National Heavy Vehicle Regulator v Obst; National Heavy Vehicle Regulator v Turnbull - [2021] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
NATIONAL HEAVY VEHICLE REGULATOR v OBST; NATIONAL HEAVY VEHICLE REGULATOR v TURNBULL
[2021] SASC 37
Judgment of the Honourable Justice Blue
14 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant informant appeals against orders made by a Magistrate in two separate prosecutions dismissing the charges without conviction or penalty pursuant to section 23(1)(a) of the Sentencing Act 2017 (SA) (the Act).
The respondents were separately charged with contravening section 250(1)(a) of the Heavy Vehicle National Law by driving a fatigue-regulated heavy vehicle operating under standard hours for more than 12 hours, namely 15 hours in the case of the respondent in the first matter and 14.5 hours in the case of the respondent in the second matter, in a 24-hour period.
The Magistrate considered that the instructions contained in the National Heavy Vehicle Regulator Work Diary issued to drivers were misleading and conveyed that, if a driver took a major rest break of at least seven hours, the clock for counting driving hours during a 24-hour period would automatically be restarted at zero at the end of the major rest break. Convicting the respondents would give rise to a miscarriage of justice, which was to be avoided by utilising section 23(1)(a) of the Act, finding the offence trifling and dismissing the charge without conviction or penalty.
Held (allowing the appeal):
1.The Magistrate misread the instructions in the Diary (at [29]-[30]]).
2.The offences were not “trifling” within the meaning of section 23(1)(a) of the Act (at [41]).
3.Appeals allowed. Orders by the Magistrate set aside. Submissions to be heard on resentencing (at [42]).

Sentencing Act 2017 (SA) s 23(1)(a); Heavy Vehicle National Law (South Australia) Act 2013 (SA) ss 4, 6, 221, 249, 250; Road Traffic Act 1961 (SA) s 47B, referred to.
House v The Queen (1936) 55 CLR 499; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

NATIONAL HEAVY VEHICLE REGULATOR v OBST; NATIONAL HEAVY VEHICLE REGULATOR v TURNBULL
[2021] SASC 37

BLUE J: The National Heavy Vehicle Regulator (the Regulator), being the informant in the Magistrates Court, appeals against orders made by a Magistrate in two separate prosecutions dismissing the charges without conviction or penalty pursuant to section 23(1)(a) of the Sentencing Act 2017 (SA) (the Act).
The respondent in the first matter, Ricky Obst, was charged by the Regulator with contravening section 250(1)(a) of the Heavy Vehicle National Law by driving a fatigue-regulated heavy vehicle operating under standard hours for more than 12 hours, namely 15 hours, in the 24-hour period commencing at 9.00 am on 16 October 2019.
The respondent in the second matter, Hayden Turnbull, was charged by the Regulator with contravening section 250(1)(a) of the Heavy Vehicle National Law by driving a fatigue-regulated heavy vehicle operating under standard hours for more than 12 hours, namely 14.5 hours, in the 24-hour period commencing at 10.00 am on 16 February 2020.
The Magistrate considered that the instructions contained in the National Heavy Vehicle Regulator Work Diary (the Diary) issued to drivers were misleading and conveyed that, if a driver took a major rest break of at least seven hours, the clock for counting driving hours during a 24-hour period would automatically be restarted at zero at the end of the major rest break. Convicting the respondents would give rise to a miscarriage of justice, which was to be avoided by utilising section 23(1)(a) of the Act, finding the offences trifling and dismissing the charges without conviction or penalty.
The Regulator contends that the Magistrate misread the instructions in the Diary, the offences were not “trifling” within the meaning of section 23(1)(a) of the Act and the penalties were manifestly inadequate.
Background
On 16 and 17 October 2019 Mr Obst was driving a semi-trailer on a journey from Port Pirie to Charleville in Queensland. In the Diary issued to him by the Regulator, he recorded that, after a major rest break, he commenced driving at 9.00 am on 16 October 2017, drove for 10 and a quarter hours including three quarter-hour breaks (nine and a half hours driving), took a major rest break for seven and three-quarter hours, and then drove for a further six hours including a half-hour break (five and a half hours driving) until 9.00 am on 17 October.
