Department of Planning, Transport & Infrastructure v Krieg - [2013] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v KRIEG
[2013] SASC 37
Reasons for Decision of The Honourable Justice Nicholson
19 March 2013
TRAFFIC LAW - LOADS TO BE CARRIED BY VEHICLES - SOUTH AUSTRALIA - PENALTY
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
Prosecution appeal against sentence – respondent pleaded guilty to driving a vehicle which was overloaded contrary to s123(1) of the Road Traffic Act 1961 – Magistrate recorded no conviction and imposed no penalty – consideration of whether manifestly inadequate.
Held – Appeal allowed; but only to correct the basis upon which the sentencing outcome was reached. Upon re-sentencing the charge dismissed without recording a conviction.
Road Traffic (Mass and Loading Requirements) Regulations 1999 cl4; Road Traffic Act 1961 s47B, s120, s123, s129, s130, s161A and 163AA; Criminal Law (Sentencing) Act 1986 s3, s15, 16, 17, 18A and 39; Magistrates Court Act 1999 (SA) s42, referred to.
Miles v Police (2009) 104 SASR 127; Police v Hallett [2010] SASC 256; Hyde v Police [2006] SASC 362; Everett v The Queen (1994) 181 CLR 295; Police v Cadd [1997] SASC 6187, (1997) 69 SASR 150; Workcover Corporation (SA) v Musolino [2007] SASC 5, (2007) 100 SASR 147; Department of Transport, Energy and Infrastructure v Neil [2009] SASC 285; Secker v Department for Transport, Energy and Infrastructure (DTEI); Harris Refrigerated Transport Pty Ltd v DTEI [2010] SASC 17; City of Salisbury v Ahrens (2010) 108 SASR 54; Siviour-Ashman v Police (2003) 85 SASR 23; Police v Ludlow [2008] SASC 43; Waldon v Hensler (1987) 163 CLR 561; House v R (1936) 55 CLR 499, considered.

DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v KRIEG
[2013] SASC 37
Magistrates Appeal
NICHOLSON J.

Introduction

This is a prosecution appeal against the sentencing outcome arrived at by a magistrate following the respondent’s plea of guilty to the offence of driving a vehicle whilst it exceeded its permitted total mass, contrary to cl 4(1) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) and ss123(1) of the Road Traffic Act 1961 (SA). The B-triple rig being driven by the respondent at the time the offence was committed exceeded its permitted total mass of 42.50 tonnes by 40.77 tonnes. The total weight of 83.27 tonnes represented a 95.92 per cent overload of the statutory limit and was characterised, according to the legislative regime then in place, as a “severe risk” breach.[1]
[1] According to s120 of the Road Traffic Act 1961 and the relevant regulations breaches of the mass, dimension or load restraint requirements are characterised as “minor risk”, “substantial risk” or “severe risk” breaches.
However, the Magistrate, and notwithstanding this characterisation, described the respondent’s offending, according to the facts, as involving a “technical breach” which did not involve any safety or equipment defect implications. His Honour described the culpability of the respondent, in the circumstances, as “marginal”.
His Honour purported to rely on s16 of the Criminal Law (Sentencing) Act 1988 (SA) in not recording a conviction and on s17 of that Act to impose no penalty. He imposed court fees of $392 comprising court costs, counsel fees and the victims of crime levy.
The prosecution has not appealed against the Magistrate’s decision not to record a conviction. The appeal is only with respect to the decision to impose no penalty. The maximum fine for this offence is arrived at according to a sliding scale dependent upon the extent of any overload. In the present case the maximum penalty is a fine of $42,500.[2] There is no minimum penalty prescribed. The prosecution submits that the imposition of no penalty whatsoever is manifestly inadequate in all of the circumstances. The prosecution also submits that, upon determining not to record a conviction, no power resided in the Magistrate pursuant to s16 or s17 of the Sentencing Act to impose no penalty. This submission raises for consideration, again, the respective ambits of ss15, 16, 17 and 39 of the Sentencing Act.[3]
[2] For a severe risk breach the maximum fine is calculated according to the formula $5,000 plus $500 for each 1 per cent over a 120 per cent load. In the present case that leads to $5,000 plus (75 x $500) which come comes to a total of $42,500.
