WU v Police

[2006] SASC 48

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

WU v POLICE

Judgment of The Honourable Justice Bleby (ex tempore)

16 February 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

Appeal against sentence - appellant found guilty by Magistrate of driving at a speed or in a manner dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (SA) - "trifling" application under s 46(3)(b) of the Road Traffic Act refused by Magistrate - appellant fined $400 and disqualified from holding a driver's licence for a period of 6 months - Criminal Law (Sentencing) Act, ss 17 and 20 - whether Magistrate erred in refusing application under s 46(3)(b) of the Road Traffic Act - finding that offence was not trifling open on evidence - appeal dismissed.

Road Traffic Act 1961 (SA) s 46(1), s (3)(b); Criminal Law Consolidation Act 1935 (SA) s 29(3); Criminal Law (Sentencing) Act 1988 (SA) s 17, s 20, referred to.
Janz v Woolven (1990) 55 SASR 239; Przybytinak v Police (1988) 100 A Crim R 196; Siviour-Ashman v Police (2003) 85 SASR 23, applied.

WU v POLICE
[2006] SASC 48

Magistrates Appeal: Criminal

BLEBY J (ex tempore)

Introduction

1. This is an appeal against sentence. The appellant was charged with two offences. The first was that on 22 August 2004 at Modbury Heights, he drove a motor vehicle at the alleged victim, knowing that the act was likely to cause him harm, and intending to cause harm, or being recklessly indifferent as to whether any such harm was caused. That is an offence against s 29(3) of the Criminal Law Consolidation Act 1935 (SA). The second alleged offence was that on 22 August 2004 at Modbury Heights, he drove a motor vehicle in a manner dangerous to the public. This is an offence against s 46 of the Road Traffic Act 1961.  Both charges arose from the same conduct and were essentially charged in the alternative.

2. The appellant pleaded not guilty, and the matter proceeded to trial before a magistrate.  The appellant was acquitted of the first offence.  The magistrate said in her reasons that she was not satisfied that, by driving in the manner he did, the appellant intended to cause harm to the alleged victim or that he was recklessly indifferent to such harm being caused.

3. However, the magistrate was satisfied that the appellant drove in a manner dangerous to the public. He was convicted of the offence of driving in a manner or at a speed dangerous to the public contrary to s 46(1) of the Road Traffic Act 1961.

4. Counsel for the appellant made an application under s 46(3)(b) of the Road Traffic Act that the offence for which the appellant was found guilty be considered “trifling” within the meaning of that section.  The magistrate refused that application.  The appellant was fined $400.00, was ordered to pay court fees and levies totalling $159.00 and was disqualified from holding or obtaining a driver’s licence for a period of 6 months from 30 November 2005.

5. The appellant conducted his own appeal with the aid of an interpreter.  He had limited English.  He appeals only against the sentence of licence disqualification on the ground that the events happened while he was being attacked by another person.  He seeks an order that his driver’s licence be reinstated.

6. The driving in question occurred in the early hours of the morning on suburban streets in circumstances where there had obviously been a verbal altercation between the appellant, who is a taxi driver, and one of his passengers.  The magistrate accepted the evidence of an independent witness that the appellant drove his car at high speeds in a relatively confined space in an erratic manner, driving onto footpaths and onto front lawns, spinning his wheels on the road and causing some apprehension on the part of the witness of danger to himself, his house and to the appellant’s passenger.  The magistrate found that the appellant was driving “pretty well out of control” over a period of between five and ten minutes.  There was no actual danger caused to other vehicles on the road, nor was there any injury to a person or damage to property.

7. By the finding of “not guilty” to the first charge, there was no finding that the appellant had deliberately tried to cause harm to the passenger or was recklessly indifferent as to whether such harm was caused.  The driving the subject of the charge for which the appellant was convicted included driving when the appellant was not in the vicinity of his passenger.

8. The appellant’s defence was that, at all material times, he was trying to avoid an assault to him and damage to his vehicle by his passenger. The magistrate rejected that defence, at least in respect of the driving for which she found a contravention of s 46 of the Road Traffic Act.

9. At the time of the offending a first offence against s 46 (which this was) attracted a fine of between $300 and $600. The fine imposed was $400.

10. Sub-section (3) of s 46 of the Act required (as it was at the time of the offending) that where a court convicts a person of an offence against sub-section (1) in the case of a first offence, there must be an order that the person be disqualified from either holding or obtaining a driver’s licence for a period of not less than six months. Paragraph (b) of that sub-section provides that the disqualification “cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the Court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month”.

11. Section 17 of the Criminal Law (Sentencing) Act1988 enables a court to fix a penalty below the minimum if good reason exists for doing so, having regard to the character, antecedents, age or physical or mental condition of the defendant, or the fact that the offence was trifling or any other extenuating circumstances. However, s 20 of the Criminal Law (Sentencing) Act 1988 provides that nothing in that Division (which includes s 17) “derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences”.

12. It has been held that s 20 precludes the application of s 17 to the reduction of mandatory licence suspension requirements of sections like s 46 of the Road Traffic Act.[1]  Accordingly, unless the offence can be said to be “trifling”, it is not possible for a court to reduce the period of licence disqualification below the statutory minimum of six months.

    [1] Janz v Woolven (1990) 55 SASR 239; Przybytinak v Police (1998) 100 A Crim R 196.

13. In this case, the magistrate found that the offence was not trifling.  It was open to the magistrate to make that finding.  Given the circumstances of the driving as found by the magistrate, I cannot interfere with that finding.  It follows that the magistrate was obliged to impose the six month licence disqualification, and that cannot be set aside.  While the appellant argued before the magistrate that he believed he was being attacked and that his driving was necessary and reasonable for a defensive purpose, I do not consider, in the light of the magistrate’s findings, that that can have any bearing on the finding whether the offence was trifling.  Even if the appellant feared an attack from his passenger, it was not necessary to drive in the manner which the magistrate found that he did at a time when he was no longer in the immediate vicinity of his passenger.  For an offence to be trifling, it must be “of slight importance, insufficient or of little moment”.[2]  In that case, in the context of a drink-driving offence, the Chief Justice said[3] “a belief that there are circumstances that justify the conduct engaged in might make an offence trifling”.  However, the Chief Justice drew a distinction between a person who, for example, on the one hand drives a short distance to move a vehicle that is otherwise a danger, or to take an injured person to hospital, and on the other hand a driver who drives an equally short distance but for no good reason, or who drives a substantial distance for the reasons suggested.  Even if it was necessary for the appellant to drive quickly to avoid a threat from his passenger, that did not justify the continued driving in the vicinity in the manner described by the magistrate.  The finding that the offence was not trifling cannot be disturbed.

    [2] Siviour-Ashman v Police (2003) 85 SASR 23 at [24].

    [3] Ibid at [36].

14. It follows that the appeal must be dismissed.