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[2013] NSWCCA 107
Court of Criminal Appeal (NSW)
2013-02-04
Latham J, Button J, Grove AJ
Original judgment source is linked above.
Judgment 1LATHAM J : This is a stated case from Toner SC DCJ which arises out of the prosecution of the respondent, L & M Scott Haulage Pty Ltd, in the Local Court for an offence under s 56 of the Road Transport (General) Act 2005 (the Act) relating to the overloading of heavy vehicles. 2That section provides :- 1) A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the operator of the vehicle or combination concerned. (2) If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. (3) If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section. 3The maximum penalty for such an offence is calculated by reference to a Table in Part 3.3 Division 4 of the Act. In the instant case, the relevant maximum penalty was $203,500.00. However, by the operation of s 180(2) of the Act, the Local Court could not impose a fine greater than $55,000.00. 4The respondent pleaded guilty and was convicted on 23 April 2012 of an offence particularised in terms that it was the operator of a registered vehicle on 12 September 2011 at Port Botany which did not comply with the mass requirements of that vehicle. It was further particularised that the vehicle was overloaded in the amount of 9.45 tonnes, being 47.25%. That percentage qualified the offence as a "severe risk" breach of the Act, according to the terms of ss 33 and 34 of the Act. 5The respondent was fined $35,750.00 and ordered to pay court costs and professional fees. The respondent filed an appeal against the severity of that sentence which was heard by his Honour Judge Toner on 23 May 2012.
The Proceedings in the District Court 6The evidence before his Honour consisted of an RTA breach report including a two-page report of 12 September 2011, a customer history relating to the vehicle registration, and a Roads and Maritime Services offence prosecution history. His Honour was also provided with a statement of agreed facts, an affidavit of John Richard Evans of 20 April 2012 and a printout of the New South Wales Judicial Commission statistics in relation to the offence. 7The breach report established that at the time of the offence the vehicle consisted of a prime mover towing two trailers, each of which was carrying a container. 8In the hearing before Toner SC DCJ, the respondent formally admitted the essential ingredients of the offence, that the relevant overloading rendered the offence a "severe risk" breach of the Act and that the offence was its second "severe risk" breach of the Act, having formerly been convicted of a similar offence on 8 January 2007. It was further agreed between the parties that the breach was detected as a result of a random inspection and there was no suggestion that the vehicle was being driven in an inappropriate manner. At all times the respondent's driver co-operated with the prosecuting authority. 9The judge made several favourable findings, namely that the respondent's cooperation in the prosecution of the offence entitled it to a significant discount on the penalty that would otherwise apply (albeit that discount was not quantified), that the volume of the respondent's daily haulages in the course of its business warranted the conclusion that overall the respondent had a "good record", that the respondent attempted to comply with the relevant legislation and that the instant offence was committed in part because of the misreading of a delivery docket with respect to the gross weight of one of the containers. 10His Honour took into account the prior "severe risk" offence. With respect to that offence, the respondent pleaded guilty and was fined $2000. 11The statistics from the Judicial Commission of New South Wales established that in the period between January 2008 and December 2011, no more than five cases under the relevant provision of the Act for subsequent "severe risk" offences had been dealt with in the Local Courts and that all of them had been dealt with by way of fines of $5000.00 or less. 12The prosecution acknowledged before his Honour that the maximum penalty available to the Local Court was a fine equal to or less than $55,000.00 by virtue of s 180 (2) of the Act. The prosecution also submitted that the quantum of the fine was to be determined having regard to (amongst other things) the factors in s 60(2)(c) of the Act. 13Section 60 of the Act relevantly states :- (1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed. (2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters: (a) ........................................... (b) ........................................... (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. (3) Nothing in this section affects any other matters that may or must be taken into consideration by a court. (4) Nothing in this section authorises or requires a court to assign the breach to a different category of breach. (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 pursuant to this section. 14Finally, the prosecution submitted that the appropriate penalty should be in excess of 25% of the relevant maximum penalty, namely $203,500.00. In support of that submission, the prosecution relied upon R v Doan [2000] NSWCCA 317; 50 NSW LR 115 at [35], and Roads and Traffic Authority of NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936 at [55]. 