[3] See, for example, Miles v Police (2009) 104 SASR 127, Police v Hallett [2010] SASC 256 and Hyde v Police [2006] SASC 362.
The appellant’s right of appeal arises pursuant to s42 of the Magistrates Court Act 1999 (SA). Prosecution appeals against sentence are regarded as exceptional and an appellate court will exercise restraint when dealing with such an appeal.[4] Nevertheless, a court hearing such an appeal will be justified in interfering when error is demonstrated and it is necessary to avoid a manifest inadequacy or inconsistency in sentencing.[5] Without being comprehensive, a sentence can be regarded as manifestly inadequate if it is outside the range of appropriate punishments for the offence in question, given all of the circumstances, such that it fails to maintain adequate standards of penalty for an offence of the kind in question.
[4] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ); Police v Cadd [1997] SASC 6187, (1997) 69 SASR 150 at 172 (Duggan J, but see also Doyle CJ at 158 with whom Mulligan J agreed).
[5] Workcover Corporation (SA) v Musolino [2007] SASC 249, (2007) 100 SASR 147 at [44] (Duggan J with whom White and Kelly JJ agreed).
The uncontested factual basis
The following is common ground.
(i)The respondent is an experienced heavy transport driver and at the age of 56 has no criminal history and a “spotless” driving record extending over some 40 years.
(ii)The respondent has been an employee of Hahn Transport (the owner of the B-triple rig at the time of the offending) since 2006.
(iii)For some five or six years prior to the offending during which the respondent was employed, Hahn had in place a permit issued pursuant to the relevant legislation which entitled Hahn to operate the rig in question over certain specified routes and with a gross combination mass not exceeding 82.5 tonnes.
(iv)The permit had been renewed on an annual basis during the period of the respondent’s employment. The permit most recently in force prior to the offending had been issued on 1 March 2010 and had expired on 15 February 2011, some six weeks or so prior to the commission of the offence.[6]
(v)The relevant permit fee was $60.
(vi)Had the permit been current no offence would have been committed or at least prosecuted.
(vii)When the respondent was stopped for a routine check by authorised personnel of the Department of Planning, Transport and Infrastructure on 28 March 2011, the relevant permit was found to have expired and not to have been renewed.
(viii)It was the responsibility, as a matter of law, and, in a practical day to day or operational sense, of the employer, Hahn, to ensure that the relevant permit was in place and renewed from time to time.
(ix)On the day of the offence, the respondent was unaware that the permit had lapsed. Upon being stopped and thereby becoming so aware, he immediately notified the operations manager of Hahn who promptly forwarded a valid renewal of the permit to the relevant Department at Ceduna. Within approximately two hours and on that same day, the respondent was permitted to proceed on his journey.
(x)No issue of safety arose. In addition, no imposition by the respondent or his employer, in the sense of unauthorised, additional, wear and tear on the roads was involved. At all material times, had the permit been in place (Hahn’s entitlement to which was not in contest) Hahn would have been lawfully entitled to employ this B-triple rig with this combined mass on the route travelled.
(xi)The respondent pleaded guilty at an early time and fully cooperated throughout the course of the investigation.
(xii)The position since 1 July 2012 has been that a permit is no longer required for the combination that the respondent drove on 28 March 2011. The driving of a B-triple combination, with a total mass as driven by the respondent and in the circumstances of the respondent’s journey on 28 March 2011, is now authorised by the legislative regime itself.[7]
[6] The offence was committed on 28 March 2011.
[7] See the notice of approval of exemption as gazetted pursuant to s161A and s163AA of the Road Traffic Act 1961.
