Roberts v Police - [2013] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBERTS v POLICE
[2013] SASC 190
Judgment of The Honourable Justice Stanley
13 December 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT OBEYING TRAFFIC LIGHTS AND TRAFFIC ARROWS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. The appellant pleaded guilty to the offence of being the owner of a vehicle detected entering an intersection showing a red traffic light contrary to s 79 of the Road Traffic Act 1961 (SA) and rule 59 of the Australian Road Rules. He gave evidence before a magistrate in support of an application to have the offence deemed trifling pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA). He was not sworn or affirmed prior to giving evidence. The magistrate found that the offence was not trifling. The appellant was convicted and ordered to pay a fine of $464. As a result of the conviction, he incurred three demerit points.
Whether the proceedings miscarried on the basis that the appellant’s evidence was not given on oath. Whether the magistrate erred in concluding that the offence was not trifling. Whether the magistrate erred by failing to hear submissions with respect to s 15, s 16 and s 17 of the Criminal Law (Sentencing) Act 1988 (SA). Whether the sentence was manifestly excessive.
Held (dismissing the appeal):
1. Although the appellant’s evidence was not given on oath, it did not affect the magistrate’s decision. The magistrate did not reject the credibility of the appellant’s account by reason of his evidence not having been given on oath (at [12] - [14]).
2. Having regard to the circumstances, the offence was not trifling (at [17] - [20]).
3. Although the appellant is unlikely to commit the offence again, there is no good reason to impose penalty without recording a conviction or to reduce the number of demerit points incurred by the appellant (at [23] - [34]).
4. The sentence was not manifestly excessive (at [37] - [40]).
Road Traffic Act 1961 (SA) s 79, s 79B(2); Expiation of Offences Act 1996 (SA) s 8, s 8A; Motor Vehicles Act 1959 (SA) s 98B(4); Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 15, s 16, s 17; Road Traffic (Miscellaneous) Regulations 1999 (SA) s 15; Motor Vehicles Regulations 1996 (SA); Victims of Crime Act 2001 (SA) s 32(2); Victims of Crime (Fund and Levy) Regulations 2003 (SA); Summary Procedure Act 1921 (SA) s 189A, referred to.
Gazepis v Police (1997) 70 SASR 121; Dean v Police [2008] SASC 55; Zanker v Hyndman (1990) 11 MVR 224; Anderson v Gerhardy (1991) 13 MVR 573; Siviour-Ashman v Police (2003) 85 SASR 23; Police v Ludlow (2008) 253 LSJS 272; Department of Planning, Transport and Infrastructure v Kreig [2013] SASC 37; Taylor v Hayes (1990) 53 SASR 282; Police v Varma (2013) 116 SASR 532; Roder v Police (2000) 32 MVR 359; Piva v Brinkworth (1992) 59 SASR 92; Vitlov v Lewis [2004] SASC 83; Forgione v Police [2008] SASC 54; Brown v Police [2009] SASC 45; House v King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Jongewaard [2009] SAC 346, considered.

ROBERTS v POLICE
[2013] SASC 190
STANLEY J:
Introduction

This is an appeal against sentence. The appellant, Jeremy Andrew Roberts, pleaded guilty to the offence of being the owner of a vehicle involved in the commission of a prescribed offence, namely entering an intersection showing a red traffic light, contrary to s 79 of the Road Traffic Act 1961 (SA) (“Road Traffic Act”) and rule 59 of the Australian Road Rules. He was convicted and ordered to pay a fine of $464. As a result of the conviction, he incurred three demerit points.
An extension of time is sought to bring the appeal. It is not opposed.
The facts
On 10 November 2012, the appellant’s vehicle was detected by a photographic detection device entering an intersection showing a red traffic light. He received an expiation notice for the infringement in the amount of $464. By letter dated 18 December 2012, he wrote to the Commissioner of Police applying to have the offence reviewed as trifling pursuant to s 8A of the Expiation of Offences Act 1996 (SA). Police notified the appellant by letter dated 2 January 2013 that the expiation notice would not be withdrawn. On 15 January 2013, the appellant elected to be prosecuted for the offence, pursuant to s 8 of the Expiation of Offences Act 1996 (SA). He was subsequently charged on complaint and appeared in the Mount Barker Magistrates Court on 17 April 2013. On that date, the matter was adjourned. The court record relevantly bears the following endorsement:
“FOR NEGOTIATIONS – Possible trifling application”.
