COMMISSIONER OF POLICE [2024] SASC 87

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MR K SOETRATMA) MCCRM- 23-039455 Appellant: COMMISSIONER OF POLICE Counsel: MR M MILBURN - Solicitor: CROWN SOLICITOR (SA) Respondent: TALIESIN ELLIS No Attendance Hearing Date/s: 10/04/2024 File No/s: SCCRM-24-000352 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. COMMISSIONER OF POLICE v ELLIS [2024] SASC 87 Judgment of the Honourable Justice Stanley 5 July 2024 MAGISTRATES – APPEAL AND REVIEW – SOUTH AUSTRALIA – APPEAL TO SUPREME COURT VEHICLES AND TRAFFIC — OFFENCE — DRIVING MOTOR VEHICLE AT EXCESSIVE SPEED — REDUCTION OF DEMERIT POINTS The respondent pleaded guilty to a single offence of speeding in contravention of rule 20 of the Australian Road Rules. The respondent was to accrue five demerit points for this offence. The respondent made a successful application for a reduction of demerit points pursuant to s98B(4) of the Motor Vehicles Act 1959 (SA). The Commissioner of Police appeals this decision. Whether the magistrate erred in finding that proper cause existed to reduce the number of demerit points incurred by the respondent. Held, allowing the appeal: 1. When considering whether proper cause to grant an application for reduction of demerit points pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) exists, the Court cannot rely upon factors extraneous to the circumstances of the respondent’s driving. Personal hardship either to the driver, their family or others are not factors that can be taken into account in determining whether proper cause exists. 2. The learned magistrate fell into appellable error by relying upon factors extraneous to the circumstances of the respondent’s driving. No other proper cause existed which enlivened the Court’s discretion to reduce the applicable demerit points. 3. The reduction of demerit points made by the Magistrates Court is set aside and the demerit point application dismissed. A conviction is recorded and a fine of $600 is imposed together with prosecution costs of $150, court fees of $318 and a Victims of Crime levy of $262. -- 1 of 9 -- Motor Vehicles Act 1959 (SA) s 98B(4); Road Traffic Act 1961 (SA) s 49; Australian Road Rules r 20, referred to. Muto-Henderson v Police [2017] SASC 139; Shillabeer v Linnane (1979) 22 SASR 382; McCade v Chandler (1984) 37 SASR 477; Dycer v Police [2010] SASC 241; Holness v Police [2010] SASC 314; Hady-Ali v Police [2015] SASC 84; Sandeman v Police [2023] SASC 53; Markarian v The Queen (2005) 228 CLR 357; Hearn v McCann (1982) 29 SASR 448, applied. -- 2 of 9 -- COMMISSIONER OF POLICE v ELLIS [2024] SASC 87 Single Judge Appeal: Criminal STANLEY J: Introduction 1 The Commissioner of Police appeals from the decision of a magistrate to grant an application for a reduction of demerit points in relation to a speeding offence committed by Mr Taliesin Ellis (the respondent). The Commissioner contends that the magistrate erred in exercising his discretion to allow the respondent’s application for the reduction of demerit points pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (MVA). 2 Section 98B(4) of the MVA provides that: If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence. 3 There is a single ground of appeal, namely, that the learned magistrate erred in finding that proper cause existed to reduce the number of demerit points incurred by the respondent pursuant to s 98B(4). 4 The Commissioner contends that the appeal should be allowed, the magistrate’s reduction of demerit points be set aside and the demerit points application be dismissed. The offending 5 The respondent pleaded guilty to the offence that on 7 September 2023 he exceeded the speed limit by 20-29 kilometres per hour on Tungkillo Road, Tungkillo. 6 On 20 October 2023 police prosecution laid an information charging the respondent with driving at a speed of about 105 kilometres per hour in an 80- kilometre zone in contravention of r 20 of the Australian Road Rules. The maximum penalty for this offence is a fine of $2,500 and the incurring of five demerit points subject to the power of the Court to reduce those points. 7 At the time of the offence the respondent had accrued eight demerit points and therefore would have been disqualified from holding a licence if he accumulated three or more further demerit points. The offending attracted five demerit points. The respondent, representing himself, incorrectly submitted to the -- 3 of 9 -- [2024] SASC 87 Stanley J 2 magistrate that any demerit points would result in the suspension of his driver’s licence.1 8 The respondent pleaded guilty on the first occasion the matter came before the Court and made an application pursuant to s 98B(4) to reduce the demerit points applicable to his offence. He gave evidence in support of the application. 