
Held: Record of interview properly submitted - appeal against conviction dismissed - appeal against sentence allowed - six weeks imprisonment wholly suspended substituted.
Road Traffic Act 1961 s 45; Australian Road Rules r 73(2)(a), referred to.
Police v Melisi (2010) 106 SASR 105; Dunsmore v Dawson (1981) 94 LSJS 1; Crispin v Rhodes (1986) 40 SASR 202; Ladlow v Hayes (1983) A Crim R 377; Stoeckel v Harpas (1971) 1 SASR 172, considered.

SPRIGG v POLICE
[2011] SASC 10
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal out of time by the appellant against conviction and sentence. The appellant seeks an extension of time within which to appeal. The extension is not opposed by the respondent.
Following a two-car accident on 23 August 2008, the appellant was charged with one count of “aggravated driving without due care” contrary to s 45 of the Road Traffic Act 1961 (“RTA”) and one count of “fail to give way to vehicle travelling on continuing road” contrary to r 73(2)(a) of the Australian Road Rules. The aggravating circumstance of count 1 was the death of the other driver, Mr Williams. The appellant pleaded not guilty to both counts 1 and 2.
After a trial in the Magistrates Court, the appellant was convicted of count 1. The magistrate imposed a sentence of 4 months imprisonment, wholly suspended upon the appellant entering into a bond to be of good behaviour for a term of 2 years, and disqualified the appellant’s drivers licence for the statutory minimum of 6 months.
Section 45 of the RTA provides:
45—Careless driving
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
…
The issues in this appeal are whether the magistrate correctly found that the prosecution had proved beyond reasonable doubt that the appellant drove without due care. A further issue is whether a record of interview with the appellant was wrongly admitted. The appellant also appeals against the severity of the sentence imposed.
At the hearing of the appeal, the appellant made an application to adduce new evidence. This was not opposed. I allowed the appellant to tender a medical report from Professor Jason White, an expert on pharmacology. By consent a further ground of appeal was added. This is ground 11 in the grounds of appeal set out below.
Grounds of appeal
The appellant now relies on the following grounds of appeal:
1.The magistrate erred in failing to exclude the record of interview.
2.The magistrate erred in law in determining that there was a case to answer.
3.The magistrate erred in determining that “the factor” to be decided was “whether the contact between the two vehicles was due to Mr Sprigg having driven without due care”.
4.The magistrate failed to determine the second issue that if the appellant was driving without due care, was the driving the cause of the accident.
5.The magistrate erred in finding the charges proved beyond all reasonable doubt.
6.The magistrate erred in that he failed to consider all rational hypotheses consistent with innocence.
7.The magistrate erred in determining that Mr Williams’ vehicle was “there to be seen”.
8.The magistrate erred in that he reasoned in an impermissible manner, and on an erroneous basis.
9.The magistrate reversed the onus of proof.
10.The sentence was, in all the circumstances, manifestly excessive.
11.That having regard to the contents of the report of Professor Jason M. White dated 16 September 2009 it cannot be excluded as a reasonable possibility that the driver of the second vehicle, namely, Mr Darryl Williams, now deceased, was driving in such an erratic manner or in a manner contrary to law so as to have caused or contributed in a material way to the collision between that vehicle with the appellant’s vehicle.
The accident
The following facts are not disputed.
On Saturday 23 August 2008 at around 10.20 am at Hindmarsh Valley, a motor vehicle collision occurred at the T-intersection of Victor Harbor Road and Waterport Road (“the intersection”) between the appellant’s car and the car of a Mr Williams. For practical purposes Waterport Road runs in an east-west direction and the Victor Harbor Road in a north-south direction.
Mr Williams was travelling south along Victor Harbor Road toward Victor Harbor in his Mazda sedan motor vehicle. The appellant and his fiancée at the time, Jessica, were in a Holden Commodore sedan motor vehicle intending to turn left from Waterport Road onto Victor Harbor Road. The two cars collided as the appellant turned left, with Mr Williams’ car sliding out of control into a tree some 45 metres south of the intersection. Tragically, Mr Williams lost his life in the accident as a result of the injuries he sustained upon collision with the tree. The appellant did not see the approach of Mr Williams’ vehicle.
