Holness v Police - [2010] SASC 314

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOLNESS v POLICE
[2010] SASC 314
Judgment of The Honourable Justice Sulan
10 November 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - OTHER CASES
Appeal against licence disqualification - consideration of whether personal hardship is a ground for finding that a proper cause exists pursuant to s 98B(4) of the Motor Vehicles Act 1959 - appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98B, s 98BE; Australian Road Rules r 264(1), referred to.
Kramer v Morris (1975) 11 SASR 305; Shillabeer v Linnane (1979) 22 SASR 382; McCade v Chandler (1984) 37 SASR 477; Black v Police [2009] SADC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104, considered.

HOLNESS v POLICE
[2010] SASC 314
Magistrates Appeal: Criminal

SULAN J: This appeal raises the question of the meaning of “any other proper cause” within the context of s 98B(4) of the Motor Vehicles Act 1959 (SA). That provision provides that a court may, in circumstances where a person is convicted of a driving offence, reduce the number of demerit points if it can be satisfied that the offence is trifling or if any other proper cause exists. This appeal raises for consideration whether personal hardship is a ground for finding that proper cause exists.
Background facts
The defendant, Mr Holness, was charged with a breach of r 264(1) of the Australian Road Rules for failing to wear a seatbelt. He elected to be prosecuted rather than to expiate the matter. The matter was heard in the defendant’s absence in the Port Pirie Magistrates Court on 23 March 2010. The Magistrate imposed a fine of $150, a court fee of $177, a victim impact levy of $80, and prosecution costs totalling $25. The conviction resulted in three demerit points. I shall return to the problem that has arisen as a consequence of the conviction later in these reasons.
The defendant had indicated by telephone to the Court that he could not attend on that occasion as he was unable to obtain transport from Coober Pedy in time to attend the hearing. A handwritten message on the court file advised that the defendant could not attend because of transport difficulties. Counsel for the Police on the appeal conceded that there was no evidence that the Magistrate had been made aware of the contents of the note. He conceded that the Magistrate erred in determining to proceed in the defendant’s absence. Counsel agreed that I should reconsider the sentence.
The defendant gave evidence on the appeal. He does not dispute that on 5 June 2009, at Port Pirie, he drove a motor vehicle on Grey Terrace whilst not wearing a seatbelt which was properly adjusted or fastened. He admits that he had turned out of a KFC service station on to Grey Terrace and reached a roundabout a few hundred metres along the road where he then turned right on to Wandearah Road. It was there that the defendant was pulled over by police. He agreed that it was once he had seen the police officer in his rear view mirror that he commenced to put on his seatbelt.
The circumstances which gave rise to the defendant being disqualified from holding a licence were as follows. At the time of the offending the appellant had entered into a good behaviour bond in lieu of disqualification pursuant to s98BE(2) of the Act from 2 July 2008 and 1 July 2009 after having lost the requisite number of demerit points. The scheme and relevant provisions will be set out in more detail later in the judgment.
The subject offending was committed on 5 June 2009, which fell within the good behaviour period which the defendant was already serving. As a consequence of the defendant making an election that he avoid the licence suspension, and as a consequence of his failure to observe the statutory condition, the Act imposes a requirement of immediate licence suspension. The Act provides that the licence disqualification is twice the period that would have been applied had the defendant not made such an election.
The defendant did not deny that he had committed the offence as charged. However, he sought an order that the demerit points resulting from his conviction be reduced from three points pursuant to s 98B(4) of the Act. That section provides:[1]
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
[1] Motor Vehicles Act 1958 (SA).
The defendant contends that proper cause exists to reduce the demerit points. He submits that, due to the personal hardship resulting from his licence disqualification, the Court should reduce the number of points he has incurred.
The defendant stated that his demerit points should be reduced having regard to his personal circumstances. He gave evidence that he is employed as a truck driver, and as a consequence of losing his licence it will follow that he will also lose his job. He provided a letter from his employer to that effect. A number of documents were tendered to show that the defendant has a number of financial commitments. The disqualification of his licence and subsequent loss of his job will undoubtedly cause hardship to him.
The appeal
The threshold question to be determined on this appeal is whether, pursuant to s 98B(4), any other proper cause can include personal hardship so that I may order a reduction in demerit points. In considering that question, it is necessary to have regard to the legislative history of the provision.
