Department of Transport, Energy & Infrastructure v Neil
[2009] SASC 285
•10 September 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF TRANSPORT ENERGY AND INFRASTRUCTURE v NEIL
[2009] SASC 285
Judgment of The Honourable Justice Sulan
10 September 2009
MAGISTRATES - APPEALS 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
Appeal against sentence - respondent pleaded guilty to driving a vehicle which was overloaded contrary to s 123(1) Road Traffic Act 1961 and Clause 2(3) Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999 - Magistrate imposed fine of $200 where maximum penalty for offence is $9000 - consideration of whether penalty was manifestly inadequate - appeal allowed - the Magistrate erred in not having sufficient regard to scheme of the Act and categorisation of the offence - respondent resentenced.
Road Traffic Act 1961 s 5, s 120, s 123(1), s 129, s 130; Road Traffic (Mass and Loading Requirements) Regulations 1999 Clause 2(3) of Schedule 1; Magistrates Court Act 1991 s 42; Road Traffic (Miscellaneous) Regulations 1999 reg 19FA, reg 19FC, reg 5, referred to.
Police v Cadd and Others (1997) 69 SASR 150, considered.
DEPARTMENT OF TRANSPORT ENERGY AND INFRASTRUCTURE v NEIL
[2009] SASC 285Magistrates Appeal
SULAN J: The appellant, the Public Officer for the Department for Transport, Energy & Infrastructure, appeals against the inadequacy of a sentence imposed upon Anthony Edward Neil, the respondent, for driving a vehicle which was overloaded on Hanson Road, contrary to clause 2(3) of Schedule 1 to the Road Traffic (Mass and Loading Requirements) Regulations 1999 (“the Regulations”) and s 123(1) of the Road Traffic Act 1961 (“the Act”).
The respondent pleaded guilty. The Magistrate imposed a fine of $200, plus costs of $25. The maximum penalty for the offence is $5000, plus $500 for each additional 1 per cent over 120 per cent overload. The percentage overload was 128.8 per cent. It follows that the maximum penalty is $9000.
The facts
On 21 March 2009, the respondent was driving a single axle tip-truck on Hanson Road. He was carrying a load which was 2.6 tonnes more than the permitted weight of 9 tonnes for a single axle vehicle.
The respondent, who is a first offender, pleaded guilty. He has been cooperative throughout. On the day of the offence, he was working at an excavation site as a sub-contractor. The site was a shared site, and the party with whom the respondent’s principal shared the site had been complaining about the build up of material on the site. It was not part of the respondent’s usual duties to move material from the site but, on that day, the person who was charged with that responsibility was absent. The respondent agreed to move a quantity of earth from the area in order to assist to keep the site clear to avoid unnecessary danger and inconvenience to others.
There was no weighbridge at the site. The respondent had to guess the weight of the soil loaded onto his vehicle. To exacerbate matters, it was a windy day and the respondent hosed the load to keep it damp to avoid soil blowing away and causing inconvenience to other road users during transportation. The water added weight to the load.
When informed that he was in breach of the Act, the respondent admitted his error. He pleaded guilty at the first opportunity. He apologised for his conduct. He was unrepresented before the Magistrate. After he had been apprehended, he had advised his principal of the problem. The contractor issued an advice to all drivers that, when loading their trucks, they must avoid overloading. In order to assist drivers, the contractor provided buckets which, when filled with soil, held a specific weight of material. Drivers were able to estimate more accurately the weight of their load.
The legislative scheme
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 of Transport observed that the legislation focuses on achieving better safety outcomes in the heavy vehicle industry by improving compliance with road transport laws. Different categories of offences are created by the Act. As to that topic, the Minister said:[1]
[1] Hansard, House of Assembly, 11 May 2006, 261.
Categorisation of offences
The Bill provides for mass, dimension and load restraint offences to be categorised based upon risk to safety, public amenity and infrastructure. Under the legislation these offences may be categorised as ‘minor’, ‘substantial’ or ‘severe’ – with the penalties escalating according to the risk category of the breach.
A grossly overloaded vehicle, for example, is likely to cause more significant damage to road infrastructure and, in the event of a crash, is a significantly great safety risk than a complying vehicle. Risk-based categorisation recognises that one size does not fit all.
As to penalties, the Minister said:[2]
[2] Hansard, House of Assembly, 11 May 2006, 261.
Penalty levels
The nationally developed model proposes indicative penalties for offences. These were set at quite significant levels, including a five times corporate multiplier for mass, dimension and load restraint offences. Penalties in the Bill have been set at levels consistent with levels prevailing in South Australian legislation generally and the Road Traffic and Motor Vehicles Acts in particular. Penalties for bodies corporate are set higher, as in the model legislation.
