Department of Planning, Transport and Infrastructure v Favotti
[2014] SASC 103
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE v FAVOTTI
[2014] SASC 103
Judgment of The Honourable Justice Peek
6 August 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES
MAGISTRATES - HEARING - PLEA - GUILTY PLEA - WHERE ACCUSED UNREPRESENTED
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - FINES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT
Prosecution appeal against sentence.
The respondent, a truck driver, was required to record in a work diary stops made for rest periods as prescribed by the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008. The appellant alleged that photographs of the truck said to be driven by the respondent taken during the course of an interstate trip established that he could not have rested for the prescribed period and that by recording otherwise in his work diary he breached s 165 of the Road Traffic Act 1961 by including a written statement that was false or misleading in a material particular. The respondent appeared on the date set for trial unrepresented and indicated that he would contest the charge; he stated that he had no memory of the events leading up to the charge, and was critical of the “Safe-T-Cam” evidence upon which the prosecution sought to rely. The Magistrate raised with the parties whether the matter could be resolved, whereupon counsel for the appellant submitted that a $1000 fine would be appropriate and that a conviction should be recorded because the offence was serious. Her Honour intimated to the respondent that she was considering a “low” penalty and would not record a conviction should he decide to plead guilty. He did so, and, although the factual basis for the sentence was not established, her Honour imposed a fine of $150 and declined to record a conviction.
The appellant appealed on the grounds that the fine was manifestly inadequate and that the Magistrate erred in declining to record a conviction.
Held per Peek J (dismissing the appeal):
1. The unrepresented respondent had relied upon the Magistrate’s intimations and it would be oppressive and unfair to allow an appeal by the prosecution.
2. In the highly unusual circumstances here, the appropriate course is to dismiss the appeal but also to indicate in broad terms what an appropriate sentence range would have been for the purpose of maintaining proper sentencing standards.
3. The fine imposed by the Magistrate was manifestly inadequate; a fine of $150 is well below the range properly available for this type of offence.
4. While it is unusual not to record a conviction for the commission of a regulatory offence, if the fine imposed is within the appropriate range, it is open to a Magistrate in an appropriate case to decline to record a conviction so as to recognise the existence of unusually strong mitigatory features.
5. Appeal dismissed.
Road Traffic Act 1961 s 165; Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 Reg 40; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Green v The Queen (2011) 244 CLR 462; R v Holder (1983) 3 NSWLR 245; The Queen v JW (2010) 77 NSWLR 7, applied.
Department of Transport, Energy and Infrastructure v Neil [2009] SASC 285; Hamilton v Oades (1989) 166 CLR 486; R v Barilla [2002] SASC 106, discussed.
Moti v The Queen (2011) 245 CLR 456; Pearce v The Queen (1998) 194 CLR 610; Police v Chilton [2014] SASCFC 76, considered.
DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE v FAVOTTI
[2014] SASC 103Magistrates Appeal
PEEK J. Appeal by prosecution against sentence.
As at the date of sentencing for the offence the subject of this prosecution appeal, the respondent was aged 59 and had been a truck driver for some 40 years with no prior convictions. He was charged with an offence contrary to s 165(1) of the Road Traffic Act 1961 and the complaint (as amended) was in the following terms:
On the 29TH day of MARCH 2013 at 8:29PM near YUNTA in the State of South Australia was the driver of a regulated heavy vehicle and compiled a record namely a work diary pursuant to Regulation 40 of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations, 2008 and included in the record a written statement that is false or misleading in a material particular.
Contrary to Section 165(1) of the Road Traffic Act, 1961.
AND IT IS ALLEGED that the defendant recorded on page number SAW 091426 that he was resting at COCKBURN (SA) from 6:00PM until 12 midnight on the 29TH day of MARCH 2013, such entry being false.
The respondent indicated that he would be contesting the charge. He attended at Court on 7 May 2014, the date set for trial, but after a long passage of dialogue between the Magistrate, Mr Petrie (counsel then appearing for the appellant) and himself, pleaded guilty. The Magistrate imposed a fine of $150 and declined to record a conviction.
The Department (DPTI) appeals on the grounds that the fine was manifestly inadequate and that the Magistrate erred in declining to record a conviction.
