Plenty v Bargain [1999] WASCA 67

Court of Appeal (WA)|1999-05-31|Before: Steytler J, Kechnie J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PLENTY -v- BARGAIN [1999] WASCA 67

Road traffic - Dangerous driving causing bodily harm - Whether falling asleep is dangerous - Confessions and admissions - Appellant in hospital for observation - Whether involuntary - Duplicity - Whether two charges duplex - Penalty - First offence - No new principles

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Becker v Roberts (1997) 27 MVR 193

Brunskill v Sovereign Marine and General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

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

Devries v Australian National Railways Commission (1993) 177 CLR 472

McDermott v The King (1948) 76 CLR 501

Hancock v Cox (1993) 19 MVR 137

Hemsley v McLean (1995) 22 MVR 33

Morton v Bevis (1993) 19 MVR 181

Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316

1 McKECHNIE J**:** On 23 June 1998 the appellant, a project officer with Western Power, was called out at about 3.00 am to attend a cable fault at Port Kennedy Drive, Port Kennedy.

2 He attended to the fault and drove to various places including his home before heading back towards Port Kennedy around lunch time to reconnect the power. To get to Port Kennedy he proceeded south along Ennis Avenue which is a dual carriageway. The speed limit is 110 kph. He had not been to bed since he was called out.

3 At the intersection of Port Kennedy Drive he turned right to proceed along Port Kennedy Drive. He was confronted by a stop sign to control traffic turning right from entering the north-bound carriageway of Ennis Avenue. His vehicle entered the north-bound carriageway where it immediately came into collision with a vehicle driven by Mr Marshall who had as a passenger, his fiancee, Miss Clune. Both Mr Marshall and Miss Clune sustained injuries amounting to bodily harm.

4 The appellant was also injured. He was briefly interviewed at the scene and then taken to Rockingham Hospital. There he was interviewed by Constable Crock who took a statement from him.

5 On Christmas Eve 1998 the appellant was tried in the Rockingham Court of Petty Sessions on two counts of dangerous driving causing bodily harm. He was convicted and fined $1500 in respect of the charge involving Mr Marshall ("The Marshall Charge") and $1000 for the charge involving Miss Clune ("The Clune Charge"). His motor vehicle driver's licence was disqualified for 12 months and he was ordered to pay $82.50 for costs in each case.

6 On 11 March 1999 Steytler J granted leave to appeal.

7 This was a short trial involving only five witnesses. The question of bodily harm was not in issue and the question whether, in all the circumstances, the driving was dangerous was not a complex question.

8 Mr Craig Gregory Marshall gave evidence that he was a plasterer and that on 23 June 1998 he was travelling down Ennis Avenue when he noticed a Commodore station wagon coming south on the other side of the highway heading towards Port Kennedy Drive and towards the stop sign.

9 When he first saw the appellant's vehicle it would have been no more than 10 metres from the stop sign travelling at roughly between 15 and 20 kph. Mr Marshall then looked down to his speedometer to see what speed he was doing. He estimates he was doing roughly 100 kph. Suddenly his fiancee screamed, he looked up and there was the vehicle in the middle of the road. The appellant's car doors were dead centre with the white line and when Mr Marshall applied his brakes the collision occurred.

10 Under cross-examination by counsel for the appellant Mr Marshall confirmed that there was a short period where he was not watching the other vehicle.

11 Miss Kelly Jane Clune was the passenger in the vehicle and she saw the appellant's car approach the stop sign from a distance of about three to five cars away from it. She estimated the speed at under 10 kph. The appellant did not stop at the sign and the collision occurred.

12 Under cross-examination by counsel for the appellant she agreed that when she first saw the vehicle she did not apprehend there was the likelihood of an accident. She confirmed that she had the vehicle in observation the whole time and was sure that the vehicle did not stop and then roll through the stop sign.

13 The final witness for the prosecution was Constable Crock who attended the scene. He described the accident scene and confirmed that the road was dry, the weather was fine. The two actual lanes of Ennis Avenue are separated by a wide verge consisting of grass and low bush.

14 He spoke with the appellant asking him what happened. The appellant said:

"I was just travelling south on Ennis Avenue and turned to go into Port Kennedy Drive and I've stopped at the stop sign. I must have blacked out. I think I fell asleep. I've been up since 3.00 am working. I was tired coming down Ennis Avenue."

