Thiele v Police
[2009] SASC 159
•4 June 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THIELE v POLICE
[2009] SASC 159
Judgment of The Honourable Justice Gray
4 June 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence and length of licence disqualification - defendant and appellant convicted of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - defendant sentenced to imprisonment for eight months - seven months of term suspended on defendant entering good behaviour bond - one month of term to be served in prison - Magistrate disqualified defendant from holding or obtaining driver’s licence for 18 months - whether defendant's conduct close to being in the worst offending category - whether sentencing discretion of Magistrate miscarried.
Held: appeal allowed - Magistrate erred in characterising defendant’s want of care as being close to the worst category - sentencing discretion of Magistrate miscarried - good reason to suspend term of imprisonment - order of Magistrate partially suspending defendant's sentence set aside - sentence of eight months imprisonment wholly suspended on defendant agreeing to enter into good behaviour bond for two years - terms of licence disqualification unaltered.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing Act) 1988 (SA) s 38, referred to.
THIELE v POLICE
[2009] SASC 159Magistrates Appeal
GRAY J:
The facts that lie behind this sentence appeal demonstrate the dangers in everyday road-use. A motorcyclist, travelling within the law, on a clear, dry morning on a country road, died as a result of a collision with a motor vehicle at an intersection. The driver of the motor vehicle was travelling at an appropriate speed, was aware of the give-way sign, slowed down and looked out both to the left and to the right, but failed to see the motorcyclist. There was an explanation. The motorcyclist was wearing black, was riding a black motorcycle and was travelling against a background of dark trees which cast a shadow, partially obscuring and camouflaging the motorcyclist.
This was a tragedy. The motorcyclist’s loved ones have lost a husband, a father, a grandfather and uncle. The driver is married. She and her husband have three children aged from four and a half years to seven months. She is a good mother, wife and an upright citizen who is an outstanding contributor to her rural community. Is the driver’s want of care any more than the everyday experience of a motorist looking but not seeing what is there? Is this the case that calls for the driver to be “locked away”, the subject of an immediate term of imprisonment, or is there a more appropriate approach that may be taken?
On the hearing of this appeal, counsel for the police tendered by consent further evidence. This included a plan of the scene to better assess the defendant’s line of view. Counsel also provided further photographs better depicting the defendant’s line of view. Although these photographs were taken about a year after the incident, counsel agreed that relevantly, the scene had not changed. These further photographs and the plan with measurements, place this Court in a better position than the Magistrate to assess the defendant’s line of vision and the degree of her departure from due care. Both counsel also agreed to the Court taking a view of the scene for the purpose of understanding the evidence.
Before coming to discuss the proceedings in the Magistrate’s Court, there is one further preliminary observation to be made. There was no suggestion at any stage of the proceedings that the defendant should be charged with causing death by dangerous driving. It appears throughout, that the prosecuting authority was content to characterise the defendant’s conduct as a want of due care. It was also common ground that the defendant had no criminal or traffic antecedents apart from one earlier traffic offence some seven or eight years earlier that led to the imposition of a fine. The circumstances of that offence will be discussed later in these reasons.
The Magistrate’s Court Proceedings
The appellant and defendant, Michelle Leanne Thiele, was charged on complaint with aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA). It was alleged that on 23 June 2007 at Pompoota, the defendant drove a motor vehicle on Thiele Road without due care. It was said that the offence was aggravated by the death of a person. Written particulars were provided:
At about 10.55 a.m. on Saturday the 23rd of June, 2007 your client was the driver of a Holden Rodeo 4WD Utility which was being driven in an easterly direction along Thiele Road, POMPOOTA. At the point where Thiele Road intersected with Mannum Road there was a give way sign facing your client. Graham BRYANT was the rider of a black Yamaha motorcycle and was travelling south along Mannum Road. BRYANT had right of way at the intersection. Your client slowed as she approached the intersection and then continued which resulted in a collision with the motorcycle that BRYANT was riding. The motor cycle collided into the front passenger side of your clients’ [sic] vehicle. BRYANT died as a result of the collision. Your client admitted to being the driver of her vehicle at the time and date in question.
The defendant pleaded guilty.