Victor Harbor Road was a level bitumen road in good condition, with a sign-posted speed limit of 100 kilometres per hour on the day of the collision. The road had a single lane for cars travelling north and a single lane for cars travelling south towards Victor Harbor. At the intersection, the lanes were divided by a wide painted median strip to the north and a wide solid painted white line to the south.
Waterport Road formed a T-intersection with Victor Harbor Road, extending to the east. It was also a bitumen road in good condition with single lanes for east and west bound traffic. The lanes were divided by a narrow painted median strip. At the intersection, Waterport Road was straight and level, with a constructed left turn lane into Victor Harbor Road.
There were large mature trees growing along the eastern edge of Victor Harbor Road, which partially obstructed the view by drivers travelling west along Waterport Road towards the intersection and looking to the north. However, upon reaching the intersection itself, the visibility left and right down Victor Harbor Road was clear. There was a view to the right looking north along Victor Harbor Road for at least 400 metres, although there was a slight curve in the road away to the west.
Prior to the collision, Mr Williams’ vehicle appeared to have been in reasonable condition and the appellant’s vehicle appeared to have been in good condition.
I was taken on a view of the scene. It is a somewhat tricky junction. Vehicles trying to turn right from Waterport Road onto Victor Harbor Road need to go up to the white line marking the eastern edge of the Victor Harbor Road. This means that anyone turning left from Waterport Road at the same time will have an obstructed view of the approach of vehicles from the north if there is a vehicle also waiting to turn right.
The appellant’s evidence
At the trial in the Magistrates Court, the appellant gave evidence that at the time of the accident the weather was dark and heavily overcast, with some drivers, including the appellant, turning on their headlights. At the time of the accident he did not have music playing in the car and was not talking to Jessica but concentrating on the road. It had been drizzling prior to the accident. The appellant told the court that he had travelled that road often, and that the intersection was a busy one. He said that on the morning of the accident he was not in a hurry. In fact, he and Jessica were early to pick up her brother from Hayborough so took Waterport Road as a detour instead of taking the main road.
The appellant said that as he was driving up to the intersection he saw a white car at the intersection waiting to turn right onto Victor Harbor Road, and a few cars turning left onto Victor Harbor Road. He said that upon arriving at the intersection the cars turning left had completed their turns so he was at the front of the line, with the white car still to his right. He stopped and looked to his right, and saw cars with headlights on approaching travelling south on Victor Harbor Road. He gave way to those vehicles. The appellant said there was another car further north in the distance on Victor Harbor Road with its headlights on, approximately 100m away. The appellant agreed that he could not see directly behind the white car but that he did not need to as he had a full view of the cars approaching on Victor Harbor Road. The appellant said he allowed more cars to go past, and looked again. Having seen another car in the distance with its headlights on and seeing no cars in-between, the appellant decided there was a sufficient gap and turned onto Victor Harbor Road, at which point the collision occurred.
The appellant told the court that he did not see Mr Williams’ car and did not know where that car was before the collision. He said that as he turned onto Victor Harbour Road the white car also pulled out onto Victor Harbor Road at about the same time, turning right. The appellant stated that he was paying full attention, kept a proper lookout, and was not distracted at the time.
Mrs Sprigg’s evidence at trial supported that of the appellant. She too looked to the right to check the approaching traffic and saw that the road appeared to be clear, with some cars in the distance.
The magistrate’s findings
The magistrate made no adverse findings as to the credit of the appellant or Mrs Sprigg. He accepted that the appellant looked to the right for oncoming traffic before turning onto Victor Harbor Road. He accepted that the appellant did not see Mr Williams’ vehicle before making the turn.
However, he found that the appellant must have been mistaken as to the timing of the white car making its right turn. In his reasons, the magistrate explained that in his view, it was an unreasonable possibility that if the white car turned at the same time as the appellant’s Commodore, that Mr Williams could have avoided hitting the white car but hit the appellant’s, based on the direction in which he was travelling.
