Wimmer v Police - [2013] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WIMMER v POLICE
[2013] SASC 95
Judgment of The Honourable Justice Gray
25 June 2013
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - OTHER MATTERS
Appeal against conviction and sentence - defendant convicted by Magistrate of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - defendant was turning motor vehicle right from Findon Road - motorcycle was travelling in opposite direction on Findon Road - motorcycle collided with defendant's vehicle - motorcyclist sustained fatal injuries - Magistrate concluded that defendant failed to take any or adequate lookout when turning right - Magistrate imposed two months suspended sentence of imprisonment and disqualified defendant from holding a driver's licence for 12 months - whether Magistrate erred in excluding beyond reasonable doubt the possibility that motorcyclist had been driving without headlights on - whether Magistrate erred in failing to exercise discretion not to record a conviction - whether imposition of term of imprisonment was manifestly excessive.
Held: Appeal against conviction dismissed - Magistrate's conclusion that the possibility that the motorcyclist had been driving without headlights had been excluded beyond reasonable doubt was open on the evidence - no error in Magistrate's failure to exercise discretion not to record a conviction - appeal against sentence allowed - Magistrate failed to have proper regard to section 11 of the Criminal Law (Sentencing) Act 1988 (SA) - sentence of imprisonment is a sentence of last resort.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16 and s 39, referred to.

WIMMER v POLICE
[2013] SASC 95
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction and sentence.
The defendant and appellant, Jason Alfred Wimmer, was charged on complaint with the offence of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA).[1] It was alleged that there was a circumstance of aggravation in that the offence caused a death.
[1] Section 45 of the Road Traffic Act 1961 (SA) relevantly provides:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)    the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(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;
…
On 12 November 2012, the defendant entered a plea of not-guilty to that charge. On 25 January 2013, following trial by a Magistrate, the defendant was convicted as charged. On 31 January 2013, the defendant was sentenced to two months imprisonment. That sentence was suspended on his entering into a bond to be of good behaviour for a period of 18 months. The defendant was also disqualified from holding or obtaining a driver’s licence for a period of 12 months.
The Conviction
The Evidence
On Tuesday 26 July 2011 at about 6.00 am, a motor vehicle driven by the defendant was involved in a collision with a motorcycle ridden by Paul Richard Higginson. As a consequence of injuries sustained in the collision, Mr Higginson died.
The collision occurred at the junction of Findon Road and Valetta Road, Findon. At about 4.15 am that morning, the defendant had left home to attend a gym. At about 5.45 am, he had left the gym to travel to his place of work at Kidman Park. He was proceeding in his motor vehicle south on Findon Road, approaching the junction with Valetta Road on his right. The junction is controlled by traffic lights. For traffic travelling south on Findon Road, the carriageway is comprised of two lanes. The left-hand lane carries traffic continuing south on Findon Road. The right-hand lane carries traffic that either continues south on Findon Road or traffic which turns right onto Valetta Road to travel west.
As the defendant approached the junction, he was in the right-hand lane. He stopped behind a white station wagon and indicated his intention to turn right onto Valetta Road. At this time, the traffic lights were showing red for southbound traffic, including for traffic turning right onto Valetta Road.
When the lights changed to green for southbound traffic, the white station wagon proceeded through the junction. At that time, the traffic lights indicated a red arrow for vehicles turning right onto Valetta Road. The defendant moved his vehicle to the white line marking the entrance to the junction and when the red arrow extinguished, the defendant commenced turning right onto Valetta Road. As he executed the turn, he came into collision with the motorcycle ridden by Mr Higginson. The collision was between the front of the motorcycle and the front side fender of the defendant’s motor vehicle. Mr Higginson was catapulted into the side of the motor vehicle. The motorcycle was extensively damaged.
The evidence of an experienced major crash police investigator was agreed between the parties. This evidence established the point of impact as being midway through the junction and about in line with the centre of the northbound right-hand lane of Findon Road. A skid mark 4.8 metres in length on the road that led to, but stopped short of, the point of impact, was consistent with having been made by the front tyre of the motorcycle. The location and nature of the skid mark suggested that Mr Higginson was travelling in the northbound right-hand lane of Findon Road prior to the collision. The defendant’s motor vehicle came to a halt a short distance past the point of impact, consistent with having turned right onto Valetta Road. There were no skid marks associated with the defendant’s vehicle.