The Magistrate sentenced the defendant to a term of imprisonment of eight months. Pursuant to his powers under section 38(2A) of the Criminal Law (Sentencing) Act 1988 (SA)[1] the Magistrate directed that one month of the term be served in prison and that the balance of seven months be suspended on the defendant entering into a good behaviour bond. The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for 18 months.
[1] However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
On appeal, complaint was made about both the order of imprisonment and the length of the disqualification. It was said that the term of imprisonment should have been wholly suspended.
Section 45 of the Road Traffic Act 1961 (SA) provides:
(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
(b) an offence committed in any of the following circumstances:
(i)the offender committed the offence in the course of attempting to escape pursuit by a police officer;
(ii)the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act;
(iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(iv)the offender was, at the time of the offence, driving a vehicle in contravention of section 45A or 47.
(4)If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(5) In this section—
“serious harm” means—
(a) harm that endangers, or is likely to endanger, a person’s life; or
(b) harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or
(c) harm that consists of, or is likely to result in, serious disfigurement.
The prosecutor, drawing on the police apprehension report, outlined the facts to the Magistrate. She informed the court that on 23 June 2007 at about 10.00 am, a collision occurred between a white Holden Rodeo 4WD Utility being driven east on Thiele Road by the defendant, and a black Yamaha XJ650 motorcycle being ridden south on Mannum Road at the intersection of the roads. As a result of the collision, the motorcyclist Graham Bryant died at the scene. The defendant had her two young children in the rear of the vehicle.
An examination of both vehicles disclosed that there was nothing mechanically wrong with either that may have contributed to or caused the collision. An analysis of blood samples taken from the defendant disclosed no alcohol or drugs.
The prosecutor tendered a statement from an investigating officer of observations made at the scene some hours after the collision. Substantial damage was evident to the front passenger door of the Holden and to the front of the motorcycle. The force of the impact caused the motor vehicle to roll over several times.
Mannum Road was sealed and designed to carry single lane traffic in a general north-south direction. The road surface at relevant times was dry and in good condition. The speed limit applicable was 110km per hour. The total bitumen width was more than 6 metres, with each shoulder of the carriageway being about 2.5 metres wide. The verge was more than 25 metres wide.
Thiele Road runs in an east-west direction and was primarily designed to carry single lane traffic. Thiele Road intersects with Mannum Road and Jovial Downs Road to form an intersection. Give-way signs were erected at the intersection applicable to east-bound traffic on Thiele Road and west-bound traffic on Jovial Downs Road. White give-way lines were also painted on Thiele Road. The speed limit applicable to Thiele Road was 100km per hour. The carriageway of Thiele Road measured more than 6 metres in width with each verge more than 6 metres wide.
The approximate point of impact was on the eastern side of Mannum Road. The motorcycle came to rest more than 14 metres, and the deceased some 17 metres, east of the point of impact.
Photographs tendered to the Court depicted the defendant’s approach to Thiele Road at its intersection with Mannum Road. The photographs show the general view to be had to the north from Thiele Road. It is possible to discern vehicles on Mannum Road from the photographs, but with no clarity. There was no legend to identify the distance between the camera and the intersection or Mannum Road as it extended to the north.
To the north of the intersection and to the east of Mannum Road, was a large bank of trees, and again further to the north, a smaller bank of trees. The trees were dense, dark in colour and were growing close to the eastern verge of Mannum Road.
The police made no allegation of excessive speed on the part of the defendant. It was acknowledged that the motorcyclist was travelling at high speed but there was no basis to infer that he was exceeding the speed limit.
At the time of the plea and the making of submissions, victim impact statements had not been obtained, and the prosecutor elected to proceed without seeking an adjournment.
The defendant’s only prior conviction was in relation to an earlier incident when she pleaded guilty to failing to give way. On that occasion, the defendant was fined $300.00. That offence occurred on 26 April 2000, the conviction being recorded on 6 February 2001.
The prosecutor submitted to the court that the offending was severe. The prosecutor stressed that the defendant had been involved in a collision at the same intersection eight years earlier when she failed to give way, causing the death of the person driving the other vehicle. The prosecutor drew attention to the similarities between the earlier incident and the facts that lie behind this appeal. Information in relation to the earlier incident described the speed of the defendant’s vehicle as slowing, but still moving at between 11 and 28 kilometres per hour. The prosecutor strongly urged the Magistrate to consider the facts of the prior offending and take them into account when determining an appropriate penalty. It was submitted that the fact that this was the second death the defendant had caused at the same intersection should be reflected by the penalty to be imposed.