Further, the magistrate found that Mr Williams’ vehicle must have been travelling at speed when the collision occurred, based on its path after the collision and the impact damage caused by the tree. He rejected the theory posed by Mr Deegan, counsel for the appellant, that Mr Williams may have driven into the slip lane to turn onto Waterport Road but changed his mind and drove back into the left lane of Victor Harbor Road.
The magistrate stated that the issue was whether there was any reasonable explanation for the appellant’s failure to see Mr Williams’ vehicle, other than that he did not keep a proper lookout. The principles relating to s 45 cases as stated by White J in Police v Melisi (2010) 106 SASR 105 at [17] and [25] were applied. In that case, White J applied Dunsmore v Dawson (1981) 94 LSJS 1 at 4, Crispin v Rhodes (1986) 40 SASR 202 at 204, Ladlow v Hayes (1983) A Crim R 377 at 390, and Stoeckel v Harpas (1971) 1 SASR 172.
The magistrate found, after consideration of all the evidence, that there was no reasonable explanation for the failure of the appellant to see Mr Williams approaching. The magistrate concluded that the appellant’s lookout was inadequate.
The magistrate did not discuss the evidence of Brevet Sergeant Bakker in his reasons. He was the investigating officer. He interviewed the appellant who made some admissions. The appellant sought to exclude the interview.
The magistrate found count 1 proved beyond reasonable doubt. The magistrate indicated that count 2 was subsumed by count 1, due to the findings he had made. Count 2 was then adjourned for three months with an indication from the magistrate that count 2 would be dismissed at that time unless there was a successful appeal against conviction.
Extension of time
The appellant seeks an extension of time within which to appeal, the notice of appeal having been filed four days late. It was submitted on behalf of the appellant that the late filing was due to a delay in funding being granted, as well as the appellant’s solicitors being involved in other matters on and after the due date.
Funding for the appeal was sought from the Legal Services Commission in a timely fashion on the day of conviction. It was submitted that partial funding was granted on Friday 12 November 2010, with the due date being Monday 15 November 2010. It was submitted that the appellant’s solicitors were involved in a trial and mediation on the 15^th and 16^th, and a trial on the 17^th and 18^th.
I note that the letter from the Legal Services Commission which is FDN 2 in this matter states that funding was granted on 11 November 2010. However it may be that the solicitors were not notified until the 12^th.
It was further submitted that no prejudice or undue prejudice would be suffered by the respondent in the event that an extension of time is granted. The application for an extension of time was not opposed and I therefore allow the extension.
The record of interview
Before dealing with the grounds relating to driving without due care, I will deal with the record of interview.
As I have set out earlier, it is a ground of appeal that the magistrate erred in failing to exclude the record of interview (“ROI”) conducted by Brevet Sergeant Bakker on 10 October 2008.
A video and CD were tendered as evidence in the trial by the police prosecutor, Sergeant Dollard. An objection was made as to its admissibility. Mr Deegan argued that it would be unfair to admit the ROI on the basis that the appellant was not aware at the time of the seriousness of the charges and had not sought legal advice.
The appellant was told at the scene by police that the incident would only result in a traffic offence. He was then mistakenly told by the interviewing officer at the outset that the potential penalty was a loss of driver’s licence or a fine. He was however told later during the interview that he could be charged with a serious offence such as culpable driving and advised that he had the right not to answer any questions. Further, during a voir dire examination the appellant stated that once in the interview room, he felt as though he was being treated like a criminal and that it was clear that the situation was serious.
The magistrate took this into account and ruled that the ROI was admissible and it was entered into evidence as exhibit P12.
