Apostolakos v Police - [2017] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
APOSTOLAKOS v POLICE
[2017] SASC 90
Judgment of The Honourable Justice Stanley
15 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - USE OF MOBILE PHONES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal against sentence imposed by a magistrate to refuse to reduce demerit points under section 98B(4) of the Motor Vehicles Act for an offence against Australian Road Rule 300, using a mobile phone while the vehicle is stationary but not parked.
The appellant pleaded guilty and gave evidence on oath in the Magistrates Court. He was driving a vehicle when he stopped at a red light at the intersection of Peacock Road and South Terrace. The appellant removed his mobile phone from his pocket for the purpose of checking whether the Bluetooth function on his phone was working. This took approximately 10 seconds. The magistrate found that the appellant used both hands, at least momentarily, for this purpose. He returned the phone to his pocket before the traffic lights turned green.
The appellant argues that the magistrate was plainly wrong in failing to find that proper cause existed to reduce the number of demerit points incurred.
The respondent submits that this appellate Court cannot interfere unless the discretionary decision of the magistrate was infected with a House v The King error.
Held, per Stanley J:
1. The argument that the Magistrate was plainly wrong in concluding that other proper cause did not exist to warrant a reduction in demerit points is not persuasive (at [22]).
2. The appeal is sufficiently arguable such that the extension of time within which to institute the appeal is allowed (at [23]).
3. I would dismiss the appeal. (at [23]).
Australian Road Rules (SA) r 300; Motor Vehicles Act 1959 (SA) s 98B(4), referred to.
House v The King (1936) 55 CLR 499; Police v Chilton [2014] SASCFC 76, applied.
Chan v Police [2014] SASC 35, distinguished.
Gilbert v Owen (1991) 14 MVR 235; Siviour-Ashman v Police (2003) 85 SASR 23; Savage v Police [2011] SASC 13, discussed.
Police v Ludlow [2008] SASC 43; Brookes v Police [2014] SASC 22; Newton v Larcombe (1989) 38 A Crim R 254; Miles v Police [2012] SASC 69, considered.

APOSTOLAKOS v POLICE
[2017] SASC 90
Magistrates Appeal: Criminal
STANLEY J.
Introduction

This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court to the offence of using a mobile phone while the motor vehicle he was driving was stationary but not parked, contrary to r 300 of the Australian Road Rules (SA). After entering his plea, the appellant applied for a reduction in the number of demerit points incurred in respect of that offence, pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (the Motor Vehicles Act). The appellant gave evidence on oath.
The Magistrate refused that application.
The sole ground of appeal is against the refusal to reduce the number of demerit points incurred by the appellant for the offence. The appellant submits that the Magistrate erred in failing to find that proper cause existed to reduce the number of demerit points.
Rule 300 Australian Road Rules (SA)
Rule 300 of the Australian Road Rules (SA) provides:
300—Use of mobile phones
(1)     The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless—
(a)the phone is being used to make or receive an audio phone call and the body of the phone—
(i)is secured in a mounting affixed to the vehicle while being so used; or
(ii)is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone; or
(ab)    the phone is being used as a driver's aid and—
(i)the body of the phone is secured in a mounting affixed to the vehicle while being so used; and
(ii)the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or otherwise to manipulate any part of the body of the phone; or
(b)     the vehicle is an emergency vehicle or a police vehicle; or
(c)the driver is exempt from this rule under another law of this jurisdiction.
Offence provision.
Note—
Emergency vehicle, park and police vehicle are defined in the dictionary.
Examples of driver's aids—
1       Closed-circuit television security cameras.
2       Dispatch systems.
3       Navigational or intelligent highway and vehicle system equipment.
4       Rearview screens.
5       Ticket-issuing machines.
6       Vehicle monitoring devices.
(2)     For the purposes of this rule, a mobile phone is secured in a mounting affixed to the vehicle if, and only if—
(a)the mounting is commercially designed and manufactured for that purpose; and
(b)the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.
(3)     For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if—
(a)     the communication is received automatically by the phone; and
(b)on and after receipt, the communication itself (rather than any     indication that the communication has been received) does not become automatically visible on the screen of the phone.
(4)     In this rule—
affixed to, in relation to a vehicle, includes forming part of the vehicle;
audio phone call does not include an email, text message, video call, video message or other similar communication;
body, in relation to a mobile phone, means the part of the phone that contains the majority of the phone's mechanisms;
held includes held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver;
mobile phone does not include a CB radio or any other two-way radio;
use, in relation to a mobile phone, includes any of the following actions by a driver—
(a)holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle;
(b)entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone;
(c)     turning the phone on or off;
(d)     operating any other function of the phone.
