Secker v Dept for Transport, Energy & Infrastructure (DTEI); Harris Refrigerated Transport P/L v DTEI - [2010] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SECKER v DEPT FOR TRANSPORT, ENERGY & INFRASTRUCTURE (DTEI); HARRIS REFRIGERATED TRANSPORT P/L v DTEI
[2010] SASC 17
Judgment of The Honourable Justice Layton
5 February 2010
TRAFFIC LAW - LOADS TO BE CARRIED BY VEHICLES - SOUTH AUSTRALIA - PENALTY
Appeals against sentence by both driver and trucking company operating a "B-triple" heavy vehicle - charged with exceeding vehicle's permitted mass of 42.5 tonnes by 40.45 tonnes and permitted length of 19 metres by 14.60 metres - constituted severe risk breach under section 120 of Road Traffic Act 1961 - trucking company had not obtained permit which would have exempted "B-triple" from prescribed mass and length limits - both appellants pleaded guilty and convicted - driver fined $2,500 and company fined $15,000 with conviction recorded - whether penalty manifestly excessive - whether Magistrate erred in failing to re-categorise breach as minor risk breach under s 129(4) of Road Traffic Act - whether matters contained in s130(2)(c) of Road Traffic Act are relevant to the exercise of discretion given by s 129(4).
Held: Appeals dismissed - combined mass of vehicle is only factor relevant to assigning a risk breach category under s 120 of Road Traffic Act - matters set out in s130(2)(c) are relevant only to deciding sanctions, including the level of fine, after the category of breach has been determined - penalties not manifeslty excessive in context of legislative scheme.
Road Traffic Act 1961 ss 113, 115, 120, 123(1), 124(1), 129(4), 130; Road Traffic (Mass and Loading) Regulations 1999 Schedule 1 reg 4; Road Traffic (Miscellaneous) Regulations 1999 reg 19FC; Road Traffic (Vehicle Standards) Rules rule 69(1)(d); Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006; Criminal Law (Sentencing) Act 1988 s 18A, referred to.

SECKER v DEPT FOR TRANSPORT, ENERGY & INFRASTRUCTURE (DTEI); HARRIS REFRIGERATED TRANSPORT P/L v DTEI
[2010] SASC 17
LAYTON J:
Introduction

These are two separate appeals against severity of sentence, relating to the same set of facts. The first appeal is by a trucking operator, Harris Refrigerated Transport Pty Ltd (“the Company”) and the second by one of the Company’s drivers (“the Driver”). The Company and the Driver pleaded guilty before a Magistrate to operating a heavy vehicle on 31 January 2009 which exceeded the mass and length limits prescribed in the Road Traffic (Mass and Loading) Regulations 1999 (SA) (“the Mass and Loading Regulations”). This constituted an offence under s 124(1) of the Road Traffic Act 1961 (SA) (“the Act”) for the Company and s 123(1) of the Act for the Driver. The offending vehicle was configured as a “B-triple”, a prime-mover and three attached trailers with a specific coupling system, the technicalities of which I will explain later in these reasons.
The Magistrate noted that according to the applicable legislative formula,[1] the maximum penalty for the Company for a severe risk breach was $207,500 for count 1 (the breach of mass and loading limit), and $2,500 for count 2 (exceeding the prescribed length limit). Invoking s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Magistrate imposed a total fine of $15,000 for both counts and recorded a conviction.
[1] See Road Traffic Act 1999 (SA) s129.
For the Driver, the Magistrate noted that the maximum penalty calculated for a severe risk breach count 1 was $42,500 and count 2 was $2,500. Again invoking s 18A, a total fine of $3,000 was imposed and no conviction was recorded.
Background
At 9.50pm on 31 January 2009, the offending B-triple (“the B-triple”) was stopped for inspection by two officers of the Department for Transport, Energy and Infrastructure (“the DTEI”) at a checking point in Stirling North, South Australia, on its way to Perth. The officers noted that the combined mass of the B‑triple was 82.95 tonnes and that the Driver was not in possession of the permit which would have allowed operation of a B-triple with a combined mass above the prescribed limit,[2] of 42.5 tonnes. The officers instructed him to continue to Port Augusta in the B-triple configuration and to leave the third trailer at a truck stop. The Driver complied with these instructions and continued his journey from Port Augusta with only two trailers, being a B-double configuration. The Company then instructed another of its drivers to collect the remaining trailer from Port Augusta and to continue with it to Perth.
[2] The permit system operates pursuant to ss 113 and 115 of the Act which provides for the Governor to make regulations to prescribe requirements about the mass and loading of motor vehicles, trailers and combinations.
