Brookes v Police

[2014] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BROOKES v POLICE

[2014] SASC 22

Reasons for Decision of The Honourable Justice Nicholson

26 February 2014

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - OFFENCES - DRIVING, USE OR CAUSING OR PERMITTING USE OF UNINSURED VEHICLE - DRIVING OR USE OF UNINSURED VEHICLE

TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - OTHER OFFENCES

The appellant, a 58 year old woman with no prior convictions, was charged with driving an unregistered and uninsured motor vehicle and driving whilst unlicensed.  She had been under stress and suffering from depression at the times she overlooked renewing her car registration and driving licence.  She appealed against the Magistrate’s determination to record convictions.  She did not appeal against any other aspect of the penalty regime ordered by the Magistrate.

Held:  Appeal allowed.  Convictions set aside.  In all other respects the Magistrate’s orders confirmed.  

Motor Vehicles Act 1959 s9, s74, s102; Criminal Law (Sentencing) Act 1988 s16; Motor Vehicle Regulations 2010 Schedule 4, referred to.
Police v Brookes Magistrates Court of South Australia, AMC-13-11738, Remarks on Penalty, 23 September 2013; House v R (1936) 55 CLR 499; Police v Varma [2013] SASCFC 72; Roder v Police (2000) 32 MVR 559; Singh v Police [2013] SASC 155; Sims v Police (2000) 30 MVR 524; Leonello v Police [2005] SASC 29; R v Briese (1997) 92 A Crim R 75; Rowland v Police (2001) 79 SASR 569; Tazroo v Police [2002] SASC 155; Sadler v Police [2010] SASC 281; Ly v Glover (1996) 150 LSJS 449; Hemming v Neave & Anor (1989) 51 SASR 427 ; Brown v Police [2009] SASC 45; R v Stubberfield (2010) 106 SASR 91, considered.

BROOKES v POLICE
[2014] SASC 22

Magistrates Appeal:  Criminal

NICHOLSON J.       

Introduction

1. On 29 September 2012 the appellant was charged with driving her motor vehicle on a road whilst unregistered, contrary to s9 of the Motor Vehicles Act 1959, with driving her motor vehicle on a road whilst uninsured (third party personal injury) contrary to s102 of the Motor Vehicles Act 1959 and with driving whilst unlicensed contrary to s74(1) of the Motor Vehicles Act 1959.  Her registration and insurance had expired a little less than three months previously on 4 July 2012 and her licence had expired on 18 April 2012.  The appellant suffers from diagnosed psychiatric conditions and was under significant stress at the times she simply overlooked renewing her car registration and her driver’s licence. 

2. The three offences with which she was charged were capable of being expiated and an expiation notice was issued.  The expiation fees and compulsory levies for the three offences amounted in total to $1,519.  Understandably, the appellant chose not to expiate the offences but to have them dealt with in the Magistrates Court with a view to avoiding any penalty or at least having the penalties reduced.  The appellant was also anxious to have no convictions recorded. 

3. On 23 September 2013 the appellant appeared in the Adelaide Magistrates Court without legal advice or representation and pleaded guilty to the three charges.  The appellant put a number of matters before the court in mitigation.[1]  The appellant was dealt with mercifully.  The Magistrate imposed a single penalty, a fine of $100, for all three offences.  The Criminal Injuries Compensation levies were ordered but the otherwise applicable demerit points were reduced to nil,[2] the court fee was waived and, by consent, the prosecution fee was waived.  However, the Magistrate recorded a conviction for each of the three offences.  The appellant has appealed to this Court against the decision of the Magistrate to record convictions.

   [1]    As summarised in the appellant’s affidavit sworn and filed in this Court on 14 November 2013. 

   [2]    It would seem, by reference to Schedule 4 to the Motor Vehicles Regulations 2010 that none of the three offences carried demerit points as part of any penalty.

   The notice of appeal

4. The notice of appeal contains the following grounds.

   1.The learned sentencing Magistrate erred in that he failed to properly or adequately consider and/or apply section 16 of the Sentencing Act.

   2.The learned sentencing Magistrate erred in that he failed to adjourn the matter to allow the Appellant to obtain legal advice and/or representation.

   3.The learned sentencing Magistrate erred in that he failed to properly or adequately advise the Appellant as to matters of law and fact, to enable her to make effective submissions to the Court on her own behalf.