The defendant was interviewed by the police shortly after the collision. He said that when the traffic lights had turned green and the red arrow had been extinguished, he had pulled out and had not seen anything coming. He said that he had just gone around the corner and there was a motorcycle probably two metres away, which went straight into the side of his vehicle. He described his manner of driving around the corner as being normal and said that he had been travelling at about 10 kilometres per hour. He said that as he began his turn, the white station wagon was still in front of him about half-in and half-out of the junction. The defendant said that he looked along Findon Road and saw nothing coming towards him. He saw the motorcycle at the last moment and could not estimate its speed.
The defendant was questioned as to whether he had seen lights on the motorcycle. At first he said that he could not remember. Later he said that he had not seen any lights or anything like that, otherwise he would have waited. When asked again about lights on the motorcycle, the defendant replied, “I wouldn’t have a clue ... I doubt it but I wouldn’t have a clue”.
Gregory Wager was driving his white station wagon south on Findon Road at the time of the collision. He was travelling in the left-hand lane on Findon Road, approaching the junction with Valetta Road. He was aware of a vehicle travelling behind him. As he approached the traffic lights at the junction, they displayed green for his direction of travel and he continued through the junction. As he was crossing through the junction, he heard a loud noise, looked in his rear-view mirror and saw a car stopped in the junction and a person lying on the road. He executed a U-turn and returned to the junction. At this time, he observed a badly damaged motorcycle with the tail light illuminated and a motorcyclist lying on the ground. Mr Wager did not see the motorcycle prior to the collision.
At the time of the collision, the sun was yet to rise. Sunrise did not occur until 7.15 am. The moon, at the time, was producing about 25 per cent of its total available illumination. A street light 30 metres to the south of the junction was inoperative, although the area was otherwise generally well lit by street lighting. The traffic lights were operating correctly. The weather was dry and conditions were somewhat overcast. The speed limit of 60 kilometres per hour was applicable to all directions of travel.
Michael David Cook, a forensic scientist within the chemistry section of Forensic Science SA, gave evidence of his examination of the quartz halogen light globes from the motorcycle. Mr Cook was accredited by the National Association of Testing Authorities. Both light globes were damaged. In his opinion, the distortion to the low beam filament of one of the globes was the result of significant impact damage while the light was turned on and operating on low beam. In his opinion, the damage to this globe exhibited a high degree of distortion which could not have occurred due to ordinary usage, vibration or a fall, nor could the distortion have been caused by age. Mr Cook was unable to determine when the impact causing the distortion had occurred. The other light globe was so extensively damaged that no meaningful conclusions could be made as to whether it was operating immediately prior to the collision.
A senior vehicle examiner of South Australia Police examined the motorcycle, a Honda 400cc machine. Examination revealed that it was in reasonable condition prior to the collision and, in particular, no pre-collision faults were detected. It was the opinion of the examiner that the damage to the motorcycle would have been caused by extensive forces.
The low beam headlight of the motorcycle was operated by the ignition switch. The motorcycle was designed so that whenever the ignition was switched on, the headlight would be activated on low beam. The motorcycle was fitted with a high beam switch, designed to be easily operated by the rider’s left thumb and activated by minimal pressure.
An examination of the tail light revealed two light globes. Each globe contained two filaments. One filament operated as a fixed tail light which remained constantly on while the ignition of the motorcycle was turned on. The other filament operated as a break light. The examiner gave evidence that, in his opinion, the tail light of the motorcycle was on at the time of the collision. His examination of the four filaments in the light globes located in the tail light revealed distortion to each filament consistent with severe impact. The distortion was not consistent with other causes.
A post-mortem examination indicated that Mr Higginson was likely to have been under the influence of cannabis at the time of the collision. The concentration of cannabis in Mr Higginson’s blood was at such a level as to make it likely that he had consumed cannabis in the hour prior to the crash. The effects of cannabis on driving include a decreased reaction time and, as a consequence, a decreased ability to respond to emergency situations, as well as a deceased ability to control a motorcycle and, as a consequence, an increased risk of driving errors. A pharmacological report tendered by agreement concluded that Mr Higginson was under the influence of cannabis at the time of the collision with a consequent reduction in his ability to ride his motorcycle safely. It was said that his ability to avoid the collision could have been impaired as a result of the effects of cannabis consumption.
Testing of forensic samples taken from the defendant established that he was not intoxicated or under the influence of any alcohol or drug at the time of the collision.
