Commissioner of State Taxation v Girardi - [2015] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
COMMISSIONER OF STATE TAXATION v GIRARDI
[2015] SASC 120
Judgment of The Honourable Justice Stanley
17 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY
TAXES AND DUTIES - LAND TAX - AVOIDANCE OF LAND TAX
Appeal against sentence.
The respondent was originally charged on complaint with seven counts of contravening s 55 of the Taxation Administration Act 1996 (SA) (Taxation Administration Act) by making a statement or giving information to a tax officer that the person knows is false or misleading in a material particular. The particulars of that offending were that between 25 October 2008 and 8 December 2008 the respondent forwarded to a tax officer a land tax database verification questionnaire in which he provided information that he occupied or had occupied a Sellicks Beach property owned by him during the year ending 30 June 2008; that he was occupying that property as at 25 October 2008; that the property had been used for house minding from 7 July 2006 to 30 December 2006 and from 6 February 2007 to 26 June 2007. It was further alleged that on 27 October 2011 the respondent sent an email to a tax officer informing him that he had occupied the Sellicks Beach property since December 2008 and that the property had not been tenanted since December 2008. It was further alleged that on 3 August 2012 the respondent provided information, by his agent, in a letter addressed to the Minister for Finance, that he had resumed full-time living at the Sellicks Beach property from 26 July 2007. In addition, he was charged with two counts of contravening s 58 of the Taxation Administration Act.
The matter first came before the Court on 6 December 2013. On 11 December 2014, the complaint was amended and the charges of contravening s 58 of the Taxation Administration Act were dropped and the seven counts of contravening s 55 were withdrawn and instead the complaint alleged three counts of contravening s 55. The substance of the allegations made in those three counts effectively replicated the allegations made in the original seven counts that allege a contravention of s 55. On 11 December 2014 the respondent pleaded guilty to those three counts. After hearing submissions on penalty the magistrate fined the respondent the sum of $9,600 without convictions being recorded and ordered him to pay court costs, Victims of Crime levies and prosecution costs. In fixing the fine the magistrate discounted the penalty by 40 per cent pursuant to the Criminal Law (Sentencing) Act 1988 (SA). The Commissioner appeals the sentence imposed.
Whether the magistrate’s sentencing discretion miscarried, first, in not recording convictions and, secondly, in discounting the penalty imposed by 40 per cent.
Held (per Stanley J) allowing the appeal:
1. The magistrate erred in having regard to an irrelevant consideration in concluding that good reason existed to impose a monetary penalty without proceeding to conviction. In reaching that conclusion the magistrate found that it was contrary to the public interest for convictions to be recorded because this might impede the respondent’s capacity to work as a general surgeon in the future where he has previously provided much needed surgical services to regions of Australia where there exists a shortage of surgeons (at [30]).
2. Notwithstanding the error made by the magistrate, I would not interfere with her decision not to impose a conviction. On the basis of the respondent’s character and antecedents and the extenuating circumstances surrounding his offending, good reason exists for not recording a conviction, in circumstances where to do so would risk not insignificant adverse consequences for him professionally in the future. I would not record a conviction (at [38] and [41]).
3. In reducing the respondent’s fine by 40 per cent, the magistrate fell into error. It is necessary that the court corrects the error. I would allow a discount of the full 30 per cent prescribed by s 10B(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (at [49]).
4. I would allow the appeal. I would set aside the sentence imposed by the learned magistrate. From a nominal starting point of $16,000 I reduce the fine that I would otherwise have imposed by 30 per cent and accordingly impose a fine of $11,200. I make the same orders as the magistrate in relation to court costs, Victims of Crime levies and prosecution costs. I would hear the parties as to the costs of this appeal (at [50] and [51]).
Taxation Administration Act 1996 (SA) s 55, s 58, s 8C; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 16, s 18A, s 39; Spent Convictions Act 2009 (SA) s 8(10, s 3(5), s 4(1a), s 7(1)(b), s 10; Health Practitioner Regulations National Law (South Australia) Act 2010 s 5, s 77(4), referred to.
R v Capaldo [2015] SASCFC 56; R v Muldoon [2015] SASCFC 69; R v McPhee [2014] SASCFC 107; R v Dwyer (2015) 121 SASR 587; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211 ; Commissioner of Taxation v Doudle (2005) 61 ATR 221; R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; Schmidt v Police [2005] SASC 482; R v Yousef (2005) 155 A Crim R 134; R v Wakefield (2015) 121 SASR 569; R v McPhee [2014] SASCFC 107, considered.