The prosecutor further submitted that the leniency of the penalty in relation to the prior incident, and particularly the absence of any licence disqualification, should be relevant to the exercise of leniency in light of the absence of due care at the same intersection later.
Defence counsel informed the court that the defendant had lived on a farming property on Thiele Road for more than eight years and she traversed the intersection on almost a daily basis. On the day in question, as the defendant approached the intersection on Thiele Road, travelling east, she slowed and looked to the left and right. She saw no other traffic. She then proceeded to cross the intersection. The defendant was travelling slowly, both in her approach to the intersection and when she proceeded to cross it. The defendant did not see the motorcyclist at all. An explanation was proffered. The motorcyclist was dressed in black and was riding a black motorcycle. Counsel for the defendant submitted that as a consequence, the motorcycle and its rider were camouflaged and obscured against the backdrop of the pine-trees and their shadow to the north-east of the intersection.
The force of the impact caused the defendant’s vehicle to roll several times. The defendant went to the motorcyclist, saw that he was seriously injured and told him that help would be on its way. One of her children had been thrown from her vehicle and was unconscious nearby. Her youngest child was in a baby capsule, but apart from some minor glass cuts, was uninjured.
The defendant was genuinely and deeply remorseful for causing the collision and the motorcyclist’s death. The defendant in open court apologised to the family of the deceased in the following terms:
I make no attempt to say that I understand what Mr Bryant’s family has gone through but I know that there is no penalty that the court can impose that can bring him back. For this I am truly sorry. I can only imagine the loss they have endured and hope that the penalty imposed and the impact it will have on my life will give the family some sense of justice.
The defendant had been examined for her fitness to drive following the collision. This involved both medical and ophthalmological examinations together with a practical driving test. This was undertaken at the direction of the Registrar of Motor Vehicles at the request of the police. A letter from the deputy Registrar confirming her fitness to drive was tendered.
The Magistrate was informed that the defendant was married with three children, aged four and a half years, two years and seven months. The defendant, as well as fulfilling her duties as a mother, was required to assist her husband on their farming property. The income from the farming property was not sufficient to permit the employment of labour. It was said that the licence disqualification to be imposed would cause hardship to the defendant and her family.
A medical report from the defendant’s treating doctor, Dr Altmann, confirmed that following the collision, the defendant suffered from a post-traumatic stress disorder. She was distraught, suffered from flashbacks, fearfulness and had lost confidence. Dr Altmann was of the opinion that the defendant had suffered from significant trauma. He referred the defendant for psychological treatment. Dr Altmann noted the history of the earlier incident when the defendant had been responsible for another death at the same intersection. The defendant had been in a coma following that earlier incident and at that time required supporting counselling.
Dr Altmann wrote of his ongoing consultations with the defendant. He noted a change in personality suffered by the defendant associated with significant symptoms of depression, a loss of confidence and a withdrawal from social contact. Her condition required anti-depressant medication, together with sleeping tablets. Dr Altmann recorded that the defendant was unable to resume driving due to fear and stress and this was causing further social isolation. Dr Altmann arranged for the defendant to undertake driving lessons to regain her confidence to drive. Dr Altmann considered that the defendant had recovered her health by October 2008.
The psychologist reported her treatment of the defendant. Her initial examination and consultation led her to confirm the opinion of Dr Altmann. The defendant suffered from depression, showed sincere remorse and displayed feelings of guilt. Her sleep was severely disrupted by disturbing images and memories. She experienced auditory flashbacks. The psychologist noted that the defendant had become socially isolated and that her life was significantly and adversely affected. The psychologist treated the defendant for a period of more than five months and noted that, over time, the defendant improved. The psychologist’s overall assessment of the defendant was as follows:
My overall assessment of [the defendant] is that she is a kind, decent woman who has suffered greatly from the mistakes she has made. Her reaction to the accident and the death of the motorcyclist was one of genuine remorse. She was respectful to the family and the community, while she made steps to recover from the accident.
