Thorley v Police - [2009] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THORLEY v POLICE
[2009] SASC 4
Judgment of The Honourable Justice Nyland
15 January 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appeal against sentence - plea of guilty to exceeding speed limit - whether offence could be considered trifling - appellant argued that the offence involved no significant risk in safety terms - typical offence of its kind - Magistrate correctly held that the offence was not trifling - appeal dismissed.
Australian Road Rules 1999 Rule 20; Criminal Law Sentencing Act 1988 (SA) s 15(1)(a); Motor Vehicles Act 1959 (SA) s 98B(4); Road Traffic Act 1961 (SA) s 47B(3)(b), referred to.
Siviour - Ashman v Police (2003) 85 SASR 23, applied.
Thorley v Police S4651 (Unreported Judgment delivered on 5 July 1994), considered.

THORLEY v POLICE
[2009] SASC 4
Magistrates Appeal

The appellant was charged on complaint that on 12 February 2008 at Pinnaroo he drove his motor vehicle on the Mallee Highway in excess of the speed limit of 110 kilometres per hour, contrary to Rule 20 of the Australian Road Rules 1999. It was alleged that his speed was about 124 kilometres per hour. On 25 August 2008, the appellant appeared before a Magistrate in the Berri Magistrates Court and pleaded guilty to the charge. The appellant, who was unrepresented, relied on s 15(1)(a) of the Criminal Law Sentencing Act 1988 to submit that, notwithstanding his plea of guilty, the Magistrate should find the offence so trifling that the charge should be dismissed without a conviction being recorded.
In support of this submission, the appellant gave evidence on oath, during which he said:
The Mallee Highway at the point where the offence occurred was straight, well sealed with reasonable shoulders and at that point was totally free of intersections or driveways. Visibility was excellent and the road surface was dry. At the time of the alleged offence my vehicle was the sole occupant of either lane in the relevant area. The approaching police wagon was far enough away, when the lights were activated that I was parked by the roadside before he passed. The stopping distance was therefore significantly within the hazard free sight of distance. The slightly elevated speed did not increase the potential for loss of control given the state of the road surface. The design and condition of the vehicle, the nature and state of the driver, about 3 million kilometres driven mostly rural without causing a crash. It was well within adhesion and control. My speed in the circumstances was demonsterously safer than driving at the speed limit and passing another vehicle.
Having considered the evidence of the appellant, the learned Magistrate declined to find the offence was trifling. He said:
The defendant here deliberately breached the speed limit. He was aware that he was breaching the speed limit. True as it is, that alone would not necessarily mean that he could not have a matter dealt with as trifling, and a clear example is given in Crafter v Schubert (1934) SASR 84, also referred to in Mancini v Vallelonga by Justice Mitchell, where a person might provide liquor where the supply may be a mere act of common humanity. True that might be, but that is a far cry from here where the legislation deals with a breach of the speed limit. It is as simple as that. The defendant admitted he was breaching the speed limit deliberately. In those circumstances, I cannot regard the breach as trifling, nor do I consider it other than an atypical (sic) example of the type of offence this legislation is aimed at, namely breaching speed limits in the face of the speed limit sign. There was no pressing necessity, no medical emergency. The defendant has some strange perception that somehow or other driving a speed greater in his case is safer. I reject that totally as well.
The Magistrate then recorded a conviction. He referred to the fact that the appellant had two prior offences and the fact that the maximum penalty was a fine of up to $2,500. He fined the appellant the sum of $250 together with court costs and levy.
Pursuant to s 98B(4) of the Motor Vehicles Act 1959 (MVA), however the Magistrate found that there was proper cause to reduce the demerit point arising from that conviction from one to zero. In so doing, the learned Magistrate relied on the judgment of Millhouse J in Thorley v Police[1]. As it happens, that was a case involving the same appellant which bears a remarkable similarity to the present case. In the earlier matter, the appellant was charged with driving at a speed of 25 kilometres per hour over the speed limit on the Barrier Highway. In his reasons, Millhouse J said that:
The appellant was caught out in the country on an open road with little traffic. The road surface was good. It was about three o’clock in the afternoon and weather conditions were satisfactory.
[1] S4651 Unreported Judgment delivered on 5 July 1994.
Millhouse J found that there was no danger in the appellant’s speed or manner of driving. He however declined to find the offence was trifling and described it as “a typical offence of speeding”. Nevertheless, having regard to the circumstances about which the appellant had given evidence on oath, he considered he was justified in making an order pursuant to s 98B(4) MVA that the appellant lose no demerit points as a result of the conviction.
