Police v Spooner - [2015] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SPOONER
[2015] SASC 196
Judgment of The Honourable Justice Vanstone
14 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
Prosecution appeal against the order of a magistrate reducing the number of demerit points incurred for speeding offence - respondent exceeded the speed limit by 24 kilometres per hour - the magistrate found proper cause to reduce the number of points incurred from five to one - whether magistrate erred in finding proper cause to reduce points incurred - whether failure of respondent's speedometer rendered offence atypical - whether consequences to the respondent from loss of licence relevant to proper cause.
Held: appeal allowed. The circumstances of the offending did not amount to proper cause. The offence was not atypical. Proper cause may not be found in the effects of licence disqualification upon an offender.
Australian Road Rules Rule 20; Road Traffic Act 1961 (SA); Motor Vehicles Act 1959 (SA) s 98B; Motor Vehicles Regulations 2010 (SA) Schedule 4, referred to.
Gilbert v Owen (1991) 14 MVR 235; Dycer v Police [2010] SASC 241; Holness v Police (2010) 272 LSJS 501; Svilans v Police [2014] SASC 173; Miles v Police [2012] SASC 69, considered.

POLICE v SPOONER
[2015] SASC 196
Magistrates Appeal
Criminal

VANSTONE J: The police appeal against the order of a magistrate reducing the number of demerit points to be incurred by the respondent upon his conviction for speeding.
The respondent, Reginald George Spooner, pleaded guilty in the Murray Bridge Magistrates Court to driving his Harley Davidson motor bike over the speed limit contrary to Rule 20 of the Australian Road Rules under the Road Traffic Act 1961 (SA).
Pursuant to s 98B of the Motor Vehicles Act 1959 (SA) the respondent applied for a reduction in the number of demerit points to be incurred. Over opposition by the police prosecutor the magistrate ordered that the number of demerit points incurred be reduced from five points to one point.
The appellant challenges that decision, contending that the magistrate erred in her evaluation of the evidence before her. The appellant argues that the offence was not trifling and that there was no proper cause to reduce the number of points incurred.
Background
The offence occurred on 31 October 2014 on Reedy Creek Road near Palmer. Police stopped the respondent having recorded his speed at 124 kilometres per hour in an area where the speed limit was 100 kilometres per hour. When told of his speed and of the applicable speed limit the respondent was alleged to have said: “Why is it 100 here anyway? Bloody revenue raising”. He also said words to the effect: “Please don’t defect me but my speedo is not working”. The police officer who detected the offence was unable to assess the truth of that statement and so no defect notice was given.
In evidence before the magistrate the respondent said that not long before the offence he had commissioned a “complete re-wiring” on his motor bike, which was done at “Rob’s Motor Cycle Repairs”. It was done because the indicators were not working and there were “a couple of other issues”. He said he had retrieved his motor bike on the day before the offence. During that ride he noticed that the speedometer was not working. He was then about 30 kilometres from home. He decided to continue riding towards Tailem Bend, where he was intending to join several others, including the mechanic who had worked on his motor bike. He added that he believed the applicable speed limit on that stretch of road to be 110 kilometres per hour and that he endeavoured to keep his speed to approximately that rate. When he was pulled over it came as a surprise to him that he was travelling as fast as 124 kilometres per hour. He also testified that his partner was about to lose her licence and it would be difficult to take their five year old child to kindergarten at Gawler without either of them having a licence. He said he worked in Gawler as a tattooist. Normally he drove to and from work.
The legislation
Section 98B of the Motor Vehicles Act provides that upon conviction (or expiation) for certain offences, which include speeding offences, the number of demerit points prescribed in regulations relating to that offence are, subject to the section, incurred. Schedule 4 of the Motor Vehicles Regulations 2010 (SA) provides that an offence of speeding involving a speed of 20 or more kilometres per hour, but less than 30 kilometres per hour over the speed limit, incurs five demerit points.
Section 98B(4) provides as follows:
(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.
It can be seen that there are two bases upon which the number of demerit points to be incurred can be reduced. Each must be supported by evidence on oath. The first is that the offence is trifling, and the second that there is “other proper cause”.
Here it was not suggested that the offence was trifling. Rather, the respondent relied on his assertion that the speedometer on his motor bike was not working, as well as giving evidence of the difficulties which would confront him and his partner were he to lose his driver’s licence.