In the Notice of Appeal, the defendant appealed on the ground that the offence was trifling. However, on the hearing of the appeal the defendant conceded that his offending was not trifling. The defendant had driven a reasonable distance along the road and upon seeing the police commenced to put on his seatbelt. In those circumstances, the offence is none other than typical. The defendant cannot therefore have his demerit points reduced on the basis that it was a trifling offence.
It is therefore necessary to consider whether any other proper cause exists to reduce the number of demerit points, based upon the defendant’s hardship.
Legislative scheme
The meaning and ambit of the words ‘any other proper cause’ has been the subject of judicial determination in a number of cases. Section 98b(10) was first considered by this Court in Kramer v Morris.[2] Sub-section 10 then provided:
If a court is satisfied by evidence given on oath that an offence is trifling, or that any other proper cause exists, it may order that no demerit points, or a reduced number of demerit points, be recorded against the convicted person in respect of that offence.
[2] (1975) 11 SASR 305.
Section 98b(15) provided:
If the local court is satisfied by evidence given on oath by or on behalf of the appellant that –
(a) it is not in the public interest that the licence be suspended;
Or
(b) that the suspension of the licence would result in undue hardship to the appellant,
the court may order that the aggregate of the demerit points recorded against the appellant be reduced by a number not exceeding one quarter of that aggregate.
In Kramer v Morris,[3] Zelling J observed that, in enacting sub-s (10), the legislature was directing its attention to the nature of the offence and not to the question of hardship. He said that it was for the applicant to demonstrate that the relevant offence was not the typical offence intended by Parliament but a lesser offence than the typical one attracting the normal number of demerit points. Zelling J said:[4]
I have read the section in detail and I cannot see that any sub-sections other than sub-s (10) and sub-s. (15) have any bearing on the matter to be decided. I think the collocation of the words in sub-s. (10), “that any offence is trifling, or that any other cause exists, it may order that no demerit points, or a reduced number of demerit points, be recorded….” shows clearly that under sub-s. (10) the legislature was considering the nature of the offence and not the question of hardship. If the offence is trifling then no demerit points would in the ordinary case be recorded against the convicted person. If any other proper cause exists, which shows that this is not the typical offence intended by Parliament but a lesser offence than the typical one for the one which the number of points in the schedule should be recorded in relation to that offence against the accused, then a reduced number of demerit points should be recorded against him. Unfortunately the learned Special Magistrate did not then go on to the logical conclusion of his reasons for judgment and consider whether or not this was a typical offence of its kind.
[3] (1975) 11 SASR 305.
[4] (1975) 11 SASR 305, 306.
In Shillabeer v Linnane,[5] Mitchell J observed that the hardship suffered by a defendant as a result of licence disqualification was not of itself a proper reason for reducing the number of demerit points. However, in Shilabeer’s case, the situation was that the driver was misled by a faulty speedometer and thus exceeded the speed limit. Mitchell J reduced the number of demerit points in those circumstances.
[5] (1979) 22 SASR 382
In McCade v Chandler,[6] Olsson J referred to Justice Mitchell’s earlier observations in considering whether ‘proper cause’ existed to exercise a discretion in favour of the defendant. He observed:[7]
Little authority is extant as to the concept established by the phrase. What little is available renders it obvious that the legislature has primarily directed its attention to circumstances extrinsic to the issue of any hardship which may be caused to a convicted person simply by virtue of a loss of licence privileges due to total demerit points earned.
[6] (1984) 37 SASR 477.
[7] (1984) 37 SASR 477, 479.
In 2001, there were a number of amendments enacted to the Act. The provision which empowered the Court to reduce demerit points on the ground of public interest or personal hardship was repealed and replaced by s 98BE, which provides a good behaviour regime in lieu of immediate disqualification. When the amendment was proposed, the relevant Minister stated:[8]
The Bill also introduces a ‘good behaviour’ bond option for drivers who accumulate 12 or more demerit points and face disqualification from holding or obtaining a licence. In these circumstances the driver can either accept disqualification or undertake a 12 month ‘good behaviour bond’, conditional upon not incurring more than one demerit point. If the condition is breached, it is proposed the driver would be disqualified for twice the period they would have been had they not taken the good behaviour option.
…
The ‘good behaviour bond’ proposal replaces the current practice where a driver can appeal to the Magistrates Court on the ground of undue hardship, to have the number of demerit points reduced from 12 to 10. In 1998, over 6000 appeals were heard of which 87.6 per cent were upheld. Incidentally, since 1996 the Magistrates Court has recommended that current practice be changed to an administrative process. The National Driving Licence Scheme accommodates this recommendation, and already in terms of interstate practice Victoria, NSW, Queensland, Tasmania and ACT have introduced the driver ‘good behaviour bond’ option.
