Swinkels v Police No. Scciv-03-279

SWINKELS V POLICE
[2003] SASC 127

LANDER J. The appellant was charged with driving at a speed which was dangerous to the public, contrary to s46 of the Road Traffic Act 1961.
The brief circumstances of the offence were that at about 7.30 am on Saturday, 16 November 2002 the appellant was detected driving at a speed of 101 kilometres per hour in a 60 kilometre per hour zone along the main road between Kadina and Port Wakefield in Kulpara.
On 17 February 2003, the appellant appeared in the Magistrates Court at Kadina and pleaded guilty to the offence. He was convicted and ordered to pay a fine in the amount of $300. He was disqualified from holding or obtaining a driver’s licence for a period of six months commencing at 12.01 am on 18 February 2003.
The appellant, who was unrepresented before the Magistrate and on the appeal, now appeals against the order disqualifying him from holding or obtaining a driver’s licence for a period of six months, claiming that the period of disqualification imposed by the Magistrate was too severe or, in the circumstances, manifestly excessive.
The appellant is a builder/carpenter who conducts a maintenance business on the Yorke Peninsula. He has complained in a written submission, which he presented to me prior to the appeal, that the licence disqualification will result in him being unable to transport his tools of trade and, therefore, will prevent him working over the period of six months and thereby earning an income.
Section 46(1) of the Road Traffic Act provides that a person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Section 46(3)(a)(i) provides that a person convicted of a first offence must be disqualified from holding or obtaining a driver’s licence for a period being not less than six months.
Section 46(3)(b), however, provides that:
“The disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.”
Clearly enough, the minimum penalty prescribed by s46(3)(a)(i) of the Act cannot be reduced unless the person convicted of the offence against s46 gives evidence on oath, and by that evidence, satisfies the court that the offence to which he has either pleaded guilty or been found guilty was trifling.
A person cannot expect a reduction of the minimum disqualification provided for in s46(3)(a) of the Act by establishing that the imposition of the minimum penalty would cause that person hardship. The minimum disqualification can only be reduced if it is established by evidence that the offence is trifling. Therefore, the inquiry as to whether or not the minimum should be reduced must always centre about whether or not the offence or the circumstances giving rise to the offence were trifling.
Mr Emery, who appeared for the respondent on this appeal, submitted that the appellant had been informed by the learned Magistrate of the minimum penalty and, further, that it had been explained to the appellant that the appellant was entitled to make an application that the offence be considered trifling. He submitted that what amounts to a “trifling application” had been explained to the appellant in general terms.
In an affidavit sworn on 19 March, Mr Michael Newton, the police prosecutor who appeared before the Magistrate, deposed:
“(3)The Magistrate explained to the defendant that the minimum penalty for the offence was a fine of $300 and a licence disqualification of six months. He explained that the only alternative was to make a trifling application.
(4)His Honour then asked me to present the facts of the matter to the Court. Although I cannot now recall what I said word for word, I made submissions to the effect of: “Your Honour, at about 7.49 am on Saturday 16 November 2002, the defendant was detected driving at 101 km/hr in a 60 km/hr zone by a speed camera operating at Main Road, Kulpara.
(5)I indicated to the court that I would be opposing a trifling application.
(6)The Magistrate told the defendant that he did not consider the matter to be trifling and explained in general terms how a matter could be trifling. He explained to the defendant that he could plead guilty and receive the minimum penalty or the matter could be adjourned for the defendant to consider his options.
(7)The defendant stated that he wished the matter to be dealt with immediately.”
The appellant has submitted that he was wrongly advised as to how he could proceed in the Magistrates Court. In his written submissions to the court, he said that he was not ‘up with court procedures’.
On the evidence presented in Mr Newton’s affidavit, I am not satisfied that the explanation proffered by the Magistrate to the appellant allowed the appellant to correctly understand that he was required to at least give evidence on oath if he was to have any prospect of a disqualification period less than the minimum penalty prescribed by s46(3)(a) of the Act being imposed. There is nothing before me to positively suggest that the appellant was invited to give sworn evidence before the learned Magistrate.
The appellant’s failure to give evidence on oath before the learned Magistrate is not fatal to his appeal. I am empowered, pursuant to Rule 96C.06 and Rule 97.18(b) of the Supreme Court Rules 1987, and s 42(4) of the Magistrates Court Act 1991 to receive evidence on this appeal.
Mr Swinkels applied to give evidence in order to establish his submission that the offence was trifling. Initially, Mr Emery opposed that application but, during the course of argument, withdrew the respondent’s opposition. In those circumstances, I thought it was appropriate to allow Mr Swinkels to give evidence.
During the course of giving evidence, the appellant referred to the circumstances surrounding the offence, most of which he had previously canvassed in the written submission provided to me before the hearing. His evidence before me may be summarised:
The offence was committed very early on a Saturday morning, probably somewhere between 7.30 and 7.45 am
The offence took place on the road between Kadina and Port Wakefield in a small country town, Kulpara. Kulpara lies about 40 kilometres towards Port Wakefield from Kadina. The only other town between Kadina and Kulpara is Paskeville, which is about midway between those two towns. The speed limit outside the towns is 110 kilometres an hour.
Before one enters Kulpara, the speed limit reduces from 110 to 80 kilometres an hour. That speed limit applies to a stretch of road of about 500 metres. The speed limit then reduces from 80 to 60 and stays at that speed limit for a further 500 kilometres. As one leaves Kulpara, that is assuming one is travelling towards Port Wakefield, the speed limit then increases from 60 to 80, which applies for a further 500 metres until the speed limit resumes at 110 kilometres per hour.
