Fleet Partners Pty Limited v Roads and Maritime Services (NSW)

[2016] NSWDC 17

District Court

New South Wales

Medium Neutral Citation:	Fleet Partners Pty Limited v Roads and Maritime Services (NSW) [2016] NSWDC 17
Hearing dates:	4 February 2016
Date of orders:	04 February 2016
Decision date:	04 February 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Conviction recorded by the Downing Centre Local Court on 7 July 2015 set aside  Charge dismissed
Catchwords:	CRIMINAL LAW – Severity appeal – Fail to inform, by statutory declaration within 21 days of the service of a penalty notice, of the name and address of a person in charge of a vehicle at the time of a designated offence – Appellant operated national fleet leasing and management company – Appellant’s internal computerised search of vehicle did not reveal ownership of subject vehicle – When ownership discovered, person in charge of vehicle paid penalty - Appellant has updated its system to prevent future error – No prior conviction for almost 19 years – Section 10 dismissal
Category:	Principal judgment
Parties:	Fleet Partners Pty Ltd (Appellant) Crown (Respondent)
Representation:	Counsel: Mr Jordan SC (Appellant) Mr A Wozniak (Respondent)   Solicitors: Giddy and Crittenden (Appellant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/364399
Publication restriction:	No
Decision under appeal	Court or tribunal: Downing Centre Local Court Jurisdiction: Crime Date of Decision: 7 July 2015 Before: Richardson LCM File Number(s): 2014/364399

Judgment

1. HIS HONOUR: On 20 November 2014, the RMS posted to the defendant a Court attendance notice requiring the appellant to appear before the Downing Centre Local Court on 13 January 2015 at 9.30am. The charge was that the defendant failed to inform, by statutory declaration within 21 days of the service of a penalty notice, of the name and address of a person in charge of a vehicle at the time of a designated offence. The date provided in the Court attendance notice for this offence was 20 September 2014. The designated offence was that: motor vehicle registered number LH1002 was detected as exceeding the speed limit by an approved speed measuring device and recorded by an approved camera recording device on the New England Highway at East Maitland on 17 August 2014. There was no dispute that the motor vehicle in question was, in fact, the property of the appellant at the relevant time.

2. The penalty notice was posted to the defendant on 23 August 2014 and was deemed to have been served upon it on 30 August 2014. The maximum penalty for this offence is a fine of $11,000. The appellant pleaded guilty to the offence. On 7 July 2015, Richardson LCM sitting in the Downing Centre Local Court convicted the appellant but, pursuant to s 10A, imposed no further penalty. This is an appeal against severity of that sentence.

3. It is important to bear in mind the circumstances in which the offence occurred. Paragraph 9 of the affidavit of Mr Ben Hutchinson, sworn 6 July 2015, says this:

"We note the following occurred in relation to the vehicle with the registration number LH1002 ('the vehicle'):

(a) Upon receipt of the subject infringement notice on or about 23 August 2014 (infringement notice), as per the General Practice the Customer Services Team at Fleet Partners performed a search of Fleet Partners' computer system with reference to the registration number of the vehicle being registration number LH1002.

(b) The search did not reveal any vehicle with that registration number.

(c) Subsequently, Fleet Partners received an enforcement order on or about 27 November 2014 (Enforcement Order).

(d) Upon receipt of the Enforcement Order, a further search of the computer system was conducted. That search revealed that Fleet Partners did in fact own the Vehicle.

(e) Following this, Fleet Partners undertook an investigation as to why upon receipt of the Infringement Notice, the Vehicle was not listed as a vehicle owned by Fleet Partners. Fleet Partners' investigations revealed that:

(i) On or about January 2014, Fleet Partners gave its consent for the individual [who drove the vehicle] to change the numberplates on Vehicle from IH1001. Fleet Partners was required to give the consent prior to a new registration number being allocated to the Vehicle. Accordingly, at the time that Fleet Partners gave its consent, it was not known what the new registration number of the Vehicle would be. As such, our client required the individual to notify our client of the new registration number of the Vehicle.

(ii) The individual subsequently changed the numberplates of the Vehicle to registration number LH1002 ('the New Registration Number').

(iii) On or about April 2014, the Fleet Partners' Customer Service Team requested details of the new registration number in relation to the Vehicle from the individual. One of the team members of the Vehicle Management Team received details of the new registration number. However, the new registration number was not entered into Fleet Partners' computer system.