On 11 February 2020 the Regulator laid the information in the Magistrates Court against Mr Obst.
On 16 and 17 February 2020 Mr Turnbull was driving a semi-trailer in the vicinity of Yunta. In the Diary issued to him by the Regulator, he recorded that, after a major rest break, he commenced driving at 10.00 am on 16 February 2020, drove for 11 and a half hours including two half-hour breaks (10 and a half hours driving), took a major rest break for eight hours, and then drove for a further four and a half hours including a half-hour break (four hours driving) until 10.00 am on 17 February.
On 4 September 2020 the Regulator laid the information in the Magistrates Court against Mr Turnbull.
On 16 November 2020 the Magistrate presided over the traffic list. Mr Obst pleaded guilty. He provided to the Magistrate a copy of the cover page, first page and page 22 of his Diary. He submitted that, based on his reading of page 22, he reasonably believed in October 2019 when he committed the offence that, if a driver took a major rest break of at least seven hours, the clock for counting driving hours during a 24-hour period would automatically be restarted at zero and hence that he had not contravened the 12 in 24-hour driving rule. The Magistrate delivered ex tempore remarks giving reasons why she dismissed the charge without conviction or penalty pursuant to section 23(1)(a) of the Act.
Later that day in the same traffic list, Mr Turnbull pleaded guilty. He made a similar submission to the Magistrate as that made by Mr Obst. The Magistrate delivered ex tempore remarks giving reasons why she dismissed the charge without conviction or penalty pursuant to section 23(1)(a) of the Act.
The Magistrate’s remarks
The Magistrate’s remarks in respect of Mr Obst concluded with the following passage:
The defendant tendered relevant extracts of his National Heavy Vehicle Regulator Work Diary 2013 Version 1 edition, which is what he relied on … The defendant has highlighted and I am of the view that there is a conflict between the correct interpretation of s 250(1)(a) Heavy Vehicle National Law and what in fact the Regulator is providing to drivers as was the case with Mr Obst. It reads that:
Counting 24-hour periods should be counted from the end of the following rest breaks. For a standard solo driver, 7 or more continuous hours.
That is incorrect in law … one has to consider the total 24-hour period and not commence the new 24-hour period after a major rest break of seven hours or more, which is what the defendant did in this case. He did this according to what is outlined on p. 22 of the National Heavy Vehicle Regulator Work Diary issued by the Regulator. That clearly is incorrect in law and it is an honest mistake that the defendant made because of the Regulator’s own guidelines in providing that incorrect information on p. 22…
In the circumstances, I consider that prosecuting this matter is a miscarriage of justice if I was to deal with this by way of any penalty. I invoke s 23(1)(a) of the Sentencing Act on the basis that it is inappropriate to impose any penalty and without recording a conviction dismiss the charge. I consider that the matter has become trifling on the basis that the Regulator’s own information to drivers is incorrect and that prosecuting this matter and recording a conviction with a penalty would be a miscarriage of justice. I dismiss the information without recording a conviction and without penalty.
The Magistrate’s remarks in respect of Mr Turnbull involved the same reasoning.
The legislative scheme
The Heavy Vehicle National Law (the National Law) and the Heavy Vehicle (Fatigue Management) National Regulation (the National Regulations) apply as laws of South Australia under sections 4 and 6 of the Heavy Vehicle National Law (South Australia) Act 2013 (SA). Most other jurisdictions in Australia have also applied them as laws of those jurisdictions.
Section 250 of the National Law provides:
250—Operating under standard hours—solo drivers
(1)The solo driver of a fatigue-regulated heavy vehicle commits an offence if, in any period stated in the standard hours for the driver, the driver—
(a) works for more than the maximum work time stated in the standard hours for the period; or
(b) rests for less than the minimum rest time stated in the standard hours for the period.
Maximum penalty:
(a) for a minor risk breach—$4 000; or
(b) for a substantial risk breach—$6 000; or
(c) for a severe risk breach—$10 000; or
(d) for a critical risk breach—$15 000.
A “fatigue-regulated heavy vehicle” is defined by section 7 to mean amongst other things a motor vehicle with a gross vehicle mass of more than 12 tonnes (subject to presently irrelevant exceptions).
