TAYLOR v POLICE No. SCGRG-98-27 Judgment No. S6540

[1998] SASC 6540

TAYLOR V POLICE

Bleby J

In this matter the appellant was charged on summons with two offences under the Road Traffic Act as follows:

1. That on the 25th day of September 1997, at Hackham, she drove a vehicle on a road, namely Main South Road, within a speed zone at a greater speed than the speed fixed for that zone, and indicated by a sign erected, and which complied with the requirements under s50 of the Road Traffic Act.  The allegation was that the sign erected indicated a speed of 80 kph and the speed of the vehicle was about 152 kph. 

2.That on 25 September 1997, at Hackham, she drove a vehicle, namely a motor vehicle, on a road, namely Main South Road, at a speed which was dangerous to the public contrary to s46 of the Road Traffic Act 1961.

The appellant appeared in the Magistrates Court at Christies Beach on 17 December 1997.  She entered a plea of guilty to count two, whereupon count one was withdrawn.  The magistrate hearing the charge entered a conviction and imposed a fine of $600, with court fees of $73, a levy of $28 and prosecution cost of $16, making a total of $717.  He further disqualified the appellant from holding and obtaining a driver's licence for a period of 12 months commencing at 12.01 am on 1 January 1998.  The appeal is against that penalty imposed by the magistrate. 

The range of possible penalties for a first offence under s46 of the Road Traffic Act is a fine of not less than $300 and not more than $600, and subs(3) of s46 provides that where a court convicts a person for an offence under subs(1) the court in the case of a first offence must disqualify the person from holding or obtaining a driver's licence for not less than six months.

There is, however, a qualification on that in subs(3)(b), which reads as follows:

“The disqualification prescribed by para(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.”

I should add that the penalty for second and subsequent offence is a fine of not less than $300 or more than $600, with an alternative of imprisonment for not more than three months and a disqualification of not less than three years. 

The circumstances of the offence as disclosed to the magistrate, and here I refer to the affidavit of Neil Hodgson sworn in this matter, were that the appellant's vehicle was detected by a speed camera at 7.58 pm on 25 September 1997, on Main South Road at Hackham, doing 152 kph in an 80 kph zone. 

The appellant was spoken to by police on 24 October 1997.  She was asked who was driving the vehicle on the night in question.  She told the police that she was the driver.  She was then asked her reason for speeding and she replied that he was worried about the welfare of her daughter, who was aged 10.  She had not returned home by 5pm and it was then 8 pm and she panicked.  She told the police that she did not normally speed and she was told that the matter would be reported. 

The magistrate was also told that traffic was described as light to medium, the road was wet, but it had stopped raining, and there was no street lighting at that location.   There were two side streets on the western side of the road and one on the eastern side, and the James Craig Inn was trading at the time in the near vicinity, and cars were entering the premises from time to time.  The prosecution did not allege and, indeed, it was common ground that the appellant had no previous convictions of any sort. 

The appellant was not represented at the hearing before the magistrate.  As Mr Hodgson deposes in his affidavit, prior to the matter proceeding the learned magistrate informed the appellant of her right to legal representation and she stated that she wished the matter to proceed.  She then entered the plea of guilty to count two, as a previously indicated, and his Honour then informed the defendant of the minimum penalties for the offence pleaded guilty to, and the appellant again informed the court that she wished the matter to proceed.  It was then that the prosecutor proceeded to outline the facts and the appellant then made submissions on her own behalf. 

The submissions made by the appellant, at least as contained in the affidavit of Mr Hodgson, which it must be accepted is somewhat incomplete, were, in essence, that she agreed with the allegations made by the police.  She repeated that she had been extremely worried about the whereabouts of her daughter, that she told the court she was a nightshift worker and relied on her driver's licence to get to work.  She inquired about having a temporary permit and was told that that was not possible.  The appellant became visibly upset and was distressed to the point of crying uncontrollably in the court.  There was some discussion between the magistrate and the appellant as to whether the appellant was able to make alternative arrangements for her work, which would enable her to get to work by public transport, but she said she was a shift worker and could not change her shift. 

