HRNG ADELAIDE, 18 February, 18 March, 2 and 10 April, 1991 #DATE 17:4:1991 Counsel for Appellant: Mr M Mitchell Solicitor for Appellant:
Matthew Mitchell Counsel for Respondent: Ms L.M. Makiv Solicitors for Respondent: Mr B.M. Selway

JUDGE1 LEGOE J At the conclusion of argument on the adjourned hearing of this appeal I made an order that the appeal be allowed for the purpose of setting aside the fine imposed on count 1 in the complaint, namely "$6300" and substituting a fine of "$1500" in lieu thereof. The orders for court fees, counsel fees and criminal injuries compensation levy were not interfered with. The fine of $250 plus a levy of $20 imposed on count 2 was likewise left without interference. The order for time to pay which had been fixed by the learned Special Magistrate at 6 months in respect of each count was set aside, and a period of 12 months from the 10th April 1991 was substituted. 2. The appellant was charged with driving an overloaded vehicle in South Australia contrary to Regulation 4(2)(a) of the Road Traffic Act (Mass Limits) Regulations of 1989 and section 146(1)(b) and section 146(2) of the Road Traffic Act. He was further charged with driving the same vehicle at the same time and place when the vehicle and trailer exceeded the overall length by a 11.383 metres, contrary to sections 139 and 140 of the Road Traffic Act. The appellant pleaded not guilty. The prosecution called the two inspectors who measured and weighed the vehicle and trailers. A certificate or statement was tendered by the prosecution. The appellant did not give evidence. Counsel for the defence submitted that:- (a) The Regulations are ultra vires and invalid, and (b) That the inspectors failed to measure both sides to ascertain the distance between hubs of the wheels as required by Regulation 4(2)(b). The learned Special Magistrate overruled both submissions and convicted the appellant on both counts. APPEAL AGAINST CONVICTIONS 3. The appeal against the ruling of the learned Special Magistrate rejecting the argument that the Regulations were invalid was abandoned when the appeal was called on. By ground 1(a) of the Notice of Appeal, the appellant claims that the learned Special Magistrate erred in finding a case to answer in that:- "(a) The Prosecution failed to prove a distance between the foremost and rearmost axles of the vehicle pursuant to S149(1) of the Road Transport Act as amended in that it failed to lead evidence of the measuring of both sides of the vehicle." This point was rejected by the learned Special Magistrate, who said:- "The defence counsel argued that in determining the length of the vehicle the inspectors had to measure both sides of the vehicle and take the shorter distance of the two measurements, if there was one, as being the length of the vehicle. The short answer to this argument is that section 149 deals only with the measurement

of distance between the axles of a vehicle or combination of vehicles and is not concerned with the measurement of the overall length of a vehicle or combination of vehicles. Counsel's argument is not applicable to count 2 described on the complaint as that count deals only with the overall length of the subject vehicle and not with the distance between the axles of the vehicle. In any event, it is my view that section 149 does not require that the measurement of the distance between the axles be taken from both sides of a vehicle or combination of vehicles. The section simply means that if two measurements between the axles are taken, one from each side of the vehicle or combination of vehicles, then the shorter distance would be taken to be the distance between the axles." This argument was substantially repeated on appeal in this court. Section 149 of the Road Traffic Act provides:- "149(1) For the purposes of this Act the distance between two axles will be taken to be the distance between the centres of the hubs of the wheels of those axles and if that distance varies from one side of the vehicle or combination of vehicles to the other, the shorter distance will be taken to be the distance between the axles. (2) A measurement of the distance between the axles of a vehicle or combination of vehicles made by an inspector or a member of the police force will be taken to be correct for purposes of proceedings for an offence against this Act unless the contrary is proved." 4. The learned Special Magistrate found in the course of his reasons that:- 1. The witnesses Jones and Dixon were each appointed inspectors under the Road Traffic Act. 2. On 30th October 1989 the two inspectors were on duty on the Eyre Highway near Poochera in South Australia. 3. They observed the prime mover WA7BK-332 together with a semi-trailer with another Western Australian number on it, a dolly