The proceedings in the Magistrates Court
Counsel for the respondent tendered an affidavit of Mr Petrie sworn on 11 June 2014 (the affidavit) recounting the proceedings in the Magistrates Court as follows:
1.I am a prosecutor within the Prosecution Unit of the Transport Safety Regulation Division of the Department of Planning Transport and Infrastructure (“DPTI”). I am involved in assessing and prosecuting offences that breach provisions of road traffic legislation in South Australia.
2.The statements in this affidavit are based on information contained within the DPTI brief relating to this matter, my recollection of this matter, and my appearance in the Magistrates Court of South Australia (“Magistrates Court”) referred to below.
3.On 7 May 2014 I appeared before Magistrate McGrath at the Holden Hill Magistrates Court to prosecute the respondent, Gino FAVOTTI, in relation to court file MCHHL-14-3954 for compiling a record, namely a work diary entry, made under regulation 40 of the Road Traffic (Heavy Vehicle Driver Fatigue) Regulations 2008 that included a false or misleading written statement in a material particular, contrary to s 165(1) RTA. It was alleged that the respondent recorded that he was resting at Cockburn from 6:00pm until 12 midnight on 29 March 2013, such an entry being false.
4.The respondent appeared unrepresented. The matter had been listed for trial, following an adjournment on the previous occasion (29 January 2014). There had been no pre-trial conference for this matter.
5.The respondent told the court that he did not understand what he had been charged with. He said he had sought legal advice in relation to this matter but could not afford to be represented.
6.I explained to the court that prior to the hearing, I spoke with Mr Deegan, who was (at that time) acting for the respondent. I said Mr Deegan had advised me that he was awaiting instructions from the respondent regarding this matter. I recall that he had told me that if he was to represent Mr Favotti in a defended hearing then perhaps his client would agree the technical evidence concerning the taking of the Safe-T-Cam photograph relied upon by the Department and therefore a number of witnesses would not be required. On this basis I had not called those witnesses and therefore was not in a position to proceed if a trial was to take place in the absence of consent as to their non-attendance.
7.I asked for the complaint to be amended to read:
“AND IT IS FURTHER ALLEGED that the defendant recorded on page number SAW 091426 that he was resting at Cockburn (SA) from 6:00pm until 12 midnight on the 29th day of March 2013, such entry being false.”
The respondent consented to this amendment, and it was granted by the court.
8.At the Magistrate’s request I outlined the allegations against the respondent. I read from prepared typed notes, a true copy of which I attach hereto and mark “ATP-1”. I told the Magistrate that this was a Safe-T-Cam detection offence. At 8:29pm on 29 March 2013 a regulated heavy vehicle was detected and photographed passing the Safe-T-Cam site at the Barrier Highway, Yunta, travelling in a southerly direction. It was determined that this vehicle had travelled between this site and another site at Boggabilla (NSW) in less than a pre-determined amount of time for a vehicle of this description in order to comply with driving hours regulations.
The registered owner company of this vehicle was sent a notice to produce records under the Road Traffic Act directing it to identify the driver of this vehicle and forward copies of that person’s work diary records for this day and a period either side of it. Mr Favotti was nominated by the registered owner as the only driver of this regulated heavy vehicle during this period of time. An examination of Mr Favotti’s driver work diary daily sheet for 29 March 2013 revealed that he had recorded on page no: SAW 091426 that at the time of the Safe-T-Cam sighting he was resting in the vehicle whilst it was stationary at Cockburn. Mr Favotti claimed to have arrived in Cockburn at 6:00pm on 29 March and remained there until 6:00am on 30 March. Yunta is approximately 150 km’s south of Cockburn. I informed the Magistrate that there were no prior convictions alleged against Mr Favotti.
9.I recall that the Magistrate spoke at length to the respondent, to further explain the alleged charges to him. The respondent claimed that the appellant refused to provide him with Safe-T-Cam photographs from Broken Hill and Gawler cameras. The respondent said that there is a woman who works at a roadhouse at Yunta who could say he was there for breakfast on the morning after the day of the alleged offence and he arrived there at 8:30am. I recall that the respondent submitted that the Safe-T-Cam system was inaccurate by 12 hours.
10.I informed the court that there were no photographs of the respondent’s vehicle passing the Safe-T-Cam sites at Broken Hill and Gawler and that this could be due to a number of reasons. I further advised the Magistrate that there were expert witnesses available who could verify the accuracy of the Safe-T-Cam system and the appellant would call and rely on their evidence if required.