The matter came before the Court again on 15 May 2013. The appellant appeared in person. He pleaded guilty to the offence and the matter proceeded as an application under s 98B(4) of the Motor Vehicles Act 1959 (SA) (“Motor Vehicles Act”). The appellant elected to give evidence. It appears from the transcript of proceedings and an email from the court registry, that he was not sworn or affirmed prior to giving evidence.
The appellant’s evidence was that while driving along Mount Barker Road towards the roundabout at the intersection with Adelaide Road, he observed a truck travelling at high speed which turned out in front of him. The truck entered the dual-carriage roundabout on the outside lane and the appellant was travelling on the inside lane. They both drove around the roundabout, turning right on to Adelaide Road. As they exited the roundabout, the appellant accelerated and changed into the left lane ahead of the truck. The truck then caught up to his vehicle and tail-gated him as they approached the upcoming intersection. The intersection is approximately 200 metres from the roundabout. The appellant noticed the traffic light at the intersection turn amber. He said that he was concerned that the truck was not following his vehicle at a safe distance and that if he braked to stop for the traffic light he was going to put himself and his two daughters who were in the rear of the vehicle in danger of a rear-end collision. He drove through the intersection showing a red signal to avoid a collision.
In a subsequent affidavit, the appellant states he was mistaken when he told the magistrate that his daughters were in the vehicle at the time of the offence. After checking his records, he realised that he must have been on his way to collect them from an appointment.
Two photographs of the appellant’s vehicle taken by the detection device were tendered by the police prosecutor. The appellant also tendered two satellite images from Google Maps with annotations and markings. The photographs tendered by police show the appellant’s vehicle passing through the intersection at various stages. The first photo was taken around half a second after the traffic light had turned red and shows the appellant’s vehicle having just crossed the stop line. In the second photograph, which was taken one second after the first, the appellant’s vehicle has travelled around 15 metres past the stop line and a distance of around 10 metres is visible between the stop line and the right-side field of view of the camera. The truck does not appear in either photograph. The appellant contended that 25 metres is not sufficient distance to expect a truck that is coming to a halt to come into the field of view of the camera in the second photograph. He attempted to use the annotated satellite images to demonstrate that it would be unlikely that the detection device would capture the truck, even though it was tail-gating him and forced him to enter the intersection to avoid a collision. He admitted to possessing no particular expertise on the topic, and based his analysis on rudimentary calculations of the intersection.
The appellant was questioned by the magistrate and the police prosecutor as to why he overtook the truck, having seen it driving dangerously, and why he did not move into the right lane when he noticed the truck tail-gating him. His explanations were that he needed to be in the left lane to avoid the upcoming congestion of cars waiting to turn from the right lane on to the freeway and that his destination was a left turn off Adelaide Road into Mount Barker. He said that he could not recall whether the right lane was free to move into but conceded that, in retrospect, it would have been a safer alternative.
The magistrate was not satisfied that the offence was trifling and refused the application. In her reasons the magistrate said:
I am not satisfied that this is a trifling application and I will not reduce the demerit points.
You did not take action that I consider required you to go through the red traffic light. There were alternatives for you to have taken action if you were worried about this truck tailgating you. You had a distance of 200 metres to make other decisions other than to continue in that laneway and there is a second carriageway you could have used at that time.
I have the benefit of two photographs from the police and on your evidence the distance between your car and where the second photograph begins is 25 metres and the presence of the truck is still not there.
I am not satisfied that your actions were necessary so your application is refused and I put you back in the same position as if you were going to pay the fine which was $464.
The appeal
The appellant advances a number of grounds of appeal. The first is that the magistrate erred in concluding that the offence was not trifling pursuant to s 98B(4) of the Motor Vehicles Act. The next ground is that the proceeding miscarried because his evidence was not given on oath, in accordance with the procedure prescribed in s 98B(4). The appellant further submits that the magistrate erred by failing to hear submissions with respect to s 15, s 16 and s 17 of the Criminal Law (Sentencing) Act 1988 (SA). The final ground is that the sentence was manifestly excessive.