COMMISSIONER OF STATE TAXATION v GIRARDI
[2015] SASC 120
Magistrates Appeal
STANLEY J:
Introduction

The respondent was originally charged on complaint with seven counts of contravening s 55 of the Taxation Administration Act 1996 (SA) (Taxation Administration Act) by making a statement or giving information to a tax officer that the person knows is false or misleading in a material particular.
The particulars of that offending were that between 25 October 2008 and 8 December 2008 the respondent forwarded to a tax officer a land tax database verification questionnaire in which he provided information that he occupied or had occupied a Sellicks Beach property owned by him during the year ending 30 June 2008; that he was occupying that property as at 25 October 2008; that the property had been used for house minding from 7 July 2006 to 30 December 2006 and from 6 February 2007 to 26 June 2007. It was further alleged that on 27 October 2011 the respondent sent an email to a tax officer informing him that he had occupied the Sellicks Beach property since December 2008 and that the property had not been tenanted since December 2008. It was further alleged that on 3 August 2012 the respondent provided information, by his agent, in a letter addressed to the Minister for Finance, that he had resumed full-time living at the Sellicks Beach property from 26 July 2007.
In addition, he was charged with two counts of contravening s 58 of the Taxation Administration Act.
The matter first came before the Court on 6 December 2013. No plea was entered. There were further appearances on 7 February 2014, 21 March 2014, 2 May 2014, 30 May 2014, 27 June 2014, 25 July 2014 and 26 September 2014. On 11 December 2014, the complaint was amended and the charges of contravening s 58 of the Taxation Administration Act were dropped and the seven counts of contravening s 55 were withdrawn and instead the complaint alleged three counts of contravening s 55. The substance of the allegations made in those three counts effectively replicated the allegations made in the original seven counts that allege a contravention of s 55.
On 11 December 2014 the respondent pleaded guilty to those three counts.
After hearing submissions on penalty the magistrate fined the respondent the sum of $9,600 without convictions being recorded and ordered him to pay court costs, Victims of Crime levies and prosecution costs. In fixing the fine the magistrate discounted the penalty by 40 per cent pursuant to the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). On appeal there was an issue as to whether in doing so she applied the provisions of s 10B or s 10C.
The Commissioner appeals the sentence imposed. There are two grounds. They are that the magistrate’s sentencing discretion miscarried, first, in not recording convictions and, secondly, in discounting the penalty imposed by 40 per cent.
Factual background
The respondent is a legally qualified medical practitioner and a general surgeon. He grew up and was educated in Adelaide. He predominantly practices in rural New South Wales. For most of the relevant period he lived in New South Wales. In March 2006 he purchased the property in Sellicks Beach with the intention of it being his place of residence. However, his circumstances changed after he formed a relationship with a woman whom he married in November 2006. In February 2007 he leased the house to tenants. The marriage had its difficulties and the respondent and his wife separated on several occasions before they were ultimately reconciled in 2012. After the original tenants left, he re-tenanted the property in October 2011.
As a result of misrepresenting to the taxation authorities that the Sellicks Beach property was owner-occupied, the respondent avoided a liability for land tax in a sum of $114,381.94. The respondent has now paid this sum to the Commissioner together with interest of approximately $8,550.
Sentencing Remarks
The magistrate gave extensive reasons explaining the basis of the sentence imposed. She addressed the respondent’s antecedents as follows:
The defendant is 38 years of age. He is married with a son aged 6 years and a daughter aged 4 years.
He has no prior convictions and has provided written testimonials as to good character.[1]
He was born in South Australia, attended St Francis of Assisi School in Newton and remains part of that parish community, even though he spends most of his time interstate.
At 16 years of age he commenced a Bachelor of Medicine and Bachelor of Surgery at the University of Adelaide and in 2000, when 22 years of age, he completed these degrees. He immediately commenced training as a surgeon, working in South Australia and at St Vincent’s Hospital in Sydney. In 2009 became a Fellow of the Royal Australian College of Surgeons. He regards himself as an all-rounder and has not chosen any surgical specialty. He loves working as a general surgeon as he is also a specialist in emergency conditions. There is less call for general surgeons and to secure enough work in this field, he works fifty percent of his time as a locum surgeon and the remainder at the Tamworth Medical Centre.[2] As surgeons throughout Australia and New Guinea take leave, he fills in; he has worked as a General Surgeon in Broome, Darwin and Rockhampton. These proceedings stopped him working as a locum at the Kalgoorlie Hospital.
