Earthmoon Pty Ltd v Chambers - [2009] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EARTHMOON PTY LTD v CHAMBERS
[2009] SASC 69
Judgment of The Honourable Justice Kelly
13 March 2009
TRAFFIC LAW - LOADS TO BE CARRIED BY VEHICLES - SOUTH AUSTRALIA - PENALTY
Appeal against sentence - appellant charged with operating a vehicle that exceeded its permitted mass of 42.5 tonnes by 19.2 tonnes which constituted a severe risk breach under section 120 of the Road Traffic Act 1961 - appellant pleaded guilty, convicted ex parte and fined $42,000 in the Magistrates Court - whether penalty manifestly excessive - whether magistrate erred in failing to take into account or give sufficient consideration to the matters contained in section 130(2)(c) of the Road Traffic Act 1961.
Held: appeal allowed - appellant's offending on lower end of scale due to particular mitigating circumstances - sentence manifestly excessive - appellant re-sentenced and fined the sum of $10,000.
Road Traffic Act 1961 s 119, s 120, s 124(1), s 129 and s 130; Road Traffic (Mass and Loading Requirements) Regulatons 1999 R 4(1), referred to.

EARTHMOON PTY LTD v CHAMBERS
[2009] SASC 69
Magistrates Appeal
KELLY J

The appellant appeals an order made in the Ceduna Magistrates Court on 2 December 2008 that it pay the sum of $42,000 plus costs within twenty eight days in respect of an admitted breach of Section 124(1) of the Road Traffic Act 1961 (‘the Act’) and Regulation 4(1) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999. The appellant also seeks an extension of time within which to appeal as the notice of appeal was not lodged until 29 January 2009.
Background
The facts can be stated briefly. The appellant operates under the trading name of ‘Jonesy’s Pipe and Cable’ in Lavington, New South Wales. It was the operator of a prime mover and semi-trailer being driven by its employee Robert King on the Eyre Highway near Ceduna on 23 August 2008. The driver was taking a bulldozer on the trailer attached to the prime mover from Albury, New South Wales to a place called Panawonica, Western Australia. When the vehicle was stopped by inspectors the driver produced a permit. However, the permit did not relate to the configuration then being driven and in any event, had expired on 1 June 2008. Both the driver and the operating company pleaded guilty. The appellant forwarded a letter to the court explaining why it was unable to be represented on the date set for the hearing on 2 December 2008. In that letter the director of the appellant company explained that he had a genuine belief at the time that he held a permit which enabled the company to transport a bigger and heavier load on a more substantial truck trailer configuration and that therefore that permit would have covered the company for the carrying of what amounted to a lighter, smaller load.
On the day of the hearing the respondent applied to have the matter determined ex parte. The learned magistrate acceded to that request. In relation to count 1 which was an allegation that the vehicle was overloaded by 19.22 tonnes the appellant was convicted and fined the sum of $42,000 plus costs and ordered to make payment within twenty eight days. In respect of count 2 on the Complaint, which was an allegation that the vehicle exceeded the permitted statutory length limit of 19 metres by 3.3 metres, the appellant was convicted and fined the sum of $800.
The appellant’s appeal relates only to the fine imposed in respect of count 1 on the Complaint. The appellant’s main contention is that the penalty of $42,000 imposed by the magistrate is manifestly excessive in all of the circumstances. It was submitted that the magistrate failed to take into account or did not give sufficient consideration to the matters contained in s 130(2)(c) of the Act in determining the penalty. It was also submitted that had the magistrate taken those matters into account the appropriate penalty would have been less than $5,000.
In 2006 the Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006 (‘Amending Act’) was enacted to introduce national model legislation into South Australia.
As a consequence, s 119 and s 120 of the Act now categorise offences as minor, substantial or severe and provide for penalties which escalate in accordance with that categorisation. Significantly the amending Act set penalties for bodies corporate higher than for individuals. Overall with the introduction of the risk categories and penalties which are calculated on the basis of the percentage of overload, the penalties for both individuals and bodies corporate are significantly higher than the penalties which prevailed prior to the introduction of the legislation.
In amending the legislation, Parliament has evinced a clear intention to achieve better safety outcomes in the heavy vehicle industry by improving compliance with road transport laws and by improving the ability of the police, transport inspectors and the courts to enforce the law when it is breached: Statutes Amendment (Road Transport Compliance and Enforcement) Bill 2006, House of Assembly, 11 May 2006, 260 (The Honourable P.F. Conlon, Minister for Transport).
Analysis
To determine whether the sentence is excessive, it is necessary to consider the maximum penalties prescribed for this offence and where it sits on the scale of seriousness within the framework of the three categories referred to in s 120 of the Act.