In the ROI the appellant is recorded as saying:
And that’s when I pulled up next to the car next to me, he was travelling right. It was a white car and I stopped, I looked to the right, there were two cars coming that I had seen. I seen two cars and let them go past and when they did it I could see a gap that looks reasonable to pull out on to turn left, like, a 100 metres or more from the next car and as I pulled out, I pulled out and the other guy pulled out too and I pulled into the, the slip lane, and I went to turn off, enter the lane and that’s when this car’s rushed past me and freaked me out, yeah, I clipped the back of, side of his car, he’s clipped, the front of mine and he’s lost control and he’s spun around …
In response to a question from Brevet Sergeant Bakker regarding visibility, the appellant answered:
It wasn’t that good. I don’t recall it being a, a very good day visibility wise but then I can’t continue to let me make that as an excuse for it, obviously I didn’t look hard enough.
Brevet Sergeant Bakker later queried the appellant as to how he could have seen two cars ahead of Mr Williams’ car, but not Mr Williams’ car. The appellant said it may have been because Mr Williams’ car was a hard colour to see, or because his car’s headlights were not turned on. He said that he noticed these two things after the accident when he went to Mr Williams’ car to offer assistance. It is not in dispute that Mr Williams did not have his headlights on at the time of the accident.
It is my view that the record of interview was correctly admitted by the magistrate. Although he was initially given the wrong information, the appellant knew that the matter was serious and he was given the opportunity to decline to answer the officer’s questions. It was the appellant’s choice whether or not to seek legal advice. It is clear from his answers at the interview that he co-operated as much as he could with the police and tried to be forthcoming.
Having said that, it is clear from a reading of the reasons that the ROI was not given much weight, if any, by the magistrate. An offence under s 45 must be judged objectively and for that reason the appellant’s statement that he “didn’t look hard enough” is merely stating the obvious. The recall by the appellant of his actions and observations on the day did not change at trial. The taking into evidence of the ROI showed consistency of the appellant’s story.
Arguments on appeal
Mr Deegan for the appellant argued that the charge of driving without due care was not made out because there was no proof that the driving, said to be without due care, occurred on Waterport Road as alleged. He argued that the vehicle driven by the appellant at the time of the collision was on the main Victor Harbor Road and not Waterport Road.
The magistrate was shown photographs taken of the vehicles after the accident. Those photographs show damage on the appellant’s vehicle to the front driver’s side, above and to the front of the front wheel, whereas the damage on the other vehicle caused by the impact with the appellant’s vehicle was on the rear door on the passenger side and above the rear wheel. Those photographs would tend to indicate that the blow received by the appellant’s vehicle was a glancing blow. They also indicate that the accident occurred when Mr Williams’ vehicle had all but passed in front of the appellant’s vehicle. Mr Deegan submitted that this indicated that his client had not driven without due care.

Mr Deegan further submitted that his client had driven properly at all times and had taken all proper precautions. He submitted that he had looked carefully to his right for oncoming traffic on more than one occasion. Mr Deegan further submitted that his client had given way and that the magistrate was wrong in saying that the offence of failure to give way was subsumed in the offence of driving without due care. His point was that the appellant had given way to all vehicles within his field of vision.
Mr Deegan advanced to the magistrate and to this Court on appeal a scenario which he submitted was consistent with innocence. The scenario was that Mr Williams may have initially intended to turn left onto Waterport Road, had moved into the slip lane for left-turning vehicles and was thereby hidden from Mr Sprigg by the white vehicle alongside of Mr Sprigg’s vehicle waiting to turn right.
Mr Deegan submitted that Mr Williams then suddenly decided to continue along the Victor Harbor Road at the time when Mr Sprigg was turning left onto the Victor Harbor Road. He submitted that Mr Williams was in fact the author of his own misfortune. Mr Deegan sought support for this theory from a statement obtained from the widow of Mr Williams. She said:
Darryl left our home address at around 10.00 am on Saturday 23 August 2008, and travelled south on Victor Harbor Road to go to work. He would normally have turned left on Waterport Road to go to work or he would continue towards Victor Harbor to get an iced coffee to take his medication.
Of course Mr Deegan’s argument is based solely on speculation. He submitted that, even so, it is an hypothesis consistent with innocence and therefore created a reasonable doubt.
