STL Linehaul Ltd v Police HC Christchurch CRI 2006-409-219

[2007] NZHC 1592

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-219

STL LINEHAUL LTD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2007

Counsel:         A Sumner for Appellant

B Hawes for Respondent

Judgment:      8 February 2007

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Cameron & Co, PO Box 1985, Christchurch

Raymond Donnelly & Co, PO Box 533, Christchurch

STL LINEHAUL LTD V NEW ZEALAND POLICE HC CHCH CRI 2006-409-219  8 February 2007

[1]      The  appellant  pleaded  guilty  in  the  District  Court  to  two  offences  of exceeding the gross weight on a distance licence under s 5(1)(b) and s 23(1)(a) Road User Charges Act 1977.  The company was fined $1000 on one of the informations and $2000 on the other.  The appellant now appeals on the grounds that the level of fines imposed were manifestly excessive.

Brief Facts

[2]      On 5 March 2006 the appellant was operating a truck and semi-trailer when stopped on State Highway 1 in Huntly.   The truck was weighed and found to be weighing 19,060 kgs, exceeding its 14 tonne licence by 5,060 kgs.  The semi-trailer was weighed and found to be weighing 18,789 kgs, exceeding the 10 tonne licence by 8,870 kgs.

[3]      I have been informed that the driver had failed to notify the company that he had taken a back load which required an additional distance licence.  It is company policy that drivers must advise any change in loading so that the relevant licence can be obtained.  Upon being advised of the error the appellant company immediately purchased a supplementary licence later the same day to cover the amount of the excess weight.

[4]      The appellant does not have any previous convictions for offences of this kind.  The only previous convictions are two for operating a motor vehicle with an insecure load which were dealt with together in 2005.  The company was convicted and discharged without further penalty.

[5]      The maximum penalty for an offence as an operator is a fine or $3000.  The relevant infringement fees for the truck and trailer would have been $1500 and

$3000 respectively.  It is accepted the Judge has a discretion to impose a fine in the context of this case, and it is evident that the Judge reduced the amount of the maximum fine in each case by one-third from the amount of the infringement fee.

[6]      For the appellant Ms Sumner submitted that although the Judge indicated in his sentencing notes that the infringement fee was reduced to give credit for the appellant acquiring the necessary licences shortly afterwards, the Judge did not take into consideration that this was the appellant’s first relevant offence.   Ms Sumner referred me to the decision of Williamson J in De Koning v Ministry of Transport HC Invercargill AP4/91 18 April 1991 in which the Judge held that relevant considerations include whether there is an intention to avoid paying the relevant road user charges; whether the relevant charges are paid immediately thus avoiding any loss or revenue to the State; and whether there are previous convictions.

[7]      It is accepted  by Mr  Hawes  on  behalf  of the  respondent,  that  those  are relevant mitigating factors but in his written submissions Mr Hawes also drew the attention of the Court to the decision of the Court of Appeal in B Cronin Limited v MOT (No 2) (1986) 8 NZTC 5, 125 in which it was held that a failure to have the excess weight licence at the time the vehicle is weighed and the extent to which the load exceeds the distance licence carried are significant factors in assessing the level of penalty.   Plainly, the purpose of road user charges is to ensure that those who make use of and who damage roads by the use of heavy motor vehicles, pay towards the maintenance of those roads.

[8]      In  advancing  her  submission  that  the  fees  were  manifestly  excessive Ms Sumner referred me to two decisions of this Court.  The first was Ball v Ministry of Transport HC Hamilton AP 36/91 15 July 1991 where Doogue J reduced maximum fees of $3000 and $2500 to $1500 and $1250 respectively, half the maximum penalty.  However, I note in that case that Doogue J accepted at p 3 that the Courts take a serious view of offences of this nature because offenders are avoiding payment of substantial liabilities under the Act.   However, I accept Ms Sumner’s submission that in Ball the discrepancy between what was permitted and what was carried was great.

[9]      The second case Ms Sumner referred to in submissions was Twamac Carriers

Limited v Crown Solicitor HC Christchurch AP138/87 AP 138/87.  This was also a

case of substantial overweight and there had been 17 previous convictions.  Hardie Boys J reduced the fines to $1500 and $1000 respectively.  The full facts of that case are not available to the Court but a summary has been referred to me.  According to that summary the Judge took into account that it was not a deliberate and flagrant breach and that the last road user charges offence had been committed three years earlier.

[10]     Mr  Hawes’  submission  was  that  the  reduction  of  one-third  adequately reflected the mitigating factors identified by Ms Sumner and that the amount of the fines was within the range available to the District Court Judge.

Conclusions

[11]     It is difficult to compare cases in appeals such as this and I note that the authorities referred to by Ms Sumner are now somewhat aged (1991 and 1987).  On the other hand, the maximum fine of $3000 has not been altered in that time.

[12]     Having considered the issue I am satisfied that, although a marginally lower fine might have been justified in the present case, the level of fines is nevertheless in the  range  available  to  the  Judge.    I  am  not  satisfied  the  fines  imposed  were manifestly excessive.

[13]     In those circumstances the appeal will be dismissed.

A P Randerson, J Chief High Court Judge