9 The magistrate granted the application, reduced the applicable demerit points from five to zero and imposed a conviction and fine of $1,200. This was after allowing a reduction of 40 per cent for the plea of guilty from a starting point of $2,000. The magistrate further imposed a court fee of $318, the Victims of Crime levy of $262 and a prosecution fee of $150. The magistrate’s reasons 10 The magistrate rejected the submission that the offence was trifling. In considering the submission that proper cause to grant the reduction existed, the magistrate said:2 This is a finally balanced case for you. I am satisfied that there was no embarrassment to other vehicles as a result of your speeding and you didn’t put other people in danger. I will accept that you did not intend to speed. When considering whether there was proper cause, this moves away from the subject offence and looks at all of the circumstances, and I cannot help but note that you have a previous history of speeding in 2021 and 2022 for which demerit points have accrued. You have pointed to the effect of the incurring of these demerit points upon not just you but others. You are the sole income earner for your family and you service some 300 or so patients around the state who would also be affected and would not receive the care from you if you to lose your licence. I do not know whether those people can receive care from some other person in your absence. I would assume that was so but I don’t have evidence about it. As I say it is a finely balanced case. I am satisfied – just – that there is proper cause to make an order to reduce your demerit points to zero. But it is going to cost you. In return for that, first of all you will have a criminal conviction now. It is not a trifling offence, and if it is not a trifling offence, a criminal conviction should be recorded. Second, I am going to impose a higher than usual fine than would ordinarily be the case for a person in your situation and that is a direct form of compensatory punishment in return for the mercy that is displayed in reducing the demerit points to zero. … The points that I have raised as to your driving relate to the lack of embarrassment alleged to have been caused, the lack of intention on your part to speed and to your over reliance upon your vehicle as a means of detecting speed zone changes. 11 The respondent is a trained nurse. It appears that in exercising his discretion to reduce the number of demerit points, the magistrate considered the impact of the loss of the respondent’s driver’s licence on his family and his 300 patients 1 Appeal Book page 18. 2 Remarks on Penalty pages 2-3. -- 4 of 9 -- [2024] SASC 87 Stanley J 3 scattered around the State who would be denied treatment by the applicant for the period of the suspension of his driver’s licence. The appeal 12 The appeal came before me on 10 April 2024. The respondent failed to appear and I proceeded to hear the appeal in his absence. 13 The Commissioner submits that it was impermissible for the magistrate to consider the impact of the respondent’s offending on others in determining whether proper cause existed to reduce the number of demerit points incurred by the respondent for his offending. The Commissioner submits that the overwhelming weight of authority is that only the circumstances of the driving in question can be taken into account when assessing if proper cause has been proved to exist. The Commissioner submits that the circumstances of the offender or others do not provide a basis for proper cause to be established.3 Accordingly, the police submit that the magistrate erred in having regard to an irrelevant matter.4 14 The other proper cause test was considered by Blue J in Muto-Henderson v Police5 where he said:6 In Newton v Larcombe, White J said: A number of authorities discuss the meaning of the words ‘any other proper cause’ in subs. These authorities decide that ‘proper cause’ refers to a cause associated with the circumstances of the particular offence. A particular offence is either trifling or some other proper cause, associated with the circumstances of the particular offence, exists. If so satisfied, the court can, if it is right and just and in accordance with the scheme or code in s 98b to do so, fix no demerit points or fix a reduced number of demerit points. These authorities also hold that the fact that the convicted person will suffer hardship from the recording of the demerit points and any disqualification is not of itself proper cause. In all of these cases, there were special