FITZGERALD v POLICE No. SCGRG-00-327 [2000] SASC 168

In the early hours of the morning of 13th April 1999, the appellant was driving her motor vehicle and towing a trailer in an easterly direction on the Eyre Highway near Ceduna. Her 18 year old son was a passenger and asleep in the front seat. They had been to Kalgoorlie where the son had participated in national Go-Kart titles and were returning to their home in Ryde in New South Wales. His go-kart was on the trailer. The appellant saw an object lying in the carriageway on the road ahead of her. She was travelling at about 80 kph.

A little earlier a Mr Davis was driving a semi-trailer in a westerly direction along the same road. He saw a person lying on the road on the other carriageway. He did not stop. He thought that it may have been a trick to cause him to stop and that if he did so, his safety would be at risk. He reported what he had seen to the Ceduna Police, presumably by mobile telephone, at that time. After he had driven another five kilometres, he saw the appellant's vehicle approaching. He flashed his headlights and activated his hazard lights in an attempt to cause her to slow down but he drove on and did not see what happened thereafter.

As the appellant approached what she described as a mound on the road, she thought that it was a dead kangaroo or wombat and she told the police that she saw mice running away from it. As she came closer, she saw that the object was a person lying on his back with his feet pointing towards her. She did not swerve but braked. Just before colliding with the person on the road, she released the brake as she believed that upon braking the front of her vehicle dipped down. She ran over the person. She stopped the vehicle about 500 metres further on. She told the police that she did not go back to the person because she thought she had killed him. She decided to seek help in Ceduna.

Upon reaching Ceduna, she saw an ambulance heading west and assumed it was going to the aid of the victim. That assumption was correct and it appears that the ambulance was responding to the report given by Mr Davis to the police. The appellant told police that she could not find the police station in Ceduna and so she continued her journey to Sydney. During that journey she heard a news report on the radio about an accident on the Eyre Highway with information that a male adult was in a critical condition. She decided to continue to Sydney and tell her sister, Ms Niemann, what had happened. She was in a state of shock, which she said was the reason for not stopping at any other police station on the way.

Upon arriving at her home on the evening of 14th April 1999, the appellant went to see Ms Niemann immediately. They went to a police station to report the matter but it was closed. They then went to see a neighbour of Ms Niemann who is a police officer. He was off duty at the time. The appellant told him that she had run over a man and killed him. That police officer obtained information from her which he passed on to the police officer who interviewed the appellant on 15th April. She fully co-operated with them and told them what had happened in detail. The man was not killed. He was admitted to hospital with severe injuries but there was no information before the learned Magistrate as to the nature and extent of his injuries before the accident and as caused by the accident. He recovered to some extent but has no memory of the events of that night.

The appellant was charged on 21st September 1999 on the same complaint with the two offences. The matter came on for hearing at the Magistrates Court at Ceduna on 12th January 2000. The appellant did not attend and was represented by counsel. There was no information before me on this appeal as to what, if any, submissions were made on behalf of the appellant. However, a report from Dr Klug, a forensic psychiatrist, was placed before the learned Magistrate and it provides extensive information about the appellant and the effect of the accident upon her. He first saw the appellant on 26th May 1999 and treated her thereafter. He reported that the appellant had suffered greatly in consequence of the incident which is the subject of the charges. She has suffered anxiety, tremulousness, loss of weight to the extent of about one stone due to diminished appetite, nausea, social withdrawal, constant pre-occupation with the image of the victim immediately prior to impact, hot flushes and nightmares. She repeatedly washed her hands after using the motor vehicle because of her perception of a "blood smell". She has a history of panic attacks and possible agoraphobia since she was aged 23 years. She has suffered severe symptoms, including profound insomnia and reclusiveness.

In 1991 a wall fell on a sister of the appellant and her sister's son in the presence of the appellant and others. Her sister died. This incident had a severe effect upon the appellant causing anxiety. Her father was rendered paraplegic during a mine cave-in when the appellant was aged seven years. A daughter, whom she had adopted out when a teenager, was reunited with her but she died of leukemia in 1996. She herself suffered severe psychological trauma as a young child when she fell off a tractor and was dragged underneath it. She was sexually assaulted by an uncle when aged 10 years. She was assaulted by a man at the Essendon Airport when aged 26 years.

