Snoad v Rathmann No. Scgrg-99-216 Judgment No. S220

[1999] SASC 220

SNOAD V RATHMANN

[1999] SASC 220

Magistrates Appeal

1 MARTIN J. On 29 January 1998 the appellant was convicted in his absence of being the driver of an overloaded vehicle, commonly referred to as a road train, contrary to s146 of the Road Traffic Act 1961 ("the Act"). The particulars were that the vehicle was driven on a road while it exceeded its permitted gross mass of 42.5 tonnes by 28.5 tonnes. The Magistrate imposed a fine of $5 650 plus costs. The order having been made by the Magistrate on 29 January 1998, by notice dated 10 February 1999 which was lodged on 11 February 1999, the appellant sought to appeal against both the conviction and the penalty.
2 The applications were first listed for hearing in conjunction with another appeal in the matter of Rathmann v Singleton ([1999] SASC 165). Both matters raised a point of law as to whether State laws defining weight limits applied to the particular vehicles being driven by the appellant and Singleton. I held that State laws were applicable. Counsel for the appellant then indicated that the application for leave to appeal against conviction would be pursued on another ground, together with the application for leave to appeal against sentence. I indicated that further information was required and the applications were adjourned to give the appellant the opportunity of providing more evidence by affidavit.
3 Upon the resumption of the hearing, counsel for the appellant expressly abandoned the application to extend time within which to appeal against conviction.  The hearing proceeded, therefore, only on the application with respect to sentence. 
4 In view of the delay of just over twelve months, at the outset it was obvious that the merits of the proposed appeal would be of critical importance in the determination of the application.  In those circumstances, and with the consent of both parties, I received a further affidavit of the appellant dated 6 May 1999 and, from the Crown, an affidavit of Wayne Frederick Lach, the managing director of the company that had employed the appellant, dated 19 May 1999, together with a certified copy of the appellant’s prior offences against the road traffic laws.  In addition I was given more information about the circumstances of the offence through the submissions of counsel.  I heard full argument on the merits of the proposed appeal. 
5 The appellant is aged 50 years.  He has been a driver for approximately 30 years.  At the time of the offence, he was employed by a transport company ("the company") with which he had previously worked for approximately two months.  On six or seven previous occasions he had been directed by the company to drive road trains from South Australia to Perth.
6 On the occasion in question the prime-mover and other components of the road train belonged to the company.  The appellant was under instruction to drive the vehicle to Western Australia for which he would have received approximately $1 100.
7 At the relevant time, generally speaking the maximum mass for a vehicle under South Australian law was 42.5 tonnes.  However, road trains operating north of Port Augusta had been exempted and the total permissible weight for a road train was 79 tonnes.  The total weight of the appellant’s vehicle was 71 tonnes.  If the vehicle had been driven north of Port Augusta, which included travelling to Western Australia, no offence would have been committed.
8 According to the affidavit of Mr Lach, transitional arrangements were in operation which, subject to certain conditions, authorised road trains of up to 79 tonnes to be driven south of Port Augusta to Lochiel, a distance of approximately 140 kilometres.  One of the conditions was that each component of the vehicle be inspected, passed and display a current inspection label. 
9 The appellant drove the vehicle north on the main highway from Lochiel to Port Augusta to a parking bay approximately 20 kilometres south of Port Augusta.  The vehicle was comprised of a prime-mover, semi-trailer, dolly-trailer and a second semi-trailer ("the trailer").  According to the affidavit of Mr Lach, the second semi-trailer had not been inspected, but was roadworthy.  As the trailer had not been inspected, it could not lawfully be used south of Port Augusta as part of a road train with a mass exceeding 42.5 tonnes.  Accordingly, arrangements had been made for the trailer to be hooked up in Port Augusta from where it could lawfully have been taken to Western Australia as part of a road train.  Due to a mix-up which was not the fault of the appellant, the trailer was left at Lochiel where the appellant attached it to the other components.
10 I accept the affidavit evidence of the appellant that he was unaware that the trailer had not been inspected and did not carry a current inspection label.  As an experienced driver he should have checked all components of the road train and was in error in not doing so.  According to his affidavit, however, in his previous work with this particular company he had always found the trailers to be roadworthy and fully compliant with both South Australian and Western Australian road laws.
11 Unwittingly, therefore, the appellant commenced his journey with a trailer that did not comply with the conditions of the exemption that enabled the road train to exceed the general maximum mass of 42.5 tonnes. Section 164B of the Act provided that if any condition of an exemption was not observed, the exemption did not apply and the maximum permissible weight dropped back to 42.5 tonnes. It was in this way that in driving from Lochiel to the point 20 kilometres south of Port Augusta the appellant was driving an overloaded vehicle. Importantly, however, there is no suggestion that the safety of road users was compromised. The trailer was not overloaded in the ordinary sense of overloading by having excessive weight on any of the axles. Shortly after this offence, the trailer passed inspection and was given a current inspection label. It is worth emphasising that if the inspection had taken place prior to this trip and the trailer had been carrying a current inspection label, no offence would have been committed. Similarly, if the trailer had been picked up at Port Augusta as planned for the trip to Perth, no offence would have been committed.
