Muto-Henderson v Police - [2017] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MUTO-HENDERSON v POLICE
[2017] SASC 139
Judgment of The Honourable Justice Blue
25 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appeal against refusal to reduce demerit points.
The appellant pleaded guilty to driving at 69 kilometers per hour in a 60 kilometers per hour zone. She had been travelling at the speed limit but felt pressured by the vehicle travelling behind her to increase her speed. She applied to the Magistrate for a reduction in demerit points on the ground that proper cause existed to do so.
The Magistrate declined to reduce the demerit points, finding that proper cause did not exist to do so.
Held:
1.       Observations on the demerit point regime (at [12]-[24]).
2.       The Magistrate did not err in taking into account alternative options available to the appellant rather than speeding (at [28]-[30]).
3.       Given that the appellant believed that she was already travelling at the speed limit before increasing her speed, the Magistrate's finding that the appellant did not check her speedometer could only be favourable to the appellant (at [32]).
4.       In the circumstances, proper cause did not exist to reduce the number of demerit points and the Magistrate did not err in the conclusion that she reached (at [34]-[35]).
5.       Appeal dismissed (at [37]).
Motor Vehicles Act 1959 (SA) s 98B, s 98BC, s 98BE; Motor Vehicle Regulations 2010 (SA) r 67, Sch 4, referred to.
Bialobrzeski v Police [2016] SASC 99; Chan v Police [2014] SASC 35; Gilbert v Owen (1991) 145 MVR 235; House v The King (1936) 55 CLR 499; Newton v Larcombe (1989) 38 A Crim R 254; Police v Hughes (1996) 89 A Crim R 290; Sivour-Ashman v Police (2003) 85 SASR 23, discussed.

MUTO-HENDERSON v POLICE
[2017] SASC 139
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against a decision by a Magistrate declining to order that a reduced number of demerit points be incurred against the appellant for a speeding offence.
The appellant Sally Muto-Henderson pleaded guilty to driving at a speed over the applicable speed limit, namely at 69 kilometres per hour in a 60 kilometres per hour zone.[1] She gave evidence on oath in support of an application pursuant to subsection 98B(4) of the Motor Vehicles Act 1959 (SA) (the Act) for a reduction in the number of demerit points incurred by her on the ground that “other proper cause” existed to make such an order. The Magistrate decided that no “proper cause” existed.
[1] Australian Road Rules rule 20.
The appellant appeals against the Magistrate’s decision on the grounds that the Magistrate erred in failing to find that “proper cause” existed, erred in applying the appropriate test and erred in placing too much weight on circumstances not relevant to the consideration of proper cause.
Background
On Easter Sunday 27 March 2016 at about 3.30 pm the appellant was driving through Robe with her brother and son on holiday. When travelling along the main street of the town, she was driving particularly slowly to see the sights and at least one vehicle overtook her car as a result. She then drove along Main Road towards Kingston for approximately three to five minutes to a point where Main Road is straight for approximately half a kilometre after rounding a slight left hand bend at the junction of Main Road and Nora Creina Road and before a right hand bend at the junction of Main Road with Cawthorne Drive. This area is generally built up on the left and the speed limit is 60 kilometres per hour up to and including well beyond the right hand bend.
The appellant was at the head of a long line of vehicles all travelling in fairly close proximity to each other. Immediately behind her was a four wheel drive vehicle. She believed that she was travelling at the speed limit (60, 61 or 62 kilometres per hour). The four wheel drive vehicle approached close behind her car, travelling to her perception faster than she was travelling and faster than the speed limit to get there. She felt pressured by its proximity to drive faster. She accelerated as a result. She was detected by police radar travelling at 71 kilometres per hour but she pleaded guilty to speeding on the agreed basis that she was travelling at 69 kilometres per hour and I proceed on that basis. She was pulled over by a police officer and given an expiation notice. The offence of driving at a speed over the applicable speed limit where the excess is not more than 9 kilometres per hour attracts two demerit points.
The appellant had previously accumulated 12 demerit points within three years. She had elected to accept a condition on her licence requiring her to be of good behaviour for 12 months. By committing the offence on 27 March 2016, she breached that condition and became liable to disqualification from holding or obtaining a driver’s licence for six months. She gave evidence before the Magistrate that this would cause her hardship but she accepts on appeal that hardship is incapable of amounting to or contributing to “proper cause” within the meaning of subsection 98B(4).
