Department of Planning, Transport & Infrastructure v Brown - [2014] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v BROWN
[2014] SASC 113
Judgment of The Honourable Justice Stanley
22 August 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - ROAD TRANSPORT LEGISLATION - DRIVERS - OFFENCES
Appeal against sentence.
The Department of Planning, Transport and Infrastructure appeals against the sentence imposed by a magistrate. The respondent truck driver was charged on complaint and summons with driving a heavy vehicle in excess of the maximum work time allowed, contrary to reg 16(3)(a) of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008. The matter was listed for hearing before the learned magistrate on 28 March 2014. The respondent appeared at his trial and entered a plea of guilty to the charge. The magistrate recorded a conviction and imposed a fine of $400 against a maximum of $10,000.
Whether the penalty imposed was manifestly inadequate.
Held (allowing the appeal):
1. The magistrate erred in not having sufficient regard to the scheme of the Act, the categorisation of the offence and the need for deterrence (at [14] - 20]).
Road Traffic Act 1961 (SA); Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA) reg 16, reg 73, Schedule 1; Heavy Vehicle National Law (South Australia) Act 2013 (SA); Magistrates Court Act 1991 (SA) s 42; Statutes Amendments (Road Transport Compliance and Enforcement) Act 2006 (SA), referred to.
Everett v The Queen (1994) 181 CLR 295; Department of Planning, Transport & Infrastructure v Berry [2012] SASC 29; Police v Cadd and Others (1997) 69 SASR 150; Department of Transport, Energy & Infrastructure v Neil [2009] SASC 285; Department of Planning, Transport and Infrastructure v Favotti [2014] SASC 103; Barbaro v The Queen (2014) 305 ALR 323, considered.

DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v BROWN
[2014] SASC 113
Magistrates Appeal
STANLEY J:
Introduction

This is a Crown appeal against sentence concerning a matter that was heard before a magistrate. The respondent truck driver was charged on complaint and summons with driving a heavy vehicle in excess of the maximum work time allowed, contrary to reg 16(3)(a) of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (the regulations). The matter was listed for hearing before the learned magistrate on 28 March 2014. The respondent appeared at his trial and entered a plea of guilty to the charge. The magistrate recorded a conviction and imposed a fine of $400.
Background
Regulation 16(3)(a) requires that a driver of a regulated heavy vehicle must not work more than the specified maximum work time. Schedule 1 of the regulations provides the maximum work times for solo drivers. Pursuant to Schedule 1, a solo driver must not work more than 12 hours in a 24 hour period. The respondent was charged with working a total of 15½ hours in a 24 hour period ending at 1.30 pm on 18 May 2013.
The complaint and summons also contained a second count, alleging a failure to display a Maintenance Management Scheme label. However, there is no appeal in relation to the second count. As such, it is unnecessary to consider it in these reasons.
Schedule 1 of the regulations provides that an offence of working more than 13½ hours within a 24 hour period is a critical risk breach. A critical risk breach is the highest category of offending of this type. Pursuant to reg 73 of the regulations, the maximum penalty for a critical risk offence is $10,000.
Earlier this year, the regulations were repealed and replaced by the Heavy Vehicle National Law (South Australia) Act 2013 (SA). However, the regulations were in force at the time of the offending in this matter.
At the hearing, the police prosecutor made submissions and the magistrate heard from the respondent. The magistrate proceeded to sentence the respondent. The magistrate gave no reasons for sentence. No transcript of the hearing is available.
The Department of Planning, Transport and Infrastructure appeals against the sentence imposed by the magistrate. It argues that the penalty imposed was manifestly inadequate in that it failed to reflect the seriousness of the offending and the need for general and specific deterrence for offending of this kind.
On appeal I admitted affidavit evidence from the police prosecutor who appeared at the trial. In her affidavit, the police prosecutor deposes that she made submissions on penalty before the magistrate. She informed the magistrate that the maximum penalty for the offence was a $10,000 fine and submitted that 10 per cent of the maximum would be an appropriate penalty in this matter.
The respondent did not appear on the hearing of the appeal before this Court. I am satisfied he had adequate notice of the hearing.
The appellant’s submissions
The appellant submits that the penalty imposed failed to sufficiently reflect the fact that the offence is categorised as a critical risk breach and gave insufficient weight to the need for general deterrence. A sentence for an offence must adequately reflect the seriousness of the offending and operate as a deterrent, both specific and general. The appellant submits that the imposition of a $400 fine demonstrates the learned magistrate had insufficient regard to the objective seriousness of the offence and the need for deterrence so that the public safety purpose for which regulated maximum driving hours were introduced is not undermined. The penalty imposed by the magistrate failed to maintain an adequate standard of punishment for offending of this kind.