15 Subsequently, Constable Crock attended at the Rockingham Hospital where he took a written statement from the appellant.

16 In that statement the appellant describes his actions on the day. He had gone to bed at about 10.45 pm. He was woken in his house in Willetton at about 3.00 am and arrived at the job in Port Kennedy at about 4.15 am. After about half an hour working to isolate the cable he went to the Rockingham Depot. He then did various other duties before going to Gnangara where he was meeting some electrical contractors who did not arrive until 9.45 am. He spoke to them for about 10 to 15 minutes and returned to the Rockingham Depot where he had a cup of Milo and a toasted sandwich. He made quite a lot of phone calls and spoke to the manager of the Warnbro Fair Shopping Centre. He went home and had a shave and washed his face. After a detour he then headed back to the Depot. On the way, he rang his supervisor on the mobile who told him that the power was ready to go back on so he decided to continue straight back to Port Kennedy.

"As I travelled down Ennis Avenue I passed Wilmott Drive and Safety Bay Road. I started to feel a bit tired, as I went passed (sic) Safety Bay Road. I was starting to yawn and my eyes were feeling tired. I remember blinking more than normal. I wanted to get off the main road and have a break. I came to Port Kennedy Drive and turned right. I was feeling tired from Safety Bay Road, up to Port Kennedy Drive. I drove down the run off road, leading to Port Kennedy Drive. I feel that I did stop at the stop sign, the next thing I remember the impact. I don't remember looking to the left to see if there were any cars coming north on Ennis Avenue."

18 Under cross-examination by counsel for the appellant the constable denied that he had made suggestions to the appellant. He said that he asked questions of the appellant and wrote down his explanations. He said he wrote down what he was told.

19 It was put to him that at one point a nurse came in and said "Look, there's an opportunity we can get you into x-ray, but you're going to have to go in now". He could not remember that incident but denied insisting that the appellant would have to sign his statement first.

21 The appellant gave evidence. After describing his previous movements he said:

"... I guess, I was weary, I mean, I'd been on the go since 3 am. I'm the type of guy that, you know, at 9 o'clock I'm - - I'm getting tired and weary. I mean, it'd been a long day. When - -when you're on these sorts of jobs, you - - your adrenalin's flying you - - you - - when you switching with 22,000 volts, you've really got to be on the ball. You've got to have it in your brain, you've got to be switched on and it's - - it's been a - - you know, been a long day. I mean I'd been fairly full on for that whole morning."

22 In answer to a question about falling asleep he replied:

"... No certainly not. I - - I've - - I say. I've been up many, many times before I'd been involved in this situation before, I'm capable of driving a car, I've never had an accident. I had no inkling whatsoever that - - that I was going to go to sleep. Goodness me, if I had, I certainly wouldn't have been driving."

23 As to the making of the statement, he said that he was in shock, he had sore ribs and had been given pain killers and that the hospital wanted to x-ray him. Because he had so much information to write down, he had to quickly read through and sign each page quickly. He was not paying much attention. He was told that he had to sign the statement before he could go to x-ray. As far as he remember he did stop at the stop sign but that is all that he remembers. He had no reason to believe that he could not drive safely and carry out his duties.

24 In cross-examination he agreed that almost all of his statement was "spot on" - it was just the section about his weariness which was incorrect. He said he cannot remember actually stopping at the stop sign. He was cross-examined as to his statement. In answer to the question: "There is no reason why you should fall asleep?" he said:

"... No, I - - I've got no idea, why it should've happened, because it's never happened, because it's never happened to me before. As I say, I've been out sixteen hour shifts before and driven home after that and - - and it never had a trouble in the world."

25 He has no medical condition that causes him to black out.

26 The defendant called as a witness Mr Bird. Mr Bird is a superintendent with Western Power and the immediate supervisor of the appellant. He gave evidence of his duties.

"And, there was a situation where Geoff was required to go for x-rays and one of the police officers, denied him leave to go to x-rays, until such time as he had finished with his statement and signed his statement and there was a window of opportunity at the radiology department and Geoff had pressure of a nurse wanting to take him - -"

28 In cross-examination he said that the nurse stood behind him with a wheelchair saying that they had to go or they would lose the window of opportunity. There was between five and ten minutes between the request for x-ray and the completion of a statement.