Mr Deegan complained that the magistrate did not deal with this contention by answering the three questions which the magistrate raised in his reasons at paragraph [27]. In my view the magistrate does answer those questions by what he said following that paragraph. He said at [28]:
[28]There is no doubt that Mr Williams’ vehicle was travelling at speed at the moment it collided with Mr Sprigg’s vehicle – that is established by its path following the collision, and the impact damage caused by the tree. If the vehicle alongside Mr Sprigg had pulled out at the same time as Mr Sprigg, it is, in my view, unreasonable to accept as a possibility that the vehicle driven by Mr Williams could have avoided that vehicle and then collided with Mr Sprigg’s vehicle. I find that Mr Sprigg is mistaken as to when the vehicle alongside of him pulled out.
The magistrate is rejecting the hypothesis because he finds it was impossible for the white vehicle to have entered Victor Harbor Road when the appellant said it did. Therefore there was a time when he had a clear view to his right and should have seen Mr Williams’ vehicle even if it had moved from the slip lane.
It seems to me that the magistrate has properly dealt with the hypothetical situation posed by Mr Deegan and concluded that there is no reasonable explanation for Mr Sprigg’s failure to see the oncoming vehicle. He concluded therefore that the appellant’s look-out was inadequate. That led him to the finding that the appellant drove without due care.
Mr Longson for the respondent argued that s 45 is an offence of very low threshold. It poses an objective test and although the appellant honestly believed that he could drive safely onto Victor Harbor Road, the fact is that he could not because at that stage Mr Williams’ vehicle was approaching him. It was there to be seen.
In answer to Mr Deegan’s submission that the failure to drive with due care did not occur on Waterport Road, Mr Longson correctly submitted in my view that the failure to keep a proper look out occurred at the time when the appellant was in fact stopped on Waterport Road. I agree with that submission. That was the time when the vehicle was there to be seen and in my view the offence of driving without due care related to the failure by the appellant, while stationary and looking to the right to actually see the oncoming vehicle.
There are a number of reasons why the appellant may not have seen the oncoming vehicle. It was a dark day and it had been drizzling. There was a lot of vegetation which provided a dark background in the area from where Mr Williams’ vehicle was coming. Mr Williams’ vehicle did not have its headlights operating at the time. Whereas the appellant was able to see two other vehicles with their headlights operating, it is possible that he missed Mr Williams’ vehicle for a combination of all those reasons. I accept that it may have been very difficult for the appellant to see Mr Williams’ vehicle but the fact is it was there to be seen and the fact is that on such a day it was incumbent upon the driver of the vehicle to ensure that it was safe to move onto the roadway. Mr Longson put it that it was a double-edged sword in relation to the traffic conditions because the appellant had seen fit to turn his own headlights on which should have prompted him to take extra caution in observing whether other vehicles may have been approaching without lights.
In summary Mr Longson submitted that the low threshold test had been met. The appellant simply failed to see the oncoming vehicle. He submitted that the magistrate correctly applied the objective test and found that the offence had been proved.
Driving without due care or attention
The elements of the charge are simply that the appellant drove his vehicle without due care or attention or reasonable consideration for other road users. As Mr Longson put it, it is a low threshold offence. Due care is to be judged objectively. I have set out the relevant evidence earlier, ie the weather conditions on that morning, visibility, the condition of the road and structure of the road, how busy the intersection was, the appellant’s familiarity with the intersection, the nearby vegetation, the type of car Mr Williams was driving and the lookout of the appellant.
The magistrate did not discuss the evidence of the prosecution witness Brevet Sergeant Bakker in his reasons. I have considered the evidence of Brevet Sergeant Bakker from the transcript and set out some of it earlier in these reasons.
Brevet Sergeant Bakker said that he had not attended accidents at the Victor Harbor Road and Waterport Road intersection before, but that there had been a few crashes at the next intersection of Victor Harbor Road and Welch Road, commonly known as the ring route. He admitted putting in a recommendation to reduce the Victor Harbor Road speed limit, at the intersection, from 100 kilometres per hour to 80 kilometres per hour. He believed that the limit was reduced before his report was received. He stated that he made the recommendation due to crashes in the area and that subsequent to 23 August 2008 there had been another serious accident at the Welch Road or Ring Road intersection.
