Thomas v Police - [2010] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THOMAS v POLICE
[2010] SASC 18
Judgment of The Honourable Justice Gray
11 February 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against penalty imposed by Magistrate - defendant and appellant pleaded guilty to driving without due care - Magistrate imposed licence disqualification of two years - disqualification ran partially concurrent with regulatory disqualification of six months - penalty in effect extended defendant's licence disqualification by nearly 23 months - no reasons for penalty provided - whether penalty imposed manifestly excessive.
Held: appeal allowed for limited purpose of varying licence disqualification - absence of reasons constituted error of law - additional want of procedural fairness as consequence of failure of Magistrate to warn that licence disqualification was contemplated - further submissions put on appeal - defendant's conduct demonstrated serious want of due care - disqualification of 15 months appropriate.
Road Traffic Act 1961 (SA) s 45, s 164A and s 168; Criminal Law (Sentencing) Act 1988 (SA) s 9; Motor Vehicles Act 1959 (SA) s 81B and s 139BD, referred to.
Cross v Police [2001] SASC 47; Jones v Police [2009] SASC 137; R v Becker (2005) 91 SASR 498; Papps v Police (2000) 209 LSJS 407; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 547; Leslie v Police [2001] SASC 270; Wyngaarden v Samuels (1973) 4 SASR 420; Hanley v Steel (1973) 5 SASR 242; Stoeckel v Police [2002] SASC 215; Reeves v Police (1997) 70 SASR 451; Samuel v Police [2006] SASC 135, considered.

THOMAS v POLICE
[2010] SASC 18
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against a penalty imposed by a Magistrate with respect to the offence of driving without due care.
The defendant and appellant, Nikki Jane Thomas, pleaded guilty to driving without due care. The particulars alleged that on 9 April 2009 at Christie Downs, she drove a motor vehicle on a road, namely Chamberlain Drive, without due care. The offence charged was a basic offence of drive without due care.[1] No allegation to support an aggravated charge was advanced.[2]
[1]    See Road Traffic Act 1961 (SA) section 45(1):
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
[2]    See Road Traffic Act 1961 (SA) section 45(3):
…
(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.
The Magistrate imposed a licence disqualification of two years commencing on 20 August 2009. This disqualification ran partially concurrently with an earlier regulatory disqualification of six months which was in effect from 29 March 2009 to 28 September 2009. As a consequence, the practical effect of the order of the Magistrate was to extend the defendant’s licence disqualification by a period of nearly 23 months. The Magistrate provided no reasons for the disqualification penalty.
At the time, the defendant also pleaded guilty to driving whilst disqualified. The Magistrate in respect of that offence imposed a fine of $400.00 and provided the following reasons for that penalty:
Ms Thomas, the system of administrative licence disqualification has been in force for some time now. It started with the demerit point scheme, which was introduced in this state probably before you were born.
Now for a long time, some people who have been disqualified under the scheme and who find it a great inconvenience not to drive, have disclaimed knowledge of having received the notice of disqualification. To avoid this problem, the government introduced the expensive system of having the notice personally served and requiring people to go to motor registration and pay the service fee.
You have come to the Court and said to me that you still did not realise you were disqualified and for reasons I explained to Ms Bell I find that difficult to accept. If in fact you were confused then I take the view that had you tried a bit harder then no confusion would have arisen.
Ms Thomas I am required to sentence you on the facts most favourable to you. That is, those facts most favourable to you, within the bounds of belief. I have been sceptical concerning the submissions that Ms Bell has made but I will give you the benefit of the doubt.
I accept that there was confusion in your mind about whether you were disqualified or not. I accept that you did not fully wilfully defy your disqualification. Had you wilfully defied the order of disqualification I would have imposed a sentence of imprisonment.
There will be a conviction and a fine [of] $400, court fees, levies and prosecution costs. For driving without due care, you will be disqualified for [sic] holding or obtaining a driver’s licence for a period of two years commencing forthwith.
On appeal, the defendant contended that the sentence imposed was manifestly excessive in the circumstances.
The Appeal
Absence of Reasons
As noted above, no reasons were provided with respect to the penalty with regard to the charge of driving without due care. The absence of reasons is a matter of concern.
Section 9(1) of the Criminal Law (Sentencing) Act 1988 (SA) requires a court when sentencing to state its reasons for imposing the sentence and to cause an explanation of the legal effect and obligations of the sentence to be given to the defendant in simple language. As noted, the Magistrate did not comply with this obligation. Pursuant to section 9(2), the validity of a sentence is not affected by non-compliance or insufficient compliance with the obligation to provide sentencing remarks. However, section 9(2) does not negate for appellate purposes the clear obligation of a judicial officer to give proper reasons for sentence.[3]
[3] Cross v Police [2001] SASC 47 at [32] (Olsson J).