The Crown contended before the Magistrate and on appeal that, without a B‑triple permit, the vehicle fell into the legislative definition of “a combination” which has a prescribed mass limit of only 42.5 tonnes.[3] The amount by which the B-triple exceeded the prescribed “combination” limit meant that the breaches were categorised as “severe risk breaches” under s 120 of the Act,[4] and led to the calculation of the maximum penalties pursuant to s 129(1) of the Act.
[3] Road Traffic (Mass and Loading) Regulations 1999, reg 4(1).
[4] See Road Traffic (Miscellaneous) Regulations 1999 (SA) Reg 19FC for prescribed limits of the three risk breach categories.
The appellants pleaded guilty but submitted that the breaches were merely technical. They contended that, notwithstanding the lack of a permit which would have cost a mere $60.50, the actual configuration of the B-triple was lawful, as the prime-mover involved was rated by its manufacturer as being capable of hauling a load of 84.5 tonnes.[5]   Further, that there was nothing unsafe about its load or its length. On 2 February 2009, two days after the offending, the Company obtained a B-triple permit for 82.5 tonnes.[6]
[5]    This is defined as its GCM in the Dictionary to the Road Traffic (Mass and Loading Requirements) Regulations1999 (SA).
[6]    Exhibit “GB1” to the affidavit of Graham Geoffrey Bray sworn 9 November 2009.
The Magistrate’s remarks on penalty
The Magistrate’s remarks were succinct. With respect to the Company, he was satisfied that the offending fell at the lower end of the scale, that the Company had not been attempting to avoid obtaining the permit and that the breaches were “technical”. On the other hand, he noted the “horrendous fine outlined in the legislation”.[7] In balancing these factors, the Magistrate imposed a low fine in comparison with the maximum.
[7] SA Government: Department for Transport, Energy and Infrastructure v Harris Refrigerated Transport Pty Ltd (Unreported remarks on penalty of Mr AA Grasso SM, Magistrates Court of South Australia, 19 August 2009) [4].
With respect to the Driver, the Magistrate noted that “a lot of what applies to your offending on 31.1.2009 also applied in relation to the allegations in the matter of Harris Refrigerated Transport”.[8] In imposing, again, a very modest fine compared to the maximum and in not recording a conviction, he took into account the facts that the Driver was acting in good faith on the assurances given to him by his employer and that he had not offended before.
[8] Secker v SA Government: Department for Transport, Energy and Infrastructure (Unreported remarks on penalty of Mr AA Grasso SM, Magistrates Court of South Australia, 19 August 2009) [2].
Grounds of appeal
The appellants submitted that, given the breach was merely technical, the Magistrate failed to exercise his discretion under s 129(4) of the Act to reclassify what was alleged to be a “severe risk breach” as a “minor risk breach”. This reclassification would have substantially reduced the maximum fine for the offences. Underlying this submission was the assertion that there was interplay between s 129(4) and s 130; in particular that the Magistrate, when exercising discretion under s 129(4), was obliged to take into account whether the characteristics of the applicable category of risk set out in s 130 are evident in the offending and to what extent. Consistent with this interpretation, the appellants argued that none of the s 130(2)(c) characteristics of severe risk breaches were evident and therefore the Magistrate ought to have reclassified the breach as minor.
This was a fresh argument that had not been raised before the Magistrate and was argued for the first time at the appeal. The appellants sought to adduce further evidence on appeal by way of affidavit material, to support their submissions. I rejected one of the affidavits of a director of the Company[9] on the grounds that it was argumentative and purported to interpret the legislative framework.
[9] Affidavit of Graham Geoffrey Bray sworn 4 November 2009.
A second affidavit of a director essentially formalised and expanded upon material which had been before the Magistrate by way of submissions. That material was not contradicted by the prosecution and, exercising my discretion, I have had regard to the following background contained in that affidavit.
In essence, a director of the Company deposed that this was the first time it had operated a B-triple vehicle and in anticipation, company officers had checked the DTEI website for any special permit requirements.[10] Unable to find any such requirements, and based on incorrect inferences they had made from communications with DTEI officers, Company staff formed the belief that there was no permit required.[11] The Company conceded that, subsequent to the offending, its officers were eventually able to find the relevant item on the website when later told of its existence. The Company also accepts that the requirement for a permit had been in place since March 1999.[12]
[10] Affidavit of Graham Geoffrey Bray sworn 29 October 2009 [9].
[11] Affidavit of Graham Geoffrey Bray sworn 29 October 2009 [16].
[12] Affidavit of Graham Geoffrey Bray sworn 29 October 2009 [17].