Consideration
Evidence on oath
It is convenient to deal first with the ground that the appellant was not sworn or affirmed prior to giving evidence. Section 98B(4) of the Motor Vehicles Act provides as follows:
98B—Demerit points for offences in this State
(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 is well established that before exercising its power under s 98B, the Court must hear evidence on oath and it is not open to the parties to waive that requirement.[1] It is conceded by the police that the appellant did not give evidence on oath and, to the extent that the magistrate was considering an application under s 98B(4), the proceeding was affected by a significant procedural irregularity.
[1] See for example Dean v Police [2008] SASC 55 at [14] and the authorities cited therein.
In Gazepis v Police,[2] the Court considered whether a conviction should be set aside because of an irregularity that occurred during the trial. The magistrate ordered the appellant to leave the courtroom briefly while he reprimanded counsel for objecting to a question in cross-examination, in a manner capable of conveying to the defendant the answer that he should give to the question. Doyle CJ, with whom Lander and Bleby JJ agreed, considered that the irregularity did not cause an unfair trial. He said:[3]
[2] (1997) 70 SASR 121.
[3] Gazepis v Police (1997) 70 SASR 121 at 129.
The powers of this Court on hearing the appeal are to be found in s 42(5) of the Magistrates Court Act 1991 (SA). The power is expressed in a form which is quite common, and includes the power to “confirm, vary or quash the judgment subject to the appeal”.
Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, eg, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O'Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
In the present case I am satisfied that what happened could not have affected the decision reached by the magistrate. I am so satisfied because, as I have indicated, the defendant shortly after the incident in question became aware of the very concern that the magistrate expressed while the defendant was out of the court. The defendant was as well informed as he would have been had he been in court all of the time.
…
On the other hand, such authority as I have found, does not support the view that an error affecting the manner in which the court conducts a hearing necessarily vitiates the trial. This matter was considered by the High Court in Wilde v The Queen. The court was there considering the question of what errors were “so radical or fundamental that by their very nature they exclude the application of the proviso” (at 373). The majority (Brennan, Dawson and Toohey JJ) went on to say (at 373):
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted ... [the cases] provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial ...
I do not consider that, in appeals such as the present one where the proviso is not in terms applicable, the court should adopt a rigid or technical approach to errors such as occurred here. I consider that the court should make an assessment of the significance of the error that occurred. I am content to adopt the approach taken by the Full Court of the Supreme Court of Victoria in R v Kerr (No 2) [1951] VLR 239. I do so even though that was an appeal from a conviction by verdict of a jury, and so the proviso was applicable. In that case the court had to consider the significance of the public having been wrongly excluded during part of the trial. The court acknowledged (at 241) that the question for it “does not depend upon the effect which the departure in question has upon the verdict; but is rather whether there has been a serious departure from essential requirements of the law”.
In my view, the irregularity in the present case did not affect the magistrate’s decision. The appellant was given the opportunity to give evidence which the magistrate has clearly considered in coming to her conclusion. There is no suggestion that the magistrate rejected the credibility of the appellant’s account by reason of his evidence not having been given on oath. This case can be distinguished from decisions such as Dean v Police,[4] where the appellant was not afforded the opportunity to give evidence in support of his application under the section and a subsequent finding was made that there was no evidence to support the submissions.
[4] [2008] SASC 55. See also, Zanker v Hyndman (1990) 11 MVR 224; Anderson v Gerhardy (1991) 13 MVR 573.
For completeness, I add that the appellant’s affidavit sworn 16 August 2013 contains evidence in essentially identical terms to the unsworn evidence given by him before the magistrate. Accordingly, I turn to consider the issue of whether the appellant’s offending was trifling.
Was the offence trifling?
The appellant submits that the magistrate erred in finding that the offence was not trifling pursuant to s 98B(4) of the Motor Vehicles Act.