15His Honour determined that, having regard to the jurisdictional limit of the Local Court, the penalty in the case was to be fixed on the basis that the maximum fine for the offence was $55,000.00. 16His Honour further determined that, despite the relevance of s 60(2)(c) of the Act, the factors enumerated in that provision were not elements of the offence and there was no evidence before the court which would permit a finding as to the existence of any of those factors. His Honour construed s 60 on the basis that it did not assume the presence of any of the factors referred to therein, notwithstanding that the provision did not require the prosecution to adduce evidence as to the existence of any of those factors. In his Honour's view, the factors enumerated in that provision were properly to be regarded as aggravating features and the prosecution had proved no more than the essential elements of the offence. 17In those circumstances, his Honour determined that the penalty imposed in the Local Court was grossly disproportionate to the offence. The appeal was allowed and the sentence was varied by the imposition of a fine in the sum of $5000.00. 18The questions of law posed by his Honour are :- (i) Was there error in deciding that the fine was to be determined by reference to the maximum penalty that was available to the magistrate, namely $55,000.00. (ii) Was there error in construing s 60(2)(c) as requiring evidence capable of demonstrating the existence of the factors enumerated before any of them could be taken into consideration. (iii) Was there error in determining that there was no evidence capable of establishing any of the factors in s 60(2)(c).
Resolution 19Section 180 of the Act provides that offences under the Act are to be prosecuted in the Supreme Court in its summary jurisdiction or in the Local Court. Subsection 2 sets the jurisdictional limit of the Local Court in the same way that ss 267 and 268 of the Criminal Procedure Act 1986 set the jurisdictional limit of the Local Court for indictable offences dealt with in that court. 20In Doan, Grove J (Spigelman CJ and Kirby J agreeing) said of the then equivalent provisions to ss 267 and 268 in the Criminal Procedure Act :- 35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case". 21An observation to the same effect was made by Price J in Roads and Traffic Authority of NSW v Fletcher International Exports Pty Ltd. Referring to a magistrate's approach to sentencing for an identical offence, his Honour said :- 55 The maximum penalty which has been legislated by Parliament was not irrelevant to his Honour's sentencing task. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 104 at [31]. 22The necessity to assess the objective gravity of an offence by reference to the maximum penalty, not the jurisdictional limit, has more recently been confirmed by this Court (per Johnson J, McClellan CJ at CL and Rothman J agreeing) in Zreika v R [2012] NSWCCA 44 at [98] and [99]. 23Accordingly, the first question in the stated case should be answered "yes". 24His Honour's construction of s 60 of the Act appears to ignore the express terms of the provision in three material respects. 25First, the policy objectives of the provision are spelt out in s 60(1). The legislature intended that courts be made aware of the general implications and consequences of breaches of mass limits when imposing penalties for offences under the Act. Thus, the factors enumerated in subsection 2 are consequences that usually flow from the commission of such offences. To put it another way, they are circumstances that are inherent in the commission of these offences. His Honour wrongly regarded them as aggravating circumstances analogous to those enumerated in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 26Second, the determination of the level of the fine requires the court to take into account the classification of the breach and the factors enumerated in subsection 2 that correspond to that classification. 27Third, subsection 5 confirms that there is no obligation on the prosecution to adduce evidence of any of the relevant factors. Thus, the terms of the provision put beyond doubt that the factors are not aggravating in the sense that the term is generally understood in sentencing practice. 28Accordingly, the answer to the second question in the stated case is "yes". 29Having regard to these conclusions, it is not necessary to answer the third question posed by his Honour. 30The time within which to file the proceedings under s 5B of the Criminal Appeal Act 1912 expired on 20 June 2012. There were delays experienced in obtaining a transcript of the proceedings before his Honour and in settling the stated case. The appellant is granted an extension of 76 days within which to file the appeal 31I propose the following answers and orders :- (1) The questions posed by the stated case are answered : a) Yes b) Yes c) Unnecessary to answer. (2) The penalty imposed by Toner SC DCJ on 23 May 2012 is quashed. (3) Remit the matter to the District Court to be dealt with in accordance with these reasons. 32BUTTON J : I agree with Latham J. 33GROVE AJ : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2013
Roads and Maritime Services
L & M Scott Haulage Pty Ltd