The respondent submits that there is no such interplay between s 129(4) and s 130, as contended by the appellant, and instead submits that the only factor relevant to determining risk category is the weight of the vehicle. Further, it was submitted that the s 130(2)(c) characteristics are relevant only for determining the level of fine after the risk category has already been determined.
The appellants’ alternative ground of appeal to the effect that the B-triple should have been allocated the prescribed mass limit of a B-double (62.5 tonnes) or the mass limit recommended by the manufacturer of the vehicle (84.5 tonnes) was abandoned at the hearing before me.
The Legislative Scheme
The relevant statutory and regulatory provisions which govern overloading are to be found in the Act, the Mass and Loading Regulations and the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Miscellaneous Regulations”). None of these instruments contains a definition of a B-triple or prescribes any mass limit for a B-triple. The mass limits of B-triple vehicles are accommodated outside the usual legislative scheme by a permit system which will be dealt with later in these reasons. [13]
[13] Pursuant to ss 113, 115 of the Act which provide for the Governor to make regulations to prescribe requirements and make exemptions as to the mass and loading of motor vehicles, trailers and combinations.
Defined categories of heavy vehicles
A B-triple which fails to obtain an exemption permit is caught by the definitions of ‘heavy vehicles’ and their corresponding mass limits are provided in the relevant legislation. These definitions are limited to the following:
combination means a group of vehicles consisting of a motor vehicle connected to one or more vehicles [14]
. . .
B-double means a combination consisting of a prime mover towing two semi-trailers where the first semi-trailer is connected to the prime mover by a fifth wheel coupling and the second semi-trailer is connected to the first semi-trailer by a fifth wheel coupling. . .[15]
. . .
road train means a combination, other than a B-double, consisting of a motor vehicle towing at least 2 trailers (counting as one trailer a converter dolly supporting a semi-trailer)[16]
. . .
Prime mover means a motor vehicle built to tow a semi-trailer.[17]
[14] Road Traffic Act 1999 (SA) s 5 and Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1, Dictionary.
[15] Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1, Dictionary.
[16] Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1, Dictionary.
[17] Road Traffic Act 1999 (SA) s 5.
The combined mass limits for the first three categories are:
·Combinations other than a road train or B-double – 42.5 tonnes;[18]
·B-double – 62.5 tonnes; [19] and
·Road train – 115.5 tonnes.[20]
[18]   Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1 reg 4(1).
[19]   Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1 reg 4(6).
[20]   Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Schedule 1 reg 4(5).
A preliminary issue arises as to which of these categories applies to a B‑triple in the absence of an exemption permit. The prosecution case was based on the premise that a B-triple did not satisfy the definition of either “road train” or “B-double”, and therefore pursuant to reg 4(1) of the Mass and Loading Regulations must be a “combination” with a mass limit of only 42.5 tonnes.
Regulation 4(1) states:
4- Mass Limits for combinations
(1) The total mass of a combination other than a road train or B-double, and any load, must not exceed 42.5 tonnes.
Counsel for the appellant conceded before me that this categorisation was correct.[21] After carefully considering the descriptions and the diagrams set out in the Mass and Loading Regulations, I agree that this concession was appropriately made and that the B-triple is a “combination”. In spite of a superficial similarity, the B‑triple is not a B-double and it is not a road train. A B-triple is distinct from a B‑double most obviously because of the extra trailer towed by the B-triple’s prime mover. It is distinct from a road train, by the different types of connectors used between the trailers.[22] This resultant categorisation gives rise to the following strange result. The B-triple, being a longer vehicle, has a prescribed mass limit of 20 tonnes less than that of the shorter B-double, and 73 tonnes less than that of a road train of equivalent length. This disproportionate outcome is not addressed overtly in the legislation, but is instead addressed by the availability of a B-triple exemption permit through subsidiary regulations.
[21] T-22.26-23.23.
[22] B-triple trailers are connected by fifth wheel couplings whereas a road train uses a converter dolly system. See T15.20-15.32; Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Dictionary.
The permit system
The permit system is dealt with under Division 2 Part 4 of the Act. Essentially, s 113 enables the Governor to make regulations to prescribe mass and loading requirements. Section 115 allows the Governor to make regulations with regard to exemption of vehicles which are the subject of an oversize or excess mass circumstance. This means that a vehicle, such as a B-triple, which is not specifically defined by the legislation, can be set a special mass limit by the issue of a permit. A B‑triple vehicle which does not exceed 42.5 tonnes does not require any exemption, but if it is over that tonnage, then it will require an exemption by permit. This is the regime and it is the only way in which an operator may run a B‑triple vehicle over that tonnage. In this case, given this regime and the absence of a permit, the appellant was over the maximum.