In his evidence, Mr Swinkels said that on the right-hand side of the road there were five or six houses. Those houses, however, are separated from the main road along which traffic travelling to Port Wakefield travels, by a service road.
On the left-hand side he said there was a school which has been unused for two years, and a church. He said that as one travels through Kulpara, there is a road to the left which forms a junction with the main road and that is the Bute road.
During cross-examination by Mr Emery, Mr Emery put to the appellant a number of documents, one of which suggested that the Bute road was, in fact, not a junction but an intersection and that on the other side of the road, that is the right-hand side of the road, there is a road that travels to Maitland. I’m satisfied on the evidence there is an intersection within the township of Kulpara between the road upon which Mr Swinkels was travelling and the Bute/Maitland road. That intersection is shortly after the disused Kulpara school.
I am satisfied, on the cross-examination of Mr Swinkels, that a speed camera was located between the Kulpara Primary School and the Bute/Maitland road. It was so positioned as to detect the speed of vehicles as they travelled through that intersection.
Mr Swinkels said the road was in good condition. It was a clear day and the road was dry. He said there was no other traffic on the road at the time of the offence. He said he was driving his own vehicle which was in good roadworthy condition. I accept his evidence.
In cross-examination, Mr Emery put a number of documents to Mr Swinkels which he subsequently tendered. Included in those documents was a document entitled ‘Information sheet for speed dangerous’ which was apparently completed by an operator, Mr Harlick, on the day of the offence.
I am satisfied from that document that at the time the offence occurred, there were no pedestrians in the vicinity, the traffic was extremely light, and that only six vehicles had travelled along the road in either direction in 20 minutes, and that there were no other vehicles in the vicinity at the time the offence occurred. I am further satisfied, as Mr Swinkels deposed in his evidence, that the road surface was good and that the weather conditions were fine and sunny.
The Act does not define the expression ‘trifling’.
The appellant, by his plea, pleaded guilty to the offence of driving at a speed which was dangerous to the public. By that plea, he admitted that the speed at which he was causing the vehicle to travel, created a danger to the public. It is not clear, however, that there were any members of the public present or near where Mr Swinkels was driving at the time, but the plea having been made and not sought to be withdrawn, I must assume that each element of the offence has been made out.
By pleading guilty to driving a vehicle at a speed or in a manner dangerous to the public, he has admitted that the offence was of a serious nature. It is difficult to envisage circumstances where a person might drive a vehicle in a manner dangerous to the public but, at the same time, allow the offence to be characterised as trifling.
In Craig v Dunsmore (1986) 128 LSJS 239 at 294 Cox J said:
“... s 46 describes the kind of offence which is, by its very nature, a serious one. That an offence has been committed under s46 necessarily means that there was, by reason of the speed or the manner of driving, at least a potential danger to members of the public. How, then can there be a trifling offence under that section? Somehow one has to grapple with the unmistakable fact that Parliament in s 46 contemplates the possibility of a trifling offence in relation to speed or manner dangerous to the public. I suppose it would have to be what one might call a mere technical breach of the law. So far as speed is concerned, such a case might be one which was constituted by bare speed and nothing else a speed such as to bring a case within the section, but with no significant danger to anyone, and perhaps by reason of such factors as the short distance driven, or other unusual circumstances, properly to be described as trifling within the meaning of s 46.”
Clearly enough, where the circumstances of offence are typical of the offence, the circumstances cannot be considered trifling. However, Parliament has clearly foreseen that there will be circumstances where this serious driving offence would have been committed, but where the circumstances still may be described as trifling.
It is not possible, in my opinion, to define the circumstances which are typical of offences under s46 of the Act nor a set of circumstances which are atypical, except in both cases in the most general terms.
Driving at a speed which is dangerous to the public is typical of the proscribed act and it is to that offence that the appellant pleaded guilty. Whether or not there has been an offence against s46 will depend upon the particular facts of the case. Similarly, whether or not an offence is trifling will depend on the particular facts of each case.
The case to which I earlier referred highlights some circumstances which might support a finding that a dangerous speed offence was trifling.
As Cox J mentioned in Craig v Dunsmore, the circumstances of an offence might be characterised as trifling where there has been speed but no significant danger to any member of the public.
I am satisfied from the appellant’s evidence that the offence was committed in the early hours of a clear Saturday morning on a good road in country South Australia. At the time the offence was committed there was no other traffic on the road. I am also satisfied that there was no pedestrian traffic and, in those circumstances, there was no significant danger to any member of the public.
I am satisfied that the appellant was driving within the speed limit of 110 kilometres per hour shortly before he committed this offence.
I am satisfied that this matter was a result of inattention.
In the result, I am satisfied that the circumstances of this offence may be described as trifling.
I will therefore allow the appeal but only for the purpose of reducing the period of disqualification. The disqualification imposed by the Magistrate commenced on 18 February and I am told by the appellant that he has observed that order. It will therefore be appropriate to reduce the period of disqualification from six months to expire today.
The fine will stand but I set aside the six month licence disqualification and, in lieu thereof, impose a period of disqualification of two months and 11 days with the intention that the period of disqualification expire at 12 noon today. Accordingly, those are the orders.

[2003] SASC 127

29 April 2003