CARBONE v Police

Case [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…

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CARBONE v Police [2016] SASC 131
Case
[2016] SASC 131
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CaseChat Overview and Summary

In the case of Carbone v Police, the appellant contested a speeding offence, specifically arguing for a reduction in demerit points under section 98B(4) of the Motor Vehicles Act 1959 (SA). The dispute arose from a decision by a magistrate who declined to reduce the demerit points, instead imposing a fine and costs. The appellant, who was unrepresented, sought an appeal to the Supreme Court on the grounds that the sentence was manifestly excessive and that his employment as a bus driver necessitated his driver’s licence. The central legal issues before the court were whether the magistrate erred in not reducing the demerit points and if the personal circumstances of the appellant constituted proper cause under the Act.

The court examined the magistrate’s decision and noted that the imposition of demerit points was governed by the Motor Vehicles Regulations 2010 (SA), not the magistrate. The court held that the magistrate’s decision not to reduce the demerit points was not in error. The court found that the speeding offence was neither trifling nor committed under emergency or pressing necessity, as the appellant’s rush to go to the toilet did not meet the criteria for such circumstances. Additionally, the court held that the personal hardships faced by the appellant, while sympathetic, did not constitute proper cause under section 98B(4) of the Act, as they did not relate to the nature of the offence itself. The court concluded that the magistrate had correctly exercised her discretion, and there was no basis to interfere with her decision.

In light of the findings, the appeal was dismissed. The court held that the magistrate had not made any errors in her assessment of the offence and the application for demerit point reduction. The court also noted that the imposition of demerit points was a matter of statutory compliance, and the magistrate's role was to ensure the proper application of the law rather than to consider the personal hardships of the appellant. The final orders of the court were to uphold the magistrate’s decision, dismissing the appeal and confirming the fine and costs imposed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.