Brevet Sergeant Bakker admitted that the toxicology report relating to Mr Williams stated that Mr Williams had a high level of a drug sertraline, prescribed for depression, in his system on 23 August 2008. He said he made enquiries of Mr Williams’ wife and doctor and that both said the drug did not affect Mr Williams’ ability to drive.
Brevet Sergeant Bakker said that the evidence at the scene suggested Mr Williams was driving straight down Victor Harbor Road when the appellant drove into the side of his car. He said this was based on his re-creation of the collision, from the damage to the front right quarter of the appellant’s car and damage to the rear left door of Mr Williams’ car.
In relation to the assertion that Mr Williams’ car may have been difficult to see, Brevet Sergeant Bakker said Mr Williams’ car was registered as “silver”, but he would describe it as silver/grey in colour, or silver/green. He agreed that 23 August 2008 was a dull day, and that it may have been drizzling prior to the collision but there was no evidence that cars had their windscreen wipers on. He did not agree that Mr Williams’ car travelling against a green background of shrubs could have been camouflaged.
I take that evidence into account, but in my view it does not add much to what is already apparent from the objective facts.
The new ground of appeal is set out earlier at [7]. In my view it is pure speculation. There is insufficient information concerning the deceased and his use of the drug to enable any conclusions to be drawn. It is not possible to draw the conclusion that Mr Deegan invited, namely, that the taking of the drug had an effect on Mr Williams’ driving. I reject this ground of appeal.
Conclusion
I have said that I am unable to accept the hypotheses put by Mr Deegan which he submits is consistent with the appellant’s innocence. Objectively speaking, the level of due care expected of a careful driver at a busy intersection dictates that Mr Williams’ car should have been seen, even given the evidence of the weather and road conditions at that time of day. I consider this to be the objective view, regardless of it having been a dark morning on 23 August 2008 and evidence put before me that Mr Williams’ car headlights were off. This is not to say that the appellant did not look to his right, or keep a lookout. I accept that he checked his right as he said. But had he exercised due care and attention, he should have seen Mr Williams’ car. I agree with the magistrate that it was there to be seen.
I have dealt with the grounds of appeal in a general way because they all come back to this point. Is there any reasonable explanation for the appellant not seeing the vehicle? I agree with the magistrate that there is no reasonable explanation.
This collision was a tragic one, resulting in the death of Mr Williams. It must serve as a reminder to us all that actions on the road which we take every day, some many times a day, cannot be taken for granted or performed without the due care with which we may have exercised when we first started driving.
I have considerable sympathy for the appellant. The accident and the death of Mr Williams have affected him. He is obviously a good and cautious driver. He did everything right at the junction but simply failed to see Mr Williams’ vehicle. It may have been from a combination of factors, including the dark background, the weather and the fact that Mr Williams’ headlights were not operating. However, he failed to see the oncoming vehicle and therefore, in my view, he drove without due care.
I therefore dismiss the appeal with respect to conviction. I agree with the magistrate that, in the circumstances of this accident, count 2 was subsumed in count 1.
In relation to the sentence imposed upon the appellant, the minimum licence disqualification was imposed. Because of the nature of the junction and the road conditions at the time, together with the fact that Mr Williams drove without headlights, the offence is at the lower end of the scale of seriousness.
The magistrate sentenced the appellant to 4 months imprisonment but suspended the sentence. The appellant is subject to a bond to be of good behaviour for 2 years.
I consider 4 months imprisonment is not representative of an offence at the lower end of seriousness. In all the circumstances I consider that the period of imprisonment ordered should be reduced. I impose a sentence of 6 weeks imprisonment, suspend it, and leave the bond as it is.
The orders I make are as follows:
1. Appeal against conviction dismissed.
2. Appeal against sentence allowed.
3.A sentence of 6 weeks imprisonment is substituted for the 4 months ordered by the magistrate.
4.The sentence is suspended.
5.The conditions of the bond remain the same.