trailer with another number on it, and a second semi-trailer with another Western Australian number, driven by the appellant along Eyre's Highway. 4. They stopped the vehicle. Inspector Jones had a conversation with the appellant and asked him for a Road Train Permit. The appellant produced a permit which expired on 21st October 1989. This permit had been issued interstate and not in South Australia. 5. The vehicle and its load were weighed. After the weighing, Inspector Jones informed the appellant that he intended to make a report as the permit had expired. 6. The appellant informed Inspector Jones that he had commenced his journey in Brisbane and that he was driving to Perth. The appellant agreed that the load on his vehicle was the same when he left Brisbane as it was on that morning. Inspector Jones asked the appellant why he had an excess mass of 32.10 tonnes on gross, to which the appellant replied: "I failed to check the dates on the permit." Inspector Jones asked him what steps he took to ensure that the vehicle was not driven with excess mass, and the appellant

replied "Same as above." He also said that vehicle had been weighed only in Queensland. The Inspectors then measured the length of the vehicle which was found to be 31.500 metres. All measurements were taken, that is, the overall length and the weight, from the driver's side of the vehicle. Inspector Jones informed the appellant that the maximum length limit was 20.117 metres so the overall length exceeded the maximum by 11.383 metres. The appellant told Inspector Jones that that was because it is a road train. He was again told that the facts would be reported. 5. Exhibit P2 at the trial was the statement produced by the prosecution pursuant to section 175(3)(a) of the Road Traffic Act. That statement was made by Inspector Jones who stated that at about 7.10 am. on 30th October 1989 near Poochera, he used the scales to weigh the vehicle and trailers above referred to, and found that the mass of the said vehicle with its load was 74.60 tonnes. He further gave the mass carried on the axles of the said vehicle, namely the steer axle - 5.30 tonnes; the drive axle (tandem axle group with eight wheels) 16.50 tonnes; tri-axle (first trailer with 12 wheels) - 20.25 tonnes; dolly (tandem axle group with eight wheels) - 14.55 tonnes and another tri-axle (second trailer with 12 wheels) - 18.00 tonnes. Finally the statement adds that, in relation to the dimensions of the driver's side of the vehicle:- 1. The distance between the foremost and rearmost axles was in excess of 10.0 metres; and 2. The overall length of the said vehicle was 31.500 metres. 6. The relevant parts of section 146 of the Road Traffic Act as amended in 1989 provide that:- "146(1) A person must not drive a vehicle if - (a) The mass of the vehicle; (b) The combined mass of the vehicle and any vehicle attached to it; or (c) .... exceeds the maximum prescribed by regulation or fixed by the Registrar of Motor Vehicles pursuant to the regulations." Regulation no. 133 of 1989 provides in clause 4 for the mass limits of vehicles. In sub-clause (2) it is provided:- "(2) The combined mass of a combination of vehicles attached to each other must not exceed - (a) the mass set out in schedule 1 in respect of that combination;..." Schedule 1 of the Regulation provides (where relevant):- "Schedule 1 Distance (in metres) between the foremost and rearmost axles of a vehicle or combination of vehicles Exceeding - not exceeding Mass limit in tonnes 3.1 -
3.4 18.0 (numerous other distances between 3.4 metres and 10 metres are there set out with differing mass limit in tonnes corresponding thereto.) 10.00 42.5" 7. In my judgment, section 149(1) of the Road Traffic Act does not provide that the measurement of the distance between axles requires measurements to be taken from both sides of the vehicle or combination of vehicles. This would be reading words into the section which are not there and which are not justified. If the foremost or rearmost axle fitted to the vehicle or trailer is only fitted to one side of the vehicle or trailer, so that the foremost or rearmost axle on the other side is not in line but may be fore or aft of the axle on the other side, then a measurement on one side would not satisfy the requirements of Schedule 1, namely, the measurement would not be from the foremost to the rearmost. That was not this case. Hence, in this case, the measurement on one side satisfied the requirements of Schedule 1 to ascertain the maximum permissible weight. Secondly, the distance between the axles was proved by the Certificate of the Inspector, Exhibit P2 (pursuant to section 175(3)(a) of the Act) being prima facie evidence of those facts. The appellant did not give evidence and as there was no evidence to the contrary, over weight was accordingly proved in accordance with the Act. Thirdly, it was unnecessary for the respondent to prove the distance between the axles, as the load which was measured was in excess of the maximum distance between axles as provided for in the Regulations, namely, it was in excess of 10 metres. Accordingly, the