CARBONE v Police - [2016] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARBONE v POLICE
[2016] SASC 131
Judgment of The Honourable Justice Stanley
18 August 2016
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
This is an appeal from a decision of a magistrate not to grant an application pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (the Act) to reduce demerit points for a speeding offence.
The appellant pleaded guilty to a contravention of r 20 of the Australian Road Rules and s 79B(2) of the Road Traffic Act 1961 (SA) of exceeding the speed limit by 20 kilometres per hour or more but less than 30 kilometres per hour on Grant Road, Reynella. It was alleged that he was travelling at about 70 kilometres per hour in a 50 kilometre per hour zone. The statutory consequence of the appellant’s plea of guilty was that he incurred five demerit points.
The appellant, who was unrepresented, applied for a demerit point reduction pursuant to s 98B(4) of the Act. The magistrate found the appellant guilty of the offence and, without imposing a conviction, fined him $700 with prosecution costs of $100 and a Victims of Crime levy of $160. Court fees were waived. The magistrate refused the application to reduce the demerit points pursuant to s 98B of the Act.
The appellant appeals on the grounds that the sentence in relation to demerit points is manifestly excessive and that the appellant’s driver’s licence is required for his employment.
Held (dismissing the appeal):
1. The weight of authority favours the construction that the determination of whether “other proper cause” exists for the purpose of s 98B(4) is to be determined solely by reference to the circumstances of the offending (at [16]).
2. The offence was not trifling. There was no error in the magistrate’s failure to expressly address this issue. It was sufficiently obvious as to go without saying (at [21]).
3. There was no error in the magistrate’s view that the appellant had failed to establish any other proper cause to reduce the demerit points. There was nothing about the circumstances of the offending which established the existence of any proper cause to reduce the demerit points incurred. There was no error in the approach of the magistrate (at [22]).
4. Appeal dismissed (at [24]).
Motor Vehicles Act 1959 (SA) s 98B(4); Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 79B(2); Motor Vehicles Regulations 2010 (SA) Sch 4, referred to.
Gilbert v Owen (1991) 14 MVR 235; Police v Federuzzi [2008] SASC 104; Shillabeer v Linnane (1979) 22 SASR 382; Hepworth v Rowbottom (1979) 22 SASR 394, discussed.
House v The King (1936) 55 CLR 499; Whittwer v Police [2004] SASC 226; Markarian v R (2005) 228 CLR 357; Siviour-Ashman v Police (2003) 85 SASR 23; Police v Hughes; Police v Hodge (1996) 89 A Crim R 290; Police v Spooner [2015] SASC 196; Chan v Police [2014] SASC 35; Miles v Police [2012] SASC 69; Svilans v Police [2014] SASC 173; Bialobrzeski v Police [2016] SASC 99; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

CARBONE v POLICE
[2016] SASC 131
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal from a decision of a magistrate not to grant an application pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (the Act) to reduce demerit points for a speeding offence.
The appellant pleaded guilty to a contravention of r 20 of the Australian Road Rules and s 79B(2) of the Road Traffic Act 1961 (SA) (Road Traffic Act) of exceeding the speed limit by 20 kilometres per hour or more but less than 30 kilometres per hour on Grant Road, Reynella. It was alleged that he was travelling at about 70 kilometres per hour in a 50 kilometre per hour zone. The statutory consequence of the appellant’s plea of guilty was that he incurred five demerit points.
The appellant, who was unrepresented, applied for a demerit point reduction pursuant to s 98B(4) of the Act. The application was opposed by the police. The appellant gave sworn evidence. The magistrate ruled that she could not find proper cause existed to justify a reduction of demerit points and indicated she would deal with the matter by imposing a fine of $700 and compulsory costs and fees only. The magistrate granted the appellant an adjournment to obtain legal advice and stayed the operation of her decision until the adjourned date. On that occasion the appellant again appeared unrepresented and sought a further adjournment. This was refused. The magistrate found the appellant guilty of the offence and, without imposing a conviction, fined him $700 with prosecution costs of $100 and a Victims of Crime levy of $160. Court fees were waived. The magistrate refused the application to reduce the demerit points pursuant to s 98B(4) of the Act.