   4.The learned sentencing Magistrate erred in that he failed to properly or adequately invite the Appellant to present further material and/or evidence to the Court in support of her application.

   5.The learned sentencing Magistrate erred in determining that the Appellant was not unlikely to commit such offences again.

   6.Such further or other grounds as may be added or substituted by counsel upon receipt of the reasons for penalty of the learned sentencing Magistrate.

   The factual basis relied on by the appellant for grounds 2, 3 and 4 is not conceded by the respondent.  However, it will not be necessary to enter upon that controversy.  In the circumstances, it will only be necessary to consider at any length grounds 1 and 5. 

   The Magistrate’s remarks on penalty

5. The Magistrate’s remarks were relatively short and I set them out in full.[3]

   [3]    Police v Brookes, Magistrates Court of South Australia, AMC-13-11738, Remarks on Penalty, 23 September 2013.

   Ms Brookes, I take into account your guilty pleas at the first opportunity, together with the contents of the documents you have tendered, namely a letter dated 19 September 2013 from Dr B. Rowe, Psychiatrist; a GP Mental Health Care Plan and Assessment dated 2 October 2012; and a 3-page Centrelink Medical Certificate.

   You are aged 58 years and you have no prior criminal history at all.

   You suffer from depression, bipolar disorder and post traumatic stress disorder, and you are under the care of a psychiatrist.

   In October 2012 (a short time after these offences) you were admitted to a private hospital.  I totally accept that at the time of these offences you had no idea that you were unlicensed, unregistered and uninsured, due to your medical condition.

   I find the offences trifling (by the consent of the prosecution).  The demerit points will be reduced to zero.

   I will impose a global penalty for all 3 counts. You are convicted and fined $100.00. The Court fee is waived. CIC Levies to apply. By consent of the prosecutor, the prosecution fee is waived (pursuant to Section 13 of the Criminal Law Sentencing Act).

   In regard to your application not to record convictions, that application is opposed by the prosecutor.  Ms Brookes, after considering the matter, I will record convictions.  I note your concern about the effect of convictions being recorded.  However, I am sure that it will not make any difference to your voluntary work with Legacy.  These are regulatory types of offences.  Anyone looking at them will see that the penalty I have given you is extraordinarily low.  The expiation fees alone would have amounted to approximately $1,500.00.  I have only fined you $100.00.  If anyone did have a query about the offences, then you could produce the letter from your psychiatrist.

   The fact is that it is only driving unlicensed, unregistered and uninsured.  In order not to record convictions, I would have to be satisfied that you were unlikely to commit such an offence again.  However, given your ongoing medical condition, it is difficult for me to find that.  The prosecutor is opposed to that course.

   Convictions will be recorded.  I am however sure that this will not stand in the way of your undertaking voluntary work.  I do not accept that convictions for these types of offences will stand in your way at all of either being a registered nurse or a marriage celebrant.  I do not believe that persons can be barred from becoming marriage celebrants or registered nurses because of a conviction for these types of offences.  In my view there is simply no way that would occur.  If it were a theft matter or something similar, that would be different; but this is of such a minor nature that convictions are normally recorded due to their regulatory nature. That is not a slight of your character or reputation.

   The discretion to impose a penalty but without recording a conviction

6. Section 16 of the Criminal Law (Sentencing) Act 1988 empowers a sentencing court to impose a penalty without recording a conviction.[4]  The power imposed is discretionary but for the discretion to be enlivened a number of statutory preconditions need to be satisfied.[5]  Section 16 is in the following terms.

   [4]    Sections 15 and 39 also empower a court in prescribed circumstances to proceed without recording a conviction.  During argument counsel for the appellant faintly argued that the Magistrate might have proceeded under either of these provisions.  I am not persuaded that either s15 or s39 is apposite to the circumstances of this matter.

   [5]    See R v Stubberfield (2010) 106 SASR 91 at [40]-[41] (the Court: Gray, Sulan and David JJ).

   16—Imposition of penalty without conviction

   Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion--

   (a)that the defendant is unlikely to commit such an offence again; and

   (b)that, having regard to--

   (i)    the character, antecedents, age or physical or mental condition of the defendant; or

   (ii)     the fact that the offence was trifling; or

   (iii)    any other extenuating circumstances,

   good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.

7. In the present case, the Magistrate was not prepared to find that the appellant “is unlikely to commit such an offence again”.[6]  Accordingly, an exercise of the discretion not to record convictions did not arise. 