It was not apparent from that description, which was as deposed to by the prosecutor, that at any time the magistrate had brought to the attention of the appellant the provisions of subs (3)(b) of s46, and the need to establish that the offence is trifling by evidence given on oath.

The circumstances that were put in mitigation as, indeed, indicated by the prosecutor's affidavit, did not indicate that the appellant gave any sworn evidence and she does not appear to have been invited to do so.  It would appear that no submissions were made that the matter was trifling nor, indeed, could they have successfully been made in the absence of sworn evidence.  In those circumstances, the learned magistrate was obliged to impose the penalty of not less than $300 or more than $600, and was obliged to disqualify the appellant from holding or obtaining a driver's licence for not less than six months. 

In his sentencing remarks the learned magistrate observed that he considered that the appellant had acted in total disregard for her own safety and for that of anyone else who was on the road at the same time.  He said the test is the high potential of somebody being on the road and an accident occurring, and “I accept that you now think it was stupid, but at the time you thought it was justified.  As I said before, that's not the test, the test is potential or high risk of something happening”. He proceeded to indicate some examples of what could have happened that would have realised that danger.  He said “In my view it is a very serious offence even accepting the reason why you did drive at that speed”. He did not elaborate in his remarks as to the appellant's reasons for driving at that speed. 

The notice of appeal to this Court contained one ground of appeal, which reads as follows:

“That the extenuating circumstances for the appellant's driving could not have been taken into account by the learned magistrate, and were such as to render the offence trifling or else the sentence manifestly excessive.”

At the hearing of the appeal the appellant sought leave to amend her notice of appeal by inserting the following additional grounds:

2. . The magistrate was in error in failing to direct the defendant as to the provisions of s46(3)(b) of the Road Traffic Act (1961). 

3.That the appellant be at liberty to give evidence on oath of matters relevant to questions of penalty and mitigation whether such matters were put to the special magistrate or not. 

After discussion as to the possible consequences of that amendment, if made, and after a short adjournment to enable counsel for the respondent to obtain instructions, I gave leave to amend in those terms. In indicating her attitude to the amendment, and after obtaining instructions, Ms Williams for the respondent conceded that at the hearing the learned magistrate had not drawn the attention of the appellant to the provisions of s46(3)(b) of the Act or of the need to lead evidence on oath if that subsection was to be availed of. It was common ground that it was the appellant's first appearance in a court for any reason.

The appellant, in her evidence before me, indicated that she had been advised by the police officer who interviewed her that she was likely to be fined and that she would probably not need legal representation.  I infer that that advice influenced her as to whether or not she would seek legal advice and representation at the hearing.  It is unfortunate in my view that the police officer should have yielded to the temptation to offer advice to anyone in those circumstances.  It is not the role of a police officer to give such advice and the temptation in my opinion should be avoided.  But it perhaps illustrates why magistrates dealing with unrepresented litigants need to take particular care to ensure that litigants are proceeding under no misapprehension as to their understanding of the proceedings or of their rights. 

In Cooling v Steel (1971) 2 SASR 249, Wells J gave a timely warning about the approach generally of lower courts to unrepresented litigants. I am conscious that that warning has not been without its critics and I refer to the judgment of Sangster J in Ivanoff v Linaine (1979) 20 SASR 279. I accept that too literal adherence to the warning without regard to all the circumstances may become, in some cases, otiose. But the principles upon which Wells J acted are, in my opinion, highly relevant and I agree with them.

I will not repeat his Honour's reference to the many phases of a Magistrate's Court hearing to which his Honour referred and in respect of which particular care might need to be taken. 