29 The central issue for resolution was the course of driving. There was no question that, objectively, driving through a stop sign into the path of oncoming traffic was dangerous. The issues at the trial revolved around the question whether or not the defendant fell asleep. Counsel for the appellant argued that he may have fallen asleep momentarily but in circumstances where he was unaware of the degree of his tiredness.

30 The learned Magistrate was unable to find whether or not the appellant fell asleep. What she said was:

"Now, I'm asked to accept that a) the driving in effect wasn't voluntary, because he fell asleep ...we don't have that evidence before us, we simply do not have it and I cannot make the big leap and say, because Mr Plenty, doesn't remember the impact, or nothing until the impact, that he actually fell asleep. There are many people who are in shock who don't remember things and I cannot find that, in effect, that he did fall asleep."

31 Her Worship dealt with the statement noting that there were a number of changes and amendments initialled by Mr Plenty. It appears clear that her Worship accepted that statement.

32 After referring to authorities to which I will later make reference, her Worship continued:

"...I believe here, that he was driving, he had had ample warning any aware person as a driver with these symptoms here of which he says, he was starting to feel a bit tired, or even accepting the word weary, pass one set of roads before he turns off. He was yawning, his eyes were blinking, he was tired. He should then have stopped. He should've not continued. His driving was definitely voluntary, he could not have had an honest and reasonable belief that he was able to continue to keep driving. No matter what here, I accept that this driving was dangerous to the public and any person ...I find that he was in a state where he was driving, in a state where he should not have been and he's had plenty of warning that he's tired and I think the - - perhaps the pressure of his job has been such that he has continued to drive and with very dire consequences.

I find both of the charges proven to the required standard."

33 I propose to deal with the grounds of appeal in various groups.

34 The first group is grounds 1, 2, 3 and 4. They read as follows:

"1. The Learned magistrate was wrong in regards to THE CAUSE OF THE ACCIDENT in accepting or not rejecting or not doubting the credibility of the first Prosecution witness the driver Craig Marshall in that if as he states the Commodore vehicle was travelling at 15 to 20 Km/hr 'no more than 10 meters from the stop sign' then no accident could have occurred as the Commodore would have been well through the intersection before he arrived.

2. The Learned Magistrate was wrong in ignoring the evidence of the first Prosecution witness the driver Craig Marshall in that after watching the Commodore through the median strip 'with trees and all that down the middle' come '... south on the other side of the highway ...around the corner ...towards the stop sign ...' and SLOW DOWN '... towards the stop sign ...' which evidence indicated that the Appellant was aware of and stopped or was stopping at the stop sign.

3. The Learned Magistrate was wrong in NOT REACHING THE CONCLUSION THAT THE COMMODORE STOPPED AT THE STOP SIGN having regard for the evidence given by the Appellant and that of Craig Marshall to the effect hat (sic) the Commodore slowed down.

4. The Learned Magistrate was wrong in accepting the evidence of the passenger Kelly Clune WHICH CONTRADICTED THAT OF the witness Craig Marshall and that of the Appellant and was not borne out of objective facts."

35 These matters were not argued by counsel for the appellant at the trial. The evidence of the appellant at the trial was that he was unable to remember whether or not he stopped at the stop sign.

36 Mr Marshall was unable to say whether the appellant stopped because at the critical time he was looking at his speedometer.

37 Miss Clune on the other hand, had the appellant's vehicle in sight and was sure that he did not stop at the sign.

38 It is obvious that the appellant went through the stop sign into the path of an oncoming vehicle. Whether he temporarily stopped or not his action was objectively dangerous.

39 It was open for the learned Magistrate to be satisfied beyond reasonable doubt that the appellant failed to stop at the stop sign. Consequently, I do not uphold the grounds in group A.

40 This group is comprised of ground 5 which reads:

"5. The Learned Magistrate ought to have found that probably the other vehicle was travelling more than 100Km/Hr or speeding and that the Appellant stopped at the stop sign and proceeded very carefully across the intersection but did not see the other vehicle in time because of the speed at which it was travelling."

41 This ground proceeds on a common reconstruction of accidents. The reconstruction goes along these lines: "I did not see the other vehicle before the collision therefore it must have been travelling too quickly".

