Brookes v Police

Case [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…

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Brookes v Police [2014] SASC 22
Case
[2014] SASC 22
Decision Date

CaseChat Overview and Summary

In Brookes v Police, the appellant contested the conviction and penalty orders made by a Magistrate under s16 of the Criminal Law (Sentencing) Act 1988 (SA). The appellant was found guilty of driving unregistered and uninsured vehicles, and the Magistrate ordered convictions to be recorded. The appeal was against the decision to record the convictions. The court had to determine whether the Magistrate exercised the discretion under s16 of the Act appropriately, considering the nature of the offences and the potential impact on the appellant's future.

The central legal issue was whether the Magistrate correctly exercised the discretion to impose penalties without recording convictions for regulatory offences. The appellant argued that the recording of convictions would adversely affect her character and future opportunities. The Crown contended that the preventative and deterrent effects of recording convictions were significant, particularly for regulatory offences.

The court found that the offences were inadvertent and unlikely to recur, and there was little public interest in recording the convictions. The court considered the nature of the offences, the likelihood of re-offending, and the potential prejudice to the appellant's future. The court concluded that good reason existed to impose penalties without recording convictions. The appeal was allowed, and the convictions were set aside, with the court to consider any consequential orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
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 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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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