   [6]    Section 16(a).

8. The Magistrate went on to find, albeit with the consent of the prosecution, that the offences were trifling.  As such, at least one of the alternative requirements provided for in s16(b) was made out by the appellant.  There has been no challenge to this finding.  In any event, and whilst in s16(b) the disjunctive “or” is used with respect to paragraphs (i) (ii) and (iii) there is no reason why a defendant cannot rely upon all of those alternatives when seeking a favourable exercise of the discretion.  In other words, a defendant is not limited to making out and relying upon only one of the three types of matters set out in s16(b). 

9. The considerations falling within s16(a) and (b) are in the nature of factual findings (apart from the matter in (b)(ii) which is a question of mixed fact and law).  Discretionary considerations do not arise at this stage.  Importantly, when considering a challenge to any such findings, an appellate court is not constrained by the usual approach to be taken when reviewing a discretionary determination, as explained in House v R.[7]  A discretionary determination (and, on appeal, House v R considerations) arises when the decision maker is deciding whether “good reason” exists for not recording a conviction, after first having made such findings that are available and fall within s16(a) and (b). 

   [7] (1936) 55 CLR 499 at 504-505.

10. Much of the Magistrate’s remarks on this issue were directed to his Honour’s opinion as to the effect that a recorded conviction or convictions would have on the appellant’s future prospects.  His Honour did not expressly attend to the matters identified in s16(b)(i) (ii) or (iii) in the context of deciding whether or not to exercise the discretion not to record convictions.  His Honour did not, in fact, purport to exercise this discretion one way or the other.  Rather, the Magistrate appears to have taken the view that an exercise of the discretion was not open to him because the essential requirement in s16(a) was not made out. 

    The fact is that it is only driving unlicensed, unregistered and uninsured.  In order not to record convictions, I would have to be satisfied that you are not likely to commit such an offence again.  However, given your ongoing medical condition, it is difficult for me to find that.  The prosecutor is opposed to that course.

    Convictions will be recorded.[8]

    [8]    Remarks on Penalty at [8]-[9].

    The respondent’s submissions

11. On the issue of the recording of convictions the respondent’s submissions can be summarised as follows.

    (i)The key question is whether it was reasonably open for the Magistrate to fail to reach the opinion that the appellant was unlikely to commit such an offence again. 

    (ii)Given that these offences were unintentional and appear to have been a result of forgetfulness, inattention or oversight, it is difficult to reach an opinion that the appellant would be unlikely to commit an offence of this nature in the future.[9]

    (iii)It is even more difficult to form an opinion that the appellant is unlikely to reoffend in this way given her psychiatric history. 

    (iv)Even if the Magistrate erred in failing to form the requisite opinion and the discretion was enlivened, there was, in the circumstances, no “good reason” to not record convictions.  In this respect, the respondent relied upon the importance of prevention and deterrence where regulatory offences of the types under consideration are in issue.[10] 

    (v)There is a public interest in recording convictions so that the public will know an offender’s history. This public interest significantly outweighs the adverse impact convictions would have on the appellant’s vocational and volunteering activities, if any.[11]

    [9]    Police v Varma [2013] SASCFC 72 and Roder v Police (2000) 32 MVR 359 at [16].

    [10]   Singh v Police [2013] SASC 155 at [40]; Sims v Police (2000) 30 MVR 524 and Leonello v Police [2005] SASC 29.

    [11]   R v Briese (1997) 92 A Crim R 75 at 79.

    Resolution of the appeal

12. During the argument on 26 February 2014, a second affidavit affirmed by the appellant that morning was read in support of her appeal without objection from the respondent.  The affidavit contains information about the appellant’s personal circumstances which in part repeats, in part amplifies and in part adds to, information that was before the Magistrate.  The appellant asserts that the Magistrate failed to explain to her, as an unrepresented litigant, the requirements she would need to satisfy in order to have the discretion under s16 enlivened.  There is nothing in the police prosecutor’s affidavit[12] nor in the Magistrate’s remarks to contradict this.  However, I recognise that the respondent has had no opportunity to obtain instructions on the appellant’s most recent affidavit.  It is unnecessary that I make a finding as to whether or not there was a failure of process in this respect.[13]  However, what follows concerning the appellant’s personal circumstances does draw on, in part, that affidavit material.