A “solo driver” is defined by section 221 to mean a driver who is not a party to an arrangement under which two persons share the driving of a fatigue-regulated heavy vehicle that has an approved sleeper berth.
“Work” is defined by section 221 to mean amongst other things driving a fatigue-regulated heavy vehicle.
“Standard hours” are defined by section 249 to mean the maximum work times and minimum rest times prescribed by the National Regulations. Regulation 5 and Table 1 in Schedule 1 to the National Regulations provide amongst other things that, in any period of 24 hours, the maximum work time is 12 hours and the minimum rest time is seven continuous hours stationary rest time.
Regulation 5 and Table 1 also define the level of breaches in this context as follows:
·minor level breach - more than 12 up to 12¾ hours work time;
·substantial level breach - more than 12¾ up to 13¼ hours work time;
·severe level breach - more than 13¼ up to 13½ hours work time; and
·critical level breach - more than 13½ hours work time.
Section 247 of the National Law provides:
247—Time to be counted after rest time ends
When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from—
(a) if 1 or more major rest breaks are relevant to the period—the end of a relevant major rest break; or
(b) in any other case—the end of a relevant period of rest time.
Counting of a period of time (such as 24 hours) that has started at the end of a major rest break does not stop merely because the driver takes another major rest break within the relevant period (such as 24 hours).[1]
[1] Police v Barnes [2017] SASC 196, (2017) 129 SASR 575 at [37] per Doyle J.
The purpose of section 250 is to protect the community against the inherent dangers of driving a heavy vehicle for too long a period and without adequate rest.[2]
[2] R v Ruka [2009] QCA 113 at [17] per Wilson J (with whom Muir and Chesterman JJA agreed); National Heavy Vehicle Regulator v Mounce [2020] SASC 91, (2020) 92 MVR 212 at [20] per Bampton J.
Contentions on appeal
The Regulator contends that the Magistrate misread the instructions in the Diary and that page 22 makes it clear that, although the end of a major rest break marks the start of a 24-hour period, taking another major rest break does not end a previous 24-hour period that has not expired by the end of the second major rest break.
The Regulator contends that, in any event, the offences could not be characterised as “trifling” within the meaning of section 23(1)(a) of the Act because the objective conduct comprising the offences was serious.
The Regulator contends that the penalty imposed was manifestly inadequate. This ground of appeal is otiose. If the Magistrate erred in finding that the offences were trifling, the appeals must be allowed and the respondents resentenced. If not, the appeals must be dismissed.
The respondents contend that the question whether an offence is “trifling” within the meaning of section 23(1)(a) of the Act involves the exercise of a discretion and the Regulator has not established that the exercise of the discretion by the Magistrate was vitiated by one of the factors identified by the High Court in House v The Queen,[3] namely:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[4]
[3] (1936) 55 CLR 499.
[4] At 505 per Dixon, Evatt and McTiernan JJ.
The question whether an offence is “trifling” within the meaning of section 23(1)(a) of the Act does not involve the exercise of a discretion such as determining the length of a sentence of imprisonment or amount of a fine. Rather, it involves an evaluative judgment which is either right or wrong.
Mistake of fact
The Magistrate in her remarks on penalty referred only to a single sentence contained on page 22 of the Diary. That sentence must be understood in the context of the balance of the instructions on page 22, which appear under the overall heading “Part 3: How to count time”. Those instructions relevantly[5] include the following (I have bolded the headings which are emphasised in the original by the use of a large font instead):
[5]     The present cases involve standard hours solo drivers and 24-hour periods only. Text addressing other situations has been omitted.
How to count periods of 24 hours or longer
relevant major rest breaks
Periods of 24 hours or longer, including periods of 7, 14 or 28 days, should be counted forward from the end of the major rest break relevant to the period in your hours option…
For example, Table 1 on page 27 shows that standard hours solo drivers are required to take a minimum of 7 continuous hours rest in any 24-hour period – therefore standard hours solo drivers should count 24-hour periods from the end of any rest break of 7 or more continuous hours.