These incidents contributed to her psychological make-up and condition as it was prior to the incident which is the subject of these charges. Following the incident, she underwent psychotherapy and was given antidepressant and tranquillising medication.

Dr Klug expressed the opinion that her conditions of recurrent panic disorder and generalised anxiety disorder are relevant to the reason for her having committed the offences. He said that given her level of anxiety, it is understandable that she was unable to return to the scene of the accident. He said he found her to be genuine and distressed and he had no reason to disbelieve her.

A report from Ms Kiely, a clinical psychologist, was also placed before the learned Magistrate. She saw the appellant on 16th April 1999 and on three subsequent occasions for counselling. She noticed much the same symptoms as had been observed by Dr Klug. She reported that the appellant is completely remorseful about her actions. According to Ms Kiely, the accident completely overwhelmed the appellant at the time and her level of stress impaired her decision-making ability.

The learned Magistrate also had before him written references from Ms Niemann, a person who knows her at her work as a school teacher and an academic who has known her for about 12 years. They all speak highly of her. She is an honest and hard-working woman who is highly regarded in the community. She is a single mother and has had the sole care of her son since he was a young child. She is a secondary school teacher in full-time employment.

The learned Magistrate made only very brief remarks on sentencing. I set them out in full:

"Taking into account all the matters put by both prosecution and Ms Johnson for the defendant and taking into account the relevant medical reports and references and indicating as I already have that I regard these matters as particularly serious given the remoteness of the area and the unlikely event that assistance could have been rendered immediately by any other person, I record convictions with respect to both counts and a fine of $1,750. Court fees and costs of $175. $1925 in all. Time to pay 9 months. Section 43 of the Road Traffic Act licence disqualified for a period of 2 years."

I think the learned Magistrate erred in his approach to sentencing. It seems that he has placed considerable emphasis upon what he regarded as the seriousness of the charges and little, if any, emphasis upon the mitigating circumstances of the offences and the compelling matters personal to the appellant. Licence disqualification is part of the sentence and personal circumstances, along with all other relevant matters, are to be considered in determining the period of disqualification which should be imposed, including good character and extenuating circumstances under which the offences were committed: see Taylor v Samuels (1977) 16 SASR 266 per King J, at pp283-284.

Psychological features of the appellant contributed substantially to her offending. She was confronted with a traumatic event on a lonely country road in the early hours of the morning. Of course she should have returned to the scene of the accident, but it seems that there is little she could have done to assist the victim in an effective manner, except to try and protect him from being run over again by another vehicle. It appears that she did not have a mobile telephone. The most likely way of obtaining effective assistance was to go to Ceduna. She did so but did not obtain assistance because she saw the ambulance. Although she was not to know that Mr Davis had already reported the presence of the victim on the road, appropriate assistance for the victim had been arranged before her collision with him. Whilst it is true that it was unlikely that assistance could have been rendered immediately after the collision by any other person, in the sense of someone else at the roadside, as was observed by the learned Magistrate, the only effective type of assistance was already on the way. Furthermore there is nothing to suggest that the appellant could have rendered any useful assistance if she had returned to the scene except in the limited way in which I have mentioned.

The purpose of the requirement to stop after an accident is so that the driver of the vehicle, or the drivers of the vehicles, involved may be identified, the circumstances of the accident ascertained and any offences, including drink-driving offences, can be detected. By going to the police in Sydney, the appellant disclosed her involvement and all of these purposes were attained with the exception that she could not be tested for alcohol consumption within a time proximate to the accident. That is a matter of importance, but there is no reason to suggest that the appellant was seeking to avoid breath analysis.