He provides a valuable community service by attending to rural patients and, in particular, pensioners and Indigenous patients. He is devoted to the communities that he serves. He receives referrals of patients from the Tamworth Aboriginal Health Service. His services are bulk bilked so that his patients can be assisted at no expense to themselves. He had been highly commended in Tamworth for this valuable community service.
The defendant is philanthropic and had always embraced his privileged position to help others.[3] He spends considerable time mentoring and training young doctors and hospital registrars. He has travelled overseas at his own expense to provide his services and financial assistance to those in need.[4] He has worked on a voluntary basis as a surgeon; in Indonesia on three occasions and in India and Nepal.
[1]    Letter dated 22 October 2014 from Ms Natalie Kusse, Registered Nurse; letter dated 30 October 2014 from Mr Dean Efthimiou, Construction Manager; letter dated 10 November 2014 from Brother James Cronly, Capuchin Franciscan Friar.
[2]    In New South Wales.
[3]    Letter from Mr Dean Efthimiou, dated 30 October 2014.
[4] Letter from Ms Natalie Kusse, dated 22 October 2014.
She addressed the basis of sentence as follows:
The offences are not trifling.
The defendant has established he is a person of good character. He is contrite, remorseful and it is highly unlikely he will offend again. He had apologised to Revenue SA and to the Court.
The sentence should reflect that he had made full reparation and paid the interest imposed by Revue SA.
The defendant relies on his character, antecedent and extenuating circumstances as the basis to enliven the discretion to proceed without conviction.
Prosecution opposes this course, submitting that the defendant’s good character and the extenuating circumstances are insufficient to constitute good reason to not record a conviction because:
·the offending was not due to inadvertence, was not a solitary incident and was not committed in an isolated period; and
·the conduct was an intentional breach of the law which lead to a sizeable illegal financial gain involving significant dishonesty and opportunism.
The defendant is a devoted doctor, “a very hard working and diligent man who works long hours because he cares for his patients.”[5] He and his wife are reconciled and have lived together continuously since 2012 and she is supporting him during these proceedings, which has taken a heavy toll. The notification of the first complaint served on him on November 2013 came as a shock to the defendant and the proceedings have hung heavily on him. He has needed to take time off work to attend Court and is worried about what will happen to him in his future. He has good reason to be concerned about the effect a conviction on his medical practice and locum work.
[5]    Letter dated 10 November 2014 from Brother James Cronly, Capuchin Franciscan Friars.
At the relevant time the defendant has regarded the Property as his home, which was misguided given he spent most of his time interstate. Between 2008 and 2012, his chosen career and lengthy absences placed severe strains on his marriage resulting in several periods of separation. He brought the Property during one separation, when his marriage was in turmoil and he wanted somewhere to live. That is not enough for the purposes of the LTA to obtain an exemption and does not provide an excuse for his offending. However, his matrimonial difficulties go some way to explain why a man of honesty and integrity in every other facet of his life would commit these offences. His offending must be seen in the context of the breakdown of his marriage, when he had no other home, no other principal place of residence and had no entitlement to a land tax exemption elsewhere. During the relevant period he did return to the Property and sleep there, even at times when the property was tenanted.
The defendant did not contemplate that by making misleading statements to gain a land tax exemption that he could be charged with these offences. Out of a sense of entitlement, given he had no other principal place of residence, he adopted a naive, convenient belief to justify his position. My view of his actions is corroborated by his unguarded statements to tenants that he was not offering formal tenancy agreements for tax purposes.
These offences have had a profound effect on him and will continue to have ongoing implications, particularly to his professional life. With or without convictions being recorded for these offences, the defendant will need to explain these proceedings every time he applies for:
·renewal of his registration with the Medical Board;
·registration as a doctor or surgeon;
·a position in a public or private hospital;
·registration with a Locum Service;
·a position as a Locum Surgeon;
·visas to travel overseas; or
·an overseas position.
Any application for registration under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), or equivalent legislation interstate, requires the Australian Health Practitioner Regulation Agency, before deciding on an application, to check the applicant’s criminal history and the Commissioner of Police in each State is empowered to provide this information.[6] The National Police Certificate sets out “disclosable court incomes”, which included every proven offence which was finalised with or without convictions.
