Supreme Court dismisses appeal despite agreeing magistrate's penalty was insufficient
The National Heavy Vehicle Regulator (NHVR) has been partially vindicated appealing a truck driver’s “manifestly inadequate” penalty for critical Heavy Vehicle National Law (HVNL) breaches.
The Supreme Court of South Australia agreed a magistrate’s fine was too lenient but dismissed the appeal on the grounds of the driver’s deteriorating personal circumstances.
Shane Mounce was fined $1,500, reduced to $1,050 for an early guilty plea, in 2019 by the South Australian Magistrate’s Court to 10 fatigue and logbook offences.
The investigation was triggered by a collision with a car on March 19, 2017, after Mounce had been driving for at least 17 hours of the previous 24 hours, telling police “all he wanted to do was lie down and go to sleep”.
The offences included critical breaches of Basic Fatigue Management (BFM) and false work diary entries over a seven-week period.
The Adelaide-based company that employed him, unnamed by the court, was also convicted for HVNL breaches and fined $36,000, reduced to $21,600 on early guilty pleas.
It was found that the company had GPS technology available but did not cross-check its data with drivers’ work diaries.
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The regulator argued the penalty was inadequate because, despite the severity of the offending, the fine amounted to less than 1 per cent of the combined maximum penalties for the 10 offences, amounting to $141,080.
It argued the sentence did not follow court precedents “which indicate that a starting point for penalties for these types of offences should be 20 to 25 per cent of the maximum penalty” and sought a starting point of a $28,216 to $35,270 fine.
It cited Mounce had worked for at least one hour and 45 minutes more than the starting threshold for a “critical fatigue breach”, and in some instances for four hours in excess of the threshold; drove for 20 hours in a 24-hour period; the offending was not isolated; he attempted to lie to avoid detection; and the manifestation of the risk of fatigue on the day of the collision.
Mounce also had one prior conviction for a loading breach in 2014.
The original verdict found Mounce “was not defiant or wilfully disobedient” and rather was disadvantaged through “poor supervision and not given adequate information or training about log books”, “struggles with literacy and comprehension”, and “tended to learn by trial and error and rectifying mistakes pointed out to him”.
In dismissing the appeal, Justice Bampton agreed the sentence imposed was manifestly inadequate but noted that while Mounce had at the time moved to an employer “who was supportive and who supervised him appropriately”, he was now unemployed and on Centrelink benefits while supporting his wife and six children, was suffering back debilitation and needed spinal surgery, and had not paid the original fine.
As such, “Mounce’s personal circumstances are now such that any greater pecuniary penalty, let alone that argued for by the NHVR, could not be complied with and would unduly prejudice the welfare of his dependants.”
Despite the perceived harshness of the appeal, the regulator tells ATN it is standard practice to review decisions and seek penalties to match the severity of the offending as an appropriate deterrent to future incidents.
“Driving while fatigued is a serious safety risk for everyone on our roads,” a spokesperson says.
“Drivers, operators and others in the chain of responsibility should always keep in mind their fatigue obligations.
“Beyond the risk of endangering other road users, breaching these obligations can have serious legal and financial consequences.
“As standard practice, the NHVR assesses all finalised matters for possible appeal due to the penalty being manifestly inadequate, as was the case in this instance.”