    [12]   Sworn by Debra Lorraine McDiarmid 15 November 2013 and read in the respondent's case.

    [13]   See Sadler v Police [2010] SASC 281 at [11].

13. The appellant was 58 at the time of committing the offences.  The appellant has no prior criminal record and apart from these offences she would appear to have lived a law abiding and responsible life.  Her detailed medical (including psychiatric) history was before the Magistrate.  She has suffered from recurrent bouts of depression since childhood and has required occasional hospitalisation on and off since 1980 for depression, bi-polar disorder, chronic fatigue and post traumatic stress disorder.  The post traumatic stress disorder arose initially from parental domestic violence but was exacerbated by the circumstances of the death of the appellant’s husband in 2004. 

14. At the time of the offending the appellant was working as a marriage celebrant and seeking additional employment as a mental health nurse.  In addition, she was doing volunteer work for the Legacy organisation.  She regularly assists with the care of her grandson whose parents are divorced.  The appellant has maintained a good relationship with her son who requires ongoing support; she has ongoing contact with her former daughter-in-law.  During the period August to September 2010 the appellant served as a volunteer health worker in an isolated community in Papua New Guinea. 

15. According to the appellant’s treating psychiatrist, at the time of the offending the appellant was significantly depressed.  She required in patient treatment for depression in October 2012, that is, almost immediately after the date of the offences.  According to the psychiatrist, the appellant’s depression was compounded by a complex grief reaction following the death of her husband in 2004.  This was further aggravated at the time of the offending by the stress of caring for her new partner who was recovering from major heart surgery. 

16. The appellant has held a driver’s licence since she was about 21.  The appellant has been solely responsible for registering and insuring a motor vehicle for at least 10 years (her husband died in 2004).  This information was obtained from counsel following instructions taken from the appellant during an earlier application for an adjournment of the hearing of the appeal.  If this information was not before the Magistrate then strictly it raises the question of “fresh” evidence on appeal.  However, the information is not seriously contested.  Further, I take the view that it is the sort of information directly relevant and probative of an important matter in issue that a Magistrate should have elicited from a litigant in person in the circumstances of this case. 

17. The appellant married at 20.  Since then (throughout her marriage and from after her husband’s death) she has been the person responsible for payment of household bills and utilities accounts.  She managed this whilst working and raising her son and notwithstanding being afflicted with depression.  Since her husband died the appellant has also bought and sold property, worked as a nurse and gained further qualifications in mental health and rehabilitation nursing.

18. In order for the discretion under s16 to be enlivened, the court must be “of the opinion that the defendant is unlikely to commit such an offence again”.[14]  It is notoriously difficult for a litigant to prove a negative.  Nevertheless, it is this which a defendant in the position of the appellant is required to do.  However, the opinion to be reached is only that the defendant is “unlikely” to commit such an offence again.  It is not necessary for the judicial officer in question to arrive at a state of mind approaching sureness or certainty in this respect. 

    [14]   Paragraph (a) of s16.

19. In reaching the conclusion that he was not so satisfied, the Magistrate appeared to rely substantially, if not solely, on the fact of the appellant’s ongoing medical (psychiatric) condition[15] and his Honour’s finding that “at the time of these offences [the appellant] had no idea that [she was] unlicensed, unregistered and uninsured, due to [her] medical condition”.[16]   In this latter respect, it would appear that the Magistrate placed reliance on the treating psychiatrist’s letter of support.  In his report, the psychiatrist described the appellant’s medical condition and stated that it existed at the time when she committed the offences.  He then asked the court to take her psychiatric ill health at the time of the offences into account when considering the matters before the court.  In any event, soon after committing the offences the appellant undertook further medical treatment as an inpatient. 

    [15] Remarks on Penalty at [8].

    [16] Remarks on Penalty at [4].

1. The Magistrate’s finding paid insufficient regard to the fact that at the age of 58, and after experiencing on and off throughout her adult years the ongoing psychiatric conditions to which she was subject at the time of the offending, the appellant has managed to maintain an unblemished criminal record and has managed to avoid committing any regulatory type offences whatsoever.  Furthermore, the appellant had been through a difficult and distressing experience of being confronted with an expiation notice for more than $1,500 for having forgotten to register her motor vehicle and renew her driver’s licence, of representing herself in the Magistrates Court and arguing her case for mitigation. 