[6]    Health Practitioner Regulation National Law, s 79.
The Medial Board of Australia has Mandatory Registration Standards including the Criminal History Registration Standard, which sets out a number of guidelines when considering whether an applicant’s criminal history is relevant to the practice of their profession, including:
·the nature and gravity of the offence or alleged offence and its relevance to health practice; and
·whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending.
·The sentence imposed for the offence.[7]
[7]    Criminal History Registration Standard goes on to provide:
In considering the relevance of the criminal history information, the Board is to have regard to the type of criminal history information provided. The following types of criminal history information are to be considered, in descending order of relevance:
a. convictions
b. findings of guilt
c. pending charges
d. non conviction charges; that is, charges that have been resolved otherwise than by a conviction or finding of guilt, taking into account the availability and source of contextual information which may explain why a non-conviction charge did not result in a conviction or a finding of guilty
Recently the defendant has been denied locum work in Western Australia and Queensland because a Nation Police Certificate issued on 9 April 2015[8] recorded that the original complaint, with nine charges was pending. These charges were described as:
False or Misleading Statement to Tax Officer (7)
Falsify or Conceal Identity or Address (2)
This information is a poor description of the offences before the Court and was incorrect given that at the time an amended complaint had been laid. The error occurred as the relevant computer records had not been updated.
With or without a conviction, for the next ten years every potential employer will be advised of these proceedings.[9] This in itself is a significant penalty.
[8]    Certificate No. NCHRC- 2015-25465.
[9]    Spent Convictions Act (SA) 2009.
The magistrate considered whether she should exercise the power conferred by s 16 of the Sentencing Act to impose a penalty without recording a conviction. She found that good reason existed for not recording a conviction after making the following observations:
Given the need for the defendant to explain these offences, I wish to record that these statutory offences are regulatory, enacted for the purpose of regulating the administration and collection of taxation and protecting general revenue by guard against tax evasion and ensure that taxpayers know and comply with their tax obligations. These offences do not reflect on the defendant’s skills and reliability as a surgeon and should not influence his professional reputation. I readily accept the defendant is rightfully concerned that these offences could jeopardise his right to practice as a general surgeon and compromise his chances for advancement. I consider it would be unfair to the defendant and contrary to public interest for these offences to so.
There is a shortage of surgeons prepared to work in regions areas in Australia. He provides Tamworth and other regional areas with a valuable specialist services and he is a “caring, passionate and meticulous surgeon”.[10] I accept that any restrictions on his right to practice in these areas will be “a serious loss to patient and rural communities...”[11]
[10] Letter from Ms Natalie Kusse, dated 22 October 2014.
[11] Letter from Ms Natalie Kusse, dated 22 October 2014.

The magistrate imposed a fine of $9,600 for all offences pursuant to s 18A of the Sentencing Act after applying a discount of 40 per cent for the pleas of guilty, referring to the provisions of s 10C(2) of the Sentencing Act, “insofar as it is relevant to these proceedings.”[12] After referring to the judgments of this Court in R v Capaldo,[13] R v Muldoon[14] and R v McPhee,[15] the magistrate said:[16]
These authorities do not give a definitive answer to the present case, where of the nine original charges on the original complaint, charges 1-7 were redrawn to become three and two charges were withdrawn. The conduct and actions complained of is nearly exactly the same, just particularised in a different format. The original complaint was lodged on 24 October 2013. Accordingly Prosecution argue that the defendant is not entitled to be considered for the maximum 40% discount because his pleas were entered a year after the matter was first mentioned in Court. In my view it was an efficient use of resources for the defendant to negotiate prior to plea, given the outcome. The two charges that were withdrawn by prosecution alleged breaches of s 58 of the TAA, which the defendant always denied. What is described as an amended complaint replaces the remaining original charges, albeit the particulars remain the same. I consider these new offences are relevant offences and in this situation I use my discretion to award a full 40% discount in penalty because the defendant pleaded guilty to the relevant offences on the first occasion the amended charges were before the Court.[17]
[12] Commissioner of State Taxation v Girardi, Reasons for Decision of Ms S O’Connor, 4 June 2015 at [23].
[13] [2015] SASCFC 56.
[14] [2015] SASCFC 69.
