Van Hoof v Police No. Scciv-02-761

[2002] SASC 280

Vanhoof  v  Police
[2002] SASC 280

Magistrates Appeal (Ex tempore)

1. DUGGAN J.         The appellant has appealed against a sentence imposed in the Adelaide Magistrates Court for an admitted offence of driving at a speed dangerous to the public contrary to the Road Traffic Act (1961) s 46.  The offence was committed in the course of an incident which took place on Henley Beach Road at Brooklyn Park in the early hours of Sunday, 3 June 2001.  It was stated by one witness that on this occasion the appellant was driving at a speed at least in excess of 100 km/h in a 60 km/h zone.

2. Whatever the speed actually travelled by the appellant, the fact remains that he pleaded guilty to driving in a speed which was dangerous to the public.  The appellant began driving at this excessive speed when he was challenged by another driver to a drag race.  The appellant eventually lost control of the vehicle which went through the garden of a house before piercing the front wall of the building.  The appellant incurred serious injuries from which he is presently recovering and I accept that the course of that recovery has been, and will be, long and difficult.

3. The learned magistrate recorded a conviction and, because the appellant was on unemployment benefits, directed that he perform 48 hours of community service within the following six months.  I understand that the community service has been completed.  The appellant was also disqualified from holding or obtaining a driver’s licence for a period of 12 months from the day following the hearing which took place on 15 January 2002.

4. The appeal is out of time and I indicated to the appellant that he would have to indicate reasons why it was appropriate that I should extend the time for the appeal.  In response to that he explained to me that he had been put into a particularly difficult financial situation following the accident and its consequences and that he did not have the money to finance the appeal.

5. Although he has represented himself this morning he has told me that he did not have sufficient funds for the filing of the appeal in the court.  I am prepared to extend the time for the filing of the appeal to the date upon which it was filed.

6. In his written argument, supplemented by oral argument this morning, the appellant has identified a number of matters which he says are relevant to the disqualification period.  He has placed stress on the consequences to him of the accident.  He has said that he wrote off his vehicle and he sustained life-long injuries.  He also referred to some aspects of hardship, namely, that his house has been robbed twice while he was in hospital and that he supported his mother when her partner left her recently.  He said that he had not driven a motor vehicle in the last 12 months.  He pointed out in his written submissions that he had received little support from his family because they do not live in Adelaide.

7. The learned magistrate commented on the fact that the appellant had sustained injuries.  The other aspects of suggested hardship have very limited weight, bearing in mind the importance of the deterrent aspect of punishment in this case and the fact that the appellant played a part in bringing these matters onto his own head.

8. The appellant has provided a character reference to the court.  The reference does not qualify as fresh evidence; it is material which should have been provided at the time of sentencing.  Nevertheless, I do not think that matters in the circumstances, because the learned magistrate sentenced on the basis that the appellant was a person of good character.

9. The appellant is a 22 year old single man.  He was employed with a security firm until shortly before this offence.  He has one prior conviction.  On 27 March 2000 he was convicted of driving with excess blood alcohol.  He was fined $700 and disqualified from holding or obtaining a driver’s licence for a period of six months.  At the time of the matter presently before the court the appellant was driving with P-plates.

10. The offence was a serious one of its type.  Although it took place in the early hours of the morning, the driving was on a main road and it was to be expected that there would be other traffic on the road.  A witness who was driving along the same road said that the appellant’s vehicle passed him at a very high rate of speed.  He said his car shook as the appellant’s vehicle passed.  Shortly thereafter, the appellant’s vehicle careered into the house.  There was a passenger in the appellant’s vehicle at the time.  The appellant said he had no memory of the incident.

11. The section which creates this offence provides for a minimum disqualification of six months for a first offence.  When sentencing for this offence it was important to bear in mind that the appellant had served a period of disqualification for six months for the drink-driving offence.

12. The learned magistrate gave carefully considered reasons for his decision.  In my view he has not erred in principle.  The sentence which he imposed was one which was available to him in the exercise of his discretion.

13. In the circumstances, the appeal will be dismissed.