His Honour, in the course of his judgment, referred to the need to ensure that the defendant understands the nature of the charge, that he or she appreciates that the plea is entirely a matter for his or her own independent decision and that the defendant is entitled to legal advice and representation.  Indeed, the magistrate in this case appears to have observed that precaution.  Wells J spoke about the question if bail arises and the right to apply for bail.  He then proceeded, and I quote, at p251:

“If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has the power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment.  It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court.” 

Of course that particular warning is apposite, especially where the statute in question, as it does here, requires that a finding as to the trifling nature of the charge can only be made upon the basis of sworn evidence. 

His Honour said by way of general summary:

“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.” 

The concession made by Ms Williams that the provision of s46(3)(b) of the Act were not drawn to the attention of the appellant seems, on the rest of the material before me, to have been properly made. It follows that, in my opinion, the proceedings miscarried because the appellant was not informed of a highly relevant matter, having a substantial bearing on the possible outcome of the proceedings. She was also not informed that, in order to take advantage of the potential benefit of subs(3)(b), a certain particular way of going about it would have to be observed, namely the leading of sworn evidence. In my opinion the appeal must be allowed on that ground alone. It also follows that the appellant must succeed in her application to be permitted to lead further evidence that was not before the magistrate in the form of sworn evidence directed to the question of whether the offence was trifling. For that reason I intimated that I would allow the appeal and permit further evidence to be led.

Neither counsel suggested that I should remit the matter to the magistrate for rehearing.  I agree that it was, in the circumstances, in the interests of justice that I should proceed to hear the evidence myself together with submissions on whether the offence was trifling.  However, the evidence and submissions on that topic, even if the court were not persuaded that the matter was trifling, would inevitably affect the question of penalty and accordingly I heard evidence in support of both matters, that is the matter of the trifling nature of the offence and of penalty generally, and further submissions as to penalty to be imposed should I find that the offence was not trifling. 

I should add that even if I had not been satisfied as to the miscarriage which I have identified, I would have allowed the appeal and proceeded to sentence the appellant afresh because it seems to me patent from the material before the learned magistrate that his Honour proceeded in error in imposing the maximum possible monetary penalty for what was a first offence of any type.  Of course it was within the sentencing discretion to impose a fine of $600 for a first offence under this section in an appropriate case, but it would need to be an extraordinary case where the maximum monetary penalty is imposed under this section for a first offence of any type. 

Although a court cannot trade one element of penalty off against another, that is the monetary penalty against the licence disqualification or vice versa, both of those elements must appear to be appropriate for the offence and the penalty when viewed in both aspects and viewed as a whole must be appropriate:  Allen v Bates (1979) 20 SASR 575.

In my opinion it cannot be said, in this case, that the maximum possible fine is appropriate for the circumstances of this offence, especially where there is no prior record at all, and especially where for a second offence under this same section the same monetary range of penalties is contemplated as an option along with the alternative of up to 3 months imprisonment. 

I also refer to and, with respect, adopt what Von Doussa J said in Jarvis v Crossman (1987) 139 LSJS 436 at 438, where having referred to Allen v Bates His Honour said:

“The primary purpose of the fine is as a deterrent punishment against offending of the kind in question.  The primary purpose of the licence disqualification is not so much to punish a driver for a bad piece of driving as to withdraw a franchise to use the roads from one whose attitude to the responsibility cast on every driver to respect the legislative scheme designed for road safety and the duties that the system creates has been found wanting in a material respect: Grubb v Normandale (1971) SASR 58 at 79 and 80. But the two limbs of the penalty can and do often overlap.

Where there is both a high fine and a long period of disqualification, the penalty would be one appropriate to very serious offending.”

I refer to those cases, in this context, because where the sentence itself, or one aspect of it, can be shown to be manifestly excessive, as I find to be the case here, it is necessary to review both aspects of the penalty and the totality of the sentence and so to exercise the discretion afresh, assuming of course that the appellant were to fail in her submission as to the trifling nature of the offence.   It is to that which I now turn. 