[8] South Australia, Parliamentary Debates, Legislative Council, 25 March 1999, 33 (Hon D Laidlaw).
The Act provides:
98BC – Liability to disqualification
(1)     If a person (other than the holder of an interstate learner’s permit or interstate licence) has incurred an aggregate of 12 or more demerit points in respect of offences committed within a period of 3 years up to and including the most recent date on which the person committed an offence in respect of which the person incurred demerit points, the person is liable to be disqualified under this Part from holding or obtaining a licence or learner’s permit for the prescribed period.
(2)     If a person who holds an interstate learner’s permit or interstate licence has incurred an aggregate of 12 or more demerit points in respect of offences of a kind prescribed by the regulations for the purposes of this subsection committed within a period of three years up to and including the most recent date on which the person committed an offence of that kind in respect of which the person incurred demerit points, the person is liable to be disqualified under this Part from holding or obtaining a licence or learner’s permit for the prescribed period.
(3)     For the purposes of this section, the prescribed period of disqualification is –
(a)where the number of demerit points incurred within the period of three years referred to in subsection (1) or (2) is not less than 12 points but not more than 15 points – three months;
(b)where the number of demerit points incurred within the period of three years referred to in subsection (1) or (2) is not less than 16 points but not more than 19 points – four months;
(c)where the number of demerit points incurred within the period of three years referred to in subsection (1) or (2) is 20 or more points – five months.
98BE – Disqualification and discounting of demerit points
(1)     A notice of disqualification under section 98BD(2) does not take effect if the person to whom the notice is given makes an election under subsection (2).
(2)     If a person who holds a licence is given a notice of disqualification under section 98BD(2), the person may, by notice given to the Registrar in accordance with the regulations –
(a)within 21 days of the day specified in the notice of disqualification; or
(b)with the permission of the Registrar, within 28 days of the day specified in the notice of disqualification,
elect, in lieu of suffering disqualification, to accept a condition on the licence requiring the person to be of good behaviour for a period of 12 months commencing on the day on which the notice of disqualification would have taken effect in accordance with section 139BD.
(2a)   If a person incurs 2 or more demerit points in relation to 1 or more offences committed by the person while the holder of a licence subject to the condition referred to in subsection (2), the Registrar must given the person written notice –
(a)that, commencing on the day on which the notice takes effect in accordance with section 139BD, the person is disqualified from holding or obtaining a licence for a period that is twice the period for which the disqualification would have applied under section 98BC if the person’s licence had not been subject to that condition; and
(b)that, if the person holds any licence when the notice takes effect, the licence is suspended during the period of disqualification.
(5)     Where a disqualification under section 98BC or a condition under subsection (2) has taken effect, the following demerit points are discounted:
(a)all demerit points in respect of the offence that brought the aggregate of the demerit points to 12 or more (and led to notice of disqualification being sent to the person under section 98BD);
(b)all demerit points in respect of offences committed prior to the time at which the person committed that offence (whether or not the person had been convicted of, or had expiated, those offences when the disqualification or condition took effect).
It follows that, if a person incurs two or more demerit points in relation to one or more offences while they are subject to the good behaviour provision, they are subject to immediate disqualification from holding or obtaining a driver’s licence for a period that is twice the period for which the disqualification would have been applied under s 98BC, had the person’s licence not been subject to that condition.
Accordingly, it is clear that the legislative intention of parliament was to remove the hardship provision altogether and to replace it with the good behaviour bond scheme.
A number of decisions subsequent to the amendments have considered whether personal hardship of a defendant can amount to proper cause. Each of the decisions have determined that ‘proper cause must relate to the circumstances of the offence and does not apply to the circumstances of the offender.[9]
[9] See e.g. Black v Police [2009] SASC 115, Dycer v Police [2010] SASC 241, Cirillo v Police [2010] SASC 293, Police v Federuzzi, [2008] SASC 104.
Accordingly, having regard to the current statutory scheme I am satisfied that the hardship suffered by the appellant is not a relevant consideration in determining whether ‘any other proper cause’ exists for the purposes of s 98B(4). The defendant has failed to demonstrate that any proper cause exists to reduce the number of demerit points.
I would dismiss the appeal. I would refuse the defendant’s application for an extension of time within which to bring this appeal.