On 8 February 2017 the appellant gave evidence in support of her subsection 98B(4) application. Her evidence was as summarised above. She described the line of vehicles behind her as being one metre apart from each other but the Magistrate found that this was an underestimate. There is no challenge to the Magistrate’s finding in this respect, the Magistrate’s finding being that the vehicles were all in fairly close proximity to each other.
The appellant said in her evidence that she felt pressured by the vehicle behind and “moved a little bit faster just to put a bit of distance between me and that car behind me”. She said that she had been in two previous vehicle collisions which made her more cautious. The first was when she was 12 years old and she went through the windscreen, not being a rear end collision. The second was in 2002 when she was hit from behind and nearly went through the windscreen.
The appellant was cross-examined by the police prosecutor, who put to her that she did not have to exceed the speed limit in the circumstances, other options being to continue travelling at the speed limit, slowing down or pulling over. The appellant said that it was difficult to slow down or pull over and she felt pressured not to continue travelling at the speed limit. Her counsel submitted to the Magistrate that the pressure that she felt from the car behind meant that this was not a typical offence of its type and amounted to “proper cause” for a reduction in demerit points, conceding that the offence was not trifling.
The Magistrate’s reasons
The Magistrate held that “other proper cause” must relate to the offence and the circumstances of the offence and does not extend to personal hardship. The Magistrate said that “proper cause” encompasses “the circumstances of the offending, the traffic conditions, such things as the defendant’s mindset, such things as the distance over which the speeding occurred”.
The Magistrate said:
Dealing with that issue, absent any consideration of the consequence of the incurring of the demerit points, I do not consider that there is other proper cause to reduce the demerit points. To increase speed because there is a build-up of traffic and because a driver feels under pressure from that, in a circumstance where the driver has not even checked her speed in the first place, does not amount to proper cause to reduce the demerit points.
…
The defendant should have been looking at her speedo to see what speed she was going with the build-up of traffic. She should have turned her mind to the fact that if she increased her speed, she would be committing an offence. There were plenty of other options that were available to her rather than speeding up. They included simply travelling at travelling at the speed limit so that the cars that were following her also travelled at the speed limit, maintaining her existing speed or indeed significantly reducing her speed so that a vehicle, apparently impatient, could overtake her. To speed up and thus commit an offence but to not even know at what speed you were travelling at to begin with in my view was not an appropriate decision to make.
The demerit point regime
The demerit point scheme is enacted by Part 3B of the Act. Regulation 67 of and Schedule 4 to the Motor Vehicles Regulations 2010 (SA) specify the number of demerit points attracted by the commission of various offences. In the case of speeding, the number depends on the band above the speed limit into which the driver’s speed falls.
Section 98BC of the Act provides that a person who accumulates 12 demerit points within three years becomes liable to disqualification from holding or obtaining a driver’s licence for three months. Subsection 98BE(2) entitles such a person instead of serving immediate disqualification to elect to accept a condition on his or her licence requiring him or her to be of good behaviour, meaning that he or she will not incur two or more demerit points, for 12 months. Subsection 98BE(2a) provides that if such a person breaches the good behaviour condition, he or she becomes liable to disqualification from holding or obtaining a driver’s licence for six months.
Reduction in demerit points
Subsection 98B(4) provides:
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
The appellant submits that subsection 98B(4) creates a two stage test:
1.Is the offence trifling or does other proper cause exist to reduce the number of demerit points?
2.Should the number of demerit points be reduced and if so by how much in the exercise of the court’s discretion?
There is authority in support of subsection 98B(4) creating a two stage test in respect of the “trifling” limb, the first stage involving a finding of fact (or perhaps an evaluative exercise) and the second stage involving the exercise of discretion.[2] If this is so, it is likely that it was also the legislative intention to create a two stage test in respect of the “other proper cause” limb.
[2] Police v Ludlow [2008] SASC 43, (2008) 181 A Crim R 235 at [15] per White J; Department of Planning, Transport & Infrastructure v Krieg[2013] SASC 37, (2013) 285 LSJS 208 at [27] per Nicholson J; Roberts v Police [2015] SASC 190 at [17] per Stanley J.
I assume, in favour of the appellant and without deciding that subsection 98B(4) creates a two stage test in respect of both limbs. This entails that the appellant does not need to demonstrate a process or outcome error in the sense articulated in House v The King[3] in order to disturb the Magistrate’s conclusion that no proper cause existed in the present case.
