Bialobrzeski v Police - [2016] SASC 99

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BIALOBRZESKI v POLICE
[2016] SASC 99
Judgment of The Honourable Justice Doyle (ex tempore)
21 June 2016
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
The appellant pleaded guilty to exceeding the speed limit. At the time of the subject offending, the appellant had a condition on her licence that she be of good behaviour for 12 months. As a result of her offending, she was disqualified from driving for a period of six months. To avoid this consequence, the appellant applied for a reduction in the number demerit points that she would accrue. A Magistrate refused to grant the appellant’s application for a reduced number of demerit points.
The appellant appealed on the grounds that the Magistrate erred in finding that the offence was not trifling and that no other proper cause existed for reducing the number of demerit points.
Held (per Doyle J), dismissing the appeal:
1. No error in the Magistrate’s reasons or decision has been established.
Motor Vehicles Act 1959 (SA) s 98B(1), s 98B(4), s 98BC(1), s 98BE(2), s 98BE(2a); Motor Vehicles Regulations 2010 (SA) r 67, sch 4, pt 2, referred to.
Chan v Police [2014] SASC 35; Siviour-Ashman v Police (2003) 85 SASR 23; Svilans v Police [2014] SASC 173; Holness v Police [2010] SASC 314; Black v Police [2009] SASC 115; Thorley v Police [2009] SASC 4; Miles v Police [2012] SASC 69, considered.

BIALOBRZESKI v POLICE
[2016] SASC 99
Magistrates Appeal.
DOYLE J (ex tempore):