I accept Ms Nelson QC's submission for the appellant based on Williams v May [1908] VLR 607 at 608, that there can be no rule of thumb and that where an offence is trifling, each case must be considered on its own merits. I also accept that considerations as to the trifling nature of an offence under s47c(3)(b) of the Act, that is the section dealing with driving with the prescribed concentration of alcohol in the blood, will not necessarily be the same as those appropriate to an offence under s46(3). For that reason, cases like SA Police v Hodge (Debelle J, 29 October 1996, jdgmt no S5870, unreported) from which Ms Nelson sought to derive substantial comfort are, on her own submission, of limited value.  One must also be aware that within the range of the discretionary judgment conferred by such sections opinions will differ.  In most of the cases to which I was referred, the question on appeal was whether the magistrate's discretion miscarried, whether the finding was open or simply not open to the magistrate to be made.  In this regard I am not sitting on an appeal from a magistrate's finding.  I am called upon to exercise the discretion myself.  In that regard, I have a rather different function to perform to that of Debelle J in Hodge's case to which I have referred.   However, the approach taken in previous cases does afford some guidance as to how the discretion should be exercised. 

The sub-section itself seems to allow for a very unusual and narrow factual circumstance to constitute a trifling offence.  Before a court can consider whether the offence is trifling, it must first have found or to have had admitted before it that the driving, in this case, was at a speed which is dangerous to the public.  The difficulty in finding such an offence to be trifling is obvious.  As Cox J said in Craig v Dunsmore (1986) 128 LSJS 239 at 294:

“Section 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 s46 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 the 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 s46. Such cases, one supposes, will be quite uncommon.”

A case often cited in application of similar sections or of similar provisions of other sections of Acts of the South Australian Parliament is the decision of Mitchell J in Mancini v Vallelonga (1981) 28 SASR 236, a case dealing with overweight vehicles under s147 of the Road Traffic Act.  Olsson J, on more than one occasion, has summarised some of Her Honour's views in that case as follows: 

“An offence is not trifling if it is a typical offence of the class prescribed;

where the breach is deliberate it can rarely be characterised as trifling;

an offence is trifling where it is merely technical, casual or inadvertent and there was no deliberate intention to commit a breach of the statute;

an offence may be held trifling where there were compelling humanitarian or safety reasons for doing what was in fact done”[1].

[1]         Hills v Warner (1990) 155 LSJS 397 at 401 and Danels v Cleland (1991) 55 SASR 350 at 353.

In cases under s46 of the Road Traffic Act it will be relevant to consider whether there was danger, in fact, to any person, whether there was a real or cogent possibility of any danger or a potential for danger (Freckleton v Gowan (Legoe J, 21 March 1989, jdgmt no 1388, unreported).  It will be relevant to consider whether the breach was technical or inadvertent, or conscious and deliberate. 

A variety of circumstances pertaining to the offence will need to be brought to bear on whether the offence can be said to be trifling, but as Olsson J said in Cannon v Drinkwater, an unreported judgment of 24 January 1991, the full text of which appears in Motor Vehicle Law in South Australia para [2078]:

“No doubt, as the authorities and decided cases reveal, there will be situations in which quite a high speed can be excused as trifling due to factors such as the time of the day, the total absence of other traffic and a variety of other circumstances, in their totality, which lead to the conclusion that, whilst there was a speed which might in itself be inherently dangerous, so slight was the likelihood of any misadventure as a result of it, that the offence could be described as being of a technical nature and appropriately be excused on that basis.” 

I stress the need to consider all the circumstances in their totality. 

Ms Nelson QC for the appellant emphasised the humanitarian reasons which drove the appellant to commit this offence.  She relied on Debelle J, obiter dicta, in Police v Hodge, to which I have already referred. That was a case of an offence under s47B of the Road Traffic Act, driving with a prescribed concentration of alcohol in the blood.  His Honour was speaking about an emergency situation where the defendant in that case was taking an apparently semi-conscious person from North Adelaide to the Royal Adelaide Hospital, and in circumstances where there was nothing unusual about her driving, save that she was driving slowly and in an unfamiliar vehicle, and had failed to turn her headlights on.  His Honour said, in relation to a finding by a magistrate, that the matter was trifling.