42 In his evidence the appellant agreed that he never saw Mr Marshall's vehicle travelling north on Ennis Avenue. In his statement he said: "I don't remember looking to the left to see if there are any cars coming north on Ennis Avenue".

43 Mr Marshall gave evidence that he was travelling probably about 100 kph.

44 For the Magistrate to have found in the manner set out in the grounds of appeal she would have had to engage in speculation. There was no evidence that Mr Marshall was speeding, and Miss Clune's evidence was that the appellant did not stop at the stop sign. I do not uphold this ground of appeal.

"6. The Learned Magistrate was wrong in fact or law in not finding that the Statement made by the Appellant was made under duress and was not admissable (sic) in evidence or was wrongly weighted and was made in her own words 'in a state of shock' when in her own words 'people in shock ... don't remember things...'

7. The Learned Magistrate was wrong in regard to admitting or using the statement which was made when the Appellant was in emergency ward, in severe pain with broken ribs, on a drip, under the influence of pain killing drugs and in a severely stressed and shocked state feeling very anxious and concerned for his own well being and need for urgent treatment and Xrays and was wrongly or illegally detained against his will by the policeman."

46 The appellant's counsel did not request a voir dire as to the statement taken. Nor was it contended that the statement was involuntary or to be excluded in the exercise of a discretion.

47 The Magistrate dealt at some length with the statement. She noted, as I note, that it is an extremely detailed statement. She noted the caution which is signed and that the appellant had added in his own hand at the end of the statement: "I have read this statement and it is true and correct to the best of my knowledge and belief and given of my own free will". The appellant is a mature adult. In the end she found:

"I do accept that this statement, it may have been hurried up with him at the end, but he's been clearly been able to go through and make these alterations very carefully which means he read it and has accepted it and adopted it."

48 There was a conflict of the evidence between Constable Crock on the one hand and the appellant and Mr Bird on the other as to whether there was pressure in the sense of time pressure put on the appellant because of the window of opportunity to attend x-ray. Nevertheless on Mr Bird's evidence there was a time of about five to ten minutes during which the statement was completed.

49 In my view it was open to the learned Magistrate to reach the view that in all the circumstances the statement did reflect the appellant's version and that, notwithstanding his undoubted shock and some injury, he was nevertheless able to give a coherent and clear account in his own words.

50 At the time of the completion of the statement when the nurse was present and Constable Crock was present, the appellant had the support of his supervisor Mr Bird. In the circumstances I do not consider there was any evidence that he was wrongly and illegally detained against his will by Constable Crock. I do not uphold this group of grounds of appeal.

51 This comprises of grounds 9, 11, 12, 14, 15 and 16 and they read:

"9. The Learned Magistrate was wrong in fact and law in making findings about the medical state of fatigue (whether tired or weary) without medical evidence and further wrong to make findings as to the extent of the fatigue and what effect the fatigue (if any) had on the

driving performance of the appellant without medical or expert opinion.

11. The Learned Magistrate was wrong in regard to not accepting the evidence of the Appellant that he considered he was quite competent to drive.

12. The Learned Magistrate was wrong and contradicted herself in finding initially '... I have no evidence before me, one way or the other, whether he did fall asleep at the time, or whether he did not.' So that is something which the Court cannot make a decision on but nevertheless proceeded to find that 'his driving was definately (sic) voluntary..'

14. The Learned Magistrate was wrong in not finding the prosecution case in all the circumstances was not proven beyond reasonable doubt and wrong in not finding there was reasonable doubt that the Appellant was conscious at the time of the accident or immediately prior and that there was insufficient medical evidence (if any) to convict.

15. The Learned Magistrate was wrong in not finding that the ABSENCE OF ANY MEMORY OF THE EVENTS IMMEDIATELY PRIOR TO THE ACCIDENT was consistent with a blackout or unconscious state or involuntary sleep.

16. The Learned Magistrate was further wrong in her finding against the evidence of the Appellant that he 'blacked out' when the Appellant's evidence in that regard was unchallenged by contrary evidence."

