Truckie was caught driving overloaded B-triple, but court labels offence a technical breach that doesn't warrant conviction and fine
By Brad Gardner | April 10, 2013
A truck driver caught behind the wheel of a B-triple more than 40 tonnes over the legal limit has escaped conviction and a maximum fine of $42,500.
The Supreme Court of South Australia has upheld a magistrate’s decision to record no conviction and impose no penalty against the Hahn Transport driver, who was charged with committing a severe risk breach of mass, dimension and load restraint requirements in 2011.
The truck weighed 83.2 tonnes – well over the then 42.5 tonne limit – when it was pulled over by officers from the Department of Planning, Transport and Infrastructure (DPTI).
However, the magistrate labelled the offence a “technical breach” and the driver’s culpability “marginal” because Hahn Transport had previously held a permit allowing it to operate the B-triple at 82.5 tonnes.
The permit expired about six weeks before the offence, but the driver was unaware it had lapsed when DPTI officers pulled him over. The DPTI appealed the decision on the basis it was “manifestly inadequate” and that the failure to obtain a valid permit should not be characterised as a technicality.
“I agree with the magistrate’s conclusion that the proper disposition of this matter is to sentence the respondent [the driver] on the basis that no conviction should be recorded and no penalty imposed,” Justice Kevin Nicholson says.
“I am not satisfied that the magistrate was wrong to characterise the breach in this case, insofar as the driver was concerned (as opposed to the operator employer), as a ‘technical’ breach.”
In the initial matter, the DPTI told the magistrate it may also take legal action against Hahn Transport. The operator had used the permit, which had to be renewed annually at a cost of $60, for the last six years.
The 56-year-old truck driver pleaded guilty to the overloading offence and was ordered to pay $392 in court fees.
Nicholson rejected the department’s claim the magistrate’s ruling provided no deterrence to truck drivers. He says the court fees, coupled with the inconvenience and cost associated with legal proceedings, will cause drivers to pay attention to their obligations.
Furthermore, Nicholson says drivers will realise a charge of overloading might have an impact on future employment prospects.
The Hahn Transport had no prior convictions, prompting Nicholson to applaud his driving record.
“In all the circumstances, that is an admirable record and one which, given the nature of the breach on this occasion, the respondent deserves to retain,” he says.
However, the judge did criticise the driver for not inspecting the permit to make sure the B-triple was compliant.
“The respondent had relied on his employer and had done so for the past five or six years to keep the paperwork in order. He can be criticised for not undertaking his own independent check which he should have done,” Nicholson says.
“It is this feature of the respondent’s conduct that has caused me the most concern. A driver has, what in most cases will be, the last opportunity to avoid a mistake of this nature.”
Nicholson says truck drivers, in theory, can refuse to drive until they are satisfied a current permit is in place. He added that there is a clear intention that drivers and transport operators take responsibility for complying with mass requirements.
“However, in my view, it is appropriate to allow some latitude to the driver in a case where, as here, a permit had been renewed annually for some years, as far as the driver understood, but he had failed on the occasion in question to check for a renewal,” he says.