What is encompassed by the expression “other proper cause” has been the subject of examination in a number of decisions in this Court. In Gilbert v Owen (1991) 14 MVR 235 Olsson J discussed the statutory predecessor to s 98B(4). His Honour found that the proper cause must relate to the circumstances of the offence rather than of the offender, and that it must be such as to distinguish it from the more serious or typical breach of the section, so as to render it, in practical terms, a lesser offence. While holding that there was no closed category of cases, he expressed the view that a fleeting offence, or one which did not cause embarrassment to other road users, or one resulting from the need to exercise a rapid judgment in a particular situation might qualify. That approach has been followed regularly, including in Dycer v Police [2010] SASC 241 per Anderson J, Holness v Police (2010) 272 LSJS 501 per Sulan J and Svilans v Police [2014] SASC 173 per Kourakis CJ.
A slightly more flexible approach was taken by Doyle CJ in Miles v Police [2012] SASC 69. Having referred to the line of authorities just mentioned, the former Chief Justice said this at [25]:
However, there are some cases in which consequences for the offender have been taken into account. As to the circumstances of the offence, the cases suggest that “proper cause” refers to something different from a trifling offence, and so not necessarily as minor a matter as that, but nevertheless something sufficiently out of the ordinary to warrant a reduction in demerit points. Because the cases are not uniform on this point, I propose to consider both aspects, that is, the circumstances of the offence and the circumstances of the offender.
The Chief Justice found that the offence there under consideration was a relatively minor one, but that there was no circumstance which might lead to a reduction. There was nothing out of the ordinary about the circumstances of it. Doyle CJ went on to consider the defendant’s circumstances and found that he faced hardship arising both from the need to use his driver’s licence for his work and because of the medical condition of his son. However, his Honour found that the defendant was aware of these challenges at the time of the offence. It was held that, even putting together the circumstances of the offending and the impact on the defendant’s employment and family, there was no proper cause to reduce the number of demerit points.
I tend to the view that “proper cause” does not encompass impacts which might be suffered by an offender if the prescribed number of demerit points are incurred. The preponderance of authority favours that view.
Consideration
In the present matter the magistrate referred extensively to the judgment in Miles. Discussing the nature of the offence, her Honour found that there was no evidence of embarrassment to other road users and that the fact that the speedometer on the respondent’s motor bike was out of order was “an atypical circumstance”. The magistrate held that the circumstances of the offence amounted to proper cause. Relying on Doyle CJ’s judgment, the magistrate further had regard to the difficulties which would be faced by the respondent and his wife were both without their driver’s licences at the same time. Adding those matters to the proper cause already found, determined that the number of demerit points to be incurred should be reduced from five to one point.
In my view the circumstances of the respondent’s offending did not amount to proper cause. The offence was a typical one of its kind. The respondent’s speed was well over the speed governing that stretch of road, and indeed, well over even the speed limit which the respondent claimed to believe applied. The respondent’s speedometer was not working at all. It is not even as if he were misled by a speedometer which underestimated his true speed. In circumstances where a driver’s speedometer is not working it is up to the driver to ensure that he or she drives well within the speed limit. That is not something which would be found to be difficult by any but the most inexperienced driver. The respondent put to me that judging speed is harder on a motor bike than in a car. That may be, but it is all the more reason to drive conservatively when the assistance of a speedometer is not available.
As I read the magistrate’s reasons the reliance on hardship caused to the respondent was very much secondary to the findings about the offence itself. In any event, the hardship which the respondent testified he and his wife would suffer was, as Doyle CJ in Miles said, very much a hardship which the respondent must have known would result from a further traffic infringement. Those considerations should have caused him to take particular care. The consequences he faced were not unusual ones.
The loss of a driver’s licence is keenly felt by almost all drivers. Naturally the impact is greater for those who rely on their licences to facilitate their work, or to get them to their place of work, or to transport members of their family. But all these things are known to the driver and in the usual case cannot be said to amount to undue hardship. In any event, as I observed, strictly, proper cause may not be found in the effects of licence disqualification upon an offender.
Conclusion
I would uphold the appeal and set aside the magistrate’s order that the demerit points incurred be reduced.