Regulation was satisfied in that the maximum limit in weight of 42.5 tonnes was exceeded for a vehicle which exceeded 10 metres in length, including the combination of vehicles. Once a combination of vehicles reached 10 metres the maximum permitted weight was 42.5 tonnes. Fourthly, the Inspector's evidence given at the hearing which established the weight and distance between axles satisfied sub-section (2) of section 149, and accordingly the breach of the section was proved beyond reasonable doubt. I would reject ground 1(a) of the grounds of appeal for these reasons. APPEAL AGAINST PENALTY 8. Ground 2 of the appeal states:- "2. With respect to penalty the learned Special Magistrate erred in failing to exercise his discretion under the Sentencing Act to impose a penalty below the minimum penalty under the Road Transport Act." 9. In the affidavit of counsel for the appellant sworn on 15th February 1991, counsel for the appellant indicated that the salient facts relating to penalty were those which he had put to the learned Special Magistrate as:- (i) The appellant was born on 30th December 1940 and had been a professional truck driver for most of his adult life. (ii) His financial circumstances were not detailed at length, but the learned Special Magistrate was told that the appellant was an owner/driver whose financial situation was not good. (iii) It was probable that if the appellant received a fine even at the minimum prescribed under the Act he would be unable to pay the fine and would elect to serve the time in prison by default of payment. (iv) The purpose of the legislation was to prevent driving of vehicles so as to cause damage to roadways or in an unsafe manner. (v) This particular vehicle would have been correctly loaded and committed no offence had a permit been in place and still valid. (vi) The appellant was the holder of a valid permit in other States. (vii) The appellant was not the holder of a valid permit in South Australia, and although it cannot be established whether he would have obtained one if he had applied, his vehicle was of the style which obtained permits from time to time. (viii) The vehicle had been driven from Brisbane to Perth and present in the vehicle was a potential purchaser. (ix) The offence was atypical and unusual and ought to be treated as a technical breach of the law and regarded as trivial. (x) In the alternative there were extenuating circumstances pursuant to section 17(c) of the Sentencing Act which would entitle the learned Special Magistrate to reduce the penalty below the minimum. 10. In the affidavit sworn by counsel for the respondent who also appeared as counsel on the appeal, it is stated that the learned Special Magistrate was informed by her of the following:- (i) Section 146(2) provides for a minimum penalty which in this case being of the weights as measured, the minimum penalty was $6255 with a maximum of $12,640. (ii) The appellant had a prior conviction for overloading, namely, on the 1st September 1986 when he was convicted of driving a vehicle carrying an excess mass of 1.660 tonnes. He was fined $280 for that offence. (iii) The respondent conceded that no offence would have been committed if the appellant had been the holder of a valid permit in respect of the vehicle. (iv) A permit had never been issued to the appellant in question. The expired permit produced by the appellant had been issued for another vehicle. (v) The respondent did not concede that the vehicle in question would have qualified for a permit in South Australia. There are stringent safety tests to be carried out before a permit is granted in South Australia. (vi) This was not an appropriate case for the exercise of discretion either under section 15 or 17 of the Sentencing Act because:- (a) The offences were not trifling given the extent of the excess mass and excess length; (b The appellant had a prior conviction; (c) There was no evidence or detail of extenuating circumstances. 11. In argument on appeal, counsel for the appellant repeated and emphasised substantially the points made in the affidavit which I have set out above. 12. In so far as the appellant had relied upon section 15 of the Sentencing Act, which relates to the power of the court to discharge an accused person without recording a conviction and to dismiss the charge, which power is given to the court notwithstanding any minimum penalty which is fixed by a Special Act, I am of the opinion that this section is totally inapplicable on the facts in this case as found by the learned Special Magistrate. I merely add that counsel for the appellant did not mention, other than indirectly and in passing, any reference to that section. Section 17 of the Sentencing Act provides:- "17. Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to -