The Magistrate’s reasons
The Magistrate, after summarising the relevant factual basis for the plea, concluded his remarks as follows.[8]
Convictions and penalties which are severe for such breaches are issues for drivers in the transport industry. At the same time, the deeming by regulation of the breach as a ‘severe risk’ is broad and is in these circumstances, difficult to comprehend, otherwise than as a mechanical operation of the regulations. I am concerned about the need to regulate the heavy transport industry in terms of safety of vehicles, capacity of drivers and the interests of other road users. It is not an easy exercise for the Department.
I note that in exceptional circumstances the discretion to record no conviction can be exercised in regulatory matters.
In view of the plea and the circumstances alleged, I find the complaint proved. However, in these circumstances it is a technical breach on the part of the defendant, Mr Krieg and consequently calls for a ‘technical’ penalty. I take into account Mr Krieg’s age (56 years), good driving record and the circumstances of the offending. I will record, pursuant to section 16 of the Criminal Law (Sentencing) Act 1986 no conviction and no penalty pursuant to section 17. It is appropriate in these circumstances, given, in my view, that the culpability of Mr Krieg is marginal. I will impose the court fees totalling $392 which comprise court costs and counsel fees and levy.
[8] Remarks on penalty, 8 November 2012 at [7]-[9].
The prosecution’s submissions on appeal
The appellant maintains that it was an error to have characterised the offending as a “technical breach”. The respondent exceeded the mass requirement for a combination to a significant extent, indeed, to an extent characterised under the legislation as a “severe risk” breach. Whilst a vehicle may be exempted from the prescribed mass requirements, the holding of a valid exemption “is the essence of complying with the statutory scheme”. The scheme is necessary to ensure public safety and effective regulation of heavy vehicles and the failure to obtain an exemption should not be characterised as a mere technicality.
The Crown relied to some extent on two authorities in this Court, Department of Transport, Energy and Infrastructure v Neil[9] and Secker v Department for Transport, Energy and Infrastructure (DTEI); Harris Refrigerated Transport Pty Ltd v DTEI.[10]Both Sulan J in Neil and Layton J in Secker set out in some detail and explained the statutory provisions that make up the legislative scheme as it then stood which regulated the use of heavy vehicle transport on South Australian roads.[11] It is not necessary for me to traverse that territory again.
[9] [2009] SASC 285.
[10] [2010] SASC 17.
[11] See Neil at [7]-[15] and Secker at [15]-[35].
Neil concerned what might be regarded as a usual offence of this type. The respondent drove a single-axel tip truck with a load that was 2.6 tonnes more than the permitted weight of 9 tonnes for a single-axel vehicle. It was a “severe risk” breach. The driver was removing earth from a worksite. There was no weighbridge at the site and the driver had to guess the weight of the soil loaded onto his vehicle. It was a windy day and the driver hosed the load to keep it damp so as to avoid soil blowing away. The water added weight to the load. The case was one where, the driver made minimal or no effort to ensure that the load complied and took the risk that it did not. The Magistrate imposed a fine of $200 plus costs of $25 and the prosecution appealed.
Sulan J said this.[12]
The purpose of the legislation is to ensure the safety of road users. A part of that is the requirement that roads and infrastructure be maintained. The scheme of penalties is such that more serious breaches will attract greater penalties. 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 and owners who cart loads which are overweight.
The Magistrate failed to have adequate regard to the scheme of the Act. Although she stated that the penalties for offences are severe, and that the maximum penalty for the offending is $9800, she failed to consider the categorisation of this offence as a serious risk offence. The Magistrate did not give sufficient consideration to the wear and tear on the road, or to the harm to infrastructure resulting from the respondent’s conduct.
The fine of $200 imposed by the Magistrate for a severe breach is well below an adequate penalty for this offending. It is important that drivers who drive large-loaded vehicles understand the importance of complying with the requirements of the Act.