The conclusion that an offence is trifling is a finding of fact. It is a characterisation of a particular state of affairs, not an exercise of discretion. The question on appeal is whether that conclusion was wrong, having regard to all the circumstances of the offence.[5] The notion of trifling has been considered by this Court on a number of occasions. In Siviour-Ashman v Police,[6] Doyle CJ reviewed the authorities dealing with the topic. The relevant principles which can be distilled from that analysis are as follows:
·the word “trifling” means of slight importance, insignificant or of little moment;
·the fact that an offence is serious does not, of itself, preclude the finding that a particular instance of it is trifling;
·a normal or typical example of the offence ordinarily will not be trifling;
·ordinarily there should be a soundly based belief in the lawfulness of the impugned conduct;
·the court must pay regard to the purpose behind the obligation to observe the statutory requirement in question;
·a deliberate breach will rarely be described as trifling save in cases where humanitarian considerations or considerations of urgency arise.
[5] Police v Ludlow (2008) 253 LSJS 272 at [15]; Department of Planning, Transport & Infrastructure v Krieg [2013] SASC 37 at [36].
[6] (2003) 85 SASR 23 at [23]-[42].
In support of the contention that the finding was erroneous, the appellant relies on the evidence he gave before the magistrate, reproduced in the affidavit sworn by him on 16 August 2013. That evidence has been summarised earlier in these reasons. The appellant contends that the magistrate erred in finding that the appellant had a distance of 200 metres, the approximate distance from the roundabout to the traffic lights, to take alternative action, rather than to continue in the left lane ahead of the truck and enter the intersection on a red signal. The appellant submits that it was only in the 80 metres leading up to the intersection, once the traffic light turned amber, that he had to consider taking alternative action. He further submits that the truck had only caught up to him at some point after exiting the roundabout and had not been tail-gating him for the entire 200-metre distance. The appellant further submits that the magistrate erred in finding that he could have moved into the right laneway to avoid the truck. He says there was no evidence to suggest that the lane was clear for him to do so.
In my view, there was no error in the magistrate’s approach. The submissions which the appellant now advances were made before the magistrate. The appellant observed the truck driving dangerously prior to entering the roundabout. He manoeuvred his vehicle into position in front of the truck so as to avoid possible congestion ahead and so that he could continue along his normal route. The truck does not appear in either of the two photographs tendered by police and, more importantly, the second photograph. I am satisfied that if the truck was travelling at such a distance from the appellant’s vehicle so as to necessitate that he enter the intersection on the red signal, it would be expected that the truck would be visible in the second photograph. Similarly, the absence of the truck from the frame of the second photograph, in which the appellant’s vehicle has already travelled approximately 15 metres past the stop line, suggests that the truck was able to slow down enough not to have collided with the appellant, had he stopped at the traffic light.

In my view, it was open to the magistrate to conclude, and I am satisfied that, the offence was not trifling. Accordingly, I would dismiss this ground of appeal.
Sections 15, 16 and 17 of Criminal Law (Sentencing) Act 1988 (SA)
The appellant contends that the magistrate erred in failing to hear submissions with respect to s 15, s 16 and s 17 of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”). In the appellant’s affidavit sworn 16 August 2013, he states that he twice asked to make submissions on the Sentencing Act and the magistrate declined the requests, proceeding instead on the basis of an application pursuant to s 98B(4) of the Motor Vehicles Act.
By affidavit sworn 28 October 2013, the police prosecutor states that he spoke to the appellant about the matter prior to the hearing. The prosecutor deposes that the appellant maintained a view that the offence was trifling and the prosecutor understood that the appellant intended to make an application under s 98B of the Motor Vehicles Act or the type of application contemplated by s 15 of the Sentencing Act. He states that he does not specifically recall whether the appellant nominated a particular provision under which he sought to make submissions before the magistrate.
It is not strictly necessary to resolve whether or not the magistrate failed to hear the appellant’s submissions on s 15, s 16 and s 17 of the Sentencing Act. On the hearing of the appeal, both parties made submissions on the application of the provisions of the Sentencing Act. It is open to this Court to conduct a review of the evidence and determine whether to apply those provisions.[7] Further, these provisions are sentencing options which magistrates should customarily consider when fashioning a sentence for first offenders of this type, particularly where a defendant is self-represented. I turn now to consider each section.