This is an appeal from the refusal of a Magistrate to grant the appellant's application for a reduced number of demerit points under s 98B(4) of the Motor Vehicles Act 1959 (SA).
Background
Prior to the subject offence the appellant had either expiated or been convicted of traffic offences resulting in her having incurred an aggregate of 12 demerit points during a three year period. She was thus liable to disqualification[1] of her licence under the demerit points scheme in Part 3B of the Motor Vehicles Act. However, the appellant avoided disqualification by accepting a condition on her licence that she be of good behaviour for 12 months.[2] The consequence of this was that if she incurred more than two demerit points while subject to that condition the Registrar was required to disqualify her for twice the period for which she would otherwise have been disqualified.[3]
[1] Section 98BC(1).
[2] Section 98BE(2).
[3] Section 98BE(2a).
On 29 March 2016 the appellant pleaded guilty to exceeding the speed limit, [4] by travelling at 127 km/h in a zone where the speed limit was 110 km/h.
[4] Contrary to r 20 of the Australian Road Rules, made pursuant to the Road Traffic Act 1961 (SA).
Upon conviction for this offence the appellant accrued three demerit points.[5] The Registrar was required in this circumstance to disqualify the appellant for twice the period for which she would originally have been disqualified, resulting in disqualification of her driver's licence for a period of six months.
[5] Section 98B(1) of the Motor Vehicles Act; regulation 67 and Schedule 4 Part 2, Motor Vehicles Regulations 2010.
Against that background, upon her conviction, the appellant through her counsel at the time applied under s 98B(4) for a reduction in the number of demerit points she would accrue so as to avoid this consequence.
Section 98B(4) provides:
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.
The section thus provides the Magistrate with a discretion to reduce the number of demerit points incurred. However, in order to enliven that discretion, the appellant was required to establish either that the offence was trifling or that other proper cause existed.
The appellant tendered an affidavit, the accuracy of which she confirmed on oath. She was not cross-examined by the prosecutor. The affidavit addressed both the circumstances of the offending and the hardship the appellant would suffer if she were to lose her licence.
As to the former, the appellant deposed that the offence occurred shortly before 7.00 p.m. while she was driving on the highway near Naracoorte.
She was driving to Mount Gambier from Adelaide for the purpose of undertaking her work the following day as a teacher. She was driving her 2004 Toyota RAV4 and was the only person in the vehicle. There was high glare at the time as the sun was setting. The speedometer in her vehicle was quite deep in the console and while she was in the habit of regularly checking her speed, she was unable to see it on this occasion because of the glare. She believed she was travelling within the speed limit but accepts that she was wrong about this. She explained that her car “drives really well” and that as a result she didn't realise she was travelling above the speed limit.
The appellant was familiar with the road on which she was travelling, and believes that she was driving safely in the conditions. The weather was dry and the sky was clear. The traffic was light and she was driving on an open stretch of the road, with no obstruction to her field of vision.
As to the latter, namely the hardship the appellant would suffer were she to lose her licence, the appellant deposed that she would be unable to undertake her employment if she lost her licence. She works as a relief teacher, regularly changing the schools at which she teaches. She receives a phone call early each weekday morning in which she is allocated to a particular school. She can be assigned to schools anywhere within a 100 km of Adelaide. The nature of her work is such that it is not practical for her to use public transport to make her way to work each morning. While her son lives with her he is unable to assist in transporting her because of his own work and study commitments.
The Magistrate refused the application, giving brief reasons for doing so. Her Honour said:
The impact of course Mr Yates on your client’s work is not really a matter that can amount to proper cause in itself. It is really about the driving – what the conditions were, whether the circumstances were fleeting, whether there was embarrassment caused etc. I do not have any evidence as to over what period your client was driving at 127 km/h but she was driving 17 km/h over the speed limit in an area where the exposure and likelihood of danger to herself and to other people was high. Arriving at a speed over 17 km/h does not amount to fleeting. I have read the affidavit. These are not easy decisions Ms Bialobrzeski particularly upon reading your affidavit I feel sympathy for your situation and the impact that this will have on your employment will be severe. Teachers are important members of our community.
There is nothing about the matters put to me in your affidavit or evidence that amount to a finding that proper cause exists. In the circumstances I am not prepared to grant your application.
Consideration
As mentioned, there are two alternative triggers that might enliven the discretion to reduce demerit points under s 98B(4) - that the offence was trifling, or that other proper cause exists.
Offence not trifling
It is not clear whether the appellant's counsel intended to submit that the offence was trifling. But to the extent this was an issue before the Magistrate, I do not consider the offence in question was trifling.
Trifling connotes an offence which is of slight importance, insignificant or of little moment. It is a corollary of this that an offence which is a normal or typical offence of its type will not be trifling.[6]
[6] Chan v Police [2014] SASC 35 at [19]-[21]; Siviour-Ashman v Police (2003) 85 SASR 23 at [24]-[25].
The appellant's speed of 127 km/h was sufficiently over the speed limit of 110 km/h to deprive the offending of the description of trifling. The offending was a typical example of its type. The speeding was not fleeting. The Magistrate made this observation, and while the appellant submitted on appeal that she was probably only speeding for a matter of a few minutes, perhaps up to five minutes, in my view this is still far from fleeting.
I do not think that glare interfering with the appellant's ability to read her speedometer is sufficient to take the offending outside the normal or typical example of this type of offence, or to otherwise be sufficient to warrant characterising the offence as trifling. There was no suggestion by the appellant of any emergency or other pressing need for her to drive at the speed she did. It is not to the point, or at least insufficient to constitute the offence trifling, that the appellant considered that her speed was safe in all the circumstances.[7]
[7] Thorley v Police [2009] SASC 4 at [14].
No other proper cause existed
Turning then to whether any other proper cause existed, the weight of authority suggests that this requires consideration of the circumstances of the offence and not the personal circumstances of, or hardship likely to be suffered by, the offender.[8]
[8] Svilans v Police [2014] SASC 173 at [27]; Chan v Police [2014] SASC 35 at [22]; Holness v Police [2010] SASC 314 at [13]-[22]; Black v Police [2009] SASC 115 at [10].
It will generally require that the offending be of a lesser seriousness than the typical offence of its type. In the case of a speeding offence, relevant considerations might include the extent to which the speed limit was exceeded, whether the speeding was momentary or fleeting, the driving conditions, whether there was any other traffic on the road, whether there was any embarrassment to other vehicles or road users, and whether there was any explanation for the speeding such as an emergency.
As Blue J explained in Chan v Police,[9] while “proper cause” refers to something that is not quite trifling, there are no closed categories of a case. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.
[9] Chan v Police [2014] SASC 35 at [23].
Here, as I have explained in the context of my consideration of whether the offending was trifling, I do not regard the circumstances of the appellant's offending as taking this case outside the typical type of offending for this category of offence. There are, in my view, no features of the offending which warrant the conclusion that there was any proper cause for reducing the demerit points. Indeed, the fact that the relevant speed limit was exceeded by 17 km/h in my view tells quite strongly against the existence of any proper cause. While the impairment of the appellant's view of her speedometer by glare was relevant it does not in my view suffice to establish proper cause. Nor in my view does the appellant's view that she was driving safely in the conditions that existed at the time.
I have mentioned that the weight of authority favours the view that the personal circumstances of the appellant, and the hardship she will suffer from the loss of her licence, are not relevant to the existence of any other proper cause under s 98B(4). It is appropriate that I adopt this approach given that weight of authority.
However, as Doyle CJ observed in Miles v Police,[10] there are some authorities which have taken into account the consequences for the offender as a relevant consideration. To the extent that such considerations are relevant, I do not consider they are of a quality or sufficiency in this case, either when considered alone or in combination with the circumstances of the offending, to constitute proper cause to reduce the demerit points incurred by the offending.
[10] Miles v Police [2012] SASC 69 at [25].
In Miles v Police,[11] Doyle CJ noted that the loss of demerit points would put at risk the earnings and employment of the appellant in that case. While not denying that this involved hardship it was relevant that this was an entirely foreseeable hardship and not an unusual consequence of a speeding offence. As a result, it did not constitute proper grounds for reducing the demerit points that would otherwise be incurred. In my view those observations are apposite in this case.
[11] Miles v Police [2012] SASC 69 at [29].
On the hearing of this appeal, the appellant relied upon the circumstance that at the time of the offending she was close to recovering a number of her demerit points. She also relied upon the nature of her employment meaning that she has had to spend significant periods of time on the road, including in unfamiliar terrain, and that this to some extent explains her driving record. The appellant also mentioned that at the time of the offence she was in the midst of what she described as a very stressful experience at the school where she was working. In my view, even taking these matters into account, and assuming they are relevant, they are not sufficient, either alone or in combination with the other circumstances relied upon, to constitute proper cause to reduce the demerit points.
In my view, regardless of whether or not personal circumstances may be taken into account in determining whether any proper cause exists under s 98B(4), no error has been established in the Magistrate's conclusion that proper cause was not established in this case.
Finally, I note that on the appeal the appellant made various criticisms of the conduct of her counsel at the hearing before the Magistrate. The essence of the complaint was that he did not adequately explain her position to the Magistrate, or otherwise give her the opportunity to do so. However, in circumstances where the appellant's counsel tendered and relied upon a relatively detailed affidavit and where the appellant has not, in my view, subsequently identified any matter of significance that she would have raised if given the opportunity, I do not consider there to be any merit in this aspect of the appellant's appeal. Nor do I accept that there is any basis for the appellant’s submission to the effect that the Magistrate, in the manner she conducted the hearing, demonstrated a basis for an apprehension of bias.
Conclusion
The appellant has not established any error in the reasons or decision of the Magistrate, and the appeal must be dismissed.