I consider that the starting point for a first offender in a usual case should be in the order of 25 per cent of the maximum penalty. The starting point for the breach in this case should be $1800. The penalty may vary, having regard to mitigating and aggravating factors in a particular case.
Sulan J allowed the appeal and, after taking account of matters personal to the respondent driver, his Honour re-sentenced and imposed a fine of $1,000.
[12] At [22]-[25].
Secker concerned a defence appeal by both the trucking operator and the driver. The facts were not dissimilar to the present case in that a B-triple combination was stopped for checking by officers of the Department and found to have a combined mass of 82.95 tonnes. That is, some 40 or more tonnes above the prescribed limit of 42.5 tonnes. The driver was not in possession of a permit which would have allowed the operation of the B-triple combination in these circumstances.[13]
The appellants pleaded guilty but submitted that the breaches were merely technical. They contended that, notwithstanding the lack of the permit which would have cost a mere $60.50, the actual configuration of the B-triple was lawful, as the prime mover involved was rated by its manufacturer as being capable of hauling a load of 84.5 tonnes. Further that there was nothing unsafe about his load or its length. On 2 February 2009, two days after the offending, the company obtained a B-triple permit for 82.5 tonnes.
[13] Secker at [6], footnotes omitted.
As in the present case, the maximum penalty as far as the driver’s offence was concerned for the “severe risk” breach was $42,500. However, the driver (as did his employer) committed a second offence – of exceeding the prescribed length limit; the maximum penalty for which, insofar as the driver was concerned, was $2,500. The Magistrate invoked s18A of the Sentencing Act, imposed a total fine of $3,000 on the driver and recorded no conviction. Layton J concluded her reasons on appeal as follows.[14]
The legislative regime which deals with the categories of risk breaches is strict.
I have considerable sympathy for the appellants in this case who, understandably, had difficulty in ascertaining the provisions with which they were required to comply. Their misunderstanding about the legislative scheme is understandable. It is not readily apparent.
In respect of the penalties, the combined mass of an offending vehicle is the only factor relevant to the assigning of risk breach categories. The fines of $15,000 in respect of the Company and $3,000 in respect of the Driver which were imposed by the Magistrate clearly lie at the very lower end of the scale compared with the maximum in each case. This reflects a proper exercise of discretion by the Magistrate when considering the matters set out in s130(2)(c). In imposing these penalties, the Magistrate has accommodated, on the one hand, the clear intention of Parliament in imposing such a strict regime with its heavier fines and, on the other hand, his acceptance of the submission that these were minor breaches. There was no error by the Magistrate. I therefore dismiss the appeals.
[14] At [36]-[38].
Both Neil and Secker can be distinguished. Secker involved a defence appeal with respect to which Layton J evidently had some sympathy but nevertheless could find no error in the exercise of the discretion available to the Magistrate and therefore dismissed the appeal. Furthermore, Secker involved a situation where no permit had ever been in place until after the offending conduct. In the present case, as far as the respondent driver is concerned, he could be forgiven for thinking that the circumstances in which he had routinely driven the B-triple in question remained in place. The criticism that can be levelled at the respondent is that he operated under this assumption but did not himself, on each and every occasion that he drove the B-triple or at least on the occasion in question, call for and inspect the paperwork. As far as Neil is concerned, the driver was significantly more culpable than the present respondent for reasons I have already explained. The respondent’s offending does not fall within the “usual case” as discussed by Sulan J.