2. The appellant has been able to manage her life to the age of 58, in spite of all of the difficulties she has faced, without committing any offence.  Her most recent experiences with the police and the criminal justice system should only serve to strengthen her resolve not to forget to register her car or renew her driver’s licence again.[17]  The fact that she had for many years prior to the present failures routinely renewed her driver’s licence and registered a car is relevant to a consideration of the requirement in s16(1)(a).

   [17]   Cf; Sadler v Police [2010] SASC 281 at [25] (White J).

3. I return to the test, the court only has to be of the opinion that the defendant is “unlikely” to commit such an offence again.  Where a finding of fact, such as this, is challenged on appeal the appeal court must make an independent review of the evidence and reach its own conclusion after giving due weight to the Magistrate’s advantage gained by seeing and hearing any witnesses.[18]  I have done this.  In my view, the test in s16(1)(a) is easily satisfied in the circumstances of this appellant.  The Magistrate failed to have sufficient regard to the factual matters before him bearing on this issue and erred in failing to be of the requisite opinion. 

   [18]   Rowland v Police (2001) 79 SASR 569; Tazroo v Police [2002] SASC 155.

4. The appellant has submitted that it is difficult to reach the requisite opinion where the commission of the offences was unintentional as a result of forgetfulness or oversight.  The first response to such a submission must be – perhaps difficult but not impossible; each case will turn on its own facts.  However, the submission is deceptively seductive.  In making the submission the Crown relied on observations by Duggan J in Roder v Police[19] apparently approved of in a joint judgment of the Full Court in Police v Varma.[20]

   The Solicitor-General submitted that the circumstances in which it would be appropriate to apply section 16 to an offence of driving without due care must be rare.  Generally such an offence would be committed unintentionally and, accordingly, it would be very difficult for a court to be able to form the opinion that a defendant would be unlikely to commit such an offence again.  The Court’s attention was drawn to the following observations of Duggan J in Roder:[21]

   I do not suggest that s 16 should never be applied to an offence of driving without due care, just as I do not suggest that s 15 should never be applied to such an offence.  However, the circumstances in which it would be appropriate to apply s 16 to a case such as the present must be rare.  The requirement that the court be of the opinion that the defendant is unlikely to commit such an offence again is difficult to establish in the case of an offence of driving without due care.  Such acts are often committed unintentionally, as was the case here.  It would seem difficult to reach an opinion that any driver was unlikely to commit an offence of this nature in the future.  In my view it cannot be said that, in the case of this appellant, he is unlikely to commit an offence of driving without due care at any time in the future.

   [19] (2000) 32 MVR 359 at [16].

   [20] [2013] SASCFC 72 at [39] (Gray, Sulan and Blue JJ).

   [21]   Roder v Police (2000) 32 MVR 359, [16]; see also Sadler v Police [2010] SASC 281 at [18].

5. The observations of Duggan J and the Full Court should be understood within the context of their Honours’ considerations of the offence of driving without due care.  The opportunity to apply s16 to that offence will be rare (but not non-existent) for the reasons given by Duggan J.  These same considerations will not necessarily apply to an inadvertent failure to renew car registration and drivers licence.  The offence is driving without these things in place but occurs because of an earlier but continuing failure to advert to the fact that registration and licence once in place had lapsed.  Practical steps (such as diary entries) can be taken to ensure this doesn’t happen again once the failure to renew has been drawn to the person’s attention.  I have little doubt that the appellant, with this experience behind her, will take such practical steps as may be open to her.  The likelihood or unlikelihood that a person who has been found guilty of negligent driving will one day in the future again drive without due care, raises quite different considerations. 

6. Furthermore, the submission, insofar as it might apply to the appellant’s type of offences, is likely to give rise to unexpected and undesired consequences.  A person who deliberately fails to renew their car registration would have a better chance of satisfying the s16(a) threshold test so as to enliven the exercise of the discretion than would a person who simply overlooks the statutory requirements.  The submission, insofar as it might be applied to the offences presently under consideration, undermines the utility of s16 once it is accepted that the inadvertent law breaker can be the type of person who deserves a second chance before being visited with a criminal record for the first time.

7. In any event s16(a) raises a factual issue.  On the facts of this case and whether or not this might be seen to be a “rare” case, the pre-condition in s16(a) is made out.