The articulated motor vehicle operated by the appellant consisted of a prime mover with a semi-trailer attached. That combination had a gross vehicle mass of 61.72 tonnes. That amounted to a 145 percent overload. Therefore the maximum penalty for this offence prescribed by s 129(1) of the Act was a fine of $82,500.
As counsel for the respondent pointed out, given that the maximum penalty is calculated with respect to that percentage of the overloaded mass, it is somewhat difficult to evaluate an appropriate sentencing standard. Nevertheless, the offending by virtue of s 124 of the Act and the Regulations there under fell within the category of a severe risk breach and the appellant then fell to be sentenced accordingly.
Section 130 of the Act states the matters to be taken into consideration when sentencing and provides:
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 stated purpose of that section is to bring to the court’s attention, when considering an appropriate sentence, the consequences of a failure to comply with a breach of mass, dimension or load restraint requirements. The matters to which the court is required to have regard are very different depending on whether the breach is classified as minor, substantial or severe. In the case of a severe risk breach it is the seriousness of the risk which is the distinguishing consideration from the other lesser categories of risk. The requirement that regard be had to an appreciable risk of harm to public safety or the environment, is exclusive to sentencing for a severe risk breach under that section.
It follows from that categorisation that greater weight ought to be given to considerations of general and specific deterrence when the offending involves a severe risk breach.
As there are no sentencing remarks available it is difficult to determine the particular factors in s 130(2)(c) to which the magistrate had regard in sentencing the appellant. The matter proceeded ex parte and was dealt with summarily on the application of the respondent on the day. It is obvious however that the court had before it the appellant’s letter to the respondent dated 17 November 2008 and the appellant’s letter to the court dated 28 November 2008 as copies of both letters are on the lower court file.
The matters raised by the appellant in that correspondence were relevant to the magistrate’s assessment as to whether the offending in this matter involved one or more, or all of the risks referred to in s 130(2)(c) of the Act. In my view, if those matters had been taken into account, the magistrate would have been entitled, for the purpose of sentence, to find that the appellant’s offending was at the lower end of seriousness for an offence classified as a severe risk breach.
In imposing a penalty that amounts to half the maximum penalty prescribed for this offending and without the benefit of any sentencing remarks which might shed light on the magistrate’s reasoning, I have concluded that the fine which the magistrate imposed does not reflect the fact that the appellant’s offending on this occasion is at the lower end of the scale of seriousness for an offence within the severe risk breach category. In my respectful view the sentence is manifestly excessive and accordingly I propose to re-sentence the appellant.
At the hearing of this appeal the respondent did not suggest that the appellant’s offending involved any actual risk to public safety or the environment or that the road on which the vehicle was traveling had actually been damaged. The gravity of the offence is to be found in the extent of overloading which led to its classification as a severe risk breach offence. As the appellant’s permit, albeit for a different configuration but for a heavier load, expired in June 2008, the respondent was effectively prevented from monitoring the risk. I regard it as significant, that the respondent put its submission no higher than that. In particular, the respondent did not suggest at any stage that any of the other risks referred to in s 130(2)(c) of the Act were actually present in the circumstances of this case.
In re-sentencing the appellant I take into account that there is no suggestion that the appellant has deliberately flouted the regulations or that the company or its drivers are repeat offenders. The appellant pleaded guilty at the first opportunity. Although with the benefit of hindsight it might be said that the appellant was imprudent in adopting such a casual approach to the plea that it thought it sufficient to send a letter to the court, I do not overlook the economic constraints on operators of small businesses. The appellant operates a business out of small country town in New South Wales. The hearing took place in Ceduna, South Australia, a remote location by any standards.
The respondent conceded that had the appellant applied for the necessary permit, it would have been granted and the appellant would then have been entitled to lawfully drive that vehicle to the intended destination. Indeed, the correct permit was actually applied for and issued for this particular vehicle configuration later on 4 September 2008.
In these circumstances taking into account all of the matters to which the court must have regard under s 130(2)(c) of the Act I have formed the view that the appellant’s offending is at the lower end of the scale of offences which fall within the category of severe risk breaches.
Nevertheless Parliament has evinced a clear intention to increase the penalties for offences of this kind and to hold accountable all players in the road freight industry who have control over activities affecting compliance with heavy vehicle laws. This includes operators like the appellant.
The driver was fined the sum of $5,500 for the same offence. As I have already noted, the legislation provides for significantly higher penalties in the case of bodies corporate.
Taking everything into account I consider that the interests of justice will be served in this case by the imposition of a fine of $10,000 on the appellant.
I therefore make the following orders:
1.The time for the filing of the notice of appeal is extended to 29 January 2009.
2. The appeal is allowed.
3.The order of the magistrate that the appellant be fined the sum of $42,000 is set aside. In lieu thereof the appellant is fined the sum of $10,000 plus the levy of $70. In all other respects the orders made by the magistrate are confirmed.
4. The appellant is to have the costs of the appeal.