The appellant’s evidence before the magistrate
The appellant gave evidence that at the time of the offending he was rushing home to go to the toilet. The weather was fine, the road was wide and he has a good driving history. He was driving home after successfully obtaining employment following a period of unemployment of more than a year, and after about 2,000 job applications. He had obtained employment as a bus driver. He gave evidence that the five demerit points would result in him losing his driver’s licence and consequently his new job. This would plunge him into financial hardship in circumstances where recently he nearly lost his house. He gave evidence that he feared if he lost his job he would lose his house and probably lose the shared custody of his son.
The magistrates reasons
The magistrate found that proper cause did not exist on the basis of the appellant’s evidence to justify a reduction of demerit points. Accordingly, she refused his application.
Grounds of appeal
On appeal to this Court the appellant was still unrepresented. There are two grounds of appeal. They are that the sentence in relation to demerit points is manifestly excessive and that the appellant’s driver’s licence is required for his employment.
Principles on appeal
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 sentencing court exercised its discretion.[1]
Section 98B(4) of the Motor Vehicles Act 1959 (SA)
[1] House v The King (1936) 55 CLR 499 at 505; Whittwer v Police [2004] SASC 226 at [16] – [17]; Markarian v R (2005) 228 CLR 357 at 371.
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 text of the provision conditions the exercise of the Court’s discretion to reduce demerit points upon satisfaction of one of two conditions, namely, that the offence was trifling or that other proper cause exists to reduce the demerit points.
In Siviour-Ashman v Police[2] Doyle CJ said that “an offence which is a normal or typical example of its type will not be trifling”. An offence may be characterised as trifling if it is “of slight importance, insignificant or of little moment”.[3] The fact that an offence is serious does not, of itself, preclude the finding that a particular instance of it is trifling. To assess whether an offence is trifling, the focus must be on the offending conduct constituting the offence, but regard may also be had to the circumstances which explain how the offence came to be committed.[4] Ordinarily there should be a soundly based belief in the lawfulness of the offending conduct and a deliberate breach will rarely be characterised as trifling except in cases where pressing humanitarian considerations or considerations of urgency arise.[5]
[2] (2003) 85 SASR 23 at [25].
[3] (2003) 85 SASR 23 at [24].
[4] (2003) 85 SASR 23 at [28] – [29].
[5] (2003) 85 SASR 23 at [23] – [42].
In Police v Hughes[6] Debelle J identified factors relevant in determining whether an offence is trifling include:
·the extent of the offending conduct;
·the degree of departure from the standard of conduct required;
·whether there were exceptional or emergency circumstances giving rise to the conduct; and
·whether the offending was deliberate or inadvertent.[7]
[6] Police v Hughes; Police v Hodge (1996) 89 A Crim R 290 at 291.
[7] Police v Hughes; Police v Hodge (1996) 89 A Crim R 290 at 291.
However, in relation to offences against the Road Traffic Act, the weight to be given to inadvertence and lack of attention is lower than for other offences, given that the Road Traffic Act serves to promote safe driving conditions.[8]
[8] Police v Hughes; Police v Hodge (1996) 89 A Crim R 290 at 291.
There is a divergence of authority as to the meaning of “proper cause” in s 98B(4) of the Act. In Police v Spooner,[9] Vanstone J considered that the preponderance of authority is that “other proper cause” is confined to the circumstances of the offending and does not encompass impacts which might be suffered by an offender if the prescribed number of demerit points are incurred.[10]
[9] [2015] SASC 196.
