Shane Fredrick Lester v Clifford Arthur Cooke Sca [1988] ACTSC 39 (8 July 1988)

SUPREME COURT OF THE ACT

SHANE FREDRICK LESTER v. CLIFFORD ARTHUR COOKE
S.C.A. No. 65 of 1987
Vehicles and Traffic - Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Vehicles and Traffic - appellant convicted of driving in a manner dangerous to the public - appellant approached intersection at high speed and drove through amber light.

Appeal - whether fine and suspension of licence by magistrate based on error or manifest excessiveness - appellant had no prior record and justified action on his knowledge of the sequence of the lights - weight to be given to fact that driver of another vehicle involved in subsequent collision received relatively lenient penalty.

HEARING

CANBERRA
8:7:1988

ORDER

The appeal be allowed in part. The conviction be confirmed. The penalty be varied insofar as the order of the magistrate to suspend the licence for a period of six months be deleted. The fine of $1,500 is confirmed with twelve months to pay.

DECISION

This is an appeal against penalty which, as I will indicate, is almost totally without merit. The appellant was convicted on a charge of danqerous driving, or driving in a manner danqerous to the public.

2. The offence occurred at about 7.30 a.m. on Monday, 14 July 1986 when the defendant was driving his Holden sedan westward in Wakefield Avenue towards the intersection with Northbourne Avenue.

3. He was on his way to work and running late. The lights facing him turned from green to amber. He was proceeding at a speed of 65 kilometres per hour, which appears to be in excess of the speed limit, although I make no firm finding on that aspect, seeing as there is no evidence as to what the speed limit was. However, it is a high speed at which to approach an intersection of the nature and importance of the one in question.

4. The speed at which the appellant was driving was such that he considered that he could not safely pull up before the traffic lights. He gave that explanation to the police at a later stage. It is not clear exactly what his state of mind was at the time but in any event he made a decision to drive though the lights, despite the fact that they were amber.

5. He stated at a later stage, and I think I would have to accept it, that his decision was based, at least in part, on what he understood to be the operation of the lights. He understood that there was a time delay as far as vehicles in Northbourne Avenue were concerned and that the next sequence would allow oncoming traffic to proceed eastward in Wakefield Avenue.

6. He appears to have been correct in his knowledge of the operation of the lights but, however, not everybody else at the intersection appeared to be of the same mind because there was another vehicle in the intersection proceeding north. What exactly the explanation of the vehicle proceeding north was I do not know.

7. At any rate, there was a collision between those two vehicles and subsequent collisions with several other vehicles in the vicinity, with a great deal of damage all round.

8. The act of the appellant, in my view, was a highly dangerous and deliberate one. He sought to justify it on his knowledge of the sequence of the lights but again, the nature of the intersection, the time of the day and the likelihood of very heavy traffic being carried in Northbourne Avenue in particular, was such that his action must be regarded as a very dangerous one indeed and, in my view, has to attract a penalty at the higher end of the scale. Of course, it is true, as his counsel says, that it is possible to imagine more dangerous acts of driving.

9. He was a person without any prior record and, as I understand it, at the time and for that reason was entitled to some leniency. Some leniency was extended in the sense that the magistrate did not impose the maximum fine of $2,000 but a lesser fine of $1,500. A period of suspension of licence was imposed of six months.

10. In my view, the fine and suspension have not been shown to be based on any error on the part of the magistrate or any manifest excessiveness. However, I have been told that since the matter was before the magistrate, the driver of the vehicle proceeding north, which must have gone against a red light in Northbourne Avenue, has been himself dealt with in the Magistrates Court and penalised for same offence with which the appellant was charged, namely driving in a manner dangerous to the public.

11. For some reason I am unable to understand, a very lenient penalty was imposed, namely a fine, I think, of $250 plus a disqualification of three months only. Counsel for the appellant has, very properly, drawn my attention to the sentencing disparity on the face of it between what the appellant received and what this other driver received.

12. However, I know next to nothing about the facts that were put before the Court in the other case, or any other extenuating circumstances which might have led to what I regard, on the face of it, as being extremely lenient treatment. Two wrongs do not make a right and, in my view, the principle of disparity should not be applied in the present case to interfere with the magistrate's decision, except to the extent to which I am about to refer and, indeed, that arises out of other factors.

13. The appellant gave evidence before me, which I accept, that since the matter was before the magistrate he has surrendered his licence to the traffic authorities in response to a request received, and that he was in affect unlicenced for a period of six months. He applied for the re-issue of licence at the end of six months and it was in fact re-issued to him. He did not drive during that six-month period. Therefore, it is inapproprite for me to confirm the order of the magistrate suspending the licence for six months. So the appeal is allowed in part. The conviction is confirmed. The penalty is varied insofar as the order of the magistrate to suspend the licence for a period of six months is deleted. The fine of $1,500 is confirmed with twelve months to pay.