[3] (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Trifling
While the appellant does not contend that the offence was trifling, the meaning of “trifling” informs the meaning of “other proper cause”. In Police v Hughes,[4] Debelle J said:
An offence might be trifling if it is a mere technical, casual and inadvertent breach, and there is no deliberate intention to breach the relevant statute.… In Crafter v Schubert, Napier J said:
“The typical instance of a trifling offence is where the contravention is unintentional or due to inadvertence.”
That observation was made in the context of an offence for selling liquor out of hours. Care must be taken when applying observations made in respect of other legislation which has another purpose and where different considerations might obtain. Thus, notions of inadvertence and lack of attention do not always sit easily in the context of the Road Traffic Act which has, as one of its purposes, the establishment of safe driving conditions.
An offence might also be trifling if there are compelling reasons of a humanitarian nature or compelling reasons for safety for doing what was in fact done. And, thirdly, an offence might be described as trifling where there was a situation which involves some kind of emergency. This third factor is very much a corollary of the second. It is to be emphasised that an offence which is typical of its kind, as the usual kind of offence will, generally speaking, not be trifling.[5]
(Citations omitted)
[4] (1996) 89 A Crim R 290.
[5] At 291.
In Siviour-Ashman v Police,[6] Doyle CJ (with whom Besanko J agreed) said:
I agree with the judge that one should begin by bearing in mind the ordinary meaning of "trifling". That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.[7]
[6] [2003] SASC 29, (2003) 85 SASR 23.
[7] At [24].
Other proper cause
In Newton v Larcombe,[8] White J said:
A number of authorities discuss the meaning of the words “any other proper cause” in subs (10). These authorities decide that “proper cause” refers to a cause associated with the circumstances of the particular offence. A particular offence is either trifling or some other proper cause, associated with the circumstances of the particular offence, exists. If so satisfied, the court can, if it is right and just and in accordance with the scheme or code in s 98b to do so, fix no demerit points or fix a reduced number of demerit points. These authorities also hold that the fact that the convicted person will suffer hardship from the recording of the demerit points and any disqualification is not of itself proper cause. In all of these cases, there were special circumstances which rendered the offence not quite trifling but sufficiently atypical to warrant a merciful reduction of the points, usually so as to avoid disqualification. For example, the traffic was very light, the speedometer was not working, the excess over the speed limit was slight, there had been no danger to others, and so on.[9]
[8] (1989) 38 A Crim R 254.
[9] At 255-256 (Authorities omitted).
In Gilbert v Owen,[10] Olsson J identified the following features that may be taken into consideration when determining whether “other proper cause” exists to reduce demerit points under the predecessor to section 98B(4):
The critical features for consideration, as I see it, are:
·    First the proper cause envisaged by s 98b(10) must relate to the circumstances of the offence rather than the offender.
·    Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence.
·    Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections. Moreover, the need to exercise a rapid judgment in a particular situation may also be important.[11]
[10] (1991) 14 MVR 235.
[11]   At 236-237.
In Chan v Police,[12] I said:
Whilst “proper cause” refers to something which is not quite trifling, there are no closed cases. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.[13]
[12] [2014] SASC 35.
[13] At [23] (Citations omitted).
In Bialobrzeski v Police,[14] Doyle J said:
It will generally require that the offending be of a lesser seriousness than the typical offence of its type. In the case of a speeding offence, relevant considerations might include the extent to which the speed limit was exceeded, whether the speeding was momentary or fleeting, the driving conditions, whether there was any other traffic on the road, whether there was any embarrassment to other vehicles or road users, and whether there was any explanation for the speeding such as an emergency.[15]
[14] [2016] SASC 99.
[15] At [20].
The appellant accepts that, in relation to the first stage whether proper cause exists to reduce demerit points, personal hardship is not a factor to be taken into account.[16] The appellant contends that personal hardship can be taken into account as one factor at the second stage in the exercise of the discretion but it is unnecessary to determine that question.
[16] See for example Hepworth v Rowbotham (1979) 22 SASR 394 at 395 per Jacobs J; Forgan v Uri (1990) 11 MVR 85 at 86 per Cox J; Holness v Police [2010] SASC 314, (2010) 56 MVR 510 at [18]-[23] per Sulan J; Carbone v Police [2016] SASC 131 at [16] per Stanley J.
The existence of proper cause
The appellant contends that the Magistrate erred in her reasoning process and also erred in her conclusion regardless of her reasoning that proper cause to reduce the demerit points did not exist.
In relation to the Magistrate’s reasoning process, the appellant contends that, in finding that “proper cause” did not exist to reduce the number of demerit points incurred, the Magistrate erred in applying the appropriate test and erred in placing too much weight on circumstances not relevant to the consideration of proper cause.