SA NOTE—
For South Australia, in addition to this rule, see regulation 44 of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014.
Section 98B(4)
Section 98B(4) of the Motor Vehicles Act provides:
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
Circumstances of the offending
The circumstances of the offending are in very short compass. The appellant gave evidence, which the Magistrate accepted, that he was driving a motor vehicle which was stationary at a set of traffic lights at the intersection of South Terrace and Peacock Road in the city. He removed his mobile telephone phone from his pocket for the purpose of determining whether the Bluetooth function was operating. He pushed a button on the phone for this purpose. This process took approximately 10 seconds. The magistrate found that during this process, he used both hands, at least momentarily, to operate the mobile phone. He returned the mobile telephone to his pocket before the traffic lights changed to green.
The Magistrates reasons
The reasons of the Magistrate are as follows:
The defendant Alexander John Apostolakos has pleaded guilty to using a mobile phone whilst driving on 23 October 2015. He was seen by police when stationary at an intersection to use both hands – at least momentarily – to look at his mobile phone screen. There is consensus and no dispute that he was not looking at his mobile phone or in any way using his mobile phone as his vehicle was moving. It is accepted that when the lights changed and he moved off in his vehicle that he immediately ceased and was no longer looking at his mobile phone.
In those circumstances, I think it can be said, quite properly, that this is offending of this type that is very much at the lower end of offending of such nature. Counsel has made reference to the readings in parliament, and I accept without question that the real thrust and policy behind this particular offence is to discourage the use of a mobile phone whilst people are – not just driving, but in particular, moving and not stationary so as to avoid distraction and potentially add to our road toll.
I repeat – I accept without question the defendant was stationary throughout the entire time he used his mobile phone.
Before the defendant gave evidence, counsel set out the basis for the application and the defendant has confirmed the basis for it. He simply says that he took the phone out of his pocket once he was stationary, checked to see no more than whether the phone was connected to the Bluetooth device in his motor vehicle, and then immediately when the lights turned green he put the phone down. He was not making a call or anything like that and his ‘use’ related to him simply checking whether the device was connected to Bluetooth or not.
I have not been told anything about the defendant’s personal circumstances so no part of this application is based on any concerns he may have as to his livelihood or overall demerit point situation, so I completely ignore and do not make any assumptions in that regard. I am going to deal with the matter based on the evidence that has been given.
Counsel has made reference to some Authorities. I am well aware that, in some respects, it is a discretionary matter. Counsel do not pitch the submission for a reduced number of demerit points on an argument of trifling in any way, but rather rely on a submission that ‘proper cause’ exists for a reduction in demerit points. Counsel has made much of the fact that he submits that this is not a typical offence of its type. And in response to a suggestion from myself that large number of people in very similar circumstances to the defendant come before the court it was submitted that was not necessarily an appropriate approach for the court to take.
I struggle to understand that submission, quite frankly, and I make it abundantly clear that more and more this court is having people being prosecuted and appearing before it for ‘using’ their mobile phones while stationary. It is a reality of life that people tend to check their phone at that time. It does not make it a very serious offence. I think it does make it a less serious offence than texting or being on your mobile phone while the car is driving. I accept it is lower end of the scale offending, but it is offending nonetheless.
Notwithstanding what the defendant has said, I do not think there is anything atypical about the circumstances. He did not cause any embarrassment and he was extremely unlikely to cause any embarrassment. It might be considered ‘a bit tough’ for him to cop the full demerit points and the fine to be imposed, but the offence exists and he committed the offence. I struggle to find proper cause. There is nothing out of the ordinary about his offending. It is a typical offence of this type in the respects in which I have made clear.
I decline to make any order for reduction of demerit points as I am not satisfied that proper cause has been established.
He will be convicted. I impose a fine of $315 plus court fees, plus the prosecution fee, plus the levy.
The parties’ submissions
The appellant submits that on the undisputed facts the vehicle was stationary, the ‘use’ of the mobile telephone was unusual in that no call was made, no SMS message was sent, received or read, no use of the internet took place, no use of email made and the process was momentary. He submits that this offending falls within the broader category under s 98B(4) of the Motor Vehicles Act, namely, “other proper cause”, on the basis that the facts of the offence are sufficiently atypical to warrant a merciful reduction of the points. It is precisely the type of incident for which Parliament conferred a discretion on the courts to permit flexibility in dealing with otherwise rigid criminal punishment. The Magistrate’s failure to find that proper cause existed in these circumstances to reduce the demerit points was plainly wrong.