[7] Taylor v Hayes (1990) 53 SASR 282.
Section 15 of the Sentencing Act provides as follows:
15—Discharge without penalty
(1)Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a) without recording a conviction, dismiss the charge; or
(b) upon recording a conviction, discharge the defendant without penalty.
(2)A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
A “special Act” is defined in s 3(1) as “an Act, regulation, rule, by-law or other legislative instrument that creates an offence or prescribes a penalty for an offence”. The Road Traffic Act 1961 (SA) is a special Act for the purpose of s 15 of the Sentencing Act.
The discretion contained in s 15 can be dealt with briefly. For the reasons given earlier, I do not consider that the offence was trifling. Accordingly, the discretion to discharge the appellant without penalty is not enlivened.
Section 16 of the Sentencing Act gives the court power to impose a penalty without recording a conviction. It states:
16—Imposition of penalty without conviction
(1)Where 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.
With some hesitation, I would accept that the appellant is unlikely to commit the offence of entering an intersection showing a red traffic light again. In Police v Varma,[8] the Full Court found that it could not be concluded that the appellant in that case would be unlikely to commit the offence of driving without due care again. The Court cited the following dictum by Duggan J in Roder v Police:[9]
I do not suggest that s 16 should never be applied to an offence of driving without due care, just as I do not suggest that s 15 should never be applied to such an offence. However, the circumstances in which it would be appropriate to apply s 16 to a case such as the present must be rare. The requirement that the court be of the opinion that the defendant is unlikely to commit such an offence again is difficult to establish in the case of an offence of driving without due care. Such acts are often committed unintentionally, as was the case here. It would seem difficult to reach an opinion that any driver was unlikely to commit an offence of this nature in the future. In my view it cannot be said that, in the case of this appellant, he is unlikely to commit an offence of driving without due care at any time in the future.
[8] (2013) 116 SASR 532.
[9] (2000) 32 MVR 359 at [16].
In my view, the offence of entering an intersection showing a red traffic light can be distinguished from the offence of driving without due care. While there may be circumstances in which a person inadvertently commits the former offence, it cannot be said that the offence is often committed unintentionally, as in the case of the latter offence. Moreover, there is good reason to find the appellant is unlikely to commit the offence again. He has not committed the offence previously. The past conduct of a person is often a good indicator of that person’s future conduct. This case has had a salutary effect on him. The circumstances in which this offence occurred is unlikely to result in the same conduct in the future.
However, considering the factors outlined in sub-section 16(1)(b), I do not think there is good reason not to record a conviction. The appellant has no criminal antecedents and has not previously been expiated for an offence of this nature. He is of good character, volunteering as a journalist for community organisations and his church. I am not satisfied, however, that these circumstances give rise to a good reason not to record a conviction. Similar observations were made by the Full Court in Varma:[10]
Further, the other matters identified in s 16 of the Sentencing Act also call for close attention. The fact that the defendant was 28 years of age, was of good character, had no criminal antecedents and was physically and mentally fit, did not, to our minds, provide good reason for not recording a conviction. Many offenders before the courts have these attributes. Drink driving offending is serious. The defendant drove his motor vehicle while his faculties were materially impaired. He was a danger to other road users. The above matters, in our view, do not give rise to good reason not to record a conviction.
[10] Police v Varma (2013) 116 SASR 532 at [43].
More importantly, I am bound by past decisions of this Court which indicate that the discretion not to record a conviction should be exercised sparingly in respect of social and regulatory offences.[11] Section 79 of the Road Traffic Act is a regulatory offence for this purpose. In Vitlov v Lewis,[12] Vanstone J made the following observations regarding the application of s 16 to regulatory offences:
In dealing with regulatory offences the deterrent aspect of punishment is to be emphasised. These matters were relevant to the Magistrate’s consideration of whether good reason existed for not recording a conviction. In my view, notwithstanding the weight of the matters of mitigation, I consider that his decision that convictions should be recorded was correct
[11] See for example, Piva v Brinkworth (1992) 59 SASR 92 at 95; Vitlov v Lewis [2004] SASC 83 at [9] Forgione v Police [2008] SASC 54 at [15]; Brown v Police [2009] SASC 45 at [13].