The period of disqualification was unusually lengthy for the offence of drive without due care, and the Magistrate’s obligation to the defendant and to an appellate court called for the provision of reasons. Those reasons did not need to be lengthy; however, they did need to provide an explanation for the penalty imposed. The absence of reasons leaves the appellate court with no assistance as to why the Magistrate reached the conclusions he did. As recently observed in Jones v Police:[4]
A failure to comply with section 9 leaves the appeal court in a difficult position. It has to review the sentence without the assistance of any sentencing remarks or without any other understanding of why the Magistrate in the present case imposed the particular sentence….
[4] Jones v Police [2009] SASC 137 at [40].
The inability to discern the basis upon which the Magistrate arrived at the sentence imposed may mask error in the sentencing process. This is particularly so where the sentence imposed is outside the norm for the particular offending, rather than in circumstances of a routine penalty for a routine offence.[5]
[5] Cross v Police [2001] SASC 47 at [32] (Olsson J).
In these circumstances, the failure to provide adequate reasons constituted an error of law.[6]
[6] R v Becker (2005) 91 SASR 498; Papps v Police (2000) 209 LSJS 407 (Gray J, Olsson & Wicks JJ agreeing); Cross v Police [2001] SASC 47 at [26],[32]-[33] (Olsson J); Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 547; Leslie v Police [2001] SASC 270.
Want of Procedural Fairness
At the time of sentencing, the Magistrate did not warn the defendant or the defendant’s legal representative that a period of licence disqualification was in contemplation. A recently admitted practitioner represented the defendant before the Magistrate. This Court was informed that the practitioner had been admitted for less than two years. Although she understood that a licence disqualification was a possible penalty, she had formed the opinion that as only a basic offence of driving without due care had been charged, a licence disqualification was not a real possibility. Accordingly, she made no submissions to the Magistrate on the topic of licence disqualification or the length of any disqualification.
A number of authorities of this Court have stressed the importance of the Court drawing attention to the possibility that a licence disqualification may be imposed in respect of a basic offence of driving without due care.[7] In the case of an unrepresented defendant, the Court has treated this circumstance as amounting to a denial of procedural fairness.[8] In Reeves v Police, Doyle CJ considered the consequences of the failure of the Magistrate to draw to the defendant’s notice the fact that licence disqualification was a possible penalty when the power to disqualify was not part of the penalty for the substantive offence. His Honour referred to the authorities of Wyngaarden v Samuels[9] and Hanley v Steel[10] and observed:[11]
Those cases do hold that a disqualification order should not be made under s 168, without giving a warning of the possibility that such an order might be made, nor made without giving the defendant an opportunity to make submissions.
I agree that such a warning should be given. The power to disqualify is not part of the penalty for the substantive offence, and the possibility of its use might not be anticipated by an offender. These considerations apply with particular force to an unrepresented offender. This approach reflects the fact that disqualification has the capacity to adversely impact on a person's livelihood and that, before such an order is made, the defendant ought to be given the chance to be heard on that matter. Once again, this is particularly so, when the defendant is unrepresented, as was the case here.
There is nothing to indicate that the magistrate did inform the appellant of his power to disqualify, or to indicate that the magistrate gave him the opportunity to make submissions on the subject. In his report to this Court, the magistrate says that he does not have any recollection of whether or not the appellant had an opportunity to make submissions on the question of licence disqualification. The magistrate's notes, which have been provided to me, do not suggest that any submission was made on the point. The magistrate does not say that it was his usual practice to invite submissions. The appellant does not say specifically that he was not called upon to make submissions, but he has sworn that he was unaware that his licence might be suspended. I consider that there is a real likelihood that the licence suspension was imposed without any warning and that, in the interests of justice, I should set aside the suspension and consider the matter afresh.
[Emphasis added]
[7]    Reeves v Police (1997) 70 SASR 451; Wyngaarden v Samuels (1973) 4 SASR 420; Hanley v Steel (1973) 5 SASR 242; Stoeckel v Police [2002] SASC 215.
[8]    See eg Reeves v Police (1997) 70 SASR 451.
[9]    Wyngaarden v Samuels (1973) 4 SASR 420.
[10] Hanley v Steel (1973) 5 SASR 242.
[11] Reeves v Police (1997) 70 SASR 451 at 453.
The cases of Wyngaarden and Hanley v Steel as applied by Doyle CJ did not involve traffic offences. However, the observations of the Court in those cases are apposite to the within proceedings.