The Magistrate’s Findings
The Magistrate, following detailed reasons, concluded:
Based on the consideration of all the evidence I find that;
•The defendant was the driver of the vehicle involved in the collision with a motorcycle ridden by Paul Higginson who was killed as a result of the collision,
•Paul Higginson was intoxicated at the time of the collision but that his intoxication did not contribute to the collision,
•At the time of the collision the headlight the motorcycle ridden by Mr Higginson was operating and he and his motorcycle would have been visible to motorists in the position of the defendant,
•The defendant, Jason Wimmer, failed to take any or any proper lookout before executing the right hand turn across the path of Mr Higginson’s motorcycle and thereby caused the collision with the motorcycle,
•The defendant's failure to exercise a proper lookout fell below the standard required of a reasonably prudent driver.
Accordingly I find the defendant guilty of driving without due care or attention and find the offence was aggravated.
The Sentence
The Magistrate determined that it was appropriate to convict the defendant of the offence of aggravated driving without due care. The Magistrate rejected the defence submission that he should exercise his discretion and not record a conviction.
The Magistrate sentenced the defendant to a term of imprisonment of two months. The Magistrate considered that good reason existed to suspend this sentence having regard to the defendant’s good character, age, antecedents and future prospects. As a consequence, the Magistrate ordered that the sentence of imprisonment be suspended on the defendant’s entry into an 18 month good behaviour bond.
The Magistrate disqualified the defendant from holding or obtaining a driver’s licence for a period of 12 months commencing on 10 April 2013.
Conviction Appeal
Counsel for the defendant submitted that the Magistrate failed to properly consider the defence case, failed to have proper regard to the infirmities and the dangers of the prosecution evidence, and made a finding of guilt that was unreasonable and against the weight of the evidence.
The substance of the submission in regard to all three complaints was that there was insufficient evidence to exclude a reasonable hypothesis consistent with innocence. It was argued that the evidence did not exclude the reasonable possibility that the deceased motorcyclist was riding without his headlight operating. It was contended that neither the defendant nor the witness, Mr Wager, observed a motorcycle approaching with a headlight operating, that the forensic evidence did not establish that the headlight was necessarily alight, and that on the evidence, the deceased was riding his motorcycle while affected by cannabis such that his ability to ride was impaired. It was contended that the Magistrate failed to consider the cumulative effect of these considerations.
Counsel drew attention to the statement given by the defendant to the police that he did not observe a motorcycle approaching with its headlights operating. Attention was also drawn to the evidence of Mr Wager that he did not see an approaching motorcycle with its headlight operating. It was claimed that Mr Wager was in a position where he could be expected to have observed the motorcycle’s headlight operating if that were the case. Counsel pointed out that the forensic evidence, although supporting a conclusion that the globe in the headlight had been damaged when illuminated, was unable to exclude the possibility that the headlight had been damaged by an earlier collision. It was pointed out that although the motorcycle’s tail light was illuminated at the time of the collision, it did not follow that the headlight was also illuminated.
Having regard to the foregoing, counsel placed emphasis on the uncontested evidence that the deceased had consumed cannabis in the hours before the collision such that his faculties could be expected to have been impaired. It was contended that, in these circumstances, it was more likely that the deceased might take the risk of riding without his headlight being illuminated.
Counsel for the police rejected each of the above criticisms. It was pointed out that in the course of the defendant’s statement to the police he had said that he did not know whether or not the motorcycle’s headlight had been illuminated. It was also pointed out that, on the finding of the Magistrate, Mr Wager was travelling in the left-hand lane and that vehicles travelling in the other direction on Findon Road offered no danger. As earlier noted, Mr Wager approached a junction and travelled through that junction on a green light. Traffic travelling in the opposite direction on Findon Road would not in any circumstance cross Mr Wager’s path. It was said that, in these circumstances, it was not unusual that Mr Wager would not have taken any particular notice of a motorcycle travelling in the opposite direction.
Counsel submitted that the evidence of the consumption of cannabis by the deceased did not reasonably allow the conclusion that he would have been travelling in a time of darkness without his headlight being illuminated. Attention was drawn to the evidence that the motorcycle was in good condition and good repair.
Emphasis was placed by counsel on the forensic evidence that the globes of the headlight had been damaged by impact and had been illuminated at the time of that impact. It was said that the suggestion that the globes had been damaged in some earlier impact was no more than speculation and fell well short of a reasonable possibility. Attention was also drawn to the fact that the tail light was illuminated at the time of the collision.
The Magistrate in extensive and careful reasons reviewed the evidence. His Honour paid close attention to the statement made by the defendant to the police. In that respect, his Honour noted:
Later when asked for any reason as to why he did not see the motorcycle before the crash the defendant said ‘No, I did not see any lights or anything like that otherwise I would have waited.’ When asked again about whether the motorcycle had its lights on the defendant said ‘I wouldn't have a clue. I doubt it but I wouldn't have a clue’.