8. The Magistrate’s finding that the offences were trifling has not been challenged and is not to be disturbed.  In addition, the character, antecedents, age and mental condition of the appellant (as already discussed) are such as to suggest a favourable exercise of the discretion not to record convictions.  Accordingly, paragraphs (a) and paragraphs (b)(i) and (ii) may be invoked and the discretion is available to be exercised. 

9. The appeal is to be allowed. In the circumstances, the question arises as to whether the matter should now be remitted to the Magistrates Court for the discretion to be exercised according to law or whether the appellant should be resentenced and the discretion exercised in this Court. In my view it is in the interests of the parties and generally that the matter be finalised here. Whilst the appeal is to be allowed, there is no reason to interfere with any of the elements of the Magistrate’s sentence apart from the question of whether or not to record convictions. I therefore confirm the Magistrate’s orders that any demerit points otherwise applicable are to be reduced to nil, that there is to be a single penalty by way of a fine of $100 for all three offences, that the court fee for the Magistrates Court is waived, that the Criminal Injuries Compensation levies are to apply and that the prosecution fee is waived pursuant to s13 of the Criminal Law (Sentencing) Act.  The only remaining question is that of the exercise of the discretion whether or not to record convictions.

   How should the s16 discretion be exercised?

10. At the outset the appellant’s age, unblemished criminal record and otherwise good character, the circumstances of the offending and the finding that the offences were trifling conspire to present strong grounds for a favourable exercise of the discretion.  The appellant is very concerned as to the potential consequences of being visited with a criminal record.  Her concerns in this respect and the Magistrate’s assessment of these concerns are summarised within the Magistrate’s Remarks on Penalty set out earlier.  One can never know in advance what the future will bring and therefore cannot be certain about such matters.  In particular, one cannot safely predict the attitude of officials in various overseas countries should the appellant wish to travel.  Nevertheless, I tend to agree with the Magistrate that, given the nature and circumstances of the offending here, the appellant’s concerns may be overstated.  However, the question arises whether it is just in the circumstances to expose this appellant to any risk of such adverse consequences.  Perhaps more importantly, it would be a very distressing matter for a decent law abiding citizen at the age of 58 to find herself with recorded criminal convictions for the first time as a result of forgetfulness.  Most such persons are very proud to have and are protective of an unblemished criminal record.  Section 16 is available to allow the courts to give first offenders in such circumstances a second chance.  The observations of Kourakis CJ in Singh v Police[22] are apposite.

    The MVA is regulatory legislation.  The preventative and deterrent aspects of punishment generally assume relatively greater importance in sentencing for offences against such legislation.[23]  However, the force of this consideration is much reduced in the case of offences which can be expiated.  It is difficult to see why a conviction is generally necessary in the case of the few offenders who, for whatever reason, fail to take advantage of the expiation process, pursuant to which the great preponderance of offenders escape convictions without jeopardising the integrity of the registration and insurance scheme.

    [22] [2013] SASC 155 at [39].

    [23]   Ly v Glover (1996) 150 LSJS 449, 454; Hemming v Neave & Anor (1989) 51 SASR 427, 429.

11. It has been said that s16 should be used sparingly for regulatory offences such as driving unregistered and uninsured because convictions for such offences are unlikely to reflect adversely on a defendant’s character.[24]  I have dealt with this consideration earlier and it is, in part, answered by the observations of the Chief Justice quoted immediately above.  In this respect, the Crown also relies on the preventative and deterrent effect ordinarily to be expected from the recording of a conviction particularly where regulatory offences are under consideration.  Whilst these are important considerations they do not carry significant weight in the circumstances of this case.  The offending was inadvertent and as I have found, unlikely, for other reasons, to recur.  Furthermore, this is not a case where it will be particularly important for the public or any particular element of the public, such as a potential employer, to know that the appellant having committed these offences has had convictions recorded.  The very reasons given by the Magistrate when concluding that the appellant’s concerns about future prejudice she may suffer are overstated, also suggest that there is, in this case, little by way of public interest in having convictions recorded.

    [24]   Brown v Police [2009] SASC 45.

    Conclusion

12. I am satisfied that good reason exists in this case to impose a penalty or penalties without recording convictions, pursuant to the discretion available under s16 of the Criminal Law (Sentencing) Act 1988.  To this end the appeal is allowed.  The Magistrate’s orders are confirmed with the exception of the recording of convictions.  The three convictions, as recorded by the Magistrate, are set aside.  I will hear the parties as to any consequential orders to be made.