Bender v Department of Police and Emergency Management

[2009] TASSC 37

[2009] TASSC 37

CITATION:Bender v Department of Police and Emergency Management
[2009] TASSC 37

PARTIES:  BENDER, Peter James
  v

DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  1025/2008
DELIVERED ON:  27 May 2009
DELIVERED AT:  Hobart
HEARING DATE:  18 May 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Traffic Law – Offences – Who is liable – Traffic Act 1925, s54(1) – Whether deeming provision extends to sentencing of an offender.

Traffic Act 1925, s54,(Tas).
Vehicle and Traffic Act1999, s21,(Tas).
Traffic (Road Rules) Regulations 1999, regs20, 21 (Tas).
Aust Dig  Traffic Law [113]

REPRESENTATION:

Counsel:
           Applicant:  W A Ayliffe
           Respondent:  S Nicholson
Solicitors:
           Applicant:  Mackie Crompton
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2009] TASSC 37
Number of paragraphs:  14

Serial No 37/2009
File No 1025/2008

PETER JAMES BENDER v DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT

REASONS FOR JUDGMENT  TENNENT J

27 May 2009

1. On 5 June 2008, the applicant was found guilty of one charge of speeding in an ex parte hearing before justices. The justices imposed three demerit points. There is no dispute the justices were entitled to proceed as they did.  On 13 August 2008, the applicant applied, pursuant to the Justices Rules 2003, r38, to set aside the conviction and penalty. That application was supported by an affidavit of the applicant in which he stated, inter alia, that he was not the driver of the vehicle, which was in fact a trailer, on the relevant day. The application came on for hearing before Deputy Chief Magistrate Hill on 30 October 2008. The applicant abandoned his application insofar as it related to conviction. He confined his application to the penalty. Rule 38(5) provides, in essence, that if an application to set aside is successful, the issue, the subject of the order set aside, is to be dealt with again. In this case therefore, if the learned magistrate determined that the penalty should be set aside, he could then proceed to reconsider the penalty.

1. The hearing before the learned magistrate appears from the transcript to have been relatively informal. The submissions made to him were not so much that he should set aside the penalty for certain reasons and, for those same reasons impose a lesser penalty, but that he should simply impose a lesser penalty. The learned magistrate seems to have fallen in with that approach because ultimately he said:

"And the mandatory position is that one gets the statutory prescribed amount of demerit points unless the defendant carries the burden of establishing that that shouldn't occur for some specific reason. I can't see a specific reason here. If I were able to take into account the fact that he wasn't driving I would but I can't."

1. His Honour then dismissed the application. The learned magistrate appears to have dismissed the application on the basis that he accepted he could not consider the fact that the applicant was not the driver as a special reason pursuant to the Vehicle and Traffic Act 1999 ("the VT Act"), s21(5), there were no other special reasons, and therefore there was no basis upon which the penalty could be set aside. The learned magistrate accepted that the Traffic Act 1925 ("the Traffic Act"), s54, created a fiction that the applicant was the driver, and proceeded on the basis he could not then impose a penalty based on a fact which was entirely contrary to that, that is that the applicant was not the driver. In effect, he was required to carry the fiction through to the penalty phase.

1. The applicant now seeks to review the order of the learned magistrate by which he dismissed the application pursuant to r38. There is only one ground in the notice to review and that is:

"The learned Deputy Chief Magistrate erred in law by directing himself that, as a result of the applicant's failure to comply with section 54(3) of the Traffic Act 1925, the Court was precluded from taking into account the fact that he was not the driver of the vehicle at the relevant time when considering whether to refrain from awarding or to reduce the number of demerit points to be awarded pursuant to section 21(5) of the Vehicle and Traffic Act 1999."

1. The complaint and summons with which the applicant was served asserted a breach of the Traffic (Road Rules) Regulations 1999, regs20 and 21(1). Regulation 20 provides that:

"A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving."

Regulation 21(1) provides:

"The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign."

The complaint laid against the applicant asserted:

"You are charged with on the 13^th October 2007 being the driver of a vehicle, registered number WT3450, on a length of road to which a speed-limit of 80 kilometres per hour applied, as indicated by a speed-limit sign, namely Southern Outlet at Hobart in Tasmania, and you drove at a speed over the limit indicated by that sign, namely 99 kilometres per hour."

The complaint also made reference to the availability of a defence pursuant to the Traffic Act, s54(3).

1. There is no dispute that the provisions of the Traffic Act, s54, applied to the offence with which the applicant was charged. The section relevantly provided:

"(1)           Where an offence to which this section applies occurs in relation to a motor vehicle or trailer, the person who, at the time of the occurrence of the offence, was the registered operator of the motor vehicle or trailer, is, by virtue of this section, guilty of the offence as if he were the person driving or in charge of the motor vehicle or trailer at the time of the occurrence of the offence.

