Forbes v Durant [1999] WASCA 85 (14 June 1999)

Last Updated: 12 November 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FORBES -v- DURANT [1999] WASCA 85

CORAM : McKECHNIE J

HEARD : 14 JUNE 1999

DELIVERED : 14 JUNE 1999

PUBLISHED : 25 JUNE 1999

FILE NO/S : SJA 1039 of 1999

BETWEEN : MARK DAVID ANTHONY FORBES

Appellant

AND

CHRISTOPHER MICHAEL DURANT

Respondent

Catchwords:

Road traffic - Reckless driving - Suspension of motor driver's licence for two years - Whether tariff manifestly excessive

Legislation:

Road Traffic Act (WA) 1974 s 61

Result:

Appeal allowed

Suspension reduced

Representation:

Counsel:

Appellant : Mr A W Pass

Respondent : Mr M G Lundberg

Solicitors:

Appellant : Frank Unmack & Cullen

Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Case(s) also cited:

Chan v R (1989) 38 A Crim R 337

Chappell v Taylor, unreported; SCt of WA; Library No 980094; 4 March 1998

Davis v Commissioner of Police (1990) 12 MVR 297

Reynolds v Wilkinson (1948) 51 WALR 17

McKECHNIE J:

Introduction

1 The applicant is an 18-year-old young man who, on 21 February 1999, did what young men sometimes do. He had just put a new engine in his car and, with two friends, took it out for a spin. What he did, however, was to travel in Garling Street, O'Connor, which is in a light industrial area, the speed limit of which is 80 kms per hour, at very high speed indeed. He was detected by radar, travelling at 175 kms per hour.

2 The prosecutor noted that there were a group of eight persons on the northern footpath of Garling Street when he drove down it and, as I have said, there were two people with him in the car. The police followed him, and the vehicle stopped at the intersection of Stock Road. There is some dispute as to whether or not smoke was pouring out of the vehicle and the way in which it stopped. This was not a dispute before his Worship but has been disputed in the affidavits. In any event, what is not disputed is that when he stopped, he did say to the police officers words to the effect: "I just got my car back and I was wondering how long it took to slow down."

3 The learned Stipendiary Magistrate who heard the matter took into account the fact that he was a young man turned 18 only in November, noted the plea of guilty, noted he was working, and then imposed a fine of $500 and a disqualification for a period of two years.

Basis of appeal

4 The ground of appeal is that the penalty of two years' disqualification is so far outside the range of penalties commonly imposed for offences of this nature as to manifest error.

5 It is to be noted that the Road Traffic Act 1974 s 61 provides that for a first offence there is now a fine of 20 penalty units and imprisonment for six months and a minimum of six months' disqualification; for a second offence there is an increased fine or imprisonment and a period of not less than 12 months' disqualification; and, for a third offence, an increased fine and imprisonment and a permanent disqualification of the driver's licence.

6 The principles for determining appeals against a sentence or penalty on the basis that it is manifestly excessive are well known and set out in cases such as House v The King [1936] HCA 40; (1936) 55 CLR 499 and Thompson v The Queen (1992) 8 WAR 387.

Is there a tariff?

7 The first question to which I turn is whether there is any form of tariff or range of sentences most commonly imposed. It would be helpful if there were such a range for offences. Having said that, the offence of reckless driving is able to be committed in a variety of circumstances. Each circumstance, however, has as its hallmark an element of wilfulness or deliberation. That is certainly exemplified in the present case, where the speeding was quite deliberate and, to that extent, wilful.

8 In Nye v Lewis, unreported; SCt of WA; Library No 6669, 6 April 1987, Olney J dealt with a case of reckless driving where the appellant turned his car from a fast-food restaurant on Albany Highway, Gosnells, into the highway at high speed and under heavy acceleration. It left two black rubber marks for about 25 metres and fish-tailed as it travelled north, and drove through a red traffic light in front of two other vehicles. It was travelling at about 70 to 80 kms per hour. The appellant's explanation was: "I was frustrated."

9 In that case, Olney J allowed the appeal in relation to the disqualification and, but for a circumstance to which I will later refer, would have imposed a period of disqualification of nine months.

10 In Mullane v Smith, unreported; SCt of WA; Library No 7946; 10 November 1989, Heenan C considered an appeal of an appellant who, after stopping for police who approached his vehicle, drove off. He was chased by police and ultimately apprehended after being involved in a collision with a tree some distance away. He was charged with a number of offences, including, significantly, driving under the influence of alcohol.

11 In that case, bearing in mind that the Magistrate took into account all of the offences and imposed a five-year suspension, the learned Commissioner took the view that that was more than was necessary for the protection of the public, the deterrence of other would-be offenders and the proper punishment for this appellant. He allowed the appeal and imposed a sentence of two years' suspension.