In Wyngaarden, Bray CJ observed:[12]
It appears from the affidavits that the learned Special Magistrate did not inform him at any time before imposing the disqualification that he was liable to be disqualified. Nor was he asked to give any reason why he should not be disqualified. In fact, information which would have been relevant to that matter but which was not supplied to the learned Special Magistrate because it was not asked for or invited, has been supplied to me.
I agree with respect with what Wells J. said in Cooling v. Steel. In particular I agree that at some stage before a disqualification order is made the defendant should be told that the court has the power to disqualify him from holding or obtaining a driver's licence, and, at least if the court is considering making such an order, the defendant should be asked if he has anything to say on that specific topic. That was not done here.
[Emphasis added]
Bray CJ subsequently endorsed these observations in Hanley v Steel.
[12] Wyngaarden v Samuels (1973) 4 SASR 420 at 421.
The requirement to inform a defendant that licence disqualification may be contemplated was also discussed in Stoeckel v Police[13] where Mullighan J observed:
…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.
[13] Stoeckel v Police [2002] SASC 215 at [6].
It is to be observed that the obligation to warn a defendant that licence disqualification is contemplated may arise despite the defendant having legal representation.[14]
[14] Samuel v Police [2006] SASC 135 at [10]-[11] (Doyle CJ).
Having regard to the above factors, it has been necessary for this Court to reconsider the matter without the assistance of reasons and on hearing submissions as to further relevant matters. As a consequence, counsel for the defendant on the appeal put to the Court all the circumstances that were said to be relevant to the length of any licence disqualification. In this way the failure of the Magistrate to accord the defendant procedural fairness was addressed on the hearing of the appeal. Further information was placed before the Court by the Police without objection, about the police investigation into the defendant’s driving.
A Reconsideration
The circumstances of the defendant’s driving involved a significant departure from due care. The defendant, driving her V8 Commodore, was heard to rev the engine and then screech the tyres before being observed to execute a left-hand turn at a T-junction a short distance from the driveway of her home. She was described as executing the turn to her left in circumstances where her view was completely obscured by a high fence. Her speed as she turned was described by a witness as being excessive. The defendant lost control of her vehicle during the left-hand turn. Her vehicle crossed a rumble strip in the middle of the road, crossed over the incorrect side of the road and mounted the footpath on that side of the road. During the loss of control, the defendant’s vehicle spun through 180 degrees and was subsequently positioned on the footpath on the incorrect side of the road facing in the opposite direction to which she had been travelling. Her vehicle came into collision with a seven year old child who was walking her bicycle on the footpath. The child was knocked to the ground, suffering bruising, but apparently no other injury.
When questioned by the police, the defendant described her speed as she moved through the left-hand bend as being 20 to 30 kilometres an hour, and possibly faster. She said she touched her brake and lost control. At the time, an inspection of the defendant’s vehicle revealed it to be mechanically sound and in a roadworthy condition. The road conditions were good. There was nothing about the roadway, the vehicle, the weather conditions or any other factor to cause the defendant to lose control of the vehicle. The incident took place in a suburban locality on a weekday morning when neighbourhood residents might be expected to be going to work.
On the hearing of the appeal, the Police by consent tendered to the Court a road traffic report prepared by the police investigation team and a set of photographs taken soon after the incident. That material confirmed the obstruction to view and the absence of any explanation for the incident other than the defendant’s want of due care when driving.
In my view, this was a serious want of due care on the part of the defendant. It is difficult to imagine a more serious want of care that would not give rise to a charge of aggravated due care, or driving in a manner dangerous to the public. However, the defendant was to be sentenced only with respect to the charge of basic due care.
On 30 March 2009, the defendant had pleaded guilty to the offences of drive unregistered, drive uninsured and contravene a defect notice. The offending conduct occurred on 12 January 2009. In respect of this offending, the court recorded convictions and imposed a licence disqualification of seven days, commencing on 31 March 2009. At the time of the offending, the defendant was the holder of a provisional driver’s licence.
At the time of the imposition of sentence by the Magistrate, the defendant was disqualified from holding or obtaining a driver’s licence for a period of six months.[15] That period was to operate from 29 March 2009 to 28 September 2009. That disqualification occurred as a consequence of the operation of the statutory licensing regime in the Motor Vehicles Act 1959 (SA)[16] whereby a regulatory licence disqualification was imposed following conviction for an earlier offence of failing to display provisional licence plates.[17] As a consequence the seven day disqualification imposed by the Magistrate ran entirely concurrently with the regulatory disqualification arising from the statutory scheme.