52 In McBride v R (1966) 115 CLR the applicant had been driving on the correct side of the road at relatively slow speed behind a motor car which approaching a pedestrian crossing stopped. The applicant swerved out from behind the motor car and struck a woman and child on the crossing. At 49 - 50 Barwick CJ said:

"The section speaks of a speed or manner which is dangerous to the public. This imports quality in the speed or manner of driving which either intrinsically in all the circumstances or because of the particular circumstances surrounding the driving,

is in a real sense potentially dangerous to a human being or human beings who as a member or members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be of course that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public ... This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage though to complete the offence under the section impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section."

53 In A M Smith v R [1976] WAR 97 the Court of Criminal Appeal considered the effect of s 59 and the consequences of dangerousness.

54 Jackson CJ cited with approval from Evans [1963] 1 QB 412 per Atkinson J at 418:

"It is quite clear from the reported cases that if a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best ..."

"But the offence is not an absolute one; there must be some fault on the part of the driver; accordingly if, for example, a sudden emergency arises either from a defect in the vehicle of which the driver was not aware, or from illness or accident to the driver or from the act of another person, which results in the vehicle being driven with actual or potential danger to the public then the driver may properly be held not to have been guilty of the offence of dangerous driving."

56 These cases are referred to with approval in Kaighin v R (1990) 1 WAR 390.

57 The question of drivers falling asleep has been raised in cases from time to time. The authoritative decision is that of Jiminez v R [1992] HCA 14; (1992) 173 CLR 572. In the joint judgment at 579 their Honours said:

"It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of driving, the light and conditions including whether it was night or day and the heating or ventilation of the vehicle are all relevant considerations and of course it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep then that may be some evidence of the degree of his tiredness and the period of driving before the accident and the amount of sleep that he had earlier will also bear on the degree of tiredness but so far as 'driving in a manner dangerous' is concerned, the issue is not whether or not there was a warning of the onset of sleep but whether the driver was so tired that in the circumstances his driving was a danger to the public. The various matters which bear on that question and the way on which they bear should be carefully drawn to the attention of the jury."

58 As I read the decision of the learned Magistrate, she found the appellant guilty of dangerous driving because he had plenty of warning that he was tired and that tiredness was such a state that he ought not to have been in control of the motor vehicle. She opined that perhaps the pressure of his job had caused him to make the decision to continue to drive.

59 On this analysis, the question whether or not the appellant actually fell asleep is unimportant. It was the driving in such a condition of tiredness that the possibility of sleep was real and substantial which gave rise to dangerousness if the appellant did in fact fall asleep and thereby fail to stop at the stop sign.

60 If he did not fall asleep, then the act of driving without stopping through a stop sign into oncoming traffic which may be approaching at the speed limit of 110 kph is objectively dangerous.

61 There was no evidence that the appellant had ever suffered from blackouts and therefore no evidence that he had lost consciousness for any reason other than falling asleep. In this respect the case is distinguished on its facts from Lowe v Brierley [1998] 27 MVR 342. In that case the driver suffered from obstructive sleep apnoea, a characteristic of which was falling asleep without warning.

62 The nature of the driving was voluntary in the sense that on the finding of the Magistrate, the appellant knowing of his condition nevertheless continued to drive. It was not necessary to have medical evidence as to the extent of fatigue on the driving performance of the appellant. Fatigue is a common human condition well within the ordinary experience of lay persons without the assistance of medical expert evidence. There were visible signs of fatigue described by the appellant in his statement. I do not uphold these grounds of appeal.

"8. The learned magistrate showed bias and prejudice by interjecting in the course of Mr Bird's evidence and wrongly called it emotional and was further wrong or prejudiced by not likewise interjecting in the 'emotional' evidence of the prosecution witnesses."

64 Mr Bird gave evidence as to the events at the hospital as follows:

"... And, there was a situation where Geoff was required to go for x-rays and one of the police officers, denied him leave to go to x-rays, until such time as he had finished with his statement and signed his statement and there was a window of opportunity at the radiology department and Geoff had pressure of a nurse wanting to take him - -".

"Well, just don't give us emotive statements, just tell me exactly what was happening, please?"

The nurse was what?--- - - Requesting, Mr Plenty to hurry up, so that they could capture the window at the radiology department.

Yes?---And the police officer, was requesting Geoff to complete his statement, prior to going to x-ray.

Yes, yes?---Geoff finished his statement, signed it off and they whisked him away to x-rays."

