Brown v Police

[2009] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BROWN v POLICE

[2009] SASC 45

Judgment of The Honourable Justice Nyland

26 February 2009

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - FRESH EVIDENCE

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS

Appeal against sentence – appellant pleaded guilty to driving an unregistered and uninsured vehicle –  – appellant fined and disqualified from obtaining a driver’s licence for a period of seven days – appellant claimed that he was not aware that his car was unregistered and uninsured owing to poor mental health – whether Special JP erred in recording convictions – claim that convictions would prevent appellant from obtaining overseas visa and affect future employment.

Held: Section 16 Criminal Law (Sentencing) Act 1988 should be exercised sparingly in enforcing social and regulatory legislation - penalty imposed appropriate to circumstances of offending - the convictions do not indicate that the appellant is not of good character nor a person with little regard for the law and should not affect obtaining of visa nor future empoyment - appeal dismissed.

Motor Vehicles Act 1959 ss 2, 9; Criminal Law (Sentencing) Act 1988 s 16, referred to.

BROWN v POLICE
[2009] SASC 45

Magistrates Appeal

1. NYLAND J:          The appellant was charged on complaint that on 18 September 2008 at Adelaide in the State of South Australia, he drove a vehicle, namely a Toyota sedan SA Registration XEB 619 on a road, namely Flinders Street, the registration of such motor vehicle not then being in force under the provisions of part II of the Motor Vehicles Act 1959 contrary to the provisions of s 9 Motor Vehicles Act 1959. He was further charged that on the same date he drove the said vehicle without there then being in force in relation to it a policy of insurance complying with part IV of the Motor Vehicles Act 1959 contrary to s 2 Motor Vehicles Act 1959.

2. On 18 December 2008 the appellant appeared before a special Justice of the Peace in the Adelaide Magistrates Court and pleaded guilty to both offences.  In each case a conviction was recorded.  The appellant was fined the total sum of $160 for both offences and was disqualified from holding or obtaining a driver’s licence for a period of seven days. 

3. The appellant was unrepresented at the hearing before the special JP, but provided her with an affidavit in which he explained that he was not aware that the car was not registered nor uninsured and said that this had occurred during a period when he was in a poor state of mental health.  Annexed to his affidavit was a substantial body of material relating to an assault upon him when working as a teacher at the Bowden Brompton Community School and copies of reports from a psychiatrist, Dr Tottman, who was treating him for various problems, including a post-traumatic stress disorder.  According to the affidavit of Matthew John Hawgood, who was the prosecutor at the hearing in the Magistrates Court, the facts were read out to the Special JP as appeared in the police apprehension report.  That included a comment by the appellant that he was unaware of the lack of registration.  Constable Hawgood recalled the appellant making a submission to the effect that he did not want a conviction recorded, as it would affect his future employment opportunities. That was opposed by the police prosecutor who expressed the opinion that the reasons given by the appellant did not warrant the matter being dealt with without conviction, pursuant to s 16 Criminal Law (Sentencing Act) 1988 (Sentencing Act).  Constable Hawgood submitted that a conviction for a minor traffic matter should not impede the appellant’s chances of employment. 

4. In his notice of appeal the appellant complained that the Special JP had erred in recording convictions with respect to these offences and that the licence suspension of seven days was manifestly excessive.  He complained that the Special JP had failed to have sufficient regard to the evidentiary material annexed to his affidavit, which included the effect of the convictions on his employment prospects and his ability to obtain a Visitor’s Visa to the United States of America. 

5. The documents provided to the Special JP do not specifically refer to a visa problem, although in his affidavit there is a cryptic reference to a planned trip to America and Europe in 2009, which he could not do if convicted.  Following the lodgement of his appeal, however the appellant, without objection from the respondent, filed an affirmation, dated 15 January 2009, which related to his enquiries with the Embassies of the United States of America, England and France as to the effect of the convictions upon his visa application.  There is no information available however as to what information the appellant provided to them about the nature of his conviction.  The appellant said, however, that he had paid $147 to have a fingerprint police clearance completed and had to pay US$131 for an application for a Visitor’s Visa.  He is also obliged to travel to the US Consulate in Melbourne to present his documents and explain the purposes of his trip.  In an affirmation dated 9 February 2009, the appellant annexed a copy of an advice received with respect to his application to enter the United Kingdom as a visitor, in the form of an email from the British High Commission in Canberra which comments:

   In regard to your conviction as a whole, it seriously depends on the outcome of your conviction.  If you are then the chances of you being allowed to enter the UK as a visitor are quite slim. 

6. All of these documents were prepared by the appellant without benefit of counsel and they contain a large quantity of emotive material which has limited relevance to the present appeal.  When the appeal came on for hearing, however, Mr White of counsel appeared.  He indicated that he had not been instructed by a solicitor to appear on behalf of the appellant, but sought leave to appear as amicus curiae to assist the appellant with making submissions on the hearing of the appeal. 

7. I gave leave to Mr White to appear and he then made submissions on behalf of the appellant. He submitted that there were grounds upon which the Special JP could have exercised the discretion not to record a conviction, pursuant to the provisions of s 16 Sentencing Act.