When asked if there was anything other than the car in front of him obstructing his view of the road and for vehicles coming towards him the defendant responded ‘No’. He said he was not distracted from seeing the motorcycle by anything inside the vehicle.
The Magistrate reviewed the evidence of a senior vehicle examiner and noted:
The motorcycle was Honda a 400cc machine. Although it has a sporty appearance it was not high powered. It was manufactured in 1994 and imported from Japan in 2010 as a grey import. That is imported as a used vehicle. The motorcycle was in reasonable condition prior to the collision and no pre-collision faults were detected.
The motorcycle had extensive damage from the collision to the front including the fairing and front light assembly. The left handlebar was forced into the frame of the motorcycle. The front tyre of the motorcycle had a flat spot which indicates that the front wheel had locked under brakes. Feathering and loose rubber around the flat spot indicate that the flat spot would only have occurred recently. Mr McDonald's evidence was that the loose rubber and feathering would have worn off only after a short time.
Significant damage to the motorcycle was described by Mr McDonald which he said would have required enormous force to produce.
The headlight low beam of the motorcycle was operated by the ignition switch. The motorcycle was designed so that whenever it was switched on the head light would be turned on at low beam. The motorcycle had a high beam switch as part of an assembly attached to the left handlebar. That switch was designed to be easily operated by the rider’s thumb and required only minimal pressure to switch between high beam and low beam.

Forensic evidence addressed the light globes from the headlight of the motorcycle. The Magistrate summarised that evidence as follows:
In the opinion of Mr Cook the distortion to the low beam filament was caused by a significant impact while the light was turned on and operating on low beam. The distortion is caused by the combined effect of the softening of the filaments under operating conditions where the filament can reach temperatures of around 2500°C and the force of inertia upon impact. In effect during a severe impact the superheated and coiled filament which is suspended between two "posts" is forced forward within the glass envelope. In that state the coils of the filament are stretched and elongated and do not return to their original shape post impact. Mr Cook's evidence was that the phenomena of distortion of light globe filaments when turned on during severe impact was well-known and that the conclusions reached in this case were not likely to be an area of dispute.
According to the evidence of Mr Cook the filament in light globe A exhibited a high degree of distortion. The distortion could not have occurred due to ordinary usage, vibration or a fall. The distortion was not caused by sag due to age.
Mr Cook in his evidence said that it was not possible to determine when the impact causing the distortion occurred. He also said that normal travel and vibration could cause distorted filaments to break. He said the more severe the distortion the more likely it is that the filament would break with normal use due to the elongation and stretching of the filament coils.
Light globe B was extensively damaged and the filament was not intact. No meaningful observations could be made with respect to light globe B.
With respect to the tail light, counsel pointed out that Mr Wager observed the tail light to be operating after the impact. Attention was also drawn to the following finding of the Magistrate in respect of the evidence of the senior vehicle examiner:
In his evidence Mr McDonald that a [sic] formed the opinion that the tail light on the motorcycle was on at the time the motorcycle was involved in a collision due to the distortion of the filaments. He said all four filaments in the light globes located in the tail light were distorted consistent with having been involved in a severe impact. The filaments in the right hand side globe were slightly more distorted than the left hand side globe. The degree of distortion indicated that the globes were fitted to a vehicle that was subjected to severe impact and that the distortion was not consistent with sagging that may occur with age.
There was no suggestion on the appeal that the Magistrate had misunderstood or misstated the evidence or the effect of the evidence. A review of the transcript confirms the Magistrate’s summary of the evidence to be correct. The Magistrate also correctly reviewed and summarised the evidence concerning the effects of cannabis on the deceased. The Magistrate’s conclusion with respect to Mr Wager was open on the evidence.
I consider that the findings made by the Magistrate were open on the evidence. A review of that evidence does not, in my view, give rise to the existence of a reasonable hypothesis consistent with innocence. There is no reason to doubt the Magistrate’s conclusions and his finding of the defendant’s guilt of the offence of aggravated driving without due care.
