Department of Planning, Transport & Infrastructure v Wing - [2014] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v WING
[2014] SASC 115
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 two sentences imposed by a magistrate. The respondent truck driver was charged on two separate complaints with a total of 10 counts of contravening a direction to produce a record, contrary to s 40W(4) of the Road Traffic Act 1961 (SA). The matter was listed for hearing before the magistrate on 28 March 2014. The respondent did not appear at the trial. The matter was heard ex parte. The magistrate recorded convictions and imposed a fine of $1,000 for the eight counts on the first complaint and a fine of $400 for the two counts on the second complaint, against a maximum of $5,000 for each count.
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 and the need for specific deterrence in this case (at [14] - [21]).
Road Traffic Act 1961 (SA) s 40W; Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA) reg 40, 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, considered.

DEPARTMENT OF PLANNING, TRANSPORT & INFRASTRUCTURE v WING
[2014] SASC 115
Magistrates Appeal
STANLEY J:
Introduction

This is a Crown appeal against two sentences concerning related matters that were heard before a magistrate. The respondent truck driver was charged on two separate complaints with a total of 10 counts of contravening a direction to produce a record, contrary to s 40W(4) of the Road Traffic Act 1961 (SA) (the Act). The matter was listed for hearing before the learned magistrate on 28 March 2014. The respondent did not appear at the trial. The matter was heard ex parte. The magistrate recorded convictions and imposed a fine of $1,000 for the eight counts on the first complaint and a fine of $400 for the two counts on the second complaint.
Background
Section 40W of the Act stipulates that an authorised officer may, for compliance purposes, direct an owner or driver of a regulated heavy vehicle to produce any records required to be kept under an Australian road law. Subsection 40W(4) of the Act makes it an offence to contravene a direction given by an authorised officer to produce such records.
The charges arose from the respondent’s conduct as the driver of four regulated heavy vehicles from 22 January 2013 to 20 July 2013. On numerous occasions during that period, vehicles driven by the respondent were detected by “Safe-T-Cams”. Based on the times, locations and distances between the “Safe-T-Cam” detections, it appeared the respondent had not taken the required rest breaks in accordance with Schedule 1 of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA) (the regulations). Accordingly, the appellant issued a notice to produce records or provide information to the registered owner of the vehicles, directing him or her to provide the names of the drivers of the vehicles and copies of their work diary records. Drivers of regulated heavy vehicles are required to record, inter alia, their working hours and rest breaks in a work diary, pursuant to reg 40 of the regulations. The respondent had not supplied his work diary records to the registered owner of the vehicles. Between 28 May 2013 and 24 October 2013, the appellant issued numerous notices to produce records to the respondent, requiring him to produce particular work diary pages and his fatigue management accreditation. The respondent did not comply with such directions, resulting in the 10 counts charged. Eight of the 10 counts were charged by the summons issued on 18 October 2013. The two remaining counts were charged by the summons issued on 13 December 2013.
The regulations were repealed earlier this year and replaced by the Heavy Vehicle National Law (South Australia) Act 2013 (SA), however they were in force at the time of the offending in this matter.
The maximum penalty for the offence of contravening a direction to produce records is a $5,000 fine.
The respondent did not appear at his trial. The respondent had attended on previous occasions, at which times the matter had been adjourned to allow him time to obtain legal representation. The police prosecutor made an application for the matter to be heard ex parte. The magistrate granted the application and proceeded to sentence the respondent. He recorded convictions and, without providing reasons, imposed a fine of $1,000 for the eight counts on the first summons and a fine of $400 for the two counts on the second summons. No transcript of the hearing is available.
The Department of Planning, Transport and Infrastructure appeals against the sentences. It argues that the penalties imposed were manifestly inadequate in that they 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 in the matter at first instance. In her affidavit, the police prosecutor deposes that the magistrate did not permit her to make any oral submissions on the circumstances of the offending. She did not tender her written submissions before the magistrate.
The respondent did not appear on 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 on the respondent failed to sufficiently reflect the tendency of the respondent’s conduct to impede any investigation into his working hours 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 fines totalling $1,400 for 10 counts of contravening a direction to produce a record demonstrates the learned magistrate had insufficient regard to the objective seriousness of the offending and the need for deterrence so that the public safety purpose for which the work diary system was 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 submits 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 driving hours and require drivers to accurately record their work and rest times. The power to require production of records is triggered when “Safe-T-Cam” detections indicate that a driver of a regulated heavy vehicle has not taken the necessary rest breaks. Without accurate records of a driver’s work and rest times, it is difficult to determine whether the driver is adhering to the maximum working hours and required rest breaks as stipulated by the Act.
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]
[5] Hansard, House of Assembly, 11 May 2006 at 260.
The purpose of the legislation is to ensure the safety of road users. This includes the requirement that drivers of heavy vehicles adhere to certain work and rest times, and accurately record those times in a work diary. 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 fail to produce records when directed to, thereby impeding any investigation into the driver’s working hours.
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 is a $10,000 fine is 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 fines of $1,000 and $400 imposed on the respondent adequately reflect the objective seriousness of his offending. The respondent was charged with 10 separate counts of contravening a direction to provide records. Given the purpose of the Act, this is a serious breach of the scheme.
The fines of $1,000 and $400 imposed by the magistrate are 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 penalties imposed fail 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 withhold their work diaries or 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 fines of $1,000 and $400. I would allow the appeal and resentence the respondent.
Re-sentencing
The maximum penalty for the offence of contravening a direction to provide records is $5,000. The respondent pleaded guilty to 10 counts of the offence. The offending spanned a five month period. Additionally, the respondent had three previous convictions for the same offence committed in late 2012 and early 2013. In my view, personal deterrence is a particularly relevant consideration in this case. It is imperative that the respondent understands the importance of adhering to the requirements of the Act.
Unlike in Favotti this is not the case of imposing a sentence for a first offence. Further, I do not consider that the offending for which the respondent is to be sentenced constitutes a single course of conduct. Nonetheless, I propose to impose a single sentence in respect of all 10 counts.
The appeal is allowed. The sentences imposed by the magistrate on 28 March 2014 are set aside. The respondent is fined $7,500 for all 10 counts. I make no order as to costs.