circumstances which rendered the offence not quite trifling but sufficiently atypical to warrant a merciful reduction of the points, usually so as to avoid disqualification. For example, the traffic was very light, the speedometer was not working, the excess over the speed limit was slight, there had been no danger to others, and so on. In Gilbert v Owen, Olsson J identified the following features that may be taken into consideration when determining whether “other proper cause” exists to reduce demerit points under the predecessor to section 98B(4): The critical features for consideration, as I see it, are: • First the proper cause envisaged by s 98b(10) must relate to the circumstances of the offence rather than the offender. 3 Shillabeer v Linnane (1979) 22 SASR 382 ; McCade v Chandler (1984) 37 SASR 477 ; Dycer v Police [2010] SASC 241 ; Holness v Police [2010] SASC 314 ; Hady-Ali v Police [2015] SASC 84 ; Sandeman v Police [2023] SASC 53 . 4 Markarian v The Queen [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370-371. 5 [2017] SASC 139. 6 [2017] SASC 139 at [20]-[24]. -- 5 of 9 -- [2024] SASC 87 Stanley J 4 • Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence. • Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections. Moreover, the need to exercise a rapid judgment in a particular situation may also be important. In Chan v Police, I said: Whilst ‘proper cause’ refers to something which is not quite trifling, there are no closed cases. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of ‘other proper cause’. In Bialobrzeski v Police, Doyle J said: It will generally require that the offending be of a lesser seriousness than the typical offence of its type. In the case of a speeding offence, relevant considerations might include the extent to which the speed limit was exceeded, whether the speeding was momentary or fleeting, the driving conditions, whether there was any other traffic on the road, whether there was any embarrassment to other vehicles or road users, and whether there was any explanation for the speeding such as an emergency. The appellant accepts that, in relation to the first stage whether proper cause exists to reduce demerit points, personal hardship is not a factor to be taken into account. The appellant contends that personal hardship can be taken into account as one factor at the second stage in the exercise of the discretion but it is unnecessary to determine that question. [citations omitted]. 15 It can be seen that the proper cause test is the first stage of a two-stage process. The proper cause test must be satisfied in order to overcome the threshold for the exercise of the Court’s discretion to reduce demerit points. A finding that proper cause exists does not necessarily result in a reduction of demerit points. That depends upon the proper cause test being satisfied and the Court then finding, having regard to all relevant circumstances, that it is appropriate to reduce demerit points. 16 However, it is clear the overwhelming weight of authority is that the establishment of the existence of proper cause must relate to the circumstances of the offence rather than the offender. Accordingly, personal hardship either to the driver, their family or others, are not factors that can be taken into account in determining whether proper cause exists. The learned magistrate fell into error by having regard to considerations relevant to the effect of the demerit points not just on the respondent but on others including his family and patients. 17 That leaves for consideration whether the evidence established some other factors which constituted proper cause within the meaning of s 98B(4). -- 6 of 9 -- [2024] SASC 87 Stanley J 5 18 The magistrate identified three factors which he also weighed in considering whether proper cause had been established. These were the fact that the respondent’s speeding did not cause any embarrassment to any other road users; the lack of an intention to speed; and an over-reliance upon the vehicle as a means of detecting speed zone changes. 19 In my view none of these factors constituted, either individually or collectively, the existence of proper cause within the meaning of s 98B(4). 20 The lack of embarrassment caused by the road users is a typical feature of speeding offences. In this case, the driving exceeded the relevant speed limit by 25 kilometres per hour. There is nothing in the offending speed which takes this case out of what can be characterised as a typical example of an offence of exceeding the prescribed speed limit. 