National Heavy Vehicle Regulator v Mounce - [2020] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NATIONAL HEAVY VEHICLE REGULATOR v MOUNCE
[2020] SASC 91
Judgment of The Honourable Justice Bampton
27 May 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence imposed by Magistrate – where applicant pleaded guilty to ten offences contrary to the Heavy Vehicle National Law (South Australia) Act 2013 (SA), being three counts of recording false or misleading entries contrary to s 325, six counts of working for more than the maximum work time stated in the Basic Fatigue Management hours or resting for less than the minimum hours stated in the Basic Fatigue Management contrary to s 254(1) and one count of driving a fatigue-regulated heavy vehicle contrary to s 228 – whether the imposition of a fine of $1,500, reduced to $1,050 for an early guilty plea, was manifestly inadequate.
Held – the sentence was manifestly inadequate - s 120 of the Sentencing Act 2017 (SA) applies – the respondent’s means have worsened since the sentence was imposed in the Magistrates Court – if any greater fine imposed, the respondent would be unable to comply with the order to pay and compliance with the order would unduly prejudice the welfare of his dependants – appeal dismissed.
Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 325, s 254(1), s 228; Victims of Crime Act 2001 (SA) s 32; Sentencing Act 2017 (SA) s 26, s 120, referred to.
DPTI v Neil [2009] SASC 285; DPTI v Favotti [2014] SASC 103; DPTI v Brown [2014] SASC 113; DPTI v Daniels [2014] SASC 114, considered.

NATIONAL HEAVY VEHICLE REGULATOR v MOUNCE
[2020] SASC 91
Magistrates Appeal: Criminal

BAMPTON J: Shane Mounce was working as a driver of a fatigue regulated heavy vehicle between 1 February 2017 and 19 March 2017. On 11 November 2019, he pleaded guilty in the Magistrates Court to 10 offences contrary to the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (“the National Law”).
The 10 offences comprised three counts of recording false or misleading entries contrary to s 325 of the National Law, six counts of working for more than the maximum work time stated in the Basic Fatigue Management (“BFM”) hours or resting for less than the minimum hours stated in the BFM contrary to s 254(1) and one count of driving a fatigue-regulated heavy vehicle contrary to s 228.
Convictions were recorded for each count and a single penalty for all offending was imposed pursuant to s 26 of the Sentencing Act 2017 (SA) (“the Act”) of a fine of $1,050 reduced from $1,500 on account of Mr Mounce’s guilty pleas. Mr Mounce was ordered to pay prosecution costs fixed at $150.[1] In addition, Mr Mounce is required to pay a Victims of Crime levy (“VIC levy”) for each count under s 32 of the Victims of Crime Act 2001 (SA) (“the Victims of Crime Act”),[2] a total of $1,600. Mr Mounce gave evidence before the sentencing magistrate in support of his application for a deduction in demerit points which was refused. At the hearing before me Mr Mounce stated he had not received notification from the Registrar of Motor Vehicles regarding the imposition of demerit points consequent upon his convictions. It is to be noted that each of the six counts contrary to s 254(1), being critical breaches of fatigue, attracted four demerit points. Mr Mounce’s offending has incurred 24 demerit points which will result in a loss of licence for five months.
[1] Criminal Procedure Act 1921 (SA) s 189A; Criminal Procedure (General) Regulations 2017 (SA) reg 10.
[2] Levy amounts set out in Schedule 1 of the Victims of Crime (Fund and Levy) Regulations 2018 (SA).
The National Heavy Vehicle Regulator (“the NHVR”) appeals against the sentence on the ground that the global penalty imposed is in all the circumstances manifestly inadequate. Mr Mounce appeared at the hearing of the appeal unrepresented.
Background
South Australian Police commenced investigating Mr Mounce and his employer, an Adelaide based trucking company (“the company”), after a truck driven by Mr Mounce was involved in a collision with a sedan on the Augusta Highway on 19 March 2017 (“the collision”). Two elderly passengers in the back of the sedan suffered injuries and were airlifted to hospital where they spent some weeks recovering. There was no obvious cause for the collision. At the time of the collision Mr Mounce had been driving a fatigue regulated heavy vehicle for at least 17 hours of the previous 24 hours. Mr Mounce told police who attended the accident scene that all he wanted to do was lie down and go to sleep. Whilst it cannot be concluded that fatigue was the cause of the accident, one obvious risk of driving fatigued is collision.