(iv) On or about 11 November 2014, our client received registration papers for the Vehicle. A search of our client's computer system by reference to the new registration number did not reveal any vehicle owned or leased by our client. A further search of the VIN number on the registration papers revealed that the Vehicle was listed on our client's computer system as a vehicle [within] the registration system IH1001. Fleet Partners then called the individual who confirmed the new plates on the Vehicle had been changed from IH1001 to the new registration number.

(v) Fleet Partners, once the new registration number was known, allocated the Infringement Notice and Enforcement Order to the individual. The individual accepted responsibility for the Infringement Notice and the Enforcement Order and paid the penalty amount."

4. It can be seen that the effective reason that the appellant did not advise RMS of the identity of the driver of the vehicle is because the new registration number had not been entered into the appellant's computer system on or shortly after the appellant's Customer Service Team received details that the vehicle formerly identified as IH1001 was now known as LH1002. There was a human error, it would appear, in the Customer Service Team. Nothing has been lost because the Enforcement Order was paid by the actual driver who accepted responsibility for the original offence and, no doubt, has “worn” any other consequence such as the loss of points.

5. The same affidavit and a further affidavit of Mr Hutchinson, sworn 2 February 2016, established that since this "hiccough" occurred, systems have been changed and the offence for which the appellant was convicted could no longer occur. For example, the appellant now receives a report from the registration authority every 48 hours, known as "the Registration Checker", which enables the defendant to ensure that vehicles registered to it with the registration authority are properly recorded on the defendant's computer system. An SMS reminder system has now been put into place which notifies drivers listed on the defendant's computer system when an Infringement Notice is received in respect of a vehicle. The appellant now also accesses the RMS electronic nomination system on a daily basis to check outstanding penalty notices which may have been given to the appellant. The "hiccough" that occurred in the present matter ought not now occur as far as human knowledge is currently aware.

6. The appellant is a national fleet leasing and management company. At the relevant time, it managed, financed or owned approximately 35,000 cars in Australia of which at the current time 10,500 vehicles, approximately, are registered in this State. The appellant has been operating for almost 19 years. I am told without demur from the Bar table that the appellant has always been a substantial operator in the area of managing a national motor vehicle fleet. During its 19 years of operation in this State, the appellant has incurred no prior conviction.

7. Exhibit 2 before me is a record of penalty infringement notices incurred by the appellant for offences commencing on 1 June 2014. The printout was made on 17 November 2014 and concludes with an offence alleged to be committed on 12 November 2014. The report is 25 pages long and shows about 220 matters, perhaps closer to 240 matters. Most of those are parking offences. The defendant paid a traffic infringement notice. The records indicate the imposition of the traffic infringement notice for an offence occurring on 14 June 2014 which was the offence of failing to nominate within the timeframe specified. The only other offence which might be thought to be relevant was an offence of exceeding the speed limit by more than 10 kilometres per hour but less than 20 kilometres an hour on 28 October 2014 for which a traffic Infringement Notice was sent to the defendant.

8. However, assuming the defendant paid those traffic infringement notices for one reason or another, the payment of the traffic Infringement Notice is not any admission of any criminal offence. Accordingly, the appellant came before the Local Court and comes before this Court as a corporation of prior good character, having no earlier criminal conviction and for almost 19 years managing a large fleet of motor vehicles driven by a large number of person, no doubt from many States, on the roads of this State. One hiccough has occurred.

9. The defendant seeks to maintain its record to avoid a conviction in the circumstances here present because the offence was due to human clerical oversight and nothing was lost in that the real offender, the person who was driving the motor vehicle on the New England Highway at East Maitland, took responsibility for the fine and any necessary points that he or she might incur against his or her licence. I note that the vehicle was detected as being driven at 71 kilometres per hour in a 60 kilometre per hour zone at 8.34am which, as far as speeding offences are concerned, is itself towards the bottom of the range. The photographs taken by the speed camera suggest that the offence occurred not in a built-up area but in an area where the highway is surrounded by natural bush.

10. Any person who for 19 years did what this defendant did and incurred no prior conviction is certainly entitled to the Court exercising its discretion under s 10. I see no point in the defendant incurring a conviction and having its reputation "sullied" which could rebound to its commercial disadvantage.

11. For those reasons, I set aside the conviction passed by the Downing Centre Local Court on 7 July 2015. Without proceeding to a conviction, having regard to the good character of the appellant, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed.

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Decision last updated: 01 March 2016