…
Counting 24-hour periods
24-hour periods should be counted from the end of the following rest breaks:
standard hours solo – 7 or more continuous hours
…
Important advice on counting 24-hour periods
You must count work time for the whole 24-hour period following the end of a relevant major rest break. If you take another relevant major rest break during that 24-hour period, it does not reset the 24-hour period, so you do not stop counting work time for the first 24-hour period at that break. You must count all work time before and after the second relevant major rest break you took in that 24-hour period.
e.g. Bob works under standard hours. On Monday he starts work at 6am and does the following:
·    5¼ hrs work (6am-11.15am), then takes a 15 min break
·    2¼ hrs work (11.30am-1.45pm), then takes a 90 min break
·    4½ hrs work (3.15pm-7.45pm), then takes a 7 hour major rest break as required under standard hours.
At 7.45pm Bob has undertaken the maximum 12 hours of work time in a 24-hour period allowed under standard hours. Therefore, Bob can’t start work again at 2.45am even though he has had the 7 hour major rest break required under standard hours. Bob must continue resting until 6am on Tuesday morning because that is when the 24-hour period he began on Monday finishes.[6]
[6]     Bolding (apart from headings) and shading in original.
The Magistrate did not refer to the instructions contained under the heading “Important advice on counting 24-hour periods” nor to the example involving Bob. Both the instructions and the example make it clear that taking a second major rest break during a 24-hour period does not reset the 24-hour period. The Magistrate was no doubt under considerable time pressure in a busy list, and did not devote the time needed to consider the instructions contained on page 22 beyond focusing on the sentence quoted in her remarks on penalty. However, before being able to determine whether the offences were to be characterised as trifling, it was necessary for the Magistrate to consider the instructions in their context.
Even if the question whether an offence is to be characterised as trifling involved the exercise of a discretion, that exercise would have been vitiated by the mistake of fact made by the Magistrate.
Characterisation as trifling
Subsection 23(1) of the Act provides:
23—Discharge without penalty
(1)If a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may—
(a) without recording a conviction—dismiss the charge; or
(b) on recording a conviction—discharge the defendant without penalty.
Before a court is empowered to dismiss a charge pursuant to section 23(1)(a), it must find that the offence is so trifling that it is inappropriate to impose a penalty.
In Siviour-Ashman v Police[7] the Full Court considered the meaning of the word “trifling” in the context of section 47B(3)(b) of the Road Traffic Act 1961 (SA) which empowered a court to reduce an otherwise mandatory period of disqualification on conviction of driving with more than the prescribed concentration of alcohol in the blood if “the court is satisfied, by evidence given on oath, that the offence is trifling”. Ms Siviour-Ashman consumed three alcoholic drinks which would not have resulted in her blood alcohol level being 0.05 grams per 100 litres or more. Before she left, she asked the barman for a glass of water, who gave her a fruit drink. Unbeknown to her, the barman added alcohol to the drink. She then drove a vehicle and it was her consumption of the “fruit drink” that caused her blood alcohol level to exceed 0.05 grams per 100 litres.
[7] [2003] SASC 29, (2003) 85 SASR 23.
The Full Court said that:
the application to the Magistrate had to be considered on the basis that the appellant reasonably believed that she had consumed three drinks containing alcohol, over the period described; on the basis that she reasonably and correctly believed that the drinks she thought she had consumed would have resulted in a concentration of alcohol less than the prescribed concentration of 0.05 grams of alcohol in 100 millilitres of blood when she began driving.[8]
[8] At [16] per Doyle CJ.
However, the Full Court (Mullighan J dissenting) held that Ms Siviour-Ashman’s reasonable belief that her blood alcohol level was less than 0.05 grams per 100 litres was incapable of rendering the offence “trifling”. In the context of that type of offence, in determining whether the offence was to be characterised as trifling, primary regard must be had to the objective circumstances of the offence.

Doyle CJ 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.
…
If attention is confined in the present case to the conduct constituting the offence, it is a typical offence of its type. The appellant drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant’s driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.
…
The appellant’s submissions can succeed only if the circumstances in which the offence occurred are relevant. I mean here the circumstances extending beyond the offending conduct itself, and explaining how it was that the appellant came to offend.
In a number of cases the courts have treated the circumstances of the offence in this sense as relevant. I consider that this is correct. In the application of remedial legislation like this, it would be too narrow an approach to confine attention exclusively to the offending conduct.