Severe, substantial or minor risk breach
The next issue is which of the risk breach categories set out in the legislation applies to these offences. Section 120 of the Act reflects amendments effective from 30 April 2007[23] whereby breaches are categorised as minor risk breaches, substantial risk breaches or severe risk breaches and penalties escalate with each corresponding category. This new regime provided significantly heavier penalties for overloading offences than had previously been in place. The regime demonstrates Parliament’s clear intention to ensure better compliance with road transport laws by the heavy vehicle industry and an improvement of enforceability for police, inspectors and the Courts.[24]
[23] Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006.
[24] Statues Amendment (Road Transport Compliance and Enforcement) Bill 2006, House of Assembly, 11 May 2006, 260 (The Honourable P.F. Conlon, Minister for Transport).
Section 120 of the Act provides the meaning of the three categories of breaches in the following terms:
120—Meaning of minor, substantial or severe risk breaches
(1)     For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a minor risk breach if the breach is categorised as a minor risk breach under the regulations.
(2)     For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a substantial risk breach if the breach is categorised as a substantial risk breach under the regulations.
(3)     For the purposes of this Act, a breach of a mass, dimension or load restraint requirement is a severe risk breach if the breach is categorised as a severe risk breach under the regulations.
The regulations referred to in s 120 are the Road Traffic (Miscellaneous) Regulations, specifically reg 19FC which states:
19FC—Categories of mass requirement breaches
(1)     This regulation applies to a mass requirement imposed by reference to—
(a)a legislatively specified mass limit; or
(b)a manufacturer’s mass rating; or
(c)the lower of—
(i)a legislatively specified mass limit; and
(ii)a manufacturer’s mass rating.
(2)     A breach of a mass requirement to which this regulation applies is a minor risk breach if the subject matter of the breach is less than the lower limit for a substantial risk breach of the requirement.
(3)     A breach of a mass requirement to which this regulation applies is a substantial risk breach if the subject-matter of the breach—
(a)is equal to or greater than the lower limit for a substantial risk breach of the requirement; and
(b)is less than the lower limit for a severe risk breach of the requirement.
(4)     A breach of a mass requirement to which this regulation applies is a severe risk breach if the subject matter of the breach is equal to or greater than the lower limit for a severe risk breach of the requirement.
(5)     The lower limit for a substantial risk breach of a mass requirement to which this regulation applies is—
(a)in the case of a mass requirement that relates to the gross mass of a vehicle—
(i)if the vehicle is a heavy vehicle—
(A)105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(B)0.5 tonne,
whichever is the greater; or
(ii)if the vehicle is not a heavy vehicle—105% of the maximum permissible mass;
(b)in any other case—
(i)if the vehicle is a heavy vehicle—105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(ii)if the vehicle is not a heavy vehicle—105% of the maximum permissible mass.
(6)     The lower limit for a severe risk breach of a mass requirement to which this regulation applies is—
(a)if the vehicle is a heavy vehicle—120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; or
(b)if the vehicle is not a heavy vehicle—120% of the maximum permissible mass.

Relevantly, reg 19FC defines the lower limit of a severe risk breach as being exceeded if the mass of the vehicle is 120% or greater than the maximum permissible mass. For a “combination” vehicle, 120% of the 42.5 tonne limit would amount to 51 tonnes. The lower limit for a substantial risk by a combination is 105% of 42.5 which would amount to 44.6 tonnes. A minor risk is that which is below the substantial risk lower limit of 42.5 tonnes. The language of the section is expressed as exclusive and not inclusive. Thus, minor, substantial and severe risk breaches are defined by weight above the limit and by no other factor.
Calculation of maximum penalties
Breach of mass limits
The penalties for all three categories of risk breach are set out in tabular form in s 129 of the Act. For a severe risk breach, the penalty for a first offence for a natural person is a maximum of $5,000 plus a maximum of $500 for each additional percentage above 120 per cent overload. For a first offence of a body corporate, it is a maximum of $20,000 plus a maximum of $2,500 for each additional percentage above 120 per cent overload. At a total mass of 82.95 tonnes, the B-triple was 195.2 per cent of the prescribed limit or 95.2 per cent overweight. Applying the legislative formula, the maximum fines for the breaches of the mass limits were $42,500 for the Driver and $207,500 to the Company, as correctly applied by the Magistrate.
