Cirillo v Police

[2010] SASC 293

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CIRILLO v POLICE

[2010] SASC 293

Judgment of The Honourable Chief Justice Doyle (ex tempore)

13 October 2010

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS

Appeal from decision of a Magistrate not to reduce demerit points - appellant pleaded guilty to speeding - sought an order reducing the number of demerit points to avoid losing his licence - hardship - could lose his employment - offence not trifling - no proper cause for an order reducing demerit points - appeal dismissed.

Motor Vehicles Act 1959 (SA) s 98B, s 98B(4), s 98BD, s 98BE(2), s 98BE(2a); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 17; Australian Road Rules r 20, referred to.

CIRILLO v POLICE
[2010] SASC 293

Magistrates Appeal: Criminal

1. DOYLE CJ (ex tempore):     Mr Cirillo was charged in the Magistrates Court with an offence against r 20 of the Australian Road Rules. The allegation was that he drove at a speed of 127 km/h when the applicable speed limit was 110 km/h. He pleaded guilty to the charge. The Magistrate imposed a fine of $300. The victim of crime levy and costs amounted to a further $405, making $705 in all.

2. The conviction attracted three demerit points under s 98B of the Motor Vehicles Act 1959 (SA) (the Act). Mr Cirillo applied to the Magistrate under s 98B(4) for an order reducing the number of demerit points to one. The Magistrate heard brief evidence from Mr Cirillo, and in short reasons declined to make the order.

3. The Magistrate said that the offence was not trifling.  I agree with that. Nor was the Magistrate satisfied that some other proper cause to make the order existed. Mr Cirillo had put to the Magistrate that he could lose his job if he lost his licence. It is not clear whether the Magistrate realised that the loss of licence was imminent or whether he thought it was merely a possibility.

4. However, as I will indicate for the purposes of the appeal today, I am prepared to proceed on the basis that the loss of licence was imminent, and to assess the matter as it would have been assessed if Mr Cirillo had told the Magistrate that.

5. The Magistrate refused to make the order.  Mr Cirillo appeals against that decision. The further facts to which I just referred were not before the Magistrate.  Those further facts have emerged before me.

6. The police prosecutor was apparently not aware of these facts, and Mr Cirillo did not raise these facts before the Magistrate because he assumed the Magistrate knew them.

7. In 2009, Mr Cirillo received a notice of disqualification under s 98BD of the Act informing him that he was disqualified from holding or obtaining a driver’s licence for three months from 8 April 2009. This was because he had accumulated 13 demerit points. I am prepared to accept what Mr Cirillo said today; namely that none of the offences that accumulated these points would be called serious offences.

8. Mr Cirillo made an election under s 98BE(2) to accept a condition that he be of good behaviour for 12 months. That meant that the licence disqualification, of which he had received notice, did not take effect. But by s 98BE(2a) if he incurred two or more demerit points during the 12 month period he would be disqualified from holding or obtaining a driver’s licence for a period of six months.

9. That explains why Mr Cirillo wanted the Magistrate to reduce the points from three to one.  In that way he would escape the consequence of the breach of condition.

10. As the Magistrate was not told all this, he may not have realised that Mr Cirillo was about to lose his licence for six months as a result of the Magistrate’s decision. Although, as I have said, Mr Cirillo should have informed the Magistrate of this, I am now aware of it and I will take it all into account.  I will proceed as if Mr Cirillo were to be resentenced on the new material.

11. I am prepared to accept that Mr Cirillo did not understand that he should have informed the Magistrate of these matters.

12. Mr Cirillo works in the building trade. He has to go from site to site. If he loses his licence he says he will lose his job and will suffer significant financial hardship.

13. Again, I accept that factual submission. He makes the point that when the offence was committed he was only about seven weeks from completing the period of the bond and I accept that fact also.

14. However, I do not consider that the hardship which he will suffer is proper cause to reduce the number of points. Mr Cirillo knew the risk that he took in electing to accept a licence condition instead of a three month disqualification in April of last year. He must have known that his job was at risk.  Parliament must have known this when it enacted the legislative scheme. It would be obvious that many people when they lose their licence would be at risk of losing their employment.

15. When a person makes an election under s 98BE(2), the Court cannot lightly allow the person to avoid the consequences of further offending.

16. Unfortunately, while I understand Mr Cirillo’s difficulty, and feel sympathetic to him, I cannot identify any cause to reduce the number of points other than the potential loss of employment. But that was a consequence of Mr Cirillo making the election that he made to avoid the licence suspension that was then imminent, and it is also a consequence of his failure to observe the statutory condition.

17. It may well be that under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) the Magistrate had power to refrain from recording a conviction and thereby avoid attracting any demerit points. However, I am not satisfied that it would be proper to exercise that power. The offence cannot be regarded as trifling. Nor am I of the opinion that there would be good reason to refrain from recording a conviction.

18. It is not so clear whether s 17 of the Sentencing Act applies. For present purposes I will assume it does. But in my opinion again, this is not a proper case for the exercise of powers under s 17.

19. Mr Cirillo has suggested that he pleaded guilty believing that he would not incur any demerit points. However, this was not something on which he could rely before the Magistrate. The fact is he has pleaded guilty, and as I have said I have approached the matter on the basis that he is to be sentenced afresh in light of all the material, including that belief.

20. In my opinion there is no basis upon which I can order that the number of points be reduced. Accordingly, I dismiss the appeal.