…
The offending conduct in the present case is an ordinary or typical instance of its kind. The appellant drove for some distance on a main road. The concentration of alcohol in her blood was well in excess of the minimum amount that falls within the prescribed concentration. The fact that the appellant did not realise that she was committing an offence, or might be committing an offence, is not of any great significance in relation to an offence of the kind in question. A failure to realise that an offence is being committed or might be committed is of limited relevance in deciding whether an offence of this kind is trifling. In the appellant’s case, however, there is more than that. It can be said affirmatively that she reasonably believed that she was not offending, and that her belief was correct and was falsified in circumstances beyond her control, and in respect of which she was not at fault. To that extent, the offending is not typical of its kind. In the case of an offence in relation to which knowledge of the presence of alcohol in the blood, or advertence to that fact, is significant in assessing the seriousness of the offence, this aspect of the facts on which the appellant relies would probably be enough for one to conclude that the offence was trifling. But in the case of s 47B(1), I consider that the offending conduct is to be given more weight than the explanation for it, and in particular, more weight than the offender’s awareness of the fact that an offence might be committed. To my mind, the offending conduct cannot be regarded as a trifling offence simply because of the appellant’s state of mind and belief, because of the very limited significance of advertence and state of mind when making a qualitative assessment of an offence like the one in question.[9]
[9] At [24], [26], [28]-[29] and [43].
Besanko J said:
Approaching the matter having regard only to the words of the section and unassisted by any authority, I would have been disposed to conclude that in considering whether an offence was trifling under s 47B(3)(b) of the Road Traffic Act 1961, the Court should consider only the conduct which constitutes the offence, and not in addition to that… On the other hand, there are numerous decisions of single Judges of this Court to the effect that the circumstances which explain how the offence came to be committed should also be considered …
I think that this approach should be followed. It is desirable that a degree of flexibility in the application of the section be maintained... Having said that, I think that there are offences which by their very nature are such that in determining if the offence is trifling the focus will be on the conduct which constitutes the offence. In fact, I think that this is such an offence. Furthermore, the nature of this offence is such that the circumstances in which humanitarian reasons will lead to a conclusion that the offence is trifling will be limited.
In this case, the appellant was in many respects quite blameless and there are powerful mitigating circumstances in her favour…
The conduct which constitutes the offence in this case is in no way atypical. The appellant was driving on a main road with greater than the prescribed concentration of alcohol in her blood. In fact, her blood alcohol reading was well over twice the prescribed limit. The circumstances which explain how that came about are relevant, but I think the focus in considering the application of s 47B(3)(b) must be on the conduct which constitutes the offence. I say that because an important purpose, if not the most important purpose, behind the legislative provisions which create the offence is … “the establishment of safe driving conditions”.
In my opinion, despite the powerful mitigating circumstances in this case, in determining whether the offence is trifling the focus must be on the conduct which constitutes the offence. Such an approach leads to the conclusion that the offence is not trifling within s 47B(3)(b) of the Road Traffic Act. [10]
[10] At [60]-[64].
In the present case, the purpose of section 250 of the National Law is similar to the purpose of section 47B of the Road Traffic Act, namely to protect the safety of road users and others who may be endangered by vehicles driven by impaired drivers. As in respect of section 47B of the Road Traffic Act, in determining whether an offence is trifling, the primary consideration will be the conduct comprising the offence and only limited weight can be given to the explanation for the commission of the offence. This is reinforced by the maximum penalty being dependent on the amount of excess working hours, with an excess of more than thirteen and a half hours being classified as “critical”.
Neither of the respondents gave evidence before the Magistrate on the basis of which adequate findings could be made as to their reading or understanding of page 22 of the Diary or their belief concerning the counting of hours. However, regardless of their subjective belief, any belief of the type referred to by the Magistrate could not have been a belief on reasonable grounds because, objectively considered, page 22 of the Diary makes it plain that the clock is not restarted merely because a driver has a second major rest period. In these circumstances, the offences committed by the respondents were incapable of being characterised as “trifling” or “so trifling that it is inappropriate to impose a penalty”.
The Magistrate erred in finding that the offences were trifling. The orders made by the Magistrate must be set aside and the respondents resentenced.
Conclusion
In each appeal, I allow the appeal and set aside the orders made by the Magistrate. I will hear submissions on re-sentencing, including any evidence that the respondents wish to give concerning their state of mind.