As far as the appellant’s primary submission is concerned, in my view the Magistrate was right to focus on the conduct of the respondent driver rather than simply the failure of the vehicle to comply with the mass requirements of the legislation, when deciding the culpability of the driver. It was reasonable for the Magistrate to characterise, insofar as the driver was concerned, the failure by his employer to have renewed the permit, so as to acquire a valid exemption from the requirements of the Act, as a technical breach. Whether or not it would be so characterised insofar as the conduct of the employer is concerned, in the event that the employer were to be charged with an offence, is an entirely separate question and one which does not need to be addressed.[15] In characterising the offence in this way, the Magistrate did not, unlike in Neil, overlook the legislative characterisation of the offence as a “severe breach” and the reasons for this that ordinarily will subsist.[16]
[15] The Magistrate was told when the matter was before him that the owner/operator of the B-triple concerned, Hahn, may be the subject of a future complaint brought by the Department. Whether or not this has occurred or is to occur has not been made known to this court and, in any event, is of no relevance to this appeal.
[16] Remarks on penalty at [7].
I accept the appellant’s submission that when imposing a penalty in cases of this type the Court must take into consideration the risks associated with “severe risk” breaches as set out in ss130(2)(c) of the Road Traffic Act including that there may be a serious risk of accelerated road wear, increased traffic congestion, diminished public amenity and unfair commercial advantage. I also accept that Parliament intended to achieve better safety outcomes in the heavy vehicle industry by improving the ability to enforce the law when it is breached and to impose penalties at significant levels when breaches occur. However, these considerations had no role to play in the circumstances of this matter. To the extent that any of the concerns identified in ss130(2)(c) arose they were such that the administration was content to authorise in accordance with the policy underlying and requirements of the legislative scheme.

Of more significance, in my view, is the submission put by the appellant that the Magistrate may have failed to give sufficient weight to the need for general deterrence given the categorisation of the breach as a “severe risk” breach. The appellant’s submission is to the effect that Parliament has imposed a hierarchy of penalties to establish a deterrent regime proportional to the nature of the risk involved. I have considered whether it can fairly be said that the Magistrate disregarded that regime by allowing a sentencing outcome which provides no deterrent value with respect to commercial heavy vehicle drivers. However, ultimately, I reject that submission.
I accept the submission put on behalf of the respondent that the approach taken by the Magistrate in fact incorporated matters of significant deterrence both personal and general, including the following:
(i)that other such drivers in the commercial heavy vehicle industry, were they to become aware of this matter and the approach adopted by the Magistrate, would pay attention to the imposition of fees totalling $392 and to the inconvenience and cost to the respondent associated with the court proceedings and his need for legal representation;
(ii)that this expense and inconvenience, which is not insignificant, could have been avoided by checking that the permit had been renewed at a cost of $60; and
(iii)that other such drivers in the industry would realise that a person in the circumstances of the respondent, when seeking employment within the industry, may be required to disclose the charge as having been proved and this might have an impact on future employment prospects.
In short, the Magistrate’s approach and his reasons should not lead anyone to believe that the full force of the law will not ordinarily be applied in circumstances of a “severe risk” breach of the mass and loading legislative requirements, other than in quite unusual circumstances.
I am not satisfied that the Magistrate was wrong to characterise the breach in this case, insofar as the driver was concerned (as opposed to the operator employer) as a “technical” breach. I am not satisfied that the Magistrate failed to have proper regard to the matters set out in s130 of the Road Traffic Act nor am I satisfied that his Honour placed too much emphasis on the fact that it was the operations manager rather than the respondent who was in practical terms responsible for renewing the relevant permit.
I accept that there is a clear parliamentary intention that both drivers and operators take responsibility for compliance with mass requirements.[17] However, in my view, it is appropriate to allow some latitude to the driver in a case where, as here, a permit had been renewed anually for some years, as far as the driver understood, but he had failed on the occasion in question to check for a renewal. As I have indicated earlier, there is an appreciable distinction between this situation and the situation in Secker.
[17] See the discussion by Bleby J in City of Salisbury v Ahrens (2010) 108 SASR 54 at [28].
In these circumstances I am not satisfied that the “sentence” imposed by the Magistrate was “manifestly inadequate”. I would not interfere with the Magistrate’s discretion as to the sentencing outcome provided there were to be a proper statutory basis for it.
