Tjombanakis v Police No. Scgrg-97-1392 Judgment No. S6435

[1997] SASC 6435

TJOMBANAKIS v POLICE

Matheson J (ex tempore)

The appellant was charged on a complaint in the Magistrates Court at Port Adelaide with the following three offences: 

1. On the 28th day of May 1997 at Brompton, [he] drove a vehicle namely a motor car on a road namely Port Road at a speed which was dangerous to the public; contrary to s.46 of the Road Traffic Act, 1961.

1. On the 28th day of May 1997 at Brompton, [he] drove a vehicle namely a motor car on a road namely Port Road within the municipality of Port Adelaide Enfield at a greater speed than 60 km/h, namely at about 107 km/h; contrary to s49 of the Road Traffic Act, 1961.

1. On the 28th day of May 1997 at Brompton, [he] drove a motor vehicle on a road namely Port Road and contravened a condition endorsed upon his licence under s81a of the Motor Vehicles Act 1959; contrary to s81a of the Motor Vehicles Act, 1959.

He pleaded guilty to, and was convicted on, counts 1 and 3. The second count was withdrawn. The learned magistrate invoked his powers under s18a of the Criminal Law (Sentencing) Act and imposed one penalty, namely a fine of $400 with $169 costs, and disqualified the appellant from holding or obtaining a driver's licence for a period of eight months.

The penalty provided for a breach of s.46 of the Road Traffic Act, 1961, for a first offence, is a fine of not less than $300 and not more than $600, and the Act provides that, where a court convicts a person of an offence against section, it must, unless the court is satisfied by evidence given on oath that the offence is trifling, order that the person be disqualified from holding or obtaining a driver's licence, in the case of a first offence, for such period, being not less than six months, as the court thinks fit. The penalty for a breach of s81a of the Motor Vehicles Act, 1959, is a fine not exceeding $1000.

The appellant was unrepresented, both before the magistrate and before me, and, in his notice of appeal, he said:

"The magistrate did not give me a chance to explain my situation at work.  I am doing an apprenticeship as a motor mechanic and my licence is very essential in this trade. I also play for Port Adelaide Soccer Club and I also need a licence to go to training and games.  Now that I have lost my licence, I could lose my job."

In his extempore sentencing remarks, however, the learned magistrate said: 

"The defendant has been advised of his rights and penalties and wishes matters to be dealt with today. The facts and submissions are taken into account, all of which I have elicited from the defendant and noted."

Later in his reasons, he said:  `The defendant informed me that he was 18 years of age and lived with his parents.  The car had since been crashed by his girlfriend.  He is working as an apprentice motor mechanic.  The vehicle was a standard Corolla.'

The appellant accepts his Honour's summary of the circumstances relating to the offence.  His Honour said: 

"  On 28 May 1997 on Port Road near Brompton, at 8.15 pm. a plain police vehicle was travelling south-east up Port Road, Croydon.  The occupants noticed a Corolla in the centre lane and a Holden sedan in the left-hand lane, there being three lanes for traffic in that direction.  The Corolla accelerated with the Holden.  The Corolla appeared to initiate the manoeuvre.

Police immediately accelerated and began to time both vehicles along Port Road over South Road on an amber light. In fact, both vehicles travelled through the intersection as the lights changed to red at a high speed, but at that point, neither was actually timed.

Immediately afterwards, both vehicles were timed at a constant speed of 107 kms an hour in a 60 km hour zone.  They kept abreast of each other.  The Holden then braked sharply and turned into West Street and was never caught up with again. However, the police stopped the Corolla and the defendant was the driver.  The defendant explained to police, the reason of his driving was endeavouring to get into the left lane and the reason he drove was ‘that guy wouldn't let me in.’

He admitted that he's aware of breach of his probationary licence conditions and that he had crossed a number of major junctions and intersections, South Road, Coglin Street etc.

Police noted that there was a large amount of foliage on the centre median strip, with throughways for traffic travelling from the southern carriageway to northern carriageway. The traffic was, in police opinion, light. The street lighting was good, although lighting at entrances to Port Road was very poor.  Five cars were on South Road. Police inspected the vehicle, found it had no defects and was in good condition.  Defendant's traffic antecedents: Speeding 1997 disobeying probationary licence."

The only question that has troubled me about this appeal is a letter that was handed by consent to me this morning which reads: 

"DISTINCT AUTOMOTIVE
680 Torrens Road
Pennington S.A. 5013
Phone: 47 1228

11/11/97.

To whom it may concern:-

Due to the circumstances Raymond's job involves driving around various destinations to road emergencies, part pick-ups & deliveries. Without his licence he is no asset to the company, and to his apprenticeship.  Therefore could you please consider these circumstances for Raymond to still be employed. 

Thank you.

(Signed)

Nick Totsikas,
Manager"

Notwithstanding what his Honour said about the submissions of the appellant to him at the hearing before him, I am left with the conviction that his Honour may not have realised how serious an impact a lengthy disqualification would impose for this appellant.  With considerable hesitation, I have decided to interfere with the period of disqualification imposed, but only for the purpose of reducing it to the minimum authorised by the section, namely six months.  In other respects, the orders of the learned magistrate are confirmed.