The police investigation identified a number of offences that had been committed in the weeks before the collision. It was revealed that the trucks operated by the company were fitted with a GPS and GPS data was readily available to the company. The company failed to access the GPS data or cross-check GPS records with Mr Mounce’s and another driver’s work diaries. Had the company done so, it would have been alerted to indications that Mr Mounce and the other driver were committing extreme breaches of the National Law fatigue regulations. In failing to cross-check the GPS data with drivers’ work diaries the company committed two offences against s 229 of the National Law. The company pleaded guilty and convictions were recorded. Pursuant to s 596 of the National Law, as the offences were committed by a company the maximum penalty for each of the offences was $55,000. The company was fined $36,000 reduced by 40 per cent on account of its early guilty pleas, resulting in a fine of $21,600 plus VIC levies and prosecution costs.
Mr Mounce’s offending of making false entries in work diaries, and driving a heavy vehicle for extended and illegal periods occurred between 1 February 2017 and 19 March 2017.
Mr Mounce was charged with 12 offences against the National Law. He was unrepresented at his first appearance before the Magistrates Court and indicated an intention to plead guilty to all charges. The prosecutor then informed him of the maximum penalties and loss of licence he was facing and offered him the opportunity to seek legal advice. The matter was adjourned and Mr Mounce obtained legal representation. He ultimately entered guilty pleas to counts 1, 2, 4, 5, 6, 7, 8, 9, 11, and 12 on the Information and Summons and counts 3 and 10 were withdrawn. Count 12 (driving while fatigued) related to the collision.
Mr Mounce has one prior conviction for a contravention of the National Law committed on 8 May 2013. On 17 February 2014, he was convicted and fined $500 as the driver of a vehicle which contravened loading requirements of the National Law.
The National Law
Section 325(1) of the National Law provides:
325—False or misleading entries
(1)A person must not record something in a work record that the person knows, or ought reasonably to know, is false or misleading.
The maximum penalty for a breach of s 325 is a fine of $11,120.
Section 254 provides:
254—Operating under BFM hours—solo drivers
(1)The solo driver of a fatigue-regulated heavy vehicle commits an offence if, in any period stated in the BFM hours for the driver, the driver--
(a) works for more than the maximum work time stated in the BFM hours for the period; or
(b) rests for less than the minimum rest time stated in the BFM hours for the period.
The maximum penalty for a breach of s 254(1) is a fine of $16,830.
Section 228(1) provides:
228—Duty of driver to avoid driving while fatigued
(1)A person must not drive a fatigue-regulated heavy vehicle on a road while the person is impaired by fatigue.
The maximum penalty for a breach of s 228 is a fine of $6,740.
The NHVR’s submissions
Each of the offences Mr Mounce was convicted of are contained within Chapter 6 of the National Law, which is entitled “Vehicle operations—driver fatigue”. The NHVR submits that the main purpose of Chapter 6 is to provide for the safe management of the fatigue of truck drivers by imposing duties on them and regulating them to protect the community.
The NHVR contended that the significant maximum penalties are indicative of the intention of the Legislature that such offending is treated seriously. Further, it was submitted that each of the s 254(1) offences committed by Mr Mounce were “critical risk breaches”. A critical risk breach is the most serious category of breach for fatigue offences. For a BFM driver, an offence becomes a “critical risk breach” once they have worked for over 15.5 hours in a 24-hour period. In relation to each s 254(1) breach, Mr Mounce had worked for at least one hour and 45 minutes more than the starting threshold for a “critical fatigue breach” and in some instances for four hours in excess of the threshold. It was submitted that none of these offences were cases of borderline characterisation of a “critical risk breach”.
Accordingly, it was submitted that the global penalty imposed of $1,050 is manifestly inadequate as it amounts to less than one per cent of the combined maximum penalties for each of the 10 offences of $141,080. As such, the NHVR said Mr Mounce should be resentenced to provide guidance for this type of offending, given the significant penalties that can apply.
The NHVR submitted that the sentencing Magistrate failed to have proper regard to decisions of single Judges of this Court which indicate that a starting point for penalties for these types of offences should be 20 to 25 per cent of the maximum penalty.[3]
[3] DPTI v Neil [2009] SASC 285, per Sulan J at [25]; DPTI v Favotti [2014] SASC 103, per Peek J at [24]–[28].
In particular, the NHVR relies on two decisions of Stanley J which apply the 20 to 25 per cent starting point of the maximum penalty referred to by Peek J in DPTI v Favotti.[4] In each decision, Stanley J overturned the penalties imposed by the Magistrate and resentenced each respondent to a fine of 20 to 25 per cent of the maximum penalty.
[4] DPTI v Brown [2014] SASC 113; DPTI v Daniels [2014] SASC 114.
Having regard to these decisions, the NHVR asserts that a starting point of a fine of $28,216 to $35,270 is appropriate, being 20 to 25 per cent of the maximum fine applicable for each count, totalling $141,080.
