Department of Planning, Transport & Infrastructure v Berry - [2012] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v BERRY
[2012] SASC 29
Judgment of The Honourable Justice Vanstone
2 March 2012
TRAFFIC LAW - TRANSPORT CO-ORDINATION AND REGULATION LEGISLATION - SOUTH AUSTRALIA - ROAD AND RAILWAY TRANSPORT LEGISLATION
Appeal against dismissal of charge - appellant charged with being a heavy vehicle driver working for more than the maximum time allowed - appellant pleaded guilty - magistrate rejected plea and dismissed the charge - whether magistrate erred in dismissing charge.
Held: appeal allowed.

TRAFFIC LAW - TRANSPORT CO-ORDINATION AND REGULATION LEGISLATION - SOUTH AUSTRALIA - ROAD AND RAILWAY TRANSPORT LEGISLATION
Appeal against sentence - respondent charged with recording in a work diary a statement that was false or misleading contrary to s 165 of the Road Traffic Act 1961 (SA) - respondent pleaded guilty - magistrate recorded a conviction and imposed a fine of $200 without giving reasons - whether penalty manifestly inadequate.
Held: appeal allowed.
Road Traffic Act 1961 (SA) s 165; Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA) reg 40, reg 19, reg 73, referred to.
Cadd v Police (1997) 69 SASR 150; Commissioner of Taxation v Doudle (2005) 195 FLR 76, applied.
Everett v The Queen (1994) 181 CLR 295, considered.

DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v BERRY
[2012] SASC 29

VANSTONE J: These appeals concern two related matters heard together both before a magistrate and in this Court. The respondent truck-driver was charged on the first complaint with recording in a work diary a statement that was false or misleading, contrary to s 165 of the Road Traffic Act 1961 (SA) (the Act). He was charged on the second complaint with, being a heavy vehicle driver, working for more than the maximum work time allowed. Before the magistrate, the respondent entered pleas of guilty in relation to both charges. However, the magistrate apparently rejected the respondent’s plea on the second charge and dismissed it. In relation to the first charge the magistrate recorded a conviction and imposed a fine of $200 against a maximum of $10,000.
Background
The first offence arose under reg 40 of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA) (the regulations), requiring that a driver of a regulated heavy vehicle maintain records of certain information in a form known as a “work diary”. Section 165(1) of the Act makes it an offence to include in any required record a statement that is false or misleading in a material particular. The charge was that the respondent recorded in his diary that at 10.15 pm on 15 March 2011 he departed from a position 28 kilometres east of Kimba to travel to Port Augusta, when in fact at that time he was photographed by a “Safe-T-Cam” more than 300 kilometres away in Globe Derby Park.
The maximum penalty is a fine of $10,000 or imprisonment for six months. Without giving reasons the magistrate imposed a fine of $200.
At the time of the second charge, 21 June 2011, the respondent was engaged by HPS Transport as a two-up driver, as defined by the regulations. Pursuant to reg 19(3) such a driver is, in any given period, required to limit his working hours and to ensure he observes minimum rest times. The maxima and minima applicable for given periods are specified in Schedule 3 to the regulations. It was alleged that the respondent worked for a total of fourteen and a quarter hours within a 24 hour period, whereas he was prohibited from working more than twelve hours within that period. A contravention of the regulation by working more than thirteen and a half hours within 24 hours the offence is a “critical risk offence”. Pursuant to reg 73(1)(d)(i) the maximum penalty for such an offence is $10,000.
In this Court the appellant tendered affidavit evidence from the prosecutor who appeared in the matters at first instance. She related that at the hearing the respondent entered pleas of guilty to both offences. At that stage the magistrate enquired about the details of the offending charged in the second complaint. An exchange followed in which the magistrate asked how it was possible that a person who had taken a seven hour break could be in breach of the regulations. The prosecutor explained that in addition to a minimum rest requirement there was also a maximum limit on working hours. That discussion culminated in the magistrate telling the respondent that “all truck drivers should go to Canberra to blockade to get the bloody rules changed to make the rules the same in all states”. He then dismissed the charge on that complaint and told the prosecutor that he did not care if the matter were taken on appeal.
The Department of Planning, Transport and Infrastructure appeals against both decisions. It argues that the magistrate erred in dismissing the first charge and that the penalty imposed in the second was manifestly inadequate.
Appeal against dismissal of complaint
It is convenient to deal first with the second charge. Upon the appeal, counsel for the appellant argued that the magistrate erred in dismissing the second complaint after a guilty plea had been entered and was wrong in finding that on the allegations no offence was made out. It was said that he gave insufficient reasons for his decision to dismiss the charge.
Counsel for the respondent, Mr van Dissel, did not challenge those submissions. He accepted that the magistrate was in error in dismissing the charge and conceded that the appeal should be allowed and remitted to the Magistrates Court for rehearing.
In my view the respondent’s concession in relation to this ground was well made. In circumstances where the respondent had entered a plea of guilty it is difficult to see how the magistrate could, without more, proceed to acquit the respondent. The remarks made by the magistrate are regrettable and show, at best, a lack of objectivity. While the magistrate referred to “confusion and inconsistencies” attending the matter, it is not clear to me to what he was alluding.
I would allow this appeal.
Appeal against penalty
The appellant argued that the penalty imposed on the first complaint failed to sufficiently reflect the tendency of the respondent’s conduct to impede any investigation into his actual working hours and gave insufficient weight to the need for general deterrence. It was submitted that the failure to make any remarks on penalty precluded a proper analysis of the approach.
Mr van Dissel submitted that this Court should only intervene if the case was found to be one which fell within the principles established in Everett v The Queen (1994) 181 CLR 295. That is, it must be a rare and exceptional case.
In Police v Cadd (1997) 69 SASR 150 at 159, Doyle CJ made observations in obiter that the limitations on prosecution appeals established in Everett do not apply to an appeal against a non-custodial sentence. Lander J, with whom Bleby J agreed on this point, expressed the view that the Everett principles do not apply to appeals under s 42 of the Magistrates Court Act 1991 (SA) at all. In Commissioner of Taxation v Doudle (2005) 195 FLR 76, Debelle J accepted that the Everett principles do not apply, at least where no custodial sentence is sought. That is the position in the present case.
As I have noted, the respondent did not argue against allowing the appeal against the dismissal of the second charge. Plainly that matter must go back to the Magistrates Court to be dealt with afresh. In my view it is difficult to overcome the apprehension that the magistrate’s disposition of the first charge was also affected by the strong feelings he apparently holds in relation to regulatory offences of this type. Without the benefit of reasons of the magistrate explaining why the fine imposed was so low it is difficult to be satisfied that this was not the case.
I consider it appropriate that the appeals in both matters be allowed and that each be remitted to the Magistrates Court to be dealt with according to law. It is not appropriate to dispose of the matters in this Court as it is apparent that a good deal of material relevant to the imposition of penalty was not placed before the magistrate in part due to the respondent representing himself.
Conclusion
Accordingly, I make the following orders:
1.in each case the appeal is allowed and the disposition by the magistrate is set aside;
2.each complaint is to be remitted to the Magistrates Court to be dealt with according to law by a different magistrate.