Strachan v Police No. Scgrg-00-741

[2000] SASC 307

STRACHAN  v  POLICE
[2000] SASC 307

Magistrates Appeal (Ex tempore)

1................ DUGGAN J....... The appellant pleaded guilty in the Christies Beach Magistrates Court to a charge of driving in a manner dangerous to the public. He was not represented before the learned magistrate who convicted the appellant and fined him $400.  The appellant was also disqualified from holding a driver’s licence for a period of 18 months.  The appellant asserts that the period of licence disqualification was manifestly excessive.  The other grounds of appeal are also directed towards the complaint that the licence disqualification was excessive.

1. Further, it is alleged that the magistrate erred by giving too much weight to the seriousness of the offence and the need for general and personal deterrents and not attributing sufficient weight to mitigating circumstances.

2. The offence arose out of an incident which took place at Aberfoyle Park, at 3.15 am on 21 April 2000.  The police prosecutor told the court that the appellant’s vehicle was observed by two police officers sitting in a police car in Hamilton Crescent, Aberfoyle Park.  The vehicle was being driven north along Sunnymede Drive in the direction of the police officers’ vehicle at what was described in court as a very fast rate of speed.  According to the submissions made by the prosecutor, the appellant’s vehicle slowed and turned left into Hamilton Crescent without indicating.  The police officers gestured to the appellant to pull over, but he sped off at a fast rate of speed in a north-westerly direction along Hamilton Crescent.  The appellant was alone in the vehicle. According to the allegations the police chased the vehicle through side streets before losing sight of it.  It was alleged that the appellant’s vehicle maintained a high speed and there was no indication on any occasion that it was turning.  It was alleged that the appellant continually used the entire width of the streets along which he was driving.  Vehicles were parked in the side streets and it was alleged that the likelihood of other road and foot traffic in the vicinity was high.

3. According to the police prosecutor, the police officers went to the appellant’s home address and spoke to him there.  When questioned he said that he had been drinking a six pack of beer earlier and that he was upset over his uncle’s funeral.  He said he panicked because he had failed to indicate and he had not placed the registration label onto his vehicle.  He stated that he parked the car in Abbaron Court, Aberfoyle Park and stayed in it for about three hours before walking home.  He said he realised that it was stupid to travel at high speeds in the area.

4. Prior to this incident the appellant had no previous convictions.  When asked to explain his actions he said that he had some recent financial difficulties as well as a death in the family and other personal problems.  In the course of his sentencing remarks, the learned magistrate stated:

   “You apparently abandoned your vehicle and you walked to your home.  You suggest that you did that because the police officers were still in the area. I reject that.  The police officers had left the area and they were only called back as a result of a telephone call from your home at about 6.30 am.  You had, in fact, been drinking prior to being observed driving.  You had been drinking because you were upset as a result of some family matters.  You suggest that is of no consequence at all.  Again, I reject that.

   It seems patently obvious to me that you were concerned about being apprehended for drinking and driving.  That is consistent with you avoiding the police officers, abandoning your car and walking to your home, arriving there some three hours after you had been observed by the police.

   While you have got no prior convictions, I think that the circumstances of this offence are sufficiently serious to impose a very severe penalty upon you, to bring home to you particularly, and to others in the community, that if they are going to drive in this ridiculous and dangerous manner that there is a serious consequence for that.”

5. The learned magistrate appears to have placed a good deal of significance upon what he perceived to be the reason for the appellant’s driving.  In my view, it must be said that his Honour treated this as an aggravating factor.  The police prosecutor did not suggest in her affidavit, which was tendered before me, that she submitted to the learned magistrate that the appellant drove in the manner in which he did to avoid the police because he had been drinking.  The magistrate appears to have reached this conclusion by reference to the appellant’s comment that he had consumed a six pack earlier, and the fact that he remained in his car for a period of some hours before returning home.

6. There was no information before the magistrate as to precisely when the drinking had taken place.  The fact that the appellant remained in his car for some time before returning home is consistent with wishing to avoid the police because of drinking, but I would not regard the material before the court as conclusive on that issue.

7. There was some discussion between the learned magistrate and the appellant about the reason for the appellant wishing to evade the police.  As is obvious from what I have read the magistrate did not accept the appellant’s explanation. However, his Honour did not advise the appellant that this was a factor which could be taken into account against the appellant in that he could, if he wished, give evidence in relation to the matter.  As a matter of fairness the appellant should have been given this opportunity.  As the motive of the appellant was in dispute the magistrate should not have taken it into account unless he was satisfied that it had been properly established.

8. In my view this consideration is sufficient to set aside the penalty imposed.  This leaves the sentence at large. I cannot agree with the submission of Mr Barnett that the offence is towards the lower end of the scale for offences of this type.  I must proceed on the basis that this was a police chase at speeds high enough for the appellant to evade the police.  As Ms Schutz has pointed out, although it was in the early hours of the morning the chase took place through a densely populated area and the appellant appears to have driven on the wrong side of the road at various times.

9. If the appellant’s plea of guilty is taken into account along with the fact that he made admissions and that he had no previous convictions, it is my view that the penalty should be higher than the minimum period of disqualification but less than that imposed by the learned magistrate.  In my view the appropriate period of disqualification should be 12 months.

10. For these reasons the appeal will be allowed.  The period of licence disqualification imposed by the learned magistrate will be set aside. In lieu thereof the appellant will be disqualified from driving for a period of 12 months.  In all other respects the magistrate’s orders will be confirmed.

11. I direct that the period of disqualification commence from the time directed by his Honour namely 10 July 2000 at 11.37 am.