Is there nevertheless error to be found in the Magistrate’s reasons?
The question arises whether, notwithstanding the Magistrate’s findings, the conclusion that, in addition to recording no conviction there should be no penalty itself involved an error.
The Magistrate relied on the power conferred by s16 of the Sentencing Act when his Honour decided not to record a conviction. Section 16 provides as follows.
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)that the defendant is unlikely to commit such an offence again; and
(b)that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
The availability of s16 is predicated on the Court having come to the view that it “proposes to impose a fine, a sentence of community service or both”. In those circumstances and provided certain preconditions are met, the Court has power to impose such a penalty but without recording a conviction. For a conviction not to be recorded pursuant to or in reliance on s16, there must be the imposition of a fine or a sentence of community service.[18] I reject the submission by counsel for the respondent that the imposition of no penalty is equivalent to a fine of $0 which, of itself, satisfies the requirement to “impose a fine” albeit a fine of $0. With all due respect, the notion of imposing a fine does not embrace the decision not to impose a fine simply by re-characterising that decision as the imposition of a fine of $0.[19] In the circumstances, the Magistrate was in error insofar as he relied on s16 when deciding not to record a conviction.
[18] Police v Hallett [2010] SASC 256.
[19] Humpty Dumpty might have considered otherwise. “When I use a word … ‘it means just what I choose it to mean – neither more nor less.” Lewis Carroll, Through the Looking Glass, (1872) Ch 6.
His Honour also purported to rely on s17 of the Sentencing Act in imposing no penalty. Section 17 provides as follows.
Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to—
(a) the character, antecedents, age or physical or mental condition of the defendant; or
(b) the fact that the offence was trifling; or
(c) any other extenuating circumstances,
is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
Whilst the maximum penalty for the offence committed by the respondent has been fixed by a “special Act”[20] no minimum penalty has been prescribed. Section 17 confers a discretion on the court to reduce a prescribed minimum penalty in the circumstances as set out in that provision. Section 17 can have no application to the present case.
[20] By s3 of the Criminal Law (Sentencing) Act “special Act” means an Act, regulation, rule, by-law or other legislative instrument that creates an offence or prescribes a penalty for an offence.
The Magistrate reached the conclusion that it was appropriate to impose no conviction and no penalty. However, the only legislative power open to him to give effect to that conclusion was that available under either s15 or s39 of the Sentencing Act. Section 15 provides as follows.
(1)Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a) without recording a conviction, dismiss the charge; or
(b) upon recording a conviction, discharge the defendant without penalty.
(2)A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
Had the Magistrate found the offence committed by the respondent “so trifling that it is inappropriate to impose any penalty”, it would have been open to the Magistrate to exercise the discretion pursuant to ss15(1)(a) to “without recording a conviction, dismiss the charge”.
The word “trifling” has a well explored meaning for this purpose.[21] One would expect an experienced Magistrate, intending to rely on s15, to use the word “trifling” in his reasons, to first explain the meaning of the word trifling and then to apply that meaning to the facts of the case before him. In addition, not only was there no reference by the Magistrate to s15 there are the express references to s16 and s17. Nevertheless, the question arises whether or not, in effect, the Magistrate did make a finding that the offence, as committed, was “trifling”.
[21] See the discussion by Doyle CJ in Siviour-Ashman v Police (2003) 85 SASR 23 at [23]-[42] and Police v Ludlow [2008] SASC 43 at [13] (White J).
Section 39 of the Sentencing Act provides that in the circumstances set out in the section, the Court has a discretion to discharge a defendant, inter alia, without recording a conviction and without imposing a penalty upon the condition that the defendant enter into a bond to be of good behaviour, with or without conditions. It is plain that the Magistrate did not engage in this procedure.