Breach of length limits
The penalties for exceeding the maximum length of the vehicle are set out in s 117 of the Act for the Driver and s 118 for the Company. The length of the vehicle was 33.60 metres, which is 14.60 metres longer than the prescribed length for a combination.[25] The maximum penalty in each case is $2,500. The total maximum fines then, for the breaching of length and mass limits, were $45,000 for the Driver and $210,000 for the Company, as correctly applied by the Magistrate.
[25] Road Traffic (Vehicle Standards) Rules 1999 (SA), Rule 69(1)(d).
Matters to be taken into consideration when imposing sanctions
In determining sanctions, including the level of fine up to the relevant maximum, the matters to be taken into account are those set out in s 130(2). Section 130(2)(c) provides:
(c) severe risk breaches involve one or more of the following:
(i) an appreciable risk of harm to public safety or the environment;
(ii) a serious risk of accelerated road wear;
(iii) a serious risk of harm to road infrastructure;
(iv) a serious risk of increased traffic congestion;
(v) a serious risk of diminished public amenity;
(vi) a serious risk of unfair commercial advantage.
As I have said, counsel for the appellants argued that these matters should be considered not only in determining the level of fine, but also in deciding whether to exercise discretion under s 129(4) to re-categorise the breach as only substantial or minor. I reject this argument. The Miscellaneous Regulations define the categories of breaches exclusively according to mass. Section 130(2) is expressly articulating the matters which would be taken into account in working out what sanctions, including the level of fine, which should be imposed after the category of breach has already been determined. Subsection 130(4) confirms this. It expressly provides that:
(4)Nothing in this section authorises or requires a court to assign the breach to a different category of breach.
Further, s 130(5) provides:
(5)Nothing in this section requires evidence to be adduced in relation to the matters that are to be taken into consideration by a court under this section.
Clearly, ss 130(4) and (5) indicate that the matters set out in s 130(2) do not enable a court to determine the category of breach to be other than that which has been set out under the Miscellaneous Regulations.
Sections 129(3) and (4) provide:
(3)A court may not reduce or mitigate in any way a minimum penalty prescribed by this section.
(4)     In proceedings, if the court is satisfied that—
(a)     there has been a breach of a mass, dimension or load restraint requirement but is not satisfied that the breach is a substantial risk breach or a severe risk breach, the court may treat the breach as a minor risk breach; or
(b)     there has been a breach of a mass, dimension or load restraint requirement and that the breach is at least a substantial risk breach but is not satisfied that the breach is a severe risk breach, the court may treat the breach as a substantial risk breach.
The appellants submitted that s 129(4) permitted a magistrate to treat a severe risk breach as a minor breach by reason of the mitigating circumstances in which the appellants’ offending occurred.
In my view, this argument is contrary to the provisions contained in s 129. Section 129(3) indicates that a court may not reduce or mitigate a minimum penalty. More importantly, the wording of s 129(4) does not permit a court to alter a categorisation of a breach which has satisfied the relevant mass criteria. Instead, s 129(4) permits a court to treat a breach as being lesser in circumstances where the court is, for example, not satisfied that the vehicle was of the mass alleged in the complaint but is satisfied it was a lower mass. Rather than withdrawing the complaint, the prosecution may still proceed if the Court is satisfied that the breach fits into a lower category.
In the present case, there is no doubt that the Court was satisfied of a severe risk breach because the breach has been assessed by reference to the undisputed excess mass of the B-triple. Therefore, the prerequisite to an application of s 129(4) in the current circumstances does not exist.
Further, the lack of interplay between ss 129 and 130 is further supported by their distinct separate purposes. Section 129 deals in general with the maximum penalties which are to be applied in the three breach categories. Section 130, on the other hand, deals with the issue of how judicial discretion is exercised to decide on a particular fine in a particular case.
Conclusion
The legislative regime which deals with the categories of risk breaches is strict.
I have considerable sympathy for the appellants in this case who, understandably, had difficulty in ascertaining the provisions with which they were required to comply. Their misunderstanding about the legislative scheme is understandable. It is not readily apparent.
In respect of the penalties, the combined mass of an offending vehicle is the only factor relevant to the assigning of risk breach categories. The fines of $15,000 in respect of the Company and $3,000 in respect of the Driver which were imposed by the Magistrate clearly lie at the very lower end of the scale compared with the maximum in each case. This reflects a proper exercise of discretion by the Magistrate when considering the matters set out in s 130(2)(c). In imposing these penalties, the Magistrate has accommodated, on the one hand, the clear intention of Parliament in imposing such a strict regime with its heavier fines and, on the other hand, his acceptance of the submission that these were minor breaches. There was no error by the Magistrate. I therefore dismiss the appeals.