National Heavy Vehicle Regulator v Obst; National Heavy Vehicle Regulator v Turnbull (No 2) - [2021] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
NATIONAL HEAVY VEHICLE REGULATOR v OBST; NATIONAL HEAVY VEHICLE REGULATOR v TURNBULL (No 2)
[2021] SASC 50
Judgment of the Honourable Justice Blue
6 May 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONVICTION
The National Heavy Vehicle Regulator appealed against orders by a Magistrate dismissing charges without conviction or penalty pursuant to section 23(1)(a) of the Sentencing Act 2017 (SA) in each matter. The appeals were previously allowed: National Heavy Vehicle Regulator v Obst; National Heavy Vehicle Regulator v Turnbull [2021] SASC 37.
On resentencing, the respondents gave evidence concerning the circumstances of the offending and their personal circumstances.
Held:
1.Although each respondent believed that he was complying with the 12 in 24-hour driving rule, is unlikely to commit such an offence again and has good character and antecedents, ignorance of the law is not an excuse and this is a regulatory offence with important safety implications if there is non-compliance by drivers. In the circumstances, there is not good reason not to impose a conviction pursuant to section 24 of the Sentencing Act 2017 (SA) (at [18]).
2.In view of the substantial mitigating factors, each respondent is fined $1,200, and is to pay prosecution costs of $150 and the victims of crime levy is $240 (at [19]-[21]).

Sentencing Act 2017 (SA) ss 23(1)(a), 24; Heavy Vehicle National Law (South Australia) Act 2013 (SA), referred to.
Department of Planning, Transport & Infrastructure v Brown [2014] SASC 113; Savage v Police [2011] SASC 13, considered.