(a) the character .... of the defendant; (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." It was this section particularly sub-section (c) upon which counsel for the appellant relied both before the learned Special Magistrate and on appeal. The learned Special Magistrate in the course of his reasons for penalty indicated that he had "scant information before me with respect to those matters pertaining to the defendant." This is after he had said that he had considered the application, but that the offences in question were not trifling and could not be categorised as such. This point was made both in relation to section 15 and section 17(b). He concluded by saying:- "On the information before me there is nothing with respect to that criteria which, in my opinion, indicates that good reason exists for reducing the penalty below the minimum prescribed. Moreover there is nothing in the circumstances of this case which I find to be extenuating to the extent that I can form the opinion that good reason exists for reducing the minimum penalty. In each case the defendant is convicted." The learned Special Magistrate then proceeded to fix the penalties referred to above. The learned Special Magistrate referred to the submissions of counsel for the appellant, particularly in respect of the request that the court mitigate the minimum penalty prescribed in reference to count 1 in the complaint. He also referred to the fact that, due to financial difficulties, the appellant could not pay the minimum penalty of $6,255. 13. It is clear that the learned Special Magistrate was alerted to the very question which caused me to refer counsel at the first hearing of this appeal to section 13 of the Sentencing Act, which provides that, where relevant:- "13(1) The court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that -

(a) the defendant would be unable to comply with the order; or (b) compliance with the order would unduly prejudice the welfare of the dependants of the defendant. (2) The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it." By reason of the provisions of this section, and knowing that the learned Special Magistrate had been given very little information on the appellant's financial situation, I granted the appellant a further adjournment for the purpose of placing a further affidavit on the file relating to his financial circumstances. Eventually, the appellant's affidavit sworn on the 7th March 1991 was produced. After a further short hearing and the acceptance of the affidavit by the respondent, I granted the appellant leave to file the affidavit which was filed on 2nd April 1991. The matter was then adjourned for argument on this aspect of the case. 14. In the recent affidavit, the appellant states that he requested his accountant to prepare a trading profit and loss statement for, firstly, the period ending 30th June 1990 and secondly, for the six month period ending 31st January 1991. He goes on in his affidavit to summarise some aspects of those financial statements, in particular that for the year ending 30th June 1990 his business ran at a profit of $10,707 which was divided equally between the two partners, namely, his wife and himself. For the next six month period ending the 31st January 1991, the business ran at a profit of $18,094, which again has been equally shared between his wife and himself. The only substantial asset of the business is a Kenworth Prime Mover valued at approximately $45,000. His partnership bank account was overdrawn to the extent of $12,847 as at the date of the affidavit. In addition, he had a taxation assessment liability of $1,004 and his wife has a similar assessment. He also states that his wife is required to pay hire purchase commitments of $387 per month with respect to a motor vehicle, and commitments to a Visa Card of $150 per month and a Myers Card of a further $150 per month. So far as the total fines and costs of $7044 with respect to this offence are concerned, the appellant states in his affidavit:- "It is simply not possible for me to raise funds to an amount of $7,044.00 or any amount like it within six months or at any time within the foreseeable future." He further states that transport operators are at this time going bankrupt and the volume of work available to transport operators has decreased markedly. Rates have not increased due to the oversupply of operators and the undersupply of freight market. In many cases the rates have gone down. 15. In The Queen v. Belcher (1981) 27 SASR 46 the Full Court considered and discussed the circumstances in which it may be proper for a sentencing court to impose a fine in addition to a sentence of imprisonment. King CJ said at page 52:- "It seems to me that imposing a fine in the circumstances of the present case which is beyond the applicant's ability to pay out of assets which he possesses, the learned Judge erred in principle. I do not think that the fine can be allowed to stand to the extent that it exceeds the cash which is available to pay it." In my own reasons at page 53-54 I said:- "In my opinion, it is clearly relevant for the court, when it comes to sentence the prisoner, to be fully acquainted with the source of these funds so far as that is possible to ascertain. When the time comes for submissions to be made in mitigation of penalty, clearly the onus is upon the prisoner himself to disclose, and fully disclose, the funds in his possession and the source of those funds. The Crown should check this information in order to assist the court in determining the proprietary of imposing a fine in the circumstances and the amount thereof. Furthermore, the prisoner should inform the court of his financial circumstances so as the court can be satisfied as to his ability to pay a fine. This, of