The appellant’s first contention is that the Magistrate wrongly took into account whether there were alternative options available to the appellant rather than speeding, such as maintaining her present speed, slowing down or pulling over. The appellant contends that these were matters of a sentencing nature rather than matters that bore on whether there was proper cause to reduce the demerit points and in having regard to these matters the Magistrate did not apply the appropriate test.
I reject this contention. By relying on the circumstances in which the offence occurred and her state of mind in relation to it as proper cause, the appellant made relevant all of those circumstances. The appellant cannot quarantine consideration to only those matters raised by her in her own evidence or on her own submissions. The context in which the Magistrate considered alternative courses was that the appellant by her evidence admitted that she made a deliberate decision to exceed the speed limit, which necessarily follows from the fact that she believed that she was travelling at the speed limit (60, 61 or 62 kilometres per hour) and deliberately increased her speed to increase the distance from the vehicle behind. The gist of the appellant’s evidence was that she had no choice but to exceed the speed limit. She was cross-examined on the alternatives potentially available to her. Given the deliberateness of her conduct, the Magistrate was entitled to consider whether it was true that she had no alternative but to exceed the speed limit and to examine potential alternatives available to her. The Magistrate did not err in considering these alternatives.
The appellant does not contend that, if it was relevant to consider alternative courses of action, the Magistrate erred in her conclusions about those alternatives (as opposed to the overall conclusion about proper cause). The appellant did not in cross-examination give a satisfactory reason why she did not simply maintain her current speed at the speed limit. The appellant said that the driver of the vehicle behind her was not honking his horn, flashing his lights, gesturing to her or doing anything else to pressure her apart from travelling close behind her. While the appellant said that she was cautious as a result of her prior experiences, she did not say that she feared that the vehicle behind would collide with her car. The tenor of her evidence was that the driver was putting moral pressure on her to exceed the speed limit so that he could exceed the speed limit. She did not give satisfactory explanations in cross-examination why she did not simply maintain her current speed or as a last resort put on her indicator and either pull off the road or turn into one of the streets running off to the left.

The appellant contends that the Magistrate erred in placing too much weight on this circumstance. If as I have concluded this circumstance was relevant to the consideration of proper cause, it is not a reasoning error that the Magistrate gave too much weight to it. In any event, I do not consider that the Magistrate did so.
The appellant’s second contention is that the Magistrate erred in taking into account the fact that the appellant did not check her speedometer before deciding to increase her speed. The appellant contends that this also was a matter of a sentencing nature rather than a matter bearing on whether there was proper cause to reduce the demerit points and in having regard to this matter the Magistrate did not apply the appropriate test.
I reject this contention. Given the appellant’s evidence that she believed that she was already travelling at the speed limit of 60 kilometres per hour before she increased her speed, it follows and it is clear on the appellant’s evidence as a whole that she knew that she was exceeding the speed limit when she increased her speed but she attempted to justify it in her evidence by the moral pressure she felt from the vehicle behind. If the Magistrate proceeded on the basis that the appellant was reckless as to whether she was exceeding the speed limit, this was unduly favourable to the appellant. This is incapable of vitiating the conclusion reached by the Magistrate.
In relation to the Magistrate’s conclusion, the appellant contends that the circumstances were atypical for a speeding offence and proper cause existed to reduce the demerit points incurred.
As to the objective circumstances of the offence, the speed at which the appellant was driving was at the extreme high end of the range that attracts two demerit points. On the appellant’s own evidence, the road was relatively busy. There was nothing about the objective circumstances that rendered the offending atypical.
As to the subjective circumstances of the offence, this was not an offence of inadvertence but the result of a deliberate decision by the appellant to exceed the speed limit. It was not an emergency. It is not uncommon for drivers to place moral pressure on drivers in front who are travelling at the speed limit to increase their speed. Drivers in front placed in this situation have a strong responsibility not simply to give way to such moral pressure. While the appellant did not exceed the speed limit for her own personal gain, it cannot be said that the moral pressure exerted on her by the driver behind reduces her moral responsibility for exceeding the speed limit to such an extent that proper cause existed to reduce the demerit points incurred by her in committing that offence. The Magistrate did not err in the conclusion that she reached.
Given my conclusion, it is not necessary to consider the proper exercise of the discretion if the appellant had established on appeal that proper cause existed to reduce the demerit points incurred by her.
Conclusion
I dismiss the appeal.