NATIONAL HEAVY VEHICLE REGULATOR v OBST; NATIONAL HEAVY VEHICLE REGULATOR v TURNBULL (No 2)
[2021] SASC 50

BLUE J: On 14 April 2021 I allowed an appeal by the National Heavy Vehicle Regulator (the Regulator) against orders by a Magistrate dismissing the charge without conviction or penalty pursuant to section 23(1)(a) of the Sentencing Act 2017 (SA) (the Act) in each of these matters.[1] I set aside the orders of the Magistrate and subsequently heard submissions on resentencing.
[1] National Heavy Vehicle Regulator v Obst; National Heavy Vehicle Regulator v Turnbull [2021] SASC 37.
Mr Obst and Mr Turnbull each gave evidence concerning the circumstances of the offending and their personal circumstances.
Background
Mr Obst
Mr Obst gave evidence that on 16 October 2019 at 9.00 am he departed from Port Pirie driving a semi-trailer loaded with hay destined for Charleville in Queensland. He drove for 10 and a quarter hours including three quarter-hour breaks (nine and a half hours driving). At 7.15 pm he took a major rest break for seven and three-quarter hours. At 3 am he drove for six hours including a half-hour break (five and a half hours driving) until 09.00 am on 17 October. He did not feel fatigued over that 24-hour period.
Mr Obst gave evidence that he is now 48 years old. He obtained his heavy combination drivers licence when he was 20 years old. He commenced driving heavy vehicles part-time. He has not driven on a full-time basis. In 2006 he was involved in a serious motor vehicle accident in which he was hit by a car, causing serious injuries that prevented him from driving heavy vehicles. As a result of those injuries, he receives a disability pension. In 2019 he resumed driving heavy vehicles on a part-time basis to supplement his disability pension.
Mr Obst gave evidence that over the years the Regulator has issued new editions of the National Heavy Vehicle Regulator Work Diary (the Diary) containing new instructions. When he received the most recent edition of the Diary, he read the instructions, including both columns of page 22. His understanding after reading that page was that, if he took a major rest break, the 24-hour clock started again at zero. His Diary had been inspected by inspectors many times over the years and he had never been told that he had breached the 12 in 24-hour rule.
Mr Obst gave evidence that he does not have any prior traffic or other convictions. He financially supports his wife, who is his full-time carer at home, and their three children from his disability pension and more recently part-time truck driving.
Mr Turnbull
Mr Turnbull gave evidence that on 16 February 2020 at 10.00 am he departed from Upper Horton in central New South Wales driving an unladen semi-trailer destined for South Australia to collect hay. He drove for 11 and a half hours including two half-hour breaks (10 and a half hours driving). At 9.30 pm he took a major rest break for eight hours. At 5.30 am he drove for four and a half hours including a half-hour break (four hours driving) until 10.00 am on 17 February. He ultimately arrived at his destination at 2.00 pm on that day.
Mr Turnbull is now 39 years old. He obtained his heavy combination drivers licence when he was about 33 years old. He lives on a farm at Upper Horton with his wife and their two children. He drives the semi-trailer for the farm. In the recent drought, he drove substantial distances to collect hay for the farm animals. He also undertook some part-time driving to supplement his income from the farm. He has not driven on a full-time basis. He did not feel fatigued over that 24-hour period.
Mr Turnbull gave evidence that he knew of the 12 in 24-hour driving rule. He assumed that the 24-hour day began at midnight and ended at midnight 24 hours later. He checked this understanding with his father, who had done the same amount of driving, and that was also his father’s understanding. He looked at the instructions in the Diary but it is evident that he did not carefully read the instructions on page 22. His Diary had been inspected by inspectors many times over the years and he had never been told that he had breached the 12 in 24-hour rule.
Mr Turnbull’s family has suffered financial strain as a result of the recent drought and bushfires. He does not have any prior traffic or other convictions. He undertakes considerable volunteer and community work.
Appropriate penalty
In Department of Planning, Transport & Infrastructure v Brown,[2] Brown drove for 15 and a half hours in a 24-hour period in contravention of regulation 16(3)(a) of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 (SA), being the predecessor of the Heavy Vehicle National Law and Heavy Vehicle (Fatigue Management) National Regulation. This was a critical risk breach for which the maximum penalty was then $10,000. A Magistrate imposed a fine of $400. Stanley J allowed an appeal by the prosecution on the ground that the penalty was manifestly inadequate and imposed a fine of $1,750. Stanley J said that an appropriate starting point, before consideration of aggravating or mitigating factors, was 20 to 25 per cent of the maximum penalty (giving $2,000 to $2,500). Stanley J reduced the penalty on account of mitigating factors that Brown had no prior convictions and supported his partner and two children.
[2] [2014] SASC 113.
In relation to the approach to sentencing, Stanley J said:
The purpose of the legislation is to ensure the safety of road users. This requires that drivers of heavy vehicles adhere to certain working hours and rest breaks. Parliament intended that penalties not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers who flout the maximum work hours mandated by the regulations.
…
The fine of $400 imposed by the magistrate is well below an adequate penalty for this offending. It is important that drivers of heavy vehicles understand the importance of complying with the requirements of the Act. The penalty imposed fails to reflect the need for general and specific deterrence. Deterrence is of particular importance in achieving the public safety purpose which underpins the statutory scheme. No doubt the driving of heavy transport vehicles is attended by commercial pressures. The purpose of the legislation is to ensure that the imperatives of road safety override those commercial imperatives. Accordingly, where drivers are tempted to drive for excessive periods which puts the safety of other road users and themselves at risk, courts must impose penalties which deter them from succumbing to such temptation.[3]
[3] At [15], [18]. (Footnotes omitted)
Recording of conviction
Mr Turnbull and Mr Obst invite me to impose a penalty without recording a conviction pursuant to section 24 of the Act.
Section 24 provides:
24—Imposition of penalty without conviction
If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age, or physical or mental condition, of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Mr Turnbull and Mr Obst each submit that they are unlikely to commit such an offence again and, having regard to their good character and antecedents, good reason exists for not recording a conviction.
I find that Mr Turnbull and Mr Obst are unlikely to commit the offence of exceeding driving hours again. I accept that they each have good character and antecedents. On the one hand, I accept that their belief that they were complying with the 12 in 24-hour driving rule is a mitigating factor. On the other hand, ignorance of the law is not an excuse and this is a regulatory offence with important safety implications if there is non-compliance by drivers.
In Savage v Police[4] Savage pleaded guilty to, and was convicted of, using a mobile phone while driving. He only used the phone to check the time and contended that the Magistrate erred in not exercising the discretion not to record a conviction under the predecessor of section 24 of the Act. Nyland J dismissed the appeal. Nyland J said:[5]
As far as s 16 is concerned, it is well established that the discretion not to record a conviction should be used sparingly in respect of social and regulatory offences.[6] The assumption that underlies s 16 is that in the ordinary course a conviction will be recorded, unless good reason exists not to do so.[7]
[4] [2011] SASC 13; (2011) 208 A Crim R 571.
[5] At [21]. (Footnotes in original)
[6] Piva v Brinkworth (1992) 59 SASR 92 at 95 (Duggan J); Vitlov v Lewis [2004] SASC 83 at [9] (Kelly J); Forgione v Police [2008] SASC 54 at [15] (Kelly J); Brown v Police [2009] SASC 45 at [13] (Nyland J).
[7] Sims v Police (2000) 30 MVR 524; [2000] SASC 102 Bleby J at [7].
I am sympathetic to the position of Mr Turnbull and Mr Obst. However, as observed above, ignorance of the law is not an excuse. This is a regulatory offence with important safety implications if there is non-compliance by drivers and general deterrence plays an important role in the exercise of the sentencing discretion. In the circumstances, there is not good reason not to record a conviction.
Amount of fine
The maximum fine for a critical risk breach is $17,100. It is common ground that it is appropriate to adopt a starting point of 20 to 25 per cent of the maximum penalty in accordance with the approach identified in Department of Planning, Transport & Infrastructure v Brown.[8] This gives a starting point, before consideration of aggravating or mitigating factors, of $3,420 to $4,275. There are no aggravating factors. There are significant mitigating factors. Each of Mr Obst and Mr Turnbull have no prior convictions for traffic or other offences and have good characters. They committed the offences in the honest but mistaken belief that they were complying with the 12 in 24-hour driving rule. They financially support their respective families. In addition, they have been subjected to the appeal process as a result of an error by the Magistrate rather than their conduct in the hearing before the Magistrate.
[8] [2014] SASC 113.
In all the circumstances, an appropriate starting point in respect of each of Mr Obst and Mr Turnbull is a fine of $2,000. The maximum available discount for their early guilty pleas is 40 per cent and the Regulator does not contend that allowing the maximum discount would be inappropriate. Each of Mr Obst and Mr Turnbull will be fined $1,200.
The Regulator seeks prosecution costs of $150 in respect of each of Mr Obst and Mr Turnbull. The Regulator does not seek payment of court fees. The victims of crime levy is $240. The Regulator does not seek the costs of the appeal.
Order
In respect of each of Mr Obst and Mr Turnbull, I record a conviction, impose a fine of $1,200, order that they each pay prosecution costs of $150 and note that the victims of crime levy is $240 each. This results in a total of $1,590 payable by each of them.
I make no order as to the costs of the appeal.