The respondent submits that this Court cannot interfere with the exercise of the Magistrate’s discretion in concluding that no proper cause existed to reduce the demerit points incurred unless the Magistrate’s decision is infected by House v The King[1] error. It was open for the Magistrate to find that this was typical offending of the type contemplated by r 300. The rule expressly contemplates the offence can be committed while stationary. Accordingly, the Magistrate applied the correct legal test. No error of law has been demonstrated. The Magistrate did not consider irrelevant matters or fail to take into account a material consideration. In the circumstances, there has been no miscarriage of justice as no proper cause existed to reduce the demerit points.
[1] [1936] HCA 40, (1936) 55 CLR 499 at 504-505.
Proper cause
Section 98B(4) of the Motor Vehicles Act confers a power on a court to order that a reduced number of demerit points, or no demerit points, are incurred by a person convicted of an offence to which the provision applies where the court is satisfied by evidence given on oath that the offence is trifling, or that any other proper cause exists to reduce demerit points.
In Miles v Police,[2] Doyle CJ observed that the authorities suggest that “proper cause” refers to something different from a trifling offence, and so not necessarily as minor a matter as that, but nevertheless something sufficiently out of the ordinary to warrant a reduction in demerit points.[3] As can be seen, the analysis of what constitutes “proper cause” involves a comparison with what constitutes a “trifling” offence. In Siviour-Ashman v Police,[4] Doyle CJ reviewed the authorities dealing with the topic. The relevant principles which can be distilled from that analysis are as follows:
·the word “trifling” means of slight importance, insignificant or of little moment;
·the fact that an offence is serious does not, of itself, preclude the finding that a particular incidence of it is trifling;
·a normal or typical example of the offence ordinarily will not be trifling;
·ordinarily, there should be a soundly-based belief in the lawfulness of the impugned conduct;
·the court must pay regard to the purpose behind the obligation to observe the statutory requirement in question; and
·a deliberate breach would rarely be described as trifling, save in cases where humanitarian considerations or considerations of urgency arise.
[2] [2012] SASC 69.
[3] [2012] SASC 69 at [25].
[4] (2003) 85 SASR 23 at [23]-[42].
In Gilbert v Owen,[5] Olsson J analysed the meaning of the expression “other proper cause” in the equivalent provision to s 98B(4).[6] He said:[7]
First the proper cause envisaged by s [98B(4)] must relate to the circumstances of the offence rather than the offender.
Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence.
Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non‑embarrassment of others and an occurrence of the offence on a dual highway without intersections. Moreover, the need to exercise a rapid judgment in a particular situation may also be important.
[5] (1991) 14 MVR 235.
[6] Note: in 1991 s 98B(4) was found at s 98b(10).
[7] (1991) 14 MVR 235 at 236-237.
In Newton v Larcombe,[8] White J considered the expression “any other proper cause” addresses special circumstances which render the offence not quite trifling but sufficiently atypical to warrant a merciful reduction in points.
[8] (1989) 38 A Crim R 254.
A further observation should be made concerning an appeal in relation to the application of s 98B(4). The conclusion that an offence is trifling is a conclusion about the circumstances which enliven the court’s discretion under s 98B(4). It is a characterisation of a particular state of affairs. It is not an exercise of discretion. Accordingly, an appeal from a finding that an offence was trifling or a finding that an offence was not trifling involves a consideration of whether that conclusion was wrong in the sense that it was not reasonably open to the magistrate having regard to all the circumstances of the offence.[9] On the other hand, the conclusion that other proper cause exists involves an evaluative assessment. It is akin to a discretionary judgment.[10] A conclusion that other proper cause exists to reduce the number of demerit points involves the exercise of judicial discretion because that conclusion is reached by reference to a consideration of a general kind which involves an overall assessment of a number of other considerations considered by the court to be relevant, having regard to the circumstances of each case. They involve value judgments in respect of which there may be room for reasonable differences of opinion.[11] These are matters of circumstance and degree. Such a decision is only susceptible to being overturned on appeal in accordance with the principles in House v The King.[12]Those principles are well settled. The Court will only interfere with a magistrate’s exercise of a sentencing discretion where an error was made in the exercise of that discretion. An error will exist if the Magistrate committed some mistake of fact or law, took into account an extraneous or irrelevant consideration, failed to have regard to a relevant consideration or made a decision that was so obviously unreasonable or unjust that it can be said that there was a failure to exercise the discretion properly. The Court is not to substitute its own opinion merely because it would have exercised its discretion in a manner different from the manner in which the Magistrate exercised his or her discretion. As Kourakis CJ observed in Police v Chilton,[13] the principles in House v The King emphasise the strictness of the limited grounds for an appellate court to interfere with the exercise of a discretionary judgment by a magistrate.
[9] Police v Ludlow [2008] SASC 43 at [15].
