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

FITZGERALD v POLICE No. SCGRG-00-327 [2000] SASC 168 - SASC 2000 case summary — Zoe

[24]

"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."

[41]

"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."

[48]

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.

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