[10] See Gilbert v Owen (1991) 14 MVR 235; Svilans v Police [2014] SASC 173 at [27]; Police v Federuzzi [2008] SASC 104; Shillabeer v Linnane (1979) 22 SASR 382; Hepworth v Rowbottom (1979) 22 SASR 394.
In Chan v Police[11] Blue J held that while “proper cause” refers to something that is not quite trifling, the categories are not closed. 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”.[12]
[11] [2014] SASC 35.
[12] [2014] SASC 35 at [23].
However, as Doyle CJ observed in Miles v Police,[13] there are some authorities which have taken into account the consequences for the offender as a relevant consideration. In Miles Doyle CJ observed that the loss of demerit points would put at risk the earnings and employment of the appellant in that case and would impose further hardship because of the need for the appellant’s driver’s licence to transport his son who suffered from a medical condition. Doyle CJ, however, considered that these circumstances did not constitute proper grounds for reducing the demerit points that would otherwise have been incurred as the relevant hardship was an entirely foreseeable and not unusual consequence at the time of the offending. Since Miles Kourakis CJ in Svilans v Police[14] and Vanstone J in Police v Spooner[15] have declined to follow Miles. In Bialobrzeski v Police[16] Doyle J considered Miles and, while not expressly following it, considered that even if personal circumstances were taken into account in the determination of whether any proper cause existed, there was no error in the magistrate’s conclusion that proper cause was not established in that case.
[13] [2012] SASC 69 at [25].
[14] [2014] SASC 173 at [27].
[15] [2015] SASC 196 at [12].
[16] [2016] SASC 99.
In my view, the weight of authority favours the construction that the determination of whether “other proper cause” exists for the purpose of s 98B(4) is to be determined solely by reference to the circumstances of the offending. That is consistent with the fact that the other enlivening condition to the exercise of the Court’s discretion to reduce demerit points, namely, trifling, is to be decided solely by reference to the circumstances of the offending.
It is important to bear in mind when considering the operation of s 98B(4) that the purpose of the legislative scheme under the Road Traffic Act and the Australian Road Rules is to prevent death or injury which can result from a vehicle exceeding the prescribed speed limit.[17]
[17] Siviour-Ashman v Police [2003] SASC 29 at [26], (2003) 85 SASR 23 at 27.
Against this analysis I come to consider the circumstances of this case.
Consideration
The first ground of appeal complaining that the imposition of demerit points is manifestly excessive is misconceived. The magistrate did not impose the demerit points. That was a product of the operation of the operation of schedule 4 of the Motor Vehicles Regulations 2010 (SA). The appellant’s real complaint is that the magistrate declined to reduce the number of demerit points incurred by the appellant’s offending pursuant to s 98B(4) of the Act.
The magistrate did not address the question of whether the offending was trifling. In my view, there was no error in the failure to do so. This was a normal, typical example of the offence of speeding. The speed of the appellant’s vehicle was substantially in excess of the speed limit. The offending could not be characterised as insignificant or of little moment. It was not committed in circumstances of an emergency or pressing necessity. The evidence that the appellant was rushing home to go to the toilet does not satisfy the category of emergency or pressing necessity.
The offence was not trifling. There was no error in the magistrate’s failure to expressly address this issue. It was sufficiently obvious as to go without saying.
Further, I consider there was no error in the magistrate’s view that the appellant had failed to establish any other proper cause to reduce the demerit points. The grounds upon which he applied were grounds confined to the impact of the imposition of demerit points upon him. The grounds were confined to his personal circumstances. However much those personal circumstances might attract the sympathy of the court, they are immaterial to the question of whether any other proper cause existed to enliven the court’s discretion pursuant to s 98B(4) of the Act. There was nothing about the circumstances of the offending which established the existence of any proper cause to reduce the demerit points incurred. There was no error in the approach of the magistrate.
Accordingly the appellant did not satisfy either condition which would enliven the court’s discretion to reduce the demerit points incurred pursuant to s 98B(4).
Conclusion
I would dismiss the appeal.