12 During the course of the 120 kilometre journey to the point south of Port Augusta where he was apprehended, the appellant became aware through radio communication that a weighbridge at Stirling North, just south of Port Augusta, was in operation.  He decided to stop the vehicle and check that everything was in order.  It was while he was stationary that he discovered the second trailer was not carrying an inspection label.  He decided to unhook the second trailer which would have enabled him to lawfully drive the remainder of the vehicle to Port Augusta.  He intended to return with the prime-mover only to reconnect the second trailer and, lawfully, to transport it to Port Augusta where the whole rig could have been reassembled and lawfully driven further toward Western Australia.  It was while he was in the process of unhooking the second trailer that an inspector stopped and detected the absence of the inspection label.  The appellant admitted to the inspector that he had driven the vehicle in its entirety a short time prior to the discovery by the inspector.
13 According to the appellant, when he was told by the inspector from the Highways Department that he would be reported, he spoke with the company’s foreman who assured him that the company would take care of the fine.  When he received the summons, he again spoke with officers of the company and was informed the company would take care of the matter.  He was told that the company would pay the fine and was instructed to complete the back of the summons and send it to the court.  He did not attend court as he understood that the company would arrange representation or alternatively would meet any fine imposed.  The appellant states that when he received the notice concerning the imposition of the fine, he forwarded it to the company and was assured that the company would take care of it. 
14 In his affidavit of 19 May 1999, Mr Lach states that he did not advise the appellant that the company would take care of the summons and any fine that was imposed.  The appellant states in his affidavit that he spoke to the company’s foreman, a man called Geoff, who gave him those assurances. The appellant is no longer employed by the company and the company is refusing to pay the fine. As there is currently a dispute between the appellant and the company about liability for any fine and costs sustained, I did not consider it appropriate to embark upon hearing evidence in an endeavour to resolve this issue.  For present purposes, I accept that the appellant acted on the belief that the company would take care of the summons and pay any fine imposed.
15 In mid 1998 the appellant became aware of an outstanding warrant for non payment of the fine. On about 4 September 1998 he instructed his solicitor in this matter.  Attempts to negotiate a settlement with the company were unsuccessful and the Notice of Appeal was then filed.  In order to avoid imprisonment, the appellant entered into an arrangement to pay the fine by instalments of $100 per month and has made four payments.
16 The relevant principles are not in doubt. The appellant had 14 days within which to appeal (rule 96C.02 of the Supreme Court Rules). The court has power to extend the time within which an appeal may be brought. I agree with the following remarks of Lander J in R v Foster (1996) 187 LSJS 135 at 139 as to the principles which are applicable:
"Where the delay is significant, an applicant must give a proper and detailed explanation for the delay. However, the court will usually not extend the time within which to appeal or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits the appeal would be likely to succeed (R v Balchin (1974) 9 SASR 64 at 65; R v Armstrong (1963) 35 SASR 356 at 367)."
17 In essence, in these circumstances it is for the appellant to persuade the court that the interests of justice require that he should be permitted to pursue his appeal because a miscarriage of justice would otherwise occur.
18 As to the delay, the charge was listed for first mention on 29 October 1997.  The court received a handwritten letter from the appellant on 28 October 1997 in which he requested an adjournment for one month.  He indicated in the letter that he wanted the matter heard in his absence as he had ceased to work for the company. 
19 The hearing was adjourned to 27 November 1997 and the court was to notify the appellant of the new date.  He did not appear on 27 November 1997 and the matter was adjourned to 29 January 1998.  Again the court was to notify the appellant of the new date.  The appellant did not appear on 29 January 1998 and leave was granted to proceed ex parte.  The appellant does not suggest that he did not receive the notifications of the adjourned dates. 
20 In my opinion, the explanation given by the appellant that he relied on the company taking care of the matter does not satisfactorily explain the very lengthy delay.  In addition, there is no explanation as to why an application was not immediately made when the appellant became aware of the warrant or when he consulted a solicitor in about September, 1998.  It was not until negotiations broke down with the company that the application was filed. 
21 In my opinion, therefore, the appellant can only succeed if he can establish that the interests of justice require that an extension of time be granted.  This requires consideration of the merits of the proposed appeal.
22 There is no doubt that the fine of $5 650 was very substantial. Not surprisingly, in the absence of the appellant the Magistrate did not give reasons for the imposition of that penalty. The scale of fines prescribed by s146(2) of the Act set a minimum fine of $5 335 and a maximum of $11 200 in the circumstances where the vehicle was 28.5 tonnes over the permitted weight of 42.5 tonnes. It is reasonable to assume that his Honour had regard to that scale and decided the appellant’s offending was at the lowest level of seriousness. It is unknown, however, whether his Honour gave consideration to the exercise of the powers contained in ss16-18 of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act"). His Honour had no material before him upon which to consider the application of s13 of that Act.
23 The appellant committed the offence unwittingly as a consequence of the mix up in the arrangements as to where the trailer was to be collected.  The offence occurred because the trailer had not been inspected, but the trailer was subsequently inspected and given the appropriate clearance.  It is significant that the trailer was not overloaded in the ordinary sense of carrying weight that was excessive for its axles.
24 In these circumstances, in my opinion consideration must be given to the application of s17 of the Sentencing Act which provides:
"Reduction of minimum penalty