[10] Brookes v Police [2014] SASC 22 at [9].
[11] Chan v Police [2014] SASC 35 at [23].
[12] [1936] HCA 40, (1936) 55 CLR 499 at 504-505.
[13] [2014] SASCFC 76 at [17]-[19].
Mr Allen, counsel for the appellant, accepted this approach. He submits that the Court can only interfere if it is satisfied that the conclusion of the Magistrate that no other proper cause existed was plainly wrong. In other words, it was not a conclusion that was open to the Magistrate on the evidence.
Extension of time

The appellant’s notice of appeal was filed 18 days out of time. The respondent opposes an extension of time on the basis that the ground of appeal is unmeritorious and, accordingly, an extension of time should be refused. On the other hand, the respondent does not oppose an extension of time if the Court was to find a proper basis to allow the appeal.
Consideration
The appellant seeks to invoke the reasoning of Blue J in Chan v Police[14] that the paradigm uses of a mobile phone prohibited by r 300 include making a phone call, listening to a message and sending or receiving a text. While the definition of “use” in r 300 also includes operating a function on the phone, such as looking at the time displayed, doing so does not necessarily represent the normal or typical example of the offence. The appellant submits that his momentary use of the mobile phone to identify whether the Bluetooth function was operating while the vehicle he was driving was stationary at traffic lights is an atypical offence. He submits that r 300 is concerned with road safety, and that his use of the phone in these circumstances does not fall within the conduct identified in Chan as the paradigm uses of a mobile phone prohibited by r 300. In these circumstances, he submits that the Magistrate was plainly wrong in not concluding that proper cause existed to reduce demerit points in these circumstances.
[14] [2014] SASC 35 at [34].
I do not agree.
I am not satisfied that, in these circumstances, it was not open to the Magistrate to conclude that proper cause did not exist to reduce the demerit points incurred for this offending. Accepting the observation of Blue J that this particular use of the mobile phone by the appellant does not fall within the paradigm uses of a mobile phone prohibited by r 300, does not lead inevitably to the conclusion that this is the sort of atypical case that provides proper cause to reduce demerit points. The offending was deliberate. It was not the product of an emergency or some urgency. The appellant could have waited until he had parked his vehicle to check its Bluetooth functionality.[15] In Savage v Police,[16] Nyland J dismissed an appeal from a decision of a magistrate to reject an application for a reduction in demerit points on the basis, inter alia, that proper cause existed to do so in circumstances where the offending consisted of the appellant picking up his mobile phone to check the time while he was driving. That process took approximately two seconds. Nyland J said:[17]
The Magistrate appears to have accepted that the offence was at the lower end of the scale of seriousness, as reflected by the fine which he imposed. That factor alone, however, is insufficient justification for the exercise of discretion to reduce the demerit points. In my opinion, this cannot be regarded as an atypical example of the offence. The offence created by Rule 300 is directed at the distraction that is created by use of a phone and the consequent danger to road users or pedestrians from a distracted driver. In modern times mobile phones have a multitude of functions, all of which have the potential for distraction and that is not limited to simply making a call or texting.
[15] See Miles v Police [2012] SASC 69 at [27].
[16] [2011] SASC 13.
[17] [2011] SASC 13 at [16].
The Magistrate obviously considered that large numbers of people in very similar circumstances to the appellant come before the Court, being prosecuted for using mobile phones while stationary. He noted that this was not serious offending, but neither was it atypical. In my view, the Magistrate is in a better position than me to make that judgment. The Magistrates Court hears many more of these cases than do judges of this Court. Generally speaking, magistrates are in a superior position to Supreme Court judges to form judgments as to whether particular conduct on the part of drivers of motor vehicles is typical or atypical. That conclusion emphasises the cogency of the Chief Justice’s observation in Chilton concerning the limited grounds for appellate interference in such discretionary judgments. This Court must give proper deference to the limits of appellate review.
The appellant’s use of his mobile phone was a distraction. It deflected his attention from what was happening on the road around him. Given that this occurred while the car was stationary, rather than in motion, the risk that resulted was not as great as would have been the case had the vehicle not been stationary, but it involved a risk to himself and other road users nonetheless. At some point, he was not holding the steering wheel. The traffic lights might have changed and other drivers might have driven on that roadway on the assumption that the appellant’s vehicle would have moved forward on the change of lights. A collision could have occurred.
I am not persuaded that the Magistrate was plainly wrong in concluding that other proper cause did not exist to warrant a reduction in demerit points.
Conclusion
In the circumstances, while I would not allow the appeal, I consider it sufficiently arguable that I would grant an extension of time within which to institute the appeal. However, I would dismiss the appeal.
I would hear the parties as to the costs of the appeal.