Stoeckel v Police No. Scciv-02-206

[2002] SASC 215

STOECKEL v POLICE

[2002] SASC 215

Magistrates Appeal:  Criminal

1. MULLIGHAN J The appellant pleaded guilty to having, on 4 October 2001, at Glenburnie in the South East, driven a motor vehicle on the Princes Highway without due care, contrary to s45 of the Road Traffic Act 1961. She appeared before a Magistrate in the Magistrates Court at Mount Gambier on 22 January 2002 and was convicted and fined $200 and ordered to pay costs and levies amounting to a further $128.50. She was also disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 28 days to commence on 1 February 2002. She appeals against that sentence.

2. The appellant is aged 23 years and is a veterinary surgeon. She has been in practice at Mount Gambier, as from February 2001 when she graduated. She was not represented by a lawyer before the Magistrate. When the case was called on, she entered a plea of not guilty. She indicated that she proposed to plead not guilty and was referred to the duty solicitor. After taking advice from that solicitor she entered a plea of guilty and made some submissions on her own behalf.

3. Prior to pleading guilty and obtaining advice from the duty solicitor, she was informed by the Magistrate of the options available to him by way of penalty, which included disqualification from holding or obtaining a licence to drive a motor vehicle.

4. The Magistrate did not inform the appellant that he was minded to impose the order for disqualification of licence, although she was aware, from what he had said earlier, that that was an available option.

5. The grounds of the appeal are that the licence disqualification of 28 days is, in the circumstances, manifestly excessive, that the learned Magistrate erred in failing to warn her of the possibility of an order for disqualification and that he failed to take into account sufficiently, or at all, her need to hold a licence to carry out her occupation as a veterinary surgeon. I first deal with the second ground of appeal.

6. The learned Magistrate was aware that the appellant was a veterinary surgeon practising in the country. Although it appears that he may not have been informed of the extent of her need to drive a motor vehicle in the course of her work, he could hardly have failed to appreciate that the ability to drive a motor vehicle was important to her in her work. I appreciate that the Magistrate probably dealt with the appellant in the course of a busy list on a general day in the Magistrates Court at Mount Gambier. Nonetheless, I think he should have informed her that he was minded to disqualify her from driving and sought information from her which would be relevant to whether that order should be made. She is a young woman and being unrepresented it may be accepted that she did not fully appreciate the need to make submissions as to that matter.

7. I am informed by her counsel, Mr Ryan, who appeared on this appeal, that the advice that she obtained from the duty solicitor related not so much to penalty but to whether she should maintain a plea of not guilty.

8. In my view the Magistrate was in error in not informing her of what he proposed to do and seeking appropriate information from her.

9. I now turn to the other grounds of appeal which may be heard together. The Magistrate was informed that the circumstances of the offence were that at about 2.20 pm on Thursday, 4 October 2002, the police attended at the scene of a motor vehicle accident on the Princes Highway at Glenburnie. They found the appellant’s vehicle resting on its roof next to the carriageway. There were skid marks on the roadway prior to where the vehicle had left the surface of the road. When interviewed the appellant said that she was driving the vehicle north along the highway at about 110 kilometres per hour, which is at the speed limit, when the vehicle strayed off the road to her left on to the verge. She braked and overcorrected the vehicle with the consequence that it overturned. She did not suffer any injury and there was no other vehicle involved or nearby when the accident occurred. The appellant has no prior convictions for any offence. She needs to be able to drive her motor vehicle in the course of her work. She is on call each third week which may require her to drive to outlying farming properties out of hours and, at other times, her practice involves work at farming properties away from Mount Gambier. So it follows that an inability to drive a motor vehicle is a very serious penalty for her.

10. It seems likely that the real cause of the accident was brief inattention on her part and consequently she is guilty of the offence of driving without due care, but I accept the submission that her manner of driving and the reason for the accident places her offending at the lower, rather than the upper, end of the scale of seriousness for this offence.

11. It is not common for orders for disqualification of licence to be imposed for the offence of driving without due care. Although, in appropriate circumstances, such orders are made, I think the sentence was manifestly excessive and if the learned Magistrate had been aware of the consequences to the appellant of her not being able to drive a motor vehicle, it is likely that he would not have imposed the licence disqualification. As I said, I think he erred in failing to inform her that he was minded to disqualify her from driving, and he has also erred in the penalty which he has imposed and in not having regard to her need to have a licence.

12. In consequence, the sentence should be considered afresh. I see no reason to interfere with the fine, or with the costs and levies which were imposed, but I need to consider whether it is appropriate to impose licence disqualification at all and, if so, for such an extensive period as 28 days.

13. Given her age, occupation, need for a licence and antecedents, I do not think the disqualification of licence was justified and I allow the appeal and I quash that order. Otherwise, the sentence imposed by the learned Magistrate is confirmed.