67 I would not characterise Mr Bird's evidence as "emotive". However I am quite unable to conclude that the interjection by the Magistrate displayed any bias against the appellant or the witness. The witness gave evidence of an opinion which he formed, namely that Geoff had pressure of a nurse wanting to take him. The interruption, quite properly, asked the witness to specify the facts. The opinion as to whether or not the facts amounted to pressure was a matter for the Magistrate.

68 The second part of the ground deals with an absence of interjection in the emotional evidence of the prosecution witness. There was no such evidence. Counsel for the appellant did not raise any objection. I consider this ground is without substance.

"10. The Learned Magistrate was wrong in regard to not finding tht (sic) the charges were duplictous (sic) or that an issue of 'double Jeopardy' had occurred and should have dismissed one of the charges.

70 The Sentencing Act s 11 reads:

"If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences."

71 This section is different in form from the repealed Criminal Code s 16 in that it speaks of the "evidence necessary to establish the commission by a person of an offence". In the present case the evidence necessary to establish the commission of an offence against Mr Marshall was the common evidence of dangerous driving together with the specific evidence of bodily harm to him. The evidence necessary to establish the offence of dangerous driving causing bodily harm in respect of Ms Clune consisted of the common evidence of dangerous driving together with the specific evidence of bodily harm to her.

72 Although the section is different from the repealed s 16, I am of the opinion that it ought to be interpreted in the same manner. The word "evidence" should be encompassing. That is to say the section requires that the evidence in each case should be identical before the section becomes operative. In this way the protection of the section is not extended to circumstances outlined by Ipp J in Phillips v Carbone (1992) 10 WAR 169; 67 A Crim R 392 at 190 where Ipp J concluded:

"In my view s16 is intended to provide protection to a person who is found guilty of one offence and then is found guilty of another upon substantially the same facts. It is not in my view intended to give protection to a person who by one physical act or omission causes multiple harm to different persons or things. It is not for example intended to avail the person who by a single act of depressing a plunger causes an explosion that injures more than one victim... An act or omission constitutes more than one offence only if the evidence necessary to support the later charges would have been sufficient to procure legal conviction on the first charge."

Conclusion on grounds of appeal relating to conviction

73 In my opinion the appeal against conviction should be dismissed.

"13. The Learned Magistrate imposed too high a penalty in the case of each conviction when the Appellant has no traffic convictions and has had no prior accidents."

76 The evidence before the Magistrate shows that the appellant was a 44 year old man in a responsible position as a project officer for Western Power. He had been driving for many years and had no previous convictions. There were no aggravating circumstances to the offence. On the day in question and the night preceding it, he had been performing a vital public service.

77 The element of dangerousness was momentary albeit serious. It caused significant harm. It was not preceded by a course of driving which was dangerous over great distance.

78 Accepting that there were two offences, nevertheless there is necessarily a degree of overlap in relation to a penalty. The appellant should not be twice punished for dangerous driving although there may be imposed a separate penalty for the aspect of the bodily harm.

79 Mr Marshall had a 7 cm gash to his left knee, a puncture wound to his right arm, some bruising from the seat-belt and a laceration to his chin. He had to take Panadeine Forte for about a month to stop the pain in his knee.

80 Miss Clune had a swollen left knee, a sore right knee and a laceration of the right lower leg and seat-belt bruising. Later she was given Naprosyn for about a month because of soreness in her back and stomach.

81 An appellate court will not lightly interfere with the discretion of a sentencing tribunal. Care should be particularly be exercised when interfering with the discretion of a court such as a court of petty sessions which regularly hears complaints of similar offences and is often in a better position to judge the various factors and to have regard to the range of sentences most commonly imposed.

82 Nevertheless I have reached the clear view that in this case the learned Magistrate did fall into error by imposing fines in each case which were manifestly excessive. In the circumstances of the offence and giving full weight to the excellent antecedents of the appellant, I would set aside the fine of $1500 and $1000 respectively and instead impose fines of $400 and $200. I do not interfere with the period of disqualification or the order for costs.

3. On complaint No RO984317 fine of $1500 is set aside. In lieu the appellant is fined $400.

4. On complaint No RO981921 fine of $1000 is set aside. In lieu the appellant is fined $200.

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