Thorley v Police No. Scgrg-97-1485 Judgment No. S6492

[1997] SASC 6492

THORLEY  v  POLICE

Perry J  (ex tempore)

The appellant appeals against the penalty imposed upon him following his plea of guilty in the Magistrates Court sitting at Adelaide to a charge that on 23 June 1997 at Clarence Gardens he drove on South Road at Mitcham at a greater speed than 60 kilometres an hour, namely at about 80 kilometres an hour.

The learned sentencing Magistrate convicted the appellant and imposed a fine of $170.  Although the conviction would ordinarily attract three demerit points, the learned sentencing Magistrate reduced the demerit points to two.

The appellant was unrepresented by counsel and appeared on his own behalf.

The police prosecutor, Mr Athans, has explained in his affidavit put before this Court that at the time of the hearing in the court below he did not have a copy of the police brief and was, therefore, unable to present the facts to the court.

In consequence of that, the learned sentencing Magistrate enquired of the appellant as to how fast he was travelling at the time, to which the appellant replied that he was travelling at “about 80”. The appellant went on to submit that the charge should be dismissed without conviction on the basis that the offence was trifling or that if convicted no penalty should be imposed. In doing so, he relied on the provisions of ss15 and 16 of the Criminal Law (Sentencing) Act 1988.

The appellant gave evidence on oath in support of his further application that no demerit points be recorded (see s98b(4) of the Motor Vehicles Act 1959).

Discussion ensued between the appellant and the learned sentencing Magistrate, following which the submissions made by the appellant directed towards characterisation of the offence as trivial and directed towards reducing the demerit points were rejected.  The learned sentencing Magistrate went on to convict the appellant and impose the penalty now under review.

The appellant conducted his own case on the hearing of the appeal before me with, if I may say so, a degree of forensic skill and ability.  He put before this Court an outline of his submissions in writing and indicated that it was the same as a written submission which he had made to the learned sentencing Magistrate.

In the course of that submission, he sets out various facts regarding the offence.  Without going through all of those matters, the important aspects are that the elevated speed, that is, the speed of approximately 80 kilometres per hour, was reached only on parts of the approximately-500-metre Cross Road overpass on South Road, and that before leaving the overpass, the appellant had reduced his speed to the 60 kilometres per hour limit.  Indeed, as he put it to me during the course of his submissions:

“I gave the car a bit of a squirt to go up and over the overpass.”

He points out also that the overpass is a four-lane median-divided road, with no driveways, cross streets, parked cars or pedestrian access and that his vehicle was the only vehicle in either lane on the relevant section of the overpass at the time.  Visibility was “perfect” and there were no hazards to be seen.

He was driving what he maintains was an exceptionally safe vehicle, namely, a SAAB 9000, and he is an experienced driver, having been driving for 28 years.  He put before the Court a copies of a number of certificates which had been issued by an organisation known as Nationwide Defensive Driving School.  Those certificates testify to his having completed two advanced driving courses in “Road Craft” and the “Car Control”.  The appellant put also before the Court a letter of reference from the Export Rural Sales Manager of R. M. Williams.  The appellant informed this Court that he averaged a very high annual total of kilometres of driving each year, and had driven some 1.8 million kilometres without significant accidents or traffic infringements, apart from (safe) “exceed speeds”.

Against that background, the appellant contends that the learned sentencing Magistrate erred in failing to find that the offence was trifling, and in refusing to order that no demerit points be incurred.

The appellant further complains in his notice of appeal that the learned sentencing Magistrate:

“... failed to attend to the detail of the written legal submissions made, thereby not hearing the defendant on points of law which turned out to be central to his judgment.”

The written submissions which the appellant prepared, and which, as I have indicated he used in the court below, canvass a number of authorities, principally of this Court, in which the concept of a trifling offence has been considered and, to a certain extent, defined.

The appellant has not hesitated in his submissions to be critical of some judgments of this Court, and in particular the judgment of Mitchell J in Mancini v Vallelonga,[1] to which I will refer in due course.

[1] (1981) 28 SASR 236.