“There is a limit to which an objective assessment can be made in a situation of this kind.  Where the defendant asserts that an emergency existed, subjective factors may intrude and be relevant.  It will then be necessary for the court to examine the perceptions of the defendant and the court will objectively examine those perceptions when determining whether in truth an emergency existed which justified the driving.  Thus, although with the benefit of hindsight, it is possible to criticise the respondent for not finding some other means of travelling to the hospital, it is relevant to have regard to her perception.  Her perception of Mr Harford's condition no doubt clouded her reason and she believed that she had to act quickly.”

In her evidence before me, the appellant deposed to the fact that she has two children; a daughter aged ten and son aged eight. 

On the day in question, she left home at about 4 pm.   Her 10-year-old daughter had also left home to go to a friend's house, but she had been instructed that she was to be home by 5 o'clock.  The appellant left to go and, indeed, went to her doctor's surgery.  She says that she left the surgery between 6.15 and 6.30 pm then did some shopping at a local supermarket.  She went to a friend's house at Hackham and she left that house to return home at about 7.50 pm  She was driving south along Main South Road at Hackham and at that time it was quite dark.  Her husband was travelling in a separate vehicle with her son.   She saw her husband pull over and saw him speak on a mobile telephone as they were driving along.  They both pulled up at a set of traffic lights at the junction of Main South Road and Honeypot Road and, through the open windows of the two cars, her son shouted through the window and I quote “Kerry is not home”.  The appellant then panicked.  Indeed, to use her words she said 'I absolutely panicked'.  She accelerated away quickly when the traffic lights were in her favour and continued in a southerly direction along Main South Road.  She was aware of the fact that she had passed a speed camera about 200 metres or so before the James Craig Inn, which was on the eastern side of South Road.  She estimated that she had travelled some 500 to 600 metres before encountering the speed camera after leaving the traffic lights and that the speed camera was 300 metres north of the commencement of the 100 kph speed zone.  She feared a possible abduction of her daughter when she was told by her son that Kerry was not home.  The fact of the matter is that her speed at the time that she went through the speed camera was acknowledged by her at the hearing before the magistrate to be 152 kph in an 80 kph zone.  In her evidence before me, she claimed she was travelling at 146 kph.  Even if her sworn evidence is incorrect, she was approaching something like twice the speed limit in that section of the road. 

In her favour, it can be said that no-one's life or property was actually endangered.  She was driving on a dual carriageway arterial road.  In her evidence there was no-one else on the road at the time or entering the road.   There were no pedestrians in the vicinity that she saw. 

I do not wish to denigrate in any way or underestimate the understandable and perfectly natural concern that the appellant had for the safety and well-being of her daughter, but it was an imperfect perception and irrational reaction to the four words she heard spoken by her eight year old son.  That may have been a sinister message.  It may have been incomplete.  It may even have been intended to be reassuring.  I am sure that on reflection and in hindsight the appellant realises that there are many other things she could have done without compromising her daughter's safety and, perhaps, even enhancing it if there were a problem.  She knew where her daughter had been.  She knew that her husband, in the adjacent car, had a mobile telephone, yet that irrational reaction led to quite irrational driving.  That fact, in itself, in my opinion speaks volumes about her diminished ability to concentrate on those external factors which she needed to be all the more aware of in driving at such a high speed.  It was not a case of obvious and compelling humanitarian need.  It was, as it happened, based on ill- founded suspicion. 