[15] [2014] SASCFC 107.
[16] Commissioner of State Taxation v Girardi, Reasons for Decision of Ms S O’Connor, 4 June 2015 at [27].
[17] R v Dwyer [2015] SASCFC 12, (2015) 121 SASR 587.
Appellant’s submissions
Mr Soetratma, counsel for the appellant, submits that, in finding that good reason existed not to record a conviction pursuant to s 16 of the Sentencing Act, the exercise of the magistrate’s sentencing discretion miscarried. He submits that the magistrate had regard to an irrelevant consideration, namely, the consequences for the respondent to his professional career of these offences whether or not a conviction was recorded. In addition, the magistrate proceeded on a misunderstanding as to the extent to which the respondent might be required to disclose or explain his offending in the future. As a result, the sentencing discretion miscarried and the sentence should be set aside. Given the seriousness of the offending and the need for general deterrence, a conviction should be imposed.
Mr Soetratma further submits that the magistrate erred in discounting the fine she would otherwise have imposed by 40 per cent on account of the respondent’s guilty pleas. He submits that given the timing of the pleas, the respondent was not entitled to any more than a 30 per cent discount pursuant to the provisions of s 10B(2)(b) of the Sentencing Act. This is because the respondent could have pleaded guilty to the relevant offences much earlier. His failure to plead guilty within four weeks after his first appearance in court in relation to the relevant offences precluded him qualifying for the 40 per cent discount provided by s 10B(2)(a).
Respondent’s submissions
Mr Abbott QC, counsel for the respondent, submits that the Court will only interfere with the decision of the magistrate not to record a conviction if it is satisfied that good reason not to record a conviction in accordance with the terms of s 16 of the Sentencing Act did not exist. He submits that the appellant’s contention that the magistrate had regard to an irrelevant consideration involves a misreading of the whole of the sentencing remarks. He submits it is clear on the evidence before the magistrate that there is a real risk that the respondent’s future career will be more adversely affected if a conviction is recorded. So much is clear from the terms of the Criminal History Registration Standard of the Medical Board of Australia expressly referred to by the magistrate in her remarks.
Mr Abbott further submits that there was no error in the magistrate reducing the fine she would otherwise have imposed by 40 per cent in accordance with s 10B(2)(a). The respondent pleaded guilty immediately once the complaint was amended to allege the three offences against s 55.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[18] where Doyle CJ said:[19]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[18] [2009] SASC 346, (2009) 266 LSJS 283.
[19] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[20] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[21] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[20] [1936] HCA 40, (1936) 55 CLR 499.
[21] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Good reason for not recording a conviction?
Section 16 of the Sentencing Act provides:
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.
In Commissioner of Taxation v Doudle[22] the Court on appeal quashed a sentence on the basis that the magistrate erred in not recording a conviction. In that case the respondent was a registered tax agent who pleaded guilty to a charge of failing to lodge an income tax return contrary to s 8C of the Taxation Administration Act. The magistrate found good reason existed not to record a conviction on the mistaken basis that his registration as a tax agent would be affected if a conviction was recorded. In fact his entitlement to registration as a tax agent was equally affected by the offending whether or not he was in fact convicted.
[22] [2005] SASC 442, (2005) 61 ATR 221.
The appellant submits that the magistrate in this case made the same mistake.
I do not accept this submission.
The magistrate did not say expressly that she found good reason existed not to record a conviction because with or without convictions being recorded for his offending the respondent would need to explain the prosecution every time he sought to renew his registration, or applied for employment in a hospital, or registered with a locum service, or when travelling overseas. Neither did the magistrate say expressly that she found good reason existed not to record a conviction on the basis that with or without a conviction every potential employer of the respondent would be advised of the prosecution over the next 10 years. While those matters were referred to in her sentencing remarks, I accept the submission of Mr Abbott that in doing so the magistrate was merely placing in context the consequences of his offending.
In fact, the magistrate appears to have misunderstood the effect of the Spent Convictions Act 2009 (SA) (Spent Convictions Act). Contrary to what she said, the effect of that Act is not that, with or without a conviction, for the next 10 years every potential employer of the respondent would be advised of the prosecution.[23] That consequence would follow only in the circumstances where a conviction had been recorded.
[23] Commissioner of State Taxation v Girardi, Reasons for Decision of Ms S O’Connor, 4 June 2015 at [42].