I should point out that the offence was detected by a radar gun and that there is no challenge to the various facts of the matter as asserted by the appellant, so that the matter falls to be dealt with on that footing.

In rejecting the submission that the offence be treated as trifling, the learned sentencing Magistrate said:

“I do not agree with that submission.  It is not at the lowest end of the scale.  It is 20 kilometres per hour over the prescribed limit.  It is not 5, 6 or even 10 kilometres.

It is true to say that there were, apparently, no other vehicles in the area. The defendant suggests that that makes the offence trifling.  I disagree.  It is slightly out of the norm, in as much as there are other 60 kilometres per hour zones where there may be side streets and persons travelling at 80 kilometres in those areas may put more of a danger towards the general community than what the defendant has.

The fact of the matter is that it is a regulatory type offence and the defendant has been caught.  I am prepared to reduce the points by one as there is some, but realistically not a considerable amount, of merit to what the defendant is saying.”

He then went on to impose the penalty now under review.

As I have said, it appears that the appellant has, to a substantial extent, repeated in this Court the submissions which were rejected by the learned sentencing Magistrate in the passage of his remarks on sentence to which I have just referred.

In the case of Mancini v Vallelonga (supra), Mitchell J said:

“An offence is not trifling if it is a typical offence of the class proscribed”,

(citing Leonard v Cresswell.[2]  She went on to observe:

[2] (1920) SALR 165 at 175.

“Where the breach is deliberate it cannot really be characterised as trifling.”

Those observations have been repeated in subsequent cases, and remain of assistance in determining whether or not an offence can properly be characterised as trifling.  The attack made on that judgment by the appellant, and in particular on the observations which I have just cited, is not justified.  The case is unquestionably still good law, and is of assistance in identifying the general approach to be made when the court is asked to classify an offence as trifling.

Of course, it is important to recognise that the characterisation of an offence as trifling or not trifling is the expression of a discretionary judgment.  As such, in accordance with well established principles, for example, see House v The King,[3] an appellate court should not interfere unless the exercise of the discretion is tainted by error of law or a misapprehension of the facts, or unless it can plainly be discerned that absent patent error, the sentence imposed was clearly and manifestly wrong.

[3] (1936) 55 CLR 499.

That is not the case here.

Despite the protestations of the appellant that the learned sentencing Magistrate failed to have sufficient regard to the submissions which were put to him by the appellant, he is an experienced Magistrate who cannot have failed to take them into account.

The remark made during the course of the presentation of his case in this Court when the appellant said that he had given his car “a bit of a squirt to go up and over the overpass” is a clear indication that the offence was deliberate.   Indeed, the appellant conceded during the course of his argument that he had deliberately exceeded the speed limit but, at the same time, emphasising that he did so in a way which he thought was safe and did not expose any other road user to any danger.

That is a consideration which has been at the forefront of his submissions throughout.  He has emphasised the safety of what he was doing.

But despite the elaborate submissions which the appellant has advanced and his intensive analysis of the history of decisions dealing with triviality, he has failed to demonstrate that the learned sentencing Magistrate was in error in taking the view that he did.

Furthermore, notwithstanding the refusal by the learned sentencing Magistrate to characterise the offence as trifling for the purposes of the primary penalty, insofar as he reduced the number of demerit points by one, that was not an action on the learned sentencing Magistrate's part which was inconsistent with his finding as to triviality. This is so because s98b(4) of the Motor Vehicles Act 1959, which creates the power to reduce the number of demerit points, allows such a course either where the offence is trifling or where any other “proper cause exists”.  It is clear that it is the latter part of the section which the learned sentencing Magistrate applied in reducing the demerit points by one.

While I accept, as the appellant contends, that the fact that the offence was typical of its class and was deliberate does not inevitably lead to rejection of the proposition that the offence should, nonetheless, be characterised as trifling, it goes a long way towards that result.

No error having been demonstrated in the approach adopted by the learned sentencing Magistrate, the appeal must be dismissed.  I so order.

[FOLLOWING DISCUSSION AS TO COSTS]

HIS HONOUR:  The appellant will pay the respondent's cost of the appeal, which I fix at $150.