Even making some allowance for her imperfect perception, her actions were aggravated by the fact that it was dark, the road was not well lit, it had been raining and the road was wet.  There were access roads in the vicinity on both sides of South Road, including access to the James Craig Inn, where patrons would be expected to come and go, and the appellant knew that part of the road well.  While I accept that there was no actual danger to anyone, I also accept, as Ms Williams submits, that in those conditions and at that speed, the potential for danger was very high.  Visibility was poor.  Had she been confronted with an emerging vehicle or person, or some other unexpected emergency, she would have had little chance of avoiding it.  I must take all those relevant factors into account as well. 

In those circumstances, I cannot find that it was one of those rare and exceptional cases where the offence was trifling.  It was a deliberate and dangerous action for which there was insufficient justification to remove it to the trifling category. 

Accordingly, in my opinion, the appellant must be sentenced on the basis that the monetary penalty is a fine of not less than $300 and not more than $600 with a minimum licence disqualification of six months. 

Section 46(1)of the Road Traffic Act provides for three possible offences.   Driving a vehicle recklessly, driving a vehicle at a speed which is dangerous to the public, and driving a vehicle in a manner which is dangerous to the public.   Driving a vehicle recklessly suggests that there is some requirement that the accused was consciously aware of what he or she was doing, not caring whether the foreseeable consequences of the driving would occur or not.  Those foreseeable consequences for which no regard is taken may be to others, or to the property of others, or to oneself.   It is, in effect, a wilful shutting ofone's eyes to the consequences, and amounts really to gross carelessness involving a risk, the taking of which is considered carelessness.  The risk in this case, of course, is risk of accident.  It may involve many aspects of driving, not only speed.  It may also involve the effects of alcohol. 

The other alternative of driving in a manner dangerous to the public may or may not involve speed.  It may involve many other features of driving.  It may involve driving on the wrong side of the road, weaving, powerful acceleration, tailgating, or a combination of a number of factors with speed.  It may also involve the effects of alcohol.  

Driving at a speed which is dangerous to the public, which is the offence with which the appellant was charged, refers to one element of driving only:  an element which may be included, of course, in both of the other alternatives. 

The same penalty range is provided for all three offences.  There is a sense in which driving at a speed dangerous to the public can be said to be at the lower end of the scale of those three offences, because it only involves the one element, whereas the other two may well include speed, but they also have the potential to be multifaceted.  The prescribed penalty must accommodate the full range of possible circumstances of all three offences.

I have already mentioned the circumstances of the driving which might be said to be in the appellant's favour.  Of substantial weight is the fact that in six years of driving, she has never been convicted of any offence, and certainly not a driving offence.  As I said, that does not justify, in my opinion, the imposition of the maximum fine nor, in my opinion, does it justify a licence suspension of twice the minimum.  Also in her favour is her ready cooperation with the police, and her plea of guilty.   Without the former, she may never have been prosecuted.  I also take into account the appellant's personal circumstances, and the disruptive effects that the licence suspension will inevitably have on her as a nightshift worker. 

In my opinion, the appropriate penalty would be a fine of $400 and a licence suspension of six months, and I propose so to order.  Before I make any formal orders, is there any question as to costs?

MS NELSON:  I seek an order for costs and that your Honour certify the matter for senior counsel.  There were some complex issues. 

HIS HONOUR:  Ms Williams?

MS WILLIAMS:                  I don't think I have anything to say on that matter. 

HIS HONOUR:  The orders of the court will be as follows:

1......... Appeal allowed. 

2......... Order of the Magistrates Court made on 17 December 1997 as to penalty be quashed

1. The appellant will be fined the sum of $400, Magistrates Court fees of $73, Criminal Injury Compensation levy of $28, prosecution costs of $16 - a total of $517. 

2. The appellant is disqualified from holding or obtaining a drivers licence for six months commencing at 12.01 am  on 1 January 1998. 

3. The fine and other fees and court costs are to be paid in instalments of not less than $100 per month, payable on or before the first day of each month, commencing on 1 February 1998. 

4. The respondent is to pay the appellant's costs of the appeal, fixed at $150. 

5. I certify the matter as being fit for senior counsel. 

ADJOURNED 10.27 AM