Written references were provided which spoke of the high regard in which the defendant was held in the rural community. Those references detailed the defendant’s extensive community work. The defendant was and remains a well-respected member of the rural community, active in community activities. She took a leading role in many aspects of rural life, as well as being a capable and caring mother.
The Magistrate accepted that the defendant’s speed was not excessive and that as the defendant approached the intersection, she slowed her vehicle and looked to her left and to her right. There was no suggestion that the defendant did not look to her left at an appropriate time. The Magistrate noted that there was a view to the defendant’s left of about 800 metres. The Magistrate accepted that the deceased may have been “difficult to pick out” because he was wearing black, riding a black motorcycle and for at least some of the distance approaching the intersection was travelling against a dark background created by the groups of trees and any shadow that may have been thrown. However, the Magistrate pointed out that it was the defendant’s obligation to give way and he could only conclude that the defendant’s lookout was grossly inadequate.
The Magistrate took the view that the defendant’s offending went “…close to being in the worst offending category”. The Magistrate expressed the view that there was no alternative but to order imprisonment. He commenced with a head sentence of nine months’ imprisonment, but made a reduction of one month on account of the plea of guilty.
The Magistrate “agonised” over whether to suspend the sentence, ultimately reaching the conclusion that he could not wholly suspend the sentence. As this is the primary issue on the appeal, I set out his remarks in full on the topic:
The difficulty in your case is whether you should be required to serve all or any of the term of imprisonment. Your counsel has suggested there is good reason to suspend the sentence of imprisonment. I do not need to go into detail but I accept unreservedly that you fit the various criteria provided for in the Criminal Law Sentencing Act to suspend any sentence of imprisonment. The Sentencing Act also requires me to have regard to the affect [sic] a sentence of imprisonment will have on your family. I have no doubt any sentence of imprisonment will affect your husband and will affect each of your children. That is a factor that has caused me a great deal of anxiety over the past week however which ever way I look at the facts your offending is too serious to allow for a wholly suspended sentence. Having said that Section 38(2a) of the Criminal Law (Sentencing) Act allows me in certain situations to allow for your early release from custody. Given the matters that I have already touched on, namely the fact that you are married, you have responsibilities to your husband and three very young children who will each suffer as a result of your incarceration. [sic] I think it appropriate to exercise the power provided in Section 38(2a). I have to say I have had some difficulty in trying to determine what is the appropriate penalty for your actual incarceration. The Act requires me to set a minimum period of one month. I did think a period longer than that and in the order of 2 to 3 months was appropriate to bring home to you particularly but also to bring home to others in the community who ignore stop signs and give way signs and the like that there will be a consequence. It is only because of your children that I have decided one month is appropriate.
The Appeal
It was submitted that the Magistrate was in error in describing the defendant’s want of due care as “close to being in the worst offending category”. It was emphasised that the defendant drove at an appropriate speed, slowed as she approached the intersection, looked to the left and to the right, and being of the belief that the road was clear, proceeded to cross the intersection. It was pointed out that there was an explanation as to why the defendant did not see the motorcycle – it was obscured or camouflaged because of the colour of the rider’s outfit, the colour of the motorcycle and the background of the dark trees and any shadow thrown by those trees.
The further evidence tendered on the appeal has allowed a better understanding of the nature of the obscuration or camouflage from the banks of trees. Counsel on the appeal agreed as a fact, that the first bank of trees to the north of the intersection was of a height of between 10 and 15 metres and that the further group of trees to the north was of a height of between 5 and 7.5 metres.
On appeal it was submitted that this was not the case of a driver who failed to look out at all. This was not the case of a driver who crossed an intersection against a give-way sign at an excessive speed. This was not the case of a driver who crossed an intersection against a give-way sign whilst affected by alcohol. This was not the case of a driver who crossed an intersection against a give-way sign, seeking to escape pursuing police. All of these examples demonstrated, it was said, that the defendant’s conduct was not close to the worst category of case.
Counsel for police submitted that the Magistrate’s observation had to be understood in context, and this context was the worst category of case for the offence of want of due care leading to death. It was argued that had there been an involvement of speed, drinking or avoiding a pursuit it was probable that a more serious charge would be laid. The difficulty confronting this submission is that section 45 contemplates a want of care associated with a number of matters of aggravation, including alcohol and avoiding pursuit.