The appellant further submits that the failure to provide reasons and the perfunctory manner in which the magistrate approached the issue of sentencing demonstrates he had insufficient regard to the purpose of the legislative scheme. The appellant contends that driver fatigue impairs the concentration and vigilance required when driving a heavy vehicle. An accident involving a heavy vehicle puts the driver and other road users at significant risk of death or serious injury. To mitigate this risk, and in the interest of public health and safety, Parliament considered there is a need to regulate maximum driving hours and require drivers of heavy vehicles to regularly take rest breaks.
Principles on appeal
The principle set out in Everett v The Queen[1] limiting prosecution appeals against sentence to rare and exceptional cases does not apply in this instance.[2] The appellant is not seeking the imposition of a custodial sentence. This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). Section 42 provides that an appeal lies to the Supreme Court in a criminal action, which includes an appeal by the prosecutor against the inadequacy of a penalty. The appeal is as of right.
[1] (1994) 181 CLR 295.
[2] Department of Planning, Transport & Infrastructure v Berry [2012] SASC 29 at [13].
The function of the Court in setting sentencing standards in appeals from the Magistrates Court was discussed by Doyle CJ in Police v Cadd and Others.[3] He said:[4]
… It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type. That is what the court did in Eldridge v Bates.
[3] (1997) 69 SASR 150.
[4] (1997) 69 SASR 150 at 165.
Was the penalty inadequate?
The Statutes Amendments (Road Transport Compliance and Enforcement) Act 2006 amended the Road Traffic Act 1961. It introduced model national legislation into South Australia relating to the road transport industry. In his second reading speech, the Minister for Transport observed that the legislation focuses on achieving better safety outcomes in the heavy vehicle industry by improving compliance with road transport laws.[5] The Act creates different categories of certain offences that each carry their own penalty levels. A critical risk offence is the most serious of the categories, necessitating the highest penalty level.
[5] Hansard, House of Assembly, 11 May 2006 at 260.
The purpose of the legislation is to ensure the safety of road users. This requires that drivers of heavy vehicles adhere to certain working hours and rest breaks. Parliament intended that penalties not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers who flout the maximum work hours mandated by the regulations.
In Department of Planning, Transport and Infrastructure v Favotti[6] Peek J had occasion to consider the appropriate fine for the commission of a similar offence on a magistrates appeal. He referred, with approval, to the reasoning of Sulan J in Department of Transport, Energy and Infrastructure v Neil.[7] In Neil the Court considered that the starting point for a first offender in the usual case of a different but comparable regulatory offence concerned with the driving of heavy vehicles should be in the order of 25 per cent of the maximum penalty before consideration is given to any mitigating or aggravating factors. In Favotti the Court held that the fine of $150 imposed by the magistrate for the contravention of s 165 of the Act was manifestly inadequate. Peek J considered the appropriate starting point for a basic offence, where the maximum penalty was a fine of $10,000, to be a fine in the broad vicinity of $2,000 to $2,500.
[6] [2014] SASC 103.
[7] [2009] SASC 285.
In my view, the magistrate failed to have sufficient regard to the scheme of the Act. Although the magistrate did not provide reasons for his decision, it cannot be said that the fine of $400 imposed on the respondent adequately reflects the objective seriousness of the offending. The respondent worked a total of 15 ½ hours in a single 24 hour period. That is 3 ½ hours more than the regulated maximum of 12 hours. This constitutes a critical risk breach and the respondent ought to be penalised accordingly.
The fine of $400 imposed by the magistrate is well below an adequate penalty for this offending. It is important that drivers of heavy vehicles understand the importance of complying with the requirements of the Act.[8] The penalty imposed fails to reflect the need for general and specific deterrence. Deterrence is of particular importance in achieving the public safety purpose which underpins the statutory scheme. No doubt the driving of heavy transport vehicles is attended by commercial pressures. The purpose of the legislation is to ensure that the imperatives of road safety override those commercial imperatives. Accordingly, where drivers are tempted to drive for excessive periods which puts the safety of other road users and themselves at risk, courts must impose penalties which deter them from succumbing to such temptation.
[8] Department of Transport, Energy & Infrastructure v Neil [2009] SASC 285.
In my view, the magistrate has erred in imposing a fine of $400. I would allow the appeal and resentence the respondent.
Re-sentencing
I consider that the starting point for a first offence of this type, being of the critical risk category, should be in the order of 20 to 25 per cent of the maximum penalty. Accordingly, the starting point in this case is $2,000 to $2,500. The penalty may vary, having regard to mitigating and aggravating factors in a particular case. I take into account the mitigating factors that were before the magistrate, namely that the respondent had no previous convictions and that he has a partner and two young children to support. In the circumstances sentencing standards will be maintained by the imposition of a fine of $1,750. While this penalty is greater than the fine suggested to the magistrate by the prosecution, the Court is not bound or constrained by such a submission.[9]
[9] Barbaro v The Queen [2014] HCA 2 at [47], (2014) 305 ALR 323 at 333.
The appeal is allowed. The sentence imposed by the magistrate on 28 March 2014 is set aside. The respondent is fined $1,750. I make no order as to costs.