…

(2)            It is a defence to proceedings in relation to an offence under subsection (1) for the defendant to establish that he was not driving or in charge of the motor vehicle or trailer at the time of the occurrence of the offence.

…

(3)            A person is not entitled to rely on a defence under subsection (2) unless he gives, within 21 days of the service on him of a complaint and summons relating to the offence, to the clerk of the court specified in the summons, written notice of his intention to rely on that defence, together with a statutory declaration stating that at the time of the occurrence of the offence –

(a)the motor vehicle or trailer was being driven by some other person without his knowledge or consent;

(b)the motor vehicle or trailer was in the charge of another person and stating the name of that person; or

(c)the person had completed as transferor an application for the transfer of the registration and stating the name of the transferee.

…

(7)     Nothing in this section affects the liability of the actual offender but where a penalty has been imposed on or recovered from any person in relation to an offence to which this section applies, a further penalty shall not be imposed on or recovered from any other person in relation to the offence."

1. The applicant did not give notice as required by s54(3). As a consequence, he was found guilty of the speeding offence and penalised for it as if he were the person driving or in charge of the trailer by reference to s54(2). Having regard to the contents of the applicant's affidavit put before the learned magistrate, he could not have, in any event, complied with s54(3) even had his solicitors thought to do so. It was not a case of someone using the trailer without his knowledge or consent because he stated that the trailer was in his son's possession. Further, his son was not prepared to say he was the person using the trailer at the relevant time because he said that he let others use it from time to time. It must be inferred that neither the applicant nor his son were able to identify the person using the trailer on the particular day. Therefore the applicant could not have relied on the defence which might have been available by reference to s54(2).

1. In essence, what the applicant submitted on this review was that all s54 did in this case was to ascribe guilt to the applicant as if he was the driver. There was no finding beyond reasonable doubt on the basis of any evidence that he was the driver. From this, two propositions flowed. Firstly, the wording of s54 clearly meant that it applied only to the issue of guilt. It did not apply to the penalty phase of any proceedings. In those circumstances, a sentencing officer was entitled to consider any relevant matter, including that the applicant was not the actual offender, and determine whether or not there was a special reason by reference to the VT Act, s21(5), not to impose the three demerit points. Secondly, a magistrate could not take facts into account in sentencing which were adverse to the offender unless those facts were established beyond reasonable doubt. Since, in this case, it had not been established by evidence that the applicant was the driver, a court could not have regard in sentencing to a fact that he was, in the face of other evidence to the contrary presented by the applicant.

1. The applicant provided authorities in relation to what might constitute special reasons pursuant to the VT Act, s21(5), and general sentencing principles. However, he provided none for his underlying proposition as to the impact of s54 in the sentencing of an offender.

1. The Traffic Act, s54(1), does indeed create a legal fiction. In relation to certain offences relating to the driving of motor vehicles, it deems the registered operator of a motor vehicle to be guilty of the relevant offence as if he were the driver at the time of the particular offence. In this case, as a consequence of the application of the section, the applicant was found guilty of an offence which involved, as an element, that he was the driver of a motor vehicle. The applicant was, even on the facts he put before the learned magistrate, leaving aside that he filed no notice in time, precluded from relying on any defence that he was not the driver. Once guilt was established, the next phase was penalty. The offence attracted a mandatory penalty of three demerit points, which was the penalty imposed upon the applicant.

1. The penalty imposed was imposed for an act of driving. While I accept that the imposition of that penalty on the applicant may on the face of things seem unfair, it was imposed to give effect to a particular statutory regime. Parliament clearly intended by s54 that, where a speeding offence was committed in a vehicle registered to a person, that person was the person responsible for the offence unless he or she could demonstrate someone else was driving. It was intended to prevent a registered owner of a car involved in a speeding offence escaping responsibility by simply stating he or she was not the driver of the car at the relevant time with the consequence that no person suffered a penalty. That is precisely the case here. The applicant says he was not the driver, but no-one says that another identified person was.

1. Despite the many statements made by counsel for the applicant to that effect, there is nothing whatsoever on the face of s54 which restricts its operation to the finding of guilt and conviction stage of any proceedings. Nor is there anything from which it could be inferred that the section would only apply to the finding of guilt and conviction phase and not to sentencing. It would make a nonsense of s54 were a registered operator able to be convicted of the offence based on the deeming provision, but then be able to avoid penalty after conviction by saying that he was not the driver. The very purpose of the section would be lost.

1. In my view, the question, whether or not the fact the applicant was not the driver might be a special reason pursuant to s21(5), simply does not arise. Once the finding of guilt is made on the basis of "as if the applicant were the driver", that basis remains for the purpose of sentence and it is not open to a person in the position of the applicant to present evidence at the penalty stage contrary to that.

1. In the circumstances, the notice to review is dismissed.