The scheme of the Act in respect of mass, dimension or load restraint requirements is to categorise offences into minor, substantial or severe risk breaches. As observed by the Minister, penalties increase according to the category of offence. In this case, the complaint alleges a severe risk breach. Section 120 of the Act provides:[3]
[3] Road Traffic Act 1961, s 120.
120 – Meaning of minor, substantial or severe risk breaches
(1) For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a minor risk breach if the breach is categorised as a minor risk breach under the regulations.
(2) For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a substantial risk breach if the breach is categorised as a substantial risk breach under the regulations.
(3) For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a severe risk breach if the breach is categorised as a severe risk breach under the regulations.
The requirement for the categorisation of risk breaches in accordance with s 120 of the Act is contained within Part 3 of the Regulations:[4]
[4] Road Traffic (Miscellaneous) Regulations 1999
Part 3A – Mass, dimension and load restrain requirements – categorisation of breaches.19FA – Purpose of Part
This Part makes provision for the categorisation of breaches of mass, dimension or load restraint requirements as –
(a)minor risk breaches; or
(b) substantial risk breaches; or
(c)severe risk breaches,
for the purposes of section 120 of the Act.
Regulation 19FC further provides the method by which the categorisation of risk breaches are established. Whether a risk breach can be categorised as minor, substantial or severe will be determined with reference to the specified mass limit[5] of the vehicle and the percentage of mass over the permissible limit. This also varies according to whether or not the vehicle is deemed to be a heavy vehicle.
[5] Regulation 2(2) of Schedule 1.
Regulation 19 FC provides:
19FC – Categories of mass requirement breaches
(1) This regulation applies to a mass requirement imposed by reference to –
(a)a legislatively specified mass limit; or
(b)a manufacturer’s mass rating; or
(c)the lower of –
(i)a legislatively specified mass limit; and
(ii)a manufacturer’s mass rating.
(2) A breach of a mass requirement to which this regulation applies is a minor risk breach if the subject-matter of the breach is less than the lower limit for a substantial risk breach of the requirement.
(3) A breach of a mass requirement to which this regulation applies is a substantial risk breach if the subject-matter of the breach –
(a)is equal to or greater than the lower limit for a substantial risk breach of the requirement; and
(b)is less than the lower limit for a severe risk breach of the requirement.
(4) A breach of a mass requirement to which this regulation applies is a severe risk breach if the subject-matter of the breach is equal to or greater than the lower limit for a severe risk breach of the requirement.
(5) The lower limit for a substantial risk breach of a mass requirement to which this regulation applies is –
(a)in the case of a mass requirement that relates to the gross mass of a vehicle –
(i)if the vehicle is a heavy vehicle –
(A)105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(B)0.5 tonne,
whichever is the greater; or
(ii)if the vehicle is not a heavy vehicle – 105% of the maximum permissible mass;
(b)in any other case –
(i)if the vehicle is a heavy vehicle – 105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(ii)if the vehicle is not a heavy vehicle – 105% of the maximum permissible mass.
(6) The lower limit for a severe risk breach of a mass requirement to which this regulation applies is –
(a)if the vehicle is a heavy vehicle – 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(b)if the vehicle is not a heavy vehicle – 120% of the maximum permissible mass.
Regulation 5 requires the application of mass and loading requirements[6] which, in the case of heavy vehicles, are contained in Schedule 1 of the Regulations.
[6] 5 – Application of mass and loading requirements
(1)Except as provided in Schedule 2, Schedule 1 applies only to the following vehicles (heavy vehicles):
(a) vehicles with a GVM exceeding 4.5 tonnes;
(b) combinations that include a vehicle with a GVM exceeding 4.5 tonnes;
(2)Schedule 2 applies to other vehicles (light vehicles).
(3)Neither Schedule 1 nor Schedule 2 applies to a vehicle or combination that is used only on a railway or tramway.
Regulation 2(3) of Schedule 1 provides that the mass on an axle group or single axle must not exceed the limit provided for it in Table 1. Table 1 of Schedule 1 provides that a tip truck of the type that the respondent was driving cannot exceed a load of 9 tonnes. Section 129 of the Act provides the penalties for various breaches. In the case of a first offence by a natural person in which the offence involves a severe risk breach, the maximum penalty is $5000, plus a maximum of $500 for each additional 1 per cent over 120 per cent overload. The appellant admits that the load was 11.6 tonnes, which is 2.6 tonnes above the authorised weight. The overweight was calculated as 128.8 per cent over the permitted weight. Therefore, the maximum penalty is $9000, being $5000 plus $500 for each 1 per cent over 120 per cent which, in this case, was 8 per cent.
In determining the penalty, the court is also required to consider the matters referred to in s 130 of the Act, which provides:[7]
[7] Road Traffic Act 1961, s 130.
130 – Matters to be taken into consideration by courts
(1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed.