21 The magistrate found the respondent did not intend to speed. The magistrate relied upon the submission made by the respondent that at the time his speeding was detected he was using cruise control set to 100 kilometres per hour. It can be inferred that the magistrate was satisfied the respondent held a subjective belief at the time that the relevant speed limit was 100 kilometres per hour rather than the actual limit of 80 kilometres per hour. The magistrate appears to have accepted that the respondent failed to realise that the speed limit on the relevant stretch of road had changed from 100 kilometres per hour to 80 kilometres per hour. 22 Nonetheless, the respondent was still driving at a speed in excess of what he believed to be the relevant speed limit, albeit only by 5 kilometres per hour. 23 However, it is apparent that the respondent understood that the applicable speed limit on the road he was driving was subject to change on numerous occasions. It follows that the respondent’s subjective belief as to the applicable speed limit was the product of inattention. In any event, proper cause will rarely be found to exist on the basis of a mistaken subjective belief of a driver as to the applicable speed limit, absent some other unusual factor relevant to the offending driving. 24 In Hearn v McCann7 Zelling J held that the defence of honest and reasonable belief in the stated facts which, if they existed, would make the defendant’s act innocent, was not available as a defence to a charge of an offence against s 49 of the Road Traffic Act 1961 (SA), the predecessor provision to r 20 of the Australian Road Rules. It is to be remembered that the regulation of speed limits is for the purpose of promoting road safety and reducing the risk of death or injury through motor vehicle accidents. That purpose would be subverted if the offence of exceeding the speed limit was established in reliance upon a mistaken subjective belief as to the applicable speed limit. 7 (1982) 29 SASR 448. -- 7 of 9 -- [2024] SASC 87 Stanley J 6 25 The learned magistrate found the respondent had an over-reliance upon the vehicle as a means of detecting speed zone changes. This is merely another way of expressing the relevant causal factor in this offending, namely, inattention. The respondent’s failure to notice changes in speed limits which were clearly sign posted, and instead relying upon the vehicle he was driving to alert him to such changes, is a factor that weighs against a finding of the existence of proper cause. The provision in contemporary motor vehicles of devices intended to alert drivers to applicable speed limits and alerting them if the vehicle exceeds those speed limits cannot relieve drivers from the obligation to ensure that they are observing speed limits. 26 For all these reasons, I do not consider it was otherwise open to the magistrate to find that proper cause to reduce the demerit points had been established relying on matters that could properly be considered. 27 The magistrate fell into appellable error by relying upon factors extraneous to the circumstances of the respondent’s driving. No other proper cause existed which enlivened the Court’s discretion to reduce the applicable demerit points. 28 Accordingly, the appeal must be allowed, the magistrate’s reduction of demerit points set aside, and the demerit points application dismissed. 29 However, the magistrate also erred in fixing the fine for this offending. He imposed a fine that was higher than he would ordinarily have imposed as “a direct form of compensatory punishment in return for the mercy that is displayed in reducing the demerit points to zero”.8 30 The moving premise for fixing the fine of $1,200 being wrong, I consider it proper that the Court should interfere with the fine imposed by exercising afresh the sentencing discretion in relation to the fine. 31 I would start with the usual expiation fee of $1,000 and reduce this by 40 per cent for the early guilty plea. That will result in a fine of $600. Additionally, the respondent must pay the prosecution costs fixed at $150, court fees of $318 and the Victims of Crime levy of $262. 32 In addition, a conviction must be imposed. Conclusion 33 I make the following orders: 1. The appeal is allowed; 8 Remarks on Penalty page 3. -- 8 of 9 -- [2024] SASC 87 Stanley J 7 2. A conviction is recorded against the respondent for driving at a speed of about 105 kilometres per hour in an 80-kilometre per hour zone in contravention of r 20 of the Australian Road Rules. 3. The reduction of demerit points made by the Magistrates Court be set aside; 4. The demerit point application be dismissed; and 5. A fine of $600 be imposed together with prosecution costs of $150, court fees of $318 and a Victims of Crime levy of $262. -- 9 of 9 --