In the present matter the appellant, who was also unrepresented on the hearing of the appeal, made submissions which mirrored those which he put to the learned Magistrate. The appellant acknowledged that he was aware that he was travelling in excess of the designated 110 kilometres per hour road speed limit. He maintained however that a finding could be made as to triviality as in the particular circumstances of the case the offence involved no significant increase in risk in safety terms. He referred to the report of the offence as contained in the expiation notice[2], which describes the appellant’s car as being:
1.5 kilometres from the property driveway, (s) side prior to bend.
[2] Exhibit KMK1 to the Affidavit of Kendyl Marie Knott sworn on 30 October 2008.
It describes the traffic as light, the road conditions dry and the weather fine. The notice also records that when the police officer spoke to the appellant about his reasons for exceeding the speed limit, the appellant said:
It’s a safe speed, I’m in a safe vehicle, there are no intersections near here.
In Siviour-Ashman v Police [3], the Full Court considered matters relevant to the determination of a trifling offence in the context of ss 47B(3)(b) of the Road Traffic Act 1961. In that case, the appellant had recorded a blood alcohol reading of .12 at a random breath testing station after drinking a fruit drink which, unknown to her, contained alcohol. It was accepted that the appellant was taking care not to consume alcohol that would create a risk of her having alcohol in her blood in excess of the prescribed quantity. It was agreed that but for the consumption of the fruit drink the appellant would not have exceeded the limit. It was also agreed that the appellant could not have known that the fruit drink contained alcohol and there was no evidence to suggest that the appellant had felt the effects of the alcohol or that her ability to drive a motor vehicle was impaired. At [6], Doyle CJ pointed out that the Act does not define “trifling”, but at [24] said that one should begin by bearing in mind the ordinary meaning of “trifling”. He then said that:
That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
[3] (2003) 85 SASR 23.
He went on to say at [25]:
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side: see Verran v Roberts [1938] SASR 256 at 259-260; Mancini v Vellelonga (1981) 28 SASR 236 AT 239. The offence might be unusual or exceptional in this sense, if it is “a trivial example of the forbidden act”: Brebner v Hersey [1963] SASR 1 at 11.
At [38], he said:
The contrast that I would draw in this context is between a driver who drives with the prescribed concentration of alcohol in his or her blood, but drives a short distance to move a vehicle that is otherwise a danger, or to take an injured person to hospital, and a driver who drives an equally short distance but for no good reason, or who drives a substantial distance for the reasons suggested. In the first instance, the driving involved is not typical, and the explanation offered removes any element of intention or defiance of the law. The offence might be regarded as trifling. In the second instance, while the offending conduct is not itself typical, there being no satisfactory explanation for it, I would not regard the offence as trifling. In the third example, the offending conduct is typical, the danger which Parliament seeks to avoid is present, and (absent further persuasive circumstances) the justification for the breach of the law cannot cause one to characterise the offending conduct as trivial, however powerful the justification might be if viewed as a mitigating circumstance.
Doyle CJ further said at [39] that he recognised that in every case it was a matter of considering the offending conduct and the justification and that was an area in which minds can differ. He finally concluded that the offence was not trifling and, by majority, the appeal was dismissed.
In this case there has been nothing produced by the appellant to support his contention that the offence charged on this occasion was anything other than a typical offence of its kind. The speed limit on the road was 110 kilometres per hour. The appellant exceeded that speed limit by about 14 kilometres per hour. He was aware that he was in excess of the prescribed speed limit. There was no situation of medical emergency nor other special circumstance to justify his behaviour. The only justification asserted by the appellant was his personal assessment that driving at that speed posed no danger to him nor other road users. As he said in a written submissions to the learned Magistrate:
Unless a distinction is allowed between trivial and non-trivial traffic offences, between offences that matter in safety terms and those that don’t, with the trivial ones being disregarded, then current traffic law is reduced in practice to absurdity. The consequence would be that competent, discerning and efficient drivers would be fined and disqualified for driving safely which is not what the system intends. To treat all drivers and all vehicles as if all circumstances were the same in safety terms is a distortion of fact and is grossly unfair to the more competent.
Parliament has fixed what it considers to be an appropriate speed limit on public roads to prevent dangers that can arise when motorists travel at an excess speed. In so doing, it has not invested a driver with any discretion to assess the appropriate speed at which to travel, based on the driver’s perception of the safety of his conduct, so as to render the driving behaviour as trifling. This was a typical speeding offence. The appellant deliberately exceeded the prescribed speed limit by 14 kilometres per hour. There was no pressing necessity which gave rise to that conduct. The Magistrate was correct in finding there were no circumstances which would categorise this offence as trifling. No error has been demonstrated. The appeal is dismissed.