course, would be particularly so where submissions in mitigation pressed for the imposition of a fine, either as an alternative to a term of imprisonment, or in mitigation, or reduction of the actual term of imprisonment. The court cannot be inquisitorial in relation to these matters, and prisoners who decline to assist the court in this regard cannot expect Courts of Appeal to place much weight on the argument that the imposition of a fine in addition to imprisonment is wrong, when funds are apparently in the prisoner's possession at the time of the investigation and indicate an ability to pay the fine." That was of course a different case to the present matter, where the statute only provides for the payment of a fine. I discussed similar considerations particularly the means of the defendant which should have been fully investigated in order to ensure the reality of the total fine as an alternative to imprisonment in Winkler v. Cameron (1981) 33 ALR 663, in particular at 667-671. Likewise in Fry v. Bassett (1986) 44 SASR 90 at 92-93 Olsson J referred to two cardinal principles, namely:- 1. "...if the court is contemplating the imposition of a

fine, with its alternative default period of imprisonment, there must be a true alternative and not an illusory one .... Reith v. Liersch (1970) 55 LSJS. 525 at 526; R. v. Hall (1968) 52 Cr.App.R. 736 at 738"; and 2. "...if it is appropriate to impose a fine the quantum of it must in any event be related to the means of a defendant in some logical manner, particularly in the case of persons who are of very limited resources." Counsel for the respondent has referred to Ridolfo Pty Ltd v. Mayer (1974) 7 SASR 530 where at 536 Walters J said:- "But if undue hardship is produced in a particular case, there are ways and means of mitigating what may savour of a harsh and unreasonable penalty." 16. In my judgment this appeal should be determined by applying the provisions in the Sentencing Act, particularly sections 13 and 17. The principles which have been discussed in the authorities I have referred to are useful as guidelines when applying section 13. On the material before me, but which regrettably was not before the learned Special Magistrate, I am of the opinion that the appellant's inability to pay the total amount must be taken into account. The offence was clearly not trifling. There were no particular circumstances apart from the appellant's inability to pay which had not been proved, or proved sufficiently, before the learned Special Magistrate, to enable the court to say that good reasons existed, thus giving the court the power under section 17 to reduce the minimum fine. 17. In all the circumstances, particularly in the light of the appellant's previous conviction and of his lack of a permit for this very large vehicle which was grossly overweight, I would be unable to say that the fine of $6,300 on the first count was excessive. However, in the light of the further material contained in the appellant's affidavit I am of the opinion that the imposition of that fine will inevitably result in the appellant having to serve the 142 days imprisonment. This is quite a substantial term of imprisonment. Applying the principles in the authorities above, I am satisfied that the appellant is and will be for some considerable time unable to pay that fine. However, in the light of the conclusions reached by the learned Special Magistrate with which I agree, and in the light of the fact that the appellant is still running a profitable business and has some assets, although he has a number of financial commitments at the same time, nevertheless he should be ordered to pay some substantial amount. Doing the best I can on the information before me, I have come to the conclusion that the appropriate amount of the minimum fine which I consider he ought to be able to pay in twelve months is $1,500. Accordingly I allowed the appeal for the purpose of setting aside the amount of $6,300 fixed on count 1 and substituting an amount of $1,500. For this purpose and for this purpose only I thus order the reduction of the minimum fine on count 1 of $6,300 to $1,500. I hereby publish my reasons for the orders which I made as set out at the beginning of these reasons.