The Spent Convictions Act is legislation which limits the effect of a person’s conviction for certain offences if the person completes a period of crime-free behaviour. Pursuant to s 8(1) a conviction for an offence, other than a sex offence, is spent on completion of the relevant qualification period for the conviction. Pursuant to s 3(5) a formal finding of guilt by a court or a finding of guilt by a court that an offence has been proved, are treated as convictions for the purposes of the Act. However, pursuant to s 4(1a), if a finding of guilt is treated as a conviction under s 3(5), but no conviction is recorded against the person, then the finding, as constituting a conviction for the purposes of the Act, is taken to be immediately spent. Pursuant to s 7(1)(b) the relevant qualification period is 10 consecutive years. Finally, s 10 provides:
10—Ability to disregard spent convictions
If a conviction of a person is spent—
(a) a question about the person's criminal history is taken not to refer to the spent conviction, but to refer only to any of the person's convictions that are not spent; and
(b) the person is not required to disclose to any other person for any purpose information concerning the spent conviction; and
(c) in the application to the person of an Act, statutory instrument, agreement or arrangement—
(i)      a reference to a conviction, however expressed, is taken not to refer to the spent conviction; and
(ii)     a reference to the person's character or fitness, however expressed, is not to be taken as allowing or requiring account to be taken of the spent conviction; and
(d) the spent conviction, or the non-disclosure of the spent conviction, is not a proper ground for—
(i)      refusing the person any appointment, post, status or privilege; or
(ii)     revoking any appointment, status or privilege held by the person, or dismissing the person from any post.
It can be seen that pursuant to the Spent Convictions Act where, as here, the magistrate declined to record a conviction, the finding of guilt constituted an immediate spent conviction. The effect is that the respondent is not required to disclose, let alone explain, the finding of guilt in applications for a position in a hospital or as a locum, although he would be bound to disclose it when applying for registration to the Australian Health Practitioner Regulation Agency.[24] On the other hand, a conviction would result in the adverse consequences identified by the magistrate. Accordingly, the magistrate’s misunderstanding of the effect the Spent Convictions Act worked adversely to the interests of the respondent. In fact, only with a conviction would every potential employer be advised of the respondent’s prosecution for the next 10 years. Consequently, this analysis discloses that the recording of a conviction might have adverse consequences for the respondent professionally. The disclosure of the prosecution would expose him to the risk that his future employment and advancement as a medical practitioner and surgeon might be impeded.
[24] Because of the definition of “criminal history” in s 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) and because s 77(4) excludes the operation of the Spent Convictions Act.
In any event, the Criminal History Registration Standard forming part of the mandatory registration standards of the Medical Board of Australia, referred to by the magistrate in her sentencing remarks, expressly provides that in considering registration, an applicant’s criminal history is relevant. In that context, a conviction is treated as more relevant than a finding of guilt.
The consequences of a conviction for the continued registration of the respondent as a medical practitioner was a relevant consideration for the magistrate.[25] Accordingly, no relevant error has been demonstrated on this basis. The misunderstanding of the magistrate as to the effect of the operation of the Spent Convictions Act operated against the respondent. In any event, for reasons that I explain later in these reasons, I would not interfere with the magistrate’s decision not to record convictions even if she had made a relevant error.
[25] Commissioner of Taxation v Doudle [2005] SASC 442 at [17], (2005) 61 ATR 221 at 226.
On the other hand, I consider the magistrate did err in having regard to an irrelevant consideration in concluding that good reason existed to impose a monetary penalty without proceeding to conviction. In reaching that conclusion the magistrate found that it was contrary to the public interest for convictions to be recorded because this might impede the respondent’s capacity to work as a general surgeon in the future where he has previously provided much needed surgical services to regions of Australia where there exists a shortage of surgeons. As she found, any restriction on the respondent’s right to practice in regional Australia would be a serious loss to patients and rural communities.[26]
[26] Commissioner of State Taxation v Girardi, Reasons for Decision of Ms S O’Connor, 4 June 2015 at [26].
While it is easy to understand that the magistrate found this a factor which disposed her to exercise the discretion, reposed in her pursuant to s 16, in favour of the respondent, I consider that the terms of the provision did not permit her to consider this matter. It is an extraneous consideration.