There were extenuating circumstances of the offending. The appellant panicked and became overwhelmed by the accident due to her long term psychological state. It is not known why the victim was lying on the road or how long he had been there. It is not known what injuries were caused by the appellant and whether he had been severely injured at an earlier time although that seems likely as he did not move when Mr Davis approached or passed by. If the appellant did see rodents near the victim, it is likely that he was unconscious or for some other reason unable to get off the road.

I have mentioned the background and good character of the appellant. Also it is to be remembered that if the appellant had not gone to the police in Sydney, it is highly likely that her involvement in the accident would never have been known. That is a matter of considerable importance in the sentencing process. Also it is indicative of genuine remorse and contrition. Furthermore, the appellant pleaded guilty at an early stage of the proceedings. It does not seem that these matters were taken into account adequately, if at all, which reflects an error in the sentencing process.

At the time of these offences, s43 of the Road Traffic Act 1961 was as follows:

"Failure to stop and report in case of accident 43(1) In this section - "accident" includes a collision, whether caused intentionally or otherwise; "animal" includes a dog. (2) This section applies only to accidents in which-- (a) any person or animal is injured or killed; or (b) any real or personal property (other than an animal) is destroyed or damaged. (3) If owing to the presence of a vehicle on a road an accident occurs, the driver of every vehicle concerned in the accident must--

(a) stop the vehicle forthwith; (b) if a person has been injured in the accident, immediately render all possible assistance; (c) if requested to do so by any person having reasonable grounds for such request, state his or her name and address and the registered number (if any) of his or her vehicle and any other information necessary to identify it; (d) as soon as reasonably practicable and in any case within 24 hours after the occurrence of the accident, report the accident to a member of the police force or at a police station.

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(3a) The penalty for an offence against subsection (3) is as follows: (a) (i) where the offence arises from the defendant's failure to stop the vehicle forthwith and a person was injured or killed in the accident; or (ii) where the offence arises from the defendant's failure to render assistance, a fine not exceeding $5 000 or imprisonment for a term not exceeding one year (or both) and disqualification from holding or obtaining a driver's licence for one year or for such longer period as the court orders; (b) in any other case--a fine of $2 000. (3b) Where a disqualification is, or is to be, imposed under subsection (3a)-- (a) 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 but not less than one month;

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(c) if the offender is the holder of a driver's licence--the disqualification operates to cancel the licence as from the commencement of the period of disqualification."

Sections 43(3aa) and (4)-(6) inclusive are not relevant for present purposes. S43 was amended on 1st December 1999 but those amendments are not relevant to any issues raised on this appeal.

It may be seen that s43(3) provides for separate offences. A driver may stop after an accident but not render assistance to an injured person. A person may render assistance by calling for medical or police assistance or an ambulance which may be adequate in the circumstances, but not stop. The appellant, having committed both offences, was to be sentenced upon each of them. It may be seen that the learned Magistrate was obliged to disqualify her from holding or obtaining a licence for a minimum period of twelve months on each charge. There cannot be any suggestion that the offences were trifling. It is not known how the learned Magistrate arrived at the period of disqualification of two years. He did not say if he made two orders for disqualification of licence of one year on each charge and ordered them to be served cumulatively or if he made an order for licence disqualification of two years on each charge and ordered that they be served concurrently. It is necessary to examine each possibility.

Unless there is a statutory power, express or implied, to order that disqualification period commence at a future date, a Magistrate has no power to so order and the period must commence on the date of the order: Boehm v Milham (1980) 24 SASR 98 per King CJ, with whom the other members of the Court agreed, at p104. That statutory power is to be found in s169A of the Act which, at the relevant time, was, and now is, as follows:

"169A Where, pursuant to this Act or any other Act, a court orders that a convicted person be disqualified from holding or obtaining a driver's licence, the court may, if it is satisfied that reasonable cause exists for doing so, order that the disqualification take effect from a day or hour subsequent to the making of the order."