Section 45 of the Road Traffic Act was amended in 2005 following on recommendations as a result of the Kapunda Royal Commission. One of the recommendations of that Commission was that there should be a new level of culpability between that of dangerous driving causing death or injury and drive without due care, or a graduated scale of aggravation, reflecting more severe penalties for more aggravated versions of the lesser offence.[2]
[2] South Australia Kapunda Road Royal Commission, Report of the Kapunda Road Royal Commission, (2005) Ch 3, p 41.
When introducing the legislation, the Minister noted that the Bill was consistent with the Royal Commission recommendations. Although the legislation does not in express terms address degrees of culpability, it is evidently more serious to cause death through a defective lookout arising from a high blood alcohol reading than a simple case of a defective lookout in circumstances where a motorcyclist is partially camouflaged on an approach to an intersection. The unfortunate sequelae of death does not make the want of care any more culpable; that is, it does not increase the moral blameworthiness of the defendant’s conduct.
In my view, there is substance to the submission advanced by the defendant that the Magistrate erred in his characterisation of the defendant’s want of care as being close to the worst category.
The offence was aggravated by the death of the motorcyclist, but it does not follow that the offending, that is, the lack of due care, was in the worst offending category. It is possible that the Magistrate was unduly influenced by the earlier incident that occurred more than eight years earlier. The Magistrate expressly noted that the defendant was not to be punished again for that offending conduct. However, he made the point that the defendant, given that experience, should have at least complied with the minimum driving standard at that intersection and should have been exceptionally careful.
Although the earlier incident might be expected to have led the defendant to be careful or cautious on this occasion, the evidence was that she travelled at an appropriate speed, was aware of the obligation to give way, looked to both left and right, but did not observe the motorcyclist. The defendant was not legally obliged to be exceptionally careful. It is plain that the defendant’s look-out was inadequate. However, there are circumstances that explain why she may not have seen the motorcyclist, that are understandable. In my view, the defendant’s want of care was in the category of a common human failing – an every day experience. It was not close to the worst category of offending. Had there been nothing more than a collision, it may well have been an offence that could be expiated.
The further photographs and the plan of the scene confirm the real possibility, if not likelihood that when the defendant looked to her left, she missed seeing the motorcyclist because motorcycle and rider were obscured or camouflaged for the reasons earlier discussed. Counsel for the respondent accepted this proposition. In my view, this allows the characterisation of the defendant’s want of care as being an everyday failing, a matter of common human experience. The defendant’s offending was not close to the worst category of offending. The sentencing discretion of the Magistrate miscarried.
Reconsideration of Penalty
The Court is empowered to suspend a sentence of imprisonment. Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
(2c) If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c)averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d)any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
It is well settled that a sentence of immediate imprisonment is a sentence of last resort. As the Magistrate observed, the defendant in every respect, was a prime candidate for a suspended sentence. Her general reputation attested to her good character. She is a hard working, dedicated mother of a young family. She participates in her community. This is not the case of a hoon driver, or an irresponsible or daredevil driver. This is not the case of a selfish driver insensitive to the rights of other road users.
The evidence of the defendant’s contrition and remorse is significant. Her poor mental health for a lengthy period following the collision evidences her guilt and remorse. The fact that the defendant did not drive because of fear, and her consequent social isolation are further evidence of the above matters. Her apology given in court is evidence of her obvious and acute awareness of the suffering that she has caused the loved ones of the deceased.
In my view, there is good reason to suspend the term of imprisonment.
The Magistrate appears to have misunderstood the reduction that should be made following an early plea of guilty. However, in the circumstances of this case, I do not propose to interfere with the head sentence, nor do I propose to interfere with the licence disqualification.
The defendant has suffered personally and is subject to an imprisonment order of eight months. It is only suspended because her personal circumstances give rise to good reason to suspend, thereby enlivening my discretion. In these circumstances, the term of imprisonment for eight months should be suspended.
Conclusion
Having regard to the foregoing, I would allow the appeal for the limited purpose of setting aside the order made by the Magistrate pursuant to section 38(2a) of the Sentencing Act, partially suspending the defendant’s sentence. I am prepared to make an order suspending the sentence of eight months imprisonment. This is subject to the defendant agreeing to enter into a two-year good behaviour bond.
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