Section 16 of the Sentencing Act requires the court to have regard to specified matters in determining whether good reason exists for the exercise of the relevant discretion. It has been held that where a decision-maker is required to “have regard to” specified matters in reaching a decision, he or she must take account of the specified matters and must give weight to them as “fundamental elements” in the determination.[27] Section 16 obliges the court to engage in a three-stage process. The first is to form the opinion whether the defendant is unlikely to commit such an offence again. If the court does not form that opinion that is the end of the court’s consideration. If it does form that opinion, then the second stage involves identification of one or more of the factors listed in placita (i), (ii) or (iii) of s 16(b) which are relevant. If it cannot identify one of those factors, that is the end of the court’s consideration. The third stage is, having regard to the factor or factors so identified, to determine whether good reason exists for not recording a conviction.
[27] R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32, (1979) 180 CLR 322 at 329; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.
The detriment rural communities may suffer if in future the respondent is unable to provide his services due to a conviction being recorded for this offending, is not a factor that falls within placita (i) or (ii) of s 16(b). Nor do I consider it falls within placitum (iii) “any other extenuating circumstances”.
In Schmidt v Police[28] Doyle CJ said that ordinarily extenuating circumstances will be matters relevant to the offence itself. In some situations they will include matters personal to the defendant, but consequences of the penalty to be imposed would not ordinarily be described as extenuating circumstances.
[28] [2005] SASC 482 at [21].
In R v Yousef[29] White J, in a dissenting judgment, considered the application of s 39 of the Sentencing Act. In doing so he made some obiter remarks concerning the construction of the expression “any other extenuating circumstances” in s 16(b). He took a broader view than Doyle CJ in Schmidt of the meaning of “extenuating circumstances”. He said[30] such circumstances in practice are likely to include any relevant circumstance personal to the offender and any relevant circumstance regarding the commission of the offence. However he considered that while it might be relevant pursuant to s 39 to consider circumstances such as the benefit to the State generally or the benefit to a section of the community of which the defendant forms a part, such factors were not relevant considerations pursuant to s 16. Such factors did not constitute “extenuating circumstances”.
[29] [2005] SASC 203 at [83], (2005) 155 A Crim R 134.
[30] [2005] SASC 203 at [83], (2005) 155 A Crim R 134 at 149.
I agree with this analysis.
In weighing this factor, the magistrate had regard to an irrelevant consideration. This constitutes a process error of the kind referred to in Kreutzer[31] by Kourakis CJ. This enlivens the power of the Court to resentence. The Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed was not in itself manifestly unreasonable. On the other hand, the Court may, after finding a process error, nonetheless take the view that the same sentence should have been imposed.
[31] R v Kreutzer [2013] SASCFC 130, (2013) 118 SASR 211.
In this case, notwithstanding the error made by the magistrate, I would not interfere with her decision not to impose a conviction.
As the magistrate correctly understood, the respondent relied on his character, antecedents and extenuating circumstances as the basis to enliven the discretion to proceed without conviction.[32]
[32] Commissioner of State Taxation v Girardi, Reasons for Decision of Ms S O’Connor, 4 June 2015 at [31].
In undertaking the evaluative exercise s 16 of the Sentencing Act requires, the discretion to impose penalty without recording a conviction is only enlivened once the court is of the opinion that the defendant is unlikely to commit such an offence again and that having regard to one or more of the factors specified in sub-section (b), the court is of the opinion good reason exists for not recording a conviction. The magistrate had found that it was unlikely the respondent would offend again. There is no challenge to that finding. The magistrate found the respondent to be a person of good character, a devoted doctor, a man of honesty and integrity in every other facet of his life, whose offending in this instance was explained, at least to some degree, by the difficulties he was experiencing in the break-down of his marriage, and where he had no other home. There is no challenge to these findings of fact.

In my view, on the basis of the respondent’s character and antecedents and the extenuating circumstances surrounding his offending, good reason exists for not recording a conviction, in circumstances where to do so would risk not insignificant adverse consequences for him professionally in the future. I would not record a conviction. I turn to the appeal relating to the amount of the reduction in penalty.
The amount of the discount for the pleas of guilty
The respondent was entitled to a reduction in the penalty the magistrate would otherwise have imposed, by reason of his pleas of guilty. The extent of that reduction fell to be determined pursuant to s 10B of the Sentencing Act. This is because the sentencing court was the Magistrates Court.[33] In deciding the maximum extent that the court may reduce a sentence for a plea of guilty, the relevant provision is s 10B(2). It provides:
[33] See s 10B(1)(a).