The Magistrate by purporting to rely on the powers conferred by s16 and s17 of the Sentencing Act was in error. For this reason alone, the prosecution appeal must be allowed, the sentence set aside and the respondent re-sentenced. However, at all times both before the Magistrate and on appeal the prosecution has maintained no opposition to a decision not to record a conviction. When re-sentencing following a successful Crown appeal it would require unusual circumstances before an appeal court would sentence in a way contrary to such a concession. In any event, in my view, the concession was rightly made, given the nature of the breach and the fact that the person before the court is a long term participator as a driver in the heavy vehicle industry with no prior convictions of any sort and a “spotless” driving record. In all the circumstances, that is an admirable record and one which, given the nature of the breach on this occasion, the respondent deserves to retain.[22]
[22] Ordinarily, the discretion not to record a conviction should be exercised sparingly where regulatory offences are concerned.
In these circumstances, the options available when re-sentencing involve consideration of whether or not a finding that the offence is trifling can be justified in which case the respondent might be discharged without penalty in accordance with s15 or, if not trifling, the imposition of a fine or an order for community service pursuant to s16 or the imposition of no penalty and no conviction but subject to entering into a bond to be of good behaviour with or without conditions as envisaged by s39.
I return to the question of whether or not the Magistrate, in effect, made a finding of “trifling”, before considering whether or not such a finding might be justified in any event.
In order to apply s16 or s17 a court must be satisfied that at least one of three matters provides good reason for not recording a conviction or reducing the penalty below the prescribed minimum, respectively. The three matters are the same for both sections. The Magistrate certainly had regard to the character, age and antecedents of the defendant. The other factors relied on by the Magistrate might have been thought to satisfy either or both “the offence was trifling” and “any other extenuating circumstances”. However, the Magistrate’s remarks as a whole, suggest that of most significance to his decision was the finding of a “technical breach” and “marginal” culpability. Both descriptions arguably invoke the notion of “trifling”.
The notion of a “trifling” offence was comprehensively considered by Doyle CJ in Siviour-Ashman v Police[23] in the context of an offence committed pursuant to s47B of the Road Traffic Act (driving whilst the prescribed concentration of alcohol was present in the blood). Section 47B contained its own express qualification with respect to a trifling offence. However, the judgment of the Chief Justice is clear to the effect that his analysis of the meaning of trifling was intended to have general application including, in particular, where it is used in ss15, 16 and 17 of the Sentencing Act.
[23] (2003) 85 SASR 23 at [23]-[42].
Nevertheless, his Honour’s analysis and the summary of this analysis (together with other decisions which have dealt with the meaning of trifling) offered by White J in Police v Ludlow,[24] are both expressed in the context of considerations relating to prescribed concentration of alcohol offences. I will attempt a summary of the principles so identified but more directed to the offence here in issue.[25]
[24] [2008] SASC 43 at [13].
[25] I will not refer to further authority. Both Doyle CJ and White J identify other authorities that exemplify some of these factors.
(i)The relevant powers in ss15, 16 and 17 are of general application. It is, at least theoretically, possible to find a particular offence to be trifling notwithstanding the serious nature of the offence itself. In this case, the fact that the respondent’s offence has been characterised as a “severe risk” breach attracting a maximum fine of $42,500 does not, of itself, preclude a finding of trifling. In Waldon v Hensler[26] Brennan J[27] said:
Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.
(ii)One should begin by bearing in mind the ordinary meaning of trifling – of slight importance, insignificant or of little interest.
(iii)A normal or typical example of the offence, ordinarily, will not be trifling. Parliament could not have intended that such an example of the offence would be dealt with in an extraordinary manner or routinely regarded as trifling. The court looks for a trivial example of the forbidden act.