Sentence Appeal
Counsel for the defendant submitted that the sentence imposed was manifestly excessive having regard to the nature and circumstances of the offending and of matters personal to the defendant. It was submitted that the Magistrate failed to have proper regard to the matters relevant to proceeding without a conviction. Attention was drawn to sections 16 and 39 of the Criminal Law (Sentencing) Act 1988 (SA). Those sections provide:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
…
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The Magistrate considered that his discretion under both sections had been enlivened, however, he considered that it was inappropriate to exercise his discretion under either section. The Magistrate, in respect of section 39 of the Sentencing Act, concluded:
Section 39 does not prescribe criteria that delineate the circumstances or preconditions in which the discretion is to be exercised. However it is accepted that the criteria provided under section 16 are relevant matters to be considered by the court in the exercise of its discretion under section 39. Before considering whether those criteria are present in this case I will consider whether in all the circumstances the exercise of discretion is warranted. In my view this is a case where due to the degree of culpability of the defendant’s driving and the serious and tragic circumstances of the offence I cannot in good conscience exercise the discretion in favour of not recording a conviction.
In respect of section 16 of the Sentencing Act, the Magistrate concluded:
Although the defendant has a significant number of traffic infringements he is otherwise a good character and I accept he is unlikely to reoffend. However this is not a case where a fine or community service is in my view appropriate and so section 16 has no application here.
In reaching the above conclusions the Magistrate addressed the submissions of counsel as follows:
I have considered carefully the submissions by counsel as to the impact or more accurately the potential impact of the defendant due to the recording of a conviction. I understand that the defendant wishes to enter the building industry and in time obtain a builder’s licence. I am also told today that he has hopes of enlisting in one of the armed services. It has been submitted that the recording [sic] a conviction may adversely impact upon those aspirations.
However this is not an offence of dishonesty, deliberate and intentional violence or one that involves drugs. Those types of offences are in my view more likely to impact on employment prospects. Having said that I do not discount that there may be some impact on the defendant through the recording a conviction. In my view any such impact is not likely to be severe having regard to both the nature of the offence and the circumstances in which it was committed.
Therefore balancing those considerations against the seriousness of the offence in particular its consequences I am not convinced that I should not record a conviction.
No error has been demonstrated on the part of the Magistrate in the exercise of his discretion under either section. No basis has been demonstrated to interfere with that exercise. It was not suggested that the Magistrate had overlooked any relevant material or had regard to any irrelevant material. In my view, having regard to all the circumstances, the Magistrate exercised his discretion appropriately.
When deciding to impose a sentence of imprisonment the Magistrate remarked:
In my view this case is not at the higher end of the spectrum of defective driving. There was no alcohol involved, no evidence of recklessness and the defendant was not trying to evade the police at the time of the offence.
…
In the case before the court although the collision occurred in the hours of darkness there was no reason why the defendant should not have seen the motorcycle ridden by Mr Higginson. The defendant should have waited at the junction and ensured the road was free of oncoming traffic before he executed the right hand turn.
I therefore place this offence at about the midway point of the spectrum of seriousness for offences of this type. Although the defendant has no prior offences for this type of offending I do not consider that bond is an appropriate sentence as it does not properly reflect the degree of culpability of his driving and the seriousness of the outcome of his driving.
Accordingly a sentence of imprisonment will be imposed. The defendant is sentenced to 2 months imprisonment. I find good reason exists to suspend the sentence of imprisonment having regard to the defendant’s good character, his age and antecedents and his prospects for the future.
Counsel for the police accepted that there were a number of factors that weighed in the defendant’s favour on the question of whether a term of imprisonment should be imposed. It was contended, however, that the decision of the Magistrate was within his sentencing discretion. Attention was drawn to authorities of this Court where orders of imprisonment had been upheld in respect of driving offences.
I have reached the conclusion that the Magistrate failed to have proper regard to section 11 of the Sentencing Act. That section provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)     This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
That section makes it plain that a sentence of imprisonment is a sentence of last resort.
The Magistrate concluded that the defendant was of good character and would be unlikely to reoffend. The Magistrate noted the character references tendered and reached the conclusion that the defendant’s apology to the victim’s family was genuine, as were his expressions of regret and sorrow. The Magistrate accepted that the death of the deceased had had a significant impact on the defendant. Nowhere in the Magistrate’s sentencing remarks is reference made to section 11.
I consider that the Magistrate failed to have proper regard to section 11 of the Sentencing Act. When regard is had to all the circumstances of the collision, and to the personal antecedents of the defendant, I consider that the sentence of imprisonment should be set aside. A fine of $1,000.00 should be imposed.
Conclusion
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The order of imprisonment imposed by the Magistrate is set aside. In lieu, an order is made imposing a fine of $1,000.00. Otherwise the orders of the Magistrate are confirmed.