In Boehm v Milham it was acknowledged that the power may be exercised for the benefit of, and at the request of, the disqualified driver. The exercise of the power in those circumstances is common. However as the court concluded, the section also enables a court to make periods of disqualification cumulative upon one another and that the power must be exercised in accordance with proper sentencing principles: see King CJ at p104. The same view was recently taken by this Court in Police v Nowak (unreported) [2000] SASC 82. Doyle CJ accepted that the power had to be exercised in accordance with the ordinary and well known principles in relation to concurrence and accumulation, including considerations of totality (p6). However, as Doyle CJ pointed out, if one sentence is imposed pursuant to s18A of the Criminal Law (Sentencing) Act 1988, that power cannot be used to bypass a statutory requirement of a minimum penalty.

Ms Lee-Justine, who appeared for the respondent, submitted that the learned Magistrate was obliged to impose the minimum period of licence disqualification for each offence and that it was not appropriate to, in effect, reduce either period by concurrency or over-lapping.

In Nowak the Court was concerned with separate offences of driving a motor vehicle while there was present in the blood the prescribed concentration of alcohol contrary to s47B of the Road Traffic Act. S47B(3)(b) is in almost identical terms to s43(3b) and there was no suggestion that the offences were trifling. The two offences attracted a minimum period of licence disqualification of twelve months and six months respectively. For the first offence the licence was disqualified for fifteen months. For the second offence the licence was disqualified for six months and the learned Magistrate had ordered that the two periods be served concurrently. The Court declined to interfere with that approach given the particular circumstances of the offender in that case. What is of significance is that the Court held that the power to order the periods be served concurrently was not exercised in error. It was conceded by the appellant in Nowak that s47B(3)(b) did not deprive the court of the power to decline order under s169A that the second period of disqualification be cumulative on the first. The Full Court acted on that concession without deciding whether it was correct.

Ms Lee-Justine does not make that concession in the present appeal. Her argument is that s169A is of similar effect as s31 of the Criminal Law (Sentencing) Act which provides:

"31(1) Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the defendant."

Subsection (2) has no relevance for present purposes. Ms Lee-Justine argued that without s31(1), any sentence would operate as from the time it is imposed. I do not think it is necessary to draw any analogy with s31(1) of the Criminal Law (Sentencing) Act. The interpretation of s169A in Boehm v Milham and Nowak establishes that there is power to order cumulative periods of licence disqualification.

It was accepted in Nowak that the provision for the minimum period of disqualification is relevant in the exercise of the discretion under s169A: see Doyle CJ, with whom Debelle J agreed, at p6 and Bleby J at pp10-11. Bleby J went so far as to say that the minimum period of disqualification for each offence "should be served, except in the most unusual case". He went on to say at p11:

"It seems to me that in most cases the provisions of s47B(3)(b) will constitute 'reasonable cause' for the purpose of s169A for making licence disqualifications cumulative, in the ordinary course, for repeat offences under s47B. In my opinion, that would be sufficient to require the Court in this case to make the periods of disqualification cumulative, unless there were special circumstances applicable to the respondent which require that they be concurrent."

With respect, I do not accept that there should be some qualification of the words "reasonable cause" in s169A. They give a wide discretion to the court and the discretion should not be circumscribed by notions that it may only be exercised in favour of concurrency only in an "unusual case" or where there are "special circumstances".

It is to be remembered that in the cases of this nature, the periods of licence disqualification are to be served concurrently unless there is reasonable cause for the contrary. It could not be said that there is reasonable cause if the accumulation of the periods of licence disqualification would be manifestly excessive in all of the circumstances.

In exercising the discretion, the Court should have regard to all relevant circumstances of the offending and of the offender, and if the Court is satisfied that there is reasonable cause for doing so, the usual course of concurrency may be supplanted by an order reflecting total or partial accumulation.

It is necessary to have regard to the basic principle to be applied in determining whether sentences for separate offences should be concurrent or cumulative. In Attorney-General v Tichy (1982) 30 SASR 84 Wells J said at pp92-93:

"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."

Applying those principles, it would not be appropriate to exercise the power under s169A and order that the two periods be served cumulatively. Whilst it is true that the appellant did commit two separate and distinct offences, they both arose out of the same factual circumstances, the accident and her reaction to it. In consequence, she made one critical decision, which was not to return to the scene which necessarily means that she did not stop after the accident in the relevant sense and did not immediately render all necessary assistance. In that sense the two offences, although separate and distinct, did arise out of the same course of conduct.