(iv)The circumstances of the offence, as committed, are relevant. Where remedial legislation, such as this, is concerned, it is too narrow an approach to confine attention exclusively to the offending conduct. For example, can the offender not be criticised for not knowing or realising that he or she was committing the offence? In the present case, is the respondent to be criticised for operating under the assumption or belief that he was not committing an offence? The offences prescribed by the legislation relating to load and mass requirements are intended to deter persons from driving in prescribed circumstances. Any participant driver in the heavy transport industry must be taken to be aware that such requirements and corresponding offences exist; a fortiori for this respondent, given the extent of his experience in the industry. Nevertheless, in my view, the respondent can be forgiven for thinking, in the circumstances, that he was compliant. His situation is quite different from those many examples in the cases involving a driver who miscalculated – and deliberately took a risk with respect to – the amount of alcohol consumed and its effect and different from the analogous (miscalculation) situation in Neil, as earlier discussed.
(v)It follows that there must be something more than a miscalculation or mis-estimation. Ordinarily, there should be a soundly based belief in the lawfulness of the impugned conduct, a belief that was “falsified by events over which [the respondent] had no control and in respect of which [he] cannot be criticised”.[28]
(vi)The court must pay regard to the purpose behind the obligation to observe the statutory requirement in question; in this case the statutorily prescribed mass loading requirements. In the circumstances here, it cannot be said that the relevant purpose has been offended.
(vii)A deliberate breach will rarely be described as trifling save, perhaps, in some cases where humanitarian considerations or considerations of urgency arise.
(viii)A court who considers the question of triviality is engaged in an enquiry about which views can differ.[29] Nevertheless, the determination whether or not an offence is trifling does not raise House v R[30] considerations. With respect, I agree with White J in Police v Ludlow[31] where his Honour observed:
The conclusion that the offence was trifling was a conclusion about circumstances which enlivened the court’s discretion… . It was a characterisation of a particular state of affairs. It was not an exercise of discretion.
[26] (1987) 163 CLR 561.
[27] At 557, see also Dawson J at 595.
[28] Siviour-Ashman at [35].
[29] Siviour-Ashman at [37] and [39].
[30] (1936) 55 CLR 499 at 505.
[31] [2008] SASC 43 at [15].
In my view, given the circumstances of the offending by the respondent here, each of the considerations in (i), (iii), (iv), (v), (vi) and (vii) tend towards a finding that the offence committed by the respondent was trifling.
Of these factors (v) is the one that causes most concern. Some might cavil at the proposition that the respondent had a soundly based belief that his driving conduct was lawful. However, it also would not be accurate to call it a mere miscalculation or mis-estimation. The respondent had relied on his employer and had done so for the past five or six years to keep the paperwork in order. He can be criticised for not undertaking his own independent check which he should have done. It is this feature of the respondent’s conduct that has caused me the most concern. A driver has, what in most cases will be, the last opportunity to avoid a mistake of this nature. He or she can, at least in theory,[32] refuse to drive until satisfied that a current permit is in place. In addition, the permit had been allowed to lapse for some six weeks, it was not just a matter of a few days. However, this must be viewed from the perspective that the permit was renewable on an annual basis and had been in place for at least five years or so. In all the circumstances, I am not satisfied that the failure to check by the respondent, should be given such weight as to deny the offence a characterisation of trifling.
[32] Whether or not this is a practical option in all cases bearing in mind an individual driver’s employment conditions, the state of the “relationship” with the employer, the urgency and exigencies of any particular situation and the like will be another matter.
In combination, the factors I have referred to admit of the conclusion that the respondent’s offending was trifling in that it was, in the circumstances, “of slight importance, insignificant or of little interest” (proposition (iii) above).
I agree with the Magistrate’s conclusion that the proper disposition of this matter is to sentence the respondent on the basis that no conviction should be recorded and no penalty imposed. However, the appeal must be allowed to correct the basis upon which this sentencing outcome is to be arrived at. I find the respondent’s offence to be so trifling that it is inappropriate to impose any penalty. I exercise the discretion under ss15(1)(a) of the Sentencing Act to dismiss the charge without recording a conviction.
I will hear the parties with respect to the need for any consequential orders.