(2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, courts are to take into consideration the following matters:
(a)minor risk breaches involve either or both of the following:
(i)an appreciable risk of accelerated road wear;
(ii)an appreciable risk of unfair commercial advantage;
(b)substantial risk breaches involve one or more of the following:
(i)a substantial risk of accelerated road wear;
(ii)an appreciable risk of damage to road infrastructure;
(iii)an appreciable risk of increased traffic congestion;
(iv)an appreciable risk of diminished public amenity;
(v)a substantial risk of unfair commercial advantage;
(c)severe risk breaches involve one or more of the following:
(i)an appreciable risk of harm to public safety or the environment;
(ii)a serious risk of accelerated road wear;
(iii)a serious risk of harm to road infrastructure;
(iv)a serious risk of increased traffic congestion;
(v)a serious risk of diminished public amenity;
(vi)a serious risk of unfair commercial advantage.
(3) Nothing in this section affects any other matters that may or must be taken into consideration by a court.
(4) Nothing in this section authorises or requires a court to assign the breach to a different category of breach.
(5) Nothing in this section requires evidence to be adduced in relation to the matters that are to be taken into consideration by a court under this section.
The appellant alleges that the severe risk breach involved, first, a serious risk of accelerated road wear and, secondly, a serious risk of harm to road infrastructure. The allegations are based on studies in the United States of America, which assessed the effect on road infrastructure by one tonne overload on one axle. The study concludes that the damage done to the road infrastructure is equal to the daily wear and tear on a road of 5000 passenger vehicles.
It follows that the wear and tear in this case was in the vicinity of daily use of over 13,000 vehicles. The prosecutor informed the Magistrate that the respondent’s vehicle was 128.8 per cent of the maximum legal limit. He submitted the maximum penalty was $9400. This was an error, as the maximum is calculated on the basis of $500 for each 1 per cent over 120 per cent. The Act does not provide for part percentages in the calculations. Therefore, the maximum penalty in this case was to be calculated on 8 per cent, not 8.8 per cent as put by the prosecutor.
The Magistrate imposed a fine of $200 plus costs of $25. The Magistrate took into account that this was a first offence. She mistakenly regarded the maximum penalty as being $9800. She then said:
Obviously, the penalties for these offences are severe because of the damage that is caused to the roads by overloading.
You tell me that on this occasion, you were working at an excavation site. Loading at that stage was worked by, you say, “guesstimate” and you accept that this was a gross misjudgement.
Since this matter has occurred, you have negotiated with the business with whom you were subcontracting together with other parties involved and significant steps have been introduced to make sure that this sort of incident does not happen again for any of the drivers involved. This is certainly a useful thing that has come out of this incident.
You have no prior convictions alleged against you.
In the circumstances you will be convicted and fined $200, plus costs and $25.00 appearance fee for the prosecution.
The appellant’s submissions
Counsel for the appellant submits that the penalty is manifestly inadequate. He submits that the Magistrate failed to give sufficient weight to the maximum penalties and to the classification of the breach as a severe risk breach. Counsel submits that Parliament has created a hierarchical sentencing guide and a sentencing regime which provides that the more severe the breach and the greater the risk, the greater the penalty. He submits that the penalty in this case fails to meet an adequate standard of punishment for severe offences of the kind to which the respondent has pleaded guilty. Counsel submits that the penalty is so low that it will have no deterrent effect upon drivers and operators who are in the business of carting heavy loads. Counsel submits that this is the first case under the amended legislation, and it is desirable that this Court provide a guide and a range of appropriate penalties for breaches of the mass dimensions and load restraint offences.
Section 42 of the Magistrates Court Act 1991 (SA) 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.
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.[8] He said:[9]
… 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. (Citations omitted).
[8] (1997) 69 SASR 150.
[9] Ibid, 165.
Was the penalty inadequate?
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.
Re-sentencing
In re-sentencing the respondent, I have had regard to the following matters. He is a first offence who pleaded guilty at the first available opportunity. He does not regularly cart loads on public roads and, in this instance, he was assisting the contractor to cart the dirt because the person usually charged with that responsibility was not available. This was an isolated offence. It was a shared yard, and there was a requirement to reduce the amount of waste in the yard. There was no weighbridge. No other assistance was provided to the respondent to check the weight of the load. He was, therefore, required to make a guesstimate which turned out to be grossly inaccurate.
I take into account that it was a windy day and that the respondent placed water on the load to ensure that it did not cause inconvenience and danger to other road users by the dirt blowing off the truck. This added to the weight. I have also had regard to the fact that, when he realised the seriousness of his offence, he took immediate action to ensure that the contractor created a protocol for drivers in the future who drive vehicles carrying heavy loads.
The respondent has a net income of approximately $23,000 per annum. He has substantial liabilities. I am satisfied that he is unlikely to offend in the future. The appeal is allowed. The sentence of the Magistrate is set aside. The respondent is fined $1000. I make no order as to costs.
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