Given the unusual circumstances of the offences and the extenuating features due to the condition and background of the appellant, disqualification for the minimum period for each offence is adequate.

A period of disqualification for two years did not take account of the totality of the appellant's offending and of the significant extenuating and mitigating circumstances. In all of the circumstances there was no "reasonable cause" to make the periods cumulative and the learned Magistrate erred in making them so, if that is what he did.

The second possibility may be disposed of briefly. The learned Magistrate may have imposed licence disqualification for two years on each count and declined to make any order under s169A of the Road Traffic Act so that the two periods would be served together. It may be that he had in mind that there should be concurrency and acted pursuant to s18A of the Criminal Law (Sentencing) Act. In either event the period of licence disqualification should not stand. Licence disqualification for two years on each count, given all of the circumstances, is manifestly excessive.

The appellant voluntarily disclosed that she was the driver of the vehicle and that she had committed the offences. She did not attempt to avoid prosecution by telling a false story such as that she did stop and that she returned to the scene of the accident for relevant purposes but then panicked, which may have been difficult to disprove. She made full and frank admissions to the police. There was little which she could do which had not already been done by Mr Davis. The victim did receive appropriate assistance at an earlier time than if the appellant had reported the accident at Ceduna. Whilst she was not aware of what Mr Ryan had done, her failure to render assistance does not appear to have caused any adverse consequence for the victim. Given the extenuating and mitigating circumstances which have been mentioned, the minimum period of licence disqualification of one year was also more than adequate for this offence.

The sentencing discretion must be exercised afresh.

There is now available information as to the effect upon the appellant of her inability to drive her motor car which was not before the learned Magistrate. The appellant lives at Ryde and works as a school teacher in Mona Vale. There is no direct public transport available from her home to the school. On every school day her son has to drive her about 11 kilometres to a bus stop at which she catches a privately run bus at 7.44 am. The next bus is too late to get her to school on time. Upon leaving the bus she must walk about one kilometre to the school. There is no earlier bus and so often she arrives at school after classes have begun. On two occasions the bus did not arrive at all. The return trip involves the same arrangements. In all, she travels about three hours each day. If able to drive the journey, she would take about 40-50 minutes each way. According to the appellant, this has had a deleterious effect upon her employment. She is an art teacher and cannot set up adequately before some classes. She cannot take work home for making because it is too large to carry when walking and on the bus. She cannot stay behind after school to mark work because she would miss the bus. She cannot meet a requirement of her employment to be at the school half an hour prior to the commencement of formal classes. She cannot undertake technical professional development courses because of difficulties with travel. However, she does attend three professional development courses near her home and her car must be available three nights a week to drive her to and from these courses. Her son encounters heavy traffic each day when returning from the bus stop. Some days this journey in itself occupies more than one hour. He drives about 90 kilometres each day when transporting her around. He is a young and inexperienced driver which causes anxiety to the appellant. He is attempting to obtain his Higher School Certificate and is under stress and constantly tired. The appellant's mother lives in a nursing home about 70 kilometres from her home. She cannot visit her without being driven by her son.

These matters of hardship cannot justify reduction of the period of licence disqualification below what is appropriate in all the circumstances, but they are relevant personal circumstances of the appellant and should be considered in determining the period of disqualification. I have already said that the minimum period of 12 months is adequate in all of the circumstances and these matters of hardship reinforce that view.

I allow the appeal and vary the order of the learned Magistrate for disqualification of licence by substituting the period of twelve months for the period of two years. I clarify the order made by the learned Magistrate so that it is clear that on each count the appellant is disqualified from holding or obtaining a licence to drive a motor vehicle and there being no order pursuant to s169A of the Road Traffic Act, the two periods are to be served concurrently. As the order of the learned Magistrate has been varied, the commencement of each period shall remain as the date of the order of the learned Magistrate, namely 12th January 2000.