(2) Subject to this section, if a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but—
(i) if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or
(ii) in any other case—before the commencement of the trial for the offence or offences,
the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(d)     in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
Whether the magistrate proceeded correctly pursuant to s 10B or mistakenly pursuant to s 10C does not matter because the relevant provisions for the purposes of deciding this ground of appeal are in pari materia.
At issue is whether the respondent pleaded guilty not more than four weeks after he first appeared in court in relation to the relevant offence or offences. If he did, he was entitled to a discount of up to 40 per cent. If he did not, there is no dispute that he was entitled to a discount of up to 30 per cent. The relevant question can be distilled to whether the respondent first appeared in relation to the relevant offences when the amended complaint was first presented, or when he first appeared in answer to the original complaint.
In R v Muldoon[34] Kourakis CJ, with whom Gray J and I agreed, considered the cognate provision in s 10C. He said:[35]
On a proper construction of s 10C(2) of the Sentencing Act, the relevant offence is the offence to which the “defendant has pleaded guilty” referred to in the first line of that section. The phrase “relevant offence or offences” is an abbreviated reference to the offence or offences to which the defendant has pleaded guilty. It cannot refer, as the Director submits, to the general conduct on which a charge is based. A defendant is never called on to “plead” to amorphous conduct but to a particular offence charged in a discrete count. In this case it is the offence of recklessly causing harm contrary to s 23(2) of the Act to which the respondent pleaded. The question is therefore whether the respondent first appeared “in relation to” that offence of recklessly causing harm when he appeared in answer to the information charging him with aggravated intentionally causing harm.
The words “in relation to” are of wide import. I would hold that a defendant who appears in answer to an information charging an offence or offences also appears in relation to those alternative offences to which he or she could plead guilty. This Court proceeded on that unstated premise in the obiter remarks it made on the question in R v Wakefield.[36]
[34] [2015] SASCFC 69.
[35] [2015] SASCFC 69 at [22] – [23].
[36] [2015] SASCFC 10, [63] – [68] .
In this case the relevant offences are contraventions of s 55 of the Taxation Administration Act. The respondent pleaded guilty to these offences on 11 December 2014. In my view, he first appeared in court in relation to these offences on 6 December 2013.
I do not accept the submission of Mr Abbott that the offences to which the respondent pleaded guilty on 11 December 2014 were not the same offences with which he was charged when he appeared in court on 6 December 2013. When the respondent appeared in court on 6 December 2013 in answer to the original complaint he was relevantly facing seven counts of contravening s 55 of the Taxation Administration Act. The factual conduct on which those seven counts alleging contraventions of s 55 were based is the same factual conduct alleged in the three counts of contravening s 55 on the amended complaint to which the respondent pleaded guilty on 11 December 2014. In my view, the respondent first appeared in court in relation to the offences of contravening s 55 on 6 December 2013. The reconfiguring of those charges from the original counts to the amended three counts does not alter the fact that he first appeared in a court in relation to the offences of contravening s 55 based on the conduct which formed the basis of the amended three counts of contravening s 55 on 6 December 2013.
The respondent did not plead guilty to those offences within four weeks after first appearing in court in relation to the offences. Accordingly, s 10B(2)(a) did not apply to the respondent. He was not entitled to a reduction in the penalty to be imposed by up to 40 per cent. He was only entitled to a reduction of up to 30 per cent.
In reducing the respondent’s fine by 40 per cent, the magistrate fell into error. It is necessary that the court corrects the error. I would allow a discount of the full 30 per cent prescribed by s 10B(2)(b) having regard to the utilitarian considerations identified in Wakefield,[37] McPhee[38] and Dwyer.[39]
[37] R v Wakefield [2015] SASCFC 10, (2015) 121 SASR 569.
[38] R v McPhee [2014] SASCFC 107.
[39] R v Dwyer [2015] SASCFC 12, (2015) 151 SASR 587.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the learned magistrate. I find good reason exists not to record a conviction pursuant to s 16 of the Sentencing Act. I would impose a fine for all counts pursuant to s 18A. From a nominal starting point of $16,000 I reduce the fine that I would otherwise have been imposed by 30 per cent and accordingly impose a fine of $11,200. I make the same orders as the magistrate in relation to court costs, Victims of Crime levies and prosecution costs.
I would hear the parties as to the costs of this appeal.