[15] Motor Vehicles Act 1959 (SA) sections 81B and 139BD.
[16] Motor Vehicles Act 1959 (SA) sections 81B and 139BD.
[17] Motor Vehicles Act 1959 (SA) section 81(1)(a).
The offending the subject of the present appeal occurred on 9 April 2009, two days after the defendant’s court imposed seven day disqualification had come to an end.
As outlined in the remarks of the Magistrate pertaining to the drive whilst disqualified offence, the defendant claimed to be confused at the time of the offending as to whether she was disqualified from driving. Some confusion is understandable having regard to the overlap between the express disqualification imposed by the Magistrate and the regulatory disqualification arising by the operation of the statute. It is likely that the Magistrate’s disqualification was accompanied by a warning regarding the serious penalty attaching to a contravention of the disqualification and a particular warning not to drive for the seven day period imposed. However, it is not beyond the realm of possibility that the defendant understood that she could drive her vehicle again after the expiry of the express seven day disqualification, despite the concurrent imposition of the regulatory disqualification.

It is convenient at this point to discuss the further material and information provided by the defendant on the hearing of the appeal. The defendant resided with her partner at Christie Downs. She held employment as a beautician and her place of employment was within close walking distance of her home. There was no suggestion that her employment would be affected by a loss of licence. Her partner, both at the time of the Magistrates Court hearing and the hearing of the appeal, was the holder of a driver’s licence. He worked as a paver and landscaper. He had two children by another relationship, aged six and eight. The primary carer of the children was their mother. She lived in the nearby suburb of Moana. The children attended the Moana Primary School. It was said that the defendant assisted in taking the children to after and pre-school care from time to time. However, when pressed, counsel accepted that there was no reason why the defendant’s partner, the children’s father, could not attend to this task or an alternative arrangement be put in place. It was also accepted that other transportation needs of the children could be attended to by the children’s father when necessary.
It was pointed out that the defendant’s loss of licence left her in difficulty in meeting her friends and family. However again, when pressed, counsel accepted that, although inconvenient, public transport was available and that after hours and on weekends, her partner would be able to assist with travel arrangements.
The defendant’s transport problems are properly characterised as inconveniences, perhaps serious inconveniences, but no more. A consequence of licence disqualification is the potential inconvenience suffered by the disqualified driver.
Conclusion
Section 45 of the Road Traffic Act does not specify a maximum penalty for the basic offence of driving without due care. As such, sections 164A and 168 of the Road Traffic Act have application. Those provisions provide:
164A—Offences and penalties
(1)     A person who contravenes or fails to comply with—
(a)     a provision of this Act; or
(b)a condition or restriction specified in a permit, approval or exemption granted under this Act,
is guilty of an offence.
(2)     A person who is guilty of an offence against this Act for which no penalty is specifically provided is liable to a penalty not exceeding $2 500.
168—Power of court to make orders relating to licences or registration
(1)     A court that convicts a person of—
(a)an offence against this Act relating to motor vehicles; or
(b)an offence (under this Act or any other Act or law) in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle,
may do one or more of the following:
(c)    order that the person be disqualified from holding or obtaining a driver's licence for a period fixed by the court or until further order;
(d)order that the person so disqualified be not, at the end of the period of disqualification or on the removal of the disqualification, granted a driver's licence until the person passes a driving test as prescribed by section 79A of the Motor Vehicles Act 1959;
(e)order that a driver's licence held by the person be modified for a period fixed by the court or until further order;
(f)order that the registration of the motor vehicle concerned under the Motor Vehicles Act 1959 be suspended for a period fixed by the court or until further order, or be cancelled;
(g)order that the person, and any associate of the person, be disqualified from obtaining registration of the motor vehicle concerned as an owner or operator under the Motor Vehicles Act 1959 for a period fixed by the court or until further order.
Accordingly, there was no upper limit to the licence disqualification that may be imposed.
Counsel for the Police was unable to point to any authority where a penalty of more than 12 months licence disqualification had been imposed with respect to the offence of driving without due care. However, it was submitted that the gravity of the offending in the present case was beyond the norm. Counsel for the defendant argued that in the circumstances this penalty was manifestly excessive. I accept that the two year licence disqualification imposed is beyond the normal range for penalties imposed for the basic offence of drive without due care. Having regard to all the factors referred to earlier I consider a disqualification of 15 months to be an appropriate punishment.
This appeal is allowed for the limited purpose of varying the period of licence disqualification. The licence disqualification of two years imposed by the Magistrate is set aside. A licence disqualification of 15 months is imposed, to take effect from the date of the Magistrate’s sentence, 20 August 2009.