[12] [2004] SASC 83, [9].
Accordingly, I decline to impose a penalty without recording a conviction
Section 17 of the Sentencing Act deals with the court’s power to reduce a minimum penalty. It provides:
17—Reduction of minimum penalty
Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to—
(a)     the character, antecedents, age or physical or mental condition of the defendant; or
(b)     the fact that the offence was trifling; or
(c)     any other extenuating circumstances,
is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
Section 17 only applies where a statutory offence prescribes a minimum penalty.[13] An offence contrary to s 79B of the Road Traffic Act carries a maximum penalty of $3000. There is no minimum penalty and, accordingly, s 17 of the Sentencing Act has no application to the fine imposed on the appellant. Section 98B of the Motor Vehicles Act deals with the incurring of demerit points. For the offence of entering an intersection showing a red traffic light three demerit points will be incurred. For the reasons given earlier, I am of the view that no good reason exists to reduce the number of demerit points incurred by the appellant.
[13] Department of Planning, Transport & Infrastructure v Krieg [2013] SASC 37 at [27].
Manifestly excessive
The appellant submits that the fine, the formal recording of a conviction and the deduction of demerit points were manifestly excessive. The principles of law that govern appeals of this kind are well established.[14] In determining whether a sentence is manifestly excessive, the court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for that type of offending, the seriousness of the offending and the personal circumstances of the offender.
[14] See for example, House v King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Jongewaard [2009] SASC 346.
It is instructive to consider the relevant legislative scheme under which the appellant was convicted and sentenced. Section 79B(2) of the Road Traffic Act creates the offence of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence. Regulation 15 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) provides that breach of rule 59(1) of the Australian Road Rules is a prescribed offence for the purpose of s 79B(2) of the Road Traffic Act. Rule 59(1) provides that a driver must not enter an intersection showing a red traffic light.
An offence contrary to s 79B of the Road Traffic Act and rule 59 of the Australian Road Rules carries a maximum fine of $3000 in the case of a natural person. Section 98B of the Motor Vehicles Act provides that a person convicted of an offence within the meaning of s 79B of the Road Traffic Act will incur a prescribed number of demerit points. Schedule 4 of the Motor Vehicles Regulations 1996 (SA) prescribes that three demerit points will be incurred for a contravention of rule 59 of the Australian Road Rules.
Pursuant to s 32(2) of the Victims of Crime Act 2001 (SA) and Schedule 1 of the Victims of Crime (Fund and Levy) Regulations 2003 (SA), a levy of $160 is imposed on persons convicted of a summary offence. The court may not, at the time of convicting or sentencing the person for an offence, reduce the levy or exonerate the person from liability to pay the levy. In addition, s 189A of the Summary Procedure Act 1921 (SA) provides that the Court must, subject to certain exceptions (which have no application here), make an order for costs against a defendant fixed at $100.
After concluding that the offence was not trifling, the magistrate enquired as to the amount of the original expiation fee and was informed by the police prosecutor that it was $464 which included a levy of $60 (the lower amount referrable to the offence being expiated). The magistrate said that she would put the appellant back in the same position as if he had to pay the amount due under the expiation notice. Accordingly, she imposed a fine of $464. The effect of the magistrate imposing a fine of $464 was to reduce the amount that would have been payable under the original expiation notice, as she did not take into account the higher victims of crime levy payable where an offence is not expiated or the $100 prosecution fee.
Far from being manifestly excessive, in my view, the sentence tends towards being lenient. Having elected to be prosecuted, the appellant was fortunate that the higher victims of crime levy and the prosecution fee was not added to the amount of the original expiation notice. There is nothing to suggest that the magistrate was in error in recording the conviction. The incursion of three demerit points is prescribed by regulation and cannot be said to be manifestly excessive in the circumstances.
Conclusion
I would grant the appellant an extension of time within which to bring the appeal, but would dismiss the appeal. I will hear the parties as to costs.