1. Where a special Act fixes a minimum penalty in respect of an offence in 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."
   25 In my opinion, the appellant is unable to bring himself within s17(a) or (b). His prior offences against the road traffic laws are significant in considering his character and antecedents and, notwithstanding the urging by counsel for the appellant, I have reached the view that the offence was not trifling.
   26 As to whether any other extenuating circumstances existed, in Beavan v Rankine (1983) 36 SASR 120, Matheson J decided that the circumstances must be such as to lessen guilt. In my reasons for judgment delivered today in Hemming v Perkins [1999] SASC 212, I have discussed the decision in Beavan v Rankine and subsequent decisions concerning the meaning of "extenuating circumstances". It is unnecessary to repeat that discussion in these reasons. For the purposes of this matter I have proceeded on the assumption that the extenuating circumstances must be such as to lessen guilt.
   27 In my opinion, the circumstances previously discussed in which the offence was committed amount to extenuating circumstances. The appellant has, therefore, passed the threshold test in the sense discussed in the context of a similar provision in the Offenders Probation Act (1913-1971) by King CJ in Jones v Morley (1981) 29 SASR 57 at 63. Section 17 of the Sentencing Act requires the Court then to consider whether it is of the opinion that good reason exists for reducing the penalty below the minimum.
   28 There is no doubt that the appellant, being an experienced driver, should have checked that all components of the vehicle were carrying inspection labels which he knew were required in order for the vehicle to be driven from Lochiel to Port Augusta.  I accept that he assumed the vehicle complied with the exemption requirements and that he only decided to check out of an abundance of caution when he realised that inspection of the vehicle would occur at the weighbridge just south of Port Augusta.  However, the other circumstances to which I have referred were significant matters of mitigation directly impinging upon the culpability of the appellant’s conduct.
   29 In my opinion good reason exists for reducing the penalty below the minimum. Further, in my view if the Magistrate had been fully aware of the circumstances and addressed his mind to the application of s17, his Honour would have reached the same conclusion. Bearing in mind the policy of the legislation which requires strict compliance with the rules in order to ensure the safety of all road users, together with the appellant’s prior offending and his financial circumstances, in my opinion an appropriate fine would be $750. In those circumstances, a serious injustice to the appellant would clearly exist if the current fine of $5 650 was permitted to stand. The appellant has established that the interests of justice require that he be granted an extension of time within which to appeal.
   30 The application for leave to appeal against conviction is dismissed.  The conviction recorded by the Magistrate is confirmed.
   31 The application to extend time within which to appeal against sentence is granted.  The appeal is allowed and the fine of $5 650 is set aside. I impose a fine of $750 together with Court fees of $73, CIC levy of $28 and prosecution costs of $19 making a total of $870.  The appellant having paid $400, I allow four months to pay the balance of $470.