8. Mr White said that the appellant did not now take issue with the fine nor disqualification imposed by the Special JP, but only sought to set aside the recording of the convictions.  He submitted that it appeared from the antecedents of the appellant that he was unlikely to commit such offences again.  He referred to the mental strain from which the appellant was suffering in 2008 which created a confusion in his mind as to the registration and insurance of his car.  That, combined with the possible jeopardising of his prepaid overseas trip, amounted to extenuating circumstances which enlivened the discretion to proceed without recording a conviction.  Mr White referred to the very difficult time which the appellant had encountered in his professional career and suggested that although the Special JP had read the affidavit of the appellant, she had not read the annexures in full, but they demonstrated the very serious problems of the appellant at the relevant time.  Mr White indicated that the appellant’s problems had now substantially resolved, as his claim arising out of his injuries for the assault and consequent post traumatic stress disorder had been settled.  He therefore asked that I extend some mercy to the appellant on the re-hearing of this matter by allowing the appeal and not recording a conviction for these offences.

9. Counsel for the respondent submitted, however, that there was no basis upon which the court should exercise its discretion in favour of the appellant not to record a conviction. Counsel pointed out that in order to exercise the discretion, the Special JP first needed to be satisfied that the appellant was unlikely to commit such offences again and the onus was on the appellant to supply evidence to justify that finding. Further, even if the sentencing court was satisfied that the appellant was unlikely to re-offend, that merely enlivened the court’s discretion to move to the next stage of the process and to consider the matters in paragraph 16(b) Sentencing Act. The court also had to be satisfied that there was good reason not to record a conviction, having regard to the matters contained in s 16(b)(i)-(iii) Sentencing Act, namely the antecedents age or physical or mental condition of the appellant, whether the offence was trifling or whether there were any other extenuating circumstances. Counsel submitted that the remote possibility that the appellant might lose his teacher’s registration and taxi driver’s accreditation, or that he may not be granted a security agent’s licence, as referred to in the various documents filed by the appellant in these proceedings, did not constitute a good reason for declining to record a conviction. Similarly, the remote possibility that he would be refused a Visitor’s Visa for entry into the United States did not constitute good reason for declining to record a conviction.

10. It was not disputed that the appellant has suffered a post traumatic stress disorder, but counsel submitted that neither that by itself, nor in conjunction with the appellant’s other personal circumstances rendered inevitable the exercise of the s 16 discretion. Furthermore, the factors listed in s 16(b) Sentencing Act had to be balanced against the paramount need for general and specific deterrence. These were regulatory offences and it is well established that the discretion should only be exercised sparingly in enforcing regulatory and social legislation, bearing in mind the important deterrent element of such sentences. In the circumstances, the Special JP had not fallen into error in exercising that discretion, nor could it be said that the sentence imposed was manifestly excessive.

11. Counsel for the respondent further submitted that the sentence imposed by the Special JP was within the range prescribed by the legislation and was appropriate in all the circumstances, bearing in mind the maximum penalty for the drive an unregistered vehicle offence was an amount equal to twice the amount of the prescribed registration fee for 12 months which would have been payable for the granting of registration in respect of the vehicle on the day of the events, or $750, whichever was the greater.  The maximum penalty for the drive uninsured offence was $2,500 and disqualification from holding a driver’s licence for a period of not more than 12 months.  The period of licence disqualification proposed by the Special JP was therefore less than two per cent of the maximum penalty.  In all the circumstances, counsel for the respondent submitted that I should dismiss the appeal. 

12. No reasons were provided by the Special JP, but that is to be expected given that this appeared to be a straightforward traffic matter. It is unlikely that the Special JP had the opportunity to read the wealth of material annexed to the appellant’s affidavit, but the fact that the matter was dealt with by the imposition of a very modest penalty suggests that the Special JP accepted the matters set out by the appellant in his affidavit to the effect that these offences were unintentional and committed at a time of mental and psychological pressure. It is, however necessary to consider whether the matter should have been dealt with pursuant to s 16 Sentencing Act without a conviction being recorded. I am satisfied that the appellant is a person unlikely to offend again and the issue for consideration is whether by reason of his mental condition or any other extenuating circumstances it is appropriate to proceed without recording a conviction.

13. I agree with the submission put by counsel for the respondent that in enforcing legislation of this kind, the use of s 16 Sentencing Act discretion should be used sparingly. I also agree with counsel for the respondent that policy considerations require a penalty that will act as a deterrent, not only to the appellant but to others who might be tempted to breach the law in this regard, in view of the potentially serious repercussions which can flow from a vehicle being uninsured. The problems that the appellant had at the relevant time provide an explanation as to why he overlooked registering and insuring his car, but are not such as to excuse him from so doing and thereby escape conviction for those offences. I think it most unlikely that a conviction for these two offences will have any effect upon the appellant’s future employment prospects. I do not therefore consider the Special JP erred when she rejected the appellant’s application for the matter to be resolved without recording convictions.

14. The Special JP may have overlooked the travel issue when making her decision to record convictions but I do not think that affects the result.  I do not consider the remote possibility that these convictions might affect a visa application amounts to an extenuating circumstance which would permit the use of s 16 discretion.  These convictions should not have any bearing on the appellant’s application for an overseas visa.  If they did, it would mean that anyone who was to commit a minor traffic infringement such as a speeding offence, unattended by criminality, would be precluded from overseas travel.  These were not convictions for breaches of the criminal law.  In the scheme of things, they can be regarded as relatively minor traffic matters committed out of inadvertence and due to the stressful situation in which the appellant found himself at the relevant time.  A conviction for these offences does not indicate that the appellant is a person who has little or no regard for the law, nor that he is not a person of good character.  The penalty imposed by the Special JP indicates that she accepted the submissions put to her by the appellant as to the circumstances in which the offences occurred and she treated them as being at the lower end of the scale for offences of this kind.  The appeal is therefore dismissed.