The NHVR submitted that an increase in the fine is appropriate having regard to the aggravating features of the offending, for example Mr Mounce driving for 20 hours in a 24-hour period, the fact that the offending was not isolated, Mr Mounce attempting to lie to avoid detection of his illegality and the manifestation of the risk of fatigue on the day of the collision. Further, it was submitted that each of the s 254(1) offences are categorised as “critical risk breaches”, being the most serious category for fatigue offences. Given these features, the NHVR contended that the penalty imposed does not reflect that the offending is at the higher end of the scale for this type of offending, and as such is manifestly inadequate.
Consideration
The authorities relied upon by the NHVR are a useful guide. Mr Mounce’s offending occurred over a seven-week period. The primary purpose of sentencing for the offences committed by Mr Mounce is to protect the safety of the community. The secondary purpose is to ensure that Mr Mounce is punished and held accountable for his offending; that such offending is publicly denounced; and that the risk to the community that his fatigued driving and other contraventions posed is recognised to deter him and others from failing to comply with the National Law.
The Magistrate accepted that Mr Mounce’s offending was not defiant or wilfully disobedient behaviour. He concluded that Mr Mounce’s extended driving times and “false entries occurred as a combination of ignorance, carelessness, confusion, inadequate supervision, literacy difficulties and not properly addressing [his] obligations as a truck driver”. The Magistrate added that Mr Mounce knew he had to rest and that rest was a fundamental obligation of a long-distance truck driver. Mr Mounce’s failure to ensure he took correct rest breaks “was a serious departure from [his] obligations”.
The Magistrate also accepted that Mr Mounce was poorly supervised and not given adequate information or training about log books and that he struggles with literacy and comprehension. It was noted that Mr Mounce tended to learn by trial and error and rectifying mistakes pointed out to him.
The Magistrate sentenced Mr Mounce on the basis that his employer was “inappropriately and illegally lax” in its responsibilities.
The Magistrate said that he considered Mr Mounce’s prior conviction and early guilty pleas which entitled him to a discount of up to 30 per cent of the penalty that would otherwise have been imposed. The Magistrate determined that Mr Mounce was unlikely to reoffend and noted that the offending had occurred two years earlier.
It was also noted that Mr Mounce was the main income earner for his large family and it was accepted that a heavy fine would have significant impacts on Mr Mounce and his family. It is significant that at the time of sentencing Mr Mounce was working for a new employer “who was supportive and who supervised him appropriately”.
Having regard to the 10 offences committed by Mr Mounce, the maximum penalties for each offence, the aggravating features of Mr Mounce’s offending as detailed by the NHVR, the fines imposed on resentencing for single contraventions of the National Law in other appeals brought by the NHVR, and that Parliament intended that penalties imposed under the National law would not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers and owners to not disobey the requirements to comply with prescribed minimum rest periods during long distance heavy vehicle driving, I find the penalty imposed to be a manifestly inadequate.
Mr Mounce informed me during the hearing of the appeal that he and his wife are the parents of six children, aged two to 16 years, and that he is now unemployed and on Centrelink benefits. He said that he has been advised to undergo spinal surgery. He produced a letter from his general practitioner stating he has severe stenosis of the left L5 exit foramen with left sciatic pains, grade 1 spondylolisthesis, that he is in constant pain and that he has been taking pain relief on a regular basis.
Mr Mounce has not paid the penalty imposed by the Magistrate. He said that he has attempted to arrange payment by instalments but had been told by the Fines Enforcement and Recovery Unit he must await the determination of this appeal. He is now in a worse financial situation than he was at the time he was sentenced by the Magistrate. His imminent loss of licence will impact upon his ability to earn an income as a truck driver and to travel to other forms of employment. It is worthy of note that Mr Mounce also told me he now has an “app” to assist him in recording his work/rest time.
Section 120 of the Act provides that the Court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the Court is satisfied that the means of the defendant, so far as they are known to the Court, are such that the defendant would be unable to comply with the order; or compliance with the order would unduly prejudice the welfare of dependants of the defendant. Mr Mounce is currently liable to pay the fine of $1,050, the VIC levy of $1,600 and prosecution costs of $150.
I am satisfied that Mr Mounce’s means are such that he would be unable to comply with an order to pay a greater penalty, and compliance with any such order would unduly prejudice the welfare of his dependants.
Conclusion
The sentence imposed was manifestly inadequate. Mr Mounce’s personal circumstances are now such that any greater pecuniary penalty, let alone that argued for by the NHVR, could not be complied with and would unduly prejudice the welfare of his dependants. I decline to intervene and resentence.
The penalty imposed by the Magistrate stands.
I dismiss the appeal and make no order as to costs.