12 In Ogilvie v Mills, unreported; SCt of WA; Library No 940113; 2 March 1994, the appellant was travelling at 140 to 145 kms an hour when a policeman came upon him. It should be noted that the speed limit there was 110 kms an hour. The vehicle was followed by the police vehicle, which activated its lights and sirens and continually flashed its headlights on full beam. The appellant noted the police and maintained the speed until he was obliged to overtake a minibus travelling in the same direction, crossing double white lines on a blind bend. He evaded, obviously, only for a short time, the police who were chasing him. In that case, Murray J considered that, along with the other penalties, a disqualification period of 12 months was not manifestly excessive.

13 In Demarte v Fox, unreported; SCt of WA; Library No 980084; 26 February 1998, Heenan J dealt with a case which again had a number of other offences committed on the spur of the moment when the appellant drove towards a group of people, including his former wife, her solicitor and the solicitor's clerk. He drove towards them at a speed of 35 to 40 kms an hour and they had to run to avoid being hit.

14 In that case, the period of disqualification of 18 months was not disturbed. Heenan J described the particular case of "drivers who behave as the appellant posing a special problem because of their attitude or temperament". In his opinion:

"... a comparatively long period of disqualification is required to bring home to the appellant the special responsibility assumed when driving a motor vehicle. In this case, the period of 18 months is not too long."

15 From those four cases it is difficult to discern a tariff or range of sentences or disqualifications most commonly imposed. I think that is because there are relatively few appeals. This is an area very much within the discretion of Magistrates, who regularly deal with a wide variety of motoring offences and circumstances and are in a good position to judge the relative culpability of different offenders.

16 In the present case, his Worship in dealing with the suspension and the fine, having dealt with the facts, then said:

"I've spent many years as a Coroner in this State. Every Monday morning I'd go to the morgue and have a look at what had happened over the weekend. Bodies stripped bare, lying on a plate ready for a post mortem out of sudden road death. So, is it any wonder that I have concerns because I accept it's just a matter of luck - sheer luck - whether people get away with these things and survive and someone else is faced with a real tragedy and everyone is weeping and wailing.

So, for today I take into account that the loss of your licence is going to have a severe impact on you and your family. Parliament provides for a penalty of up to $1000. In view of your early plea and your limited income - which I presume is modest - a fine of $500 is imposed with 38 costs.

However, Parliament requires that I disqualify you for a minimum of 6 months. In my view it should be longer than that because it's such a gross demonstration of lack of responsibility which really has to be deterred and the message should go out to the community generally that it has to be a general deterrent component as well as specific in your particular case. When you do get behind the wheel next time, it's to be hoped that you appreciate the privilege and having perhaps ridden a bike or some other transport, or buses, for the next 2 years you will appreciate the value of a car. You are disqualified from holding or obtaining a licence for 2 years from today."

17 In my opinion, the approach that his Worship took is correct. The offence is a very serious offence. One can imagine worse offences, but this is a bad example because of the speed notwithstanding the 80 kph speed limit. There were clearly people about and, more particularly, people in his car. Furthermore, it is necessary that there be an element of punishment as well as protection of the community.

18 A period of disqualification fulfils a number of purposes. The safety of the community is one - often the most important. General deterrence is another. Particular deterrence is a third. Punishment can be a fourth.

19 The appellant is a young man with a driving record which is, until this, free from blemish. One might think he has had little chance to develop much of a record. Nevertheless, the fact remains that he had no record.

20 For young people, a period of two years may be considerably more onerous than for older people. The appellant needs a term of disqualification both to protect the community and allow him to develop some maturity for the future so that the community is safe when he resumes the privilege of a driving licence. He also needs to bring home to him the consequences of this wilful act of disobedience to the road rules.

21 Having said all of that, however, I am of the opinion that the disqualification imposed in this case is manifestly excessive. A period of disqualification, like any other sentence, should not be greater than the facts and occasions require. In this case, I consider that the suspension required in order to protect the public and to bring home to the appellant the consequences of his driving would have been accomplished with a period of 12 months' disqualification.

22 Counsel has informed me that the appellant has not in fact driven during the period of leave to appeal, a period of some 2-1/2 months, and I am invited to adjust the penalty because of that. I note that Olney J did in fact adjust the penalty that he imposed in Nye for a similar reason. I do not have an affidavit from the appellant to the effect that he has not driven. However, counsel has advised me that he told the appellant not to drive.

23 In the circumstances, while I consider that the appropriate penalty should have been a period of 12 months' disqualification, because of the unusual circumstance adverted to by counsel I will impose a period of 10 months' disqualification.

Authorities Cited2

Referred to (2)