11.There was further, lengthy discussion between the Magistrate and the respondent regarding how the matter might be resolved that day. The Magistrate noted that she could not give legal advice to the respondent.
12.The Magistrate asked what the appellant’s attitude to penalty was. I informed the court that I considered that a fine of $1,000 was appropriate in these circumstances, an amount equal to 10 percent of the maximum prescribed penalty ($10,000). The Magistrate asked what was the appellant’s attitude to an order for a much lesser fine and that no conviction be recorded, given that the respondent faced court costs, prosecution fees and a victim of crime levy. I advised the court that the appellant sought a conviction as the offending was not trivial, it was a serious breach and was tantamount to fraud.
13.The Magistrate then explained to the respondent that she was considering ordering a low fine and no conviction should he decide to plead guilty. The respondent informed the court that he would enter a guilty plea.
14.The Magistrate asked the respondent about his personal circumstances. I recall that the respondent informed the court that he had been a truck driver for about 40 years with no prior convictions. He said he was 59 years of age. He said that he had undergone two bladder operations and two hip replacements in recent years. The respondent agreed with the Magistrate that no conviction should be recorded.
15.The Magistrate proceeded to sentence the respondent, and noted that the failure to hold a pre-trial conference had prevented the matter settling earlier. The Magistrate said that there were mitigating circumstances in this instance, namely that the respondent had pleaded guilty despite having no memory of the events leading to the charge, there were no prior convictions alleged, and in the Magistrate’s opinion deterrence could be achieved by ordering a minimum fine and the court appearance itself.
The discussion between the Magistrate, Mr Petrie and the respondent as to how the matter might be resolved that day was quite lengthy. It appears that the identification of the respondent as the driver relied on the assertion that he was the only driver of that vehicle during this period of time by the registered owner company of the vehicle in response to a mandatory notice to identify the driver.[1] It also appears that the respondent asserted that he had “no memory of the events leading up to the charge”.[2] However, the respondent had had the opportunity to consider the evidence proposed to be relied upon by the prosecution and was openly critical of its reliability; he foreshadowed some of the arguments and evidence upon which he sought to rely at trial.[3]
[1] Affidavit paragraph 8.
[2] Affidavit paragraph 15.
[3] Affidavit paragraphs 9 and 10. I note in passing that the prosecution made a fairly substantial amendment to the charge described at affidavit paragraph 7.
In answer to direct questions by the Magistrate, Mr Petrie informed the Court that he considered that a fine of $1,000 was appropriate and that a conviction should be recorded as the offending was a serious breach. However, the Magistrate stated to the respondent that she was considering ordering a “low” fine (which no doubt meant, and was taken to mean, an amount much lower than the $1,000 mentioned by Mr Petrie) and that no conviction would be recorded should he decide to plead guilty. The last sentence in paragraph 14 of the affidavit is perhaps slightly unclear, but I take it to mean that the respondent agreed with, and accepted, the Magistrate’s intimation that no conviction would be recorded upon a plea of guilty.
The respondent then pleaded guilty. The Magistrate asked the respondent about his circumstances and he stated that he was 59 years of age, had been a truck driver for some 40 years with no prior convictions and had certain medical problems. Her Honour referred to the failure to hold a pre-trial conference, to the presence of mitigating circumstances, to the plea of guilty, and to the prior good character of the respondent. Her Honour then sentenced the respondent as recited above.
The unrepresented defendant in the Magistrate’s Court
It must be said that an unrepresented lay defendant is dependent on the Magistrate for guidance and will not suspect that the Magistrate might do anything unusual or inappropriate when disposing of the proceedings; he or she will simply accept the Magistrate’s statements and suggestions and ignore any inconsistent comments made by the prosecutor.
Here, the respondent, who had asserted that he had “no memory of the events leading to the charge”, was clearly left with the understanding that if he gave up his right to a trial and pleaded guilty forthwith, he would leave Court without a conviction being recorded and with only a low fine. Any lay person in his position would likely have reasoned that he could not really do better than avoid a conviction and that paying a low fine would in fact be cheaper than having to return on another day and go through a trial. With due respect to the Magistrate, one cannot but conclude that the holding out of this very favourable disposition likely had a very significant effect on the respondent’s decision to accede to the proposal of a plea of guilty.
The appeal to this Court
If the appeal were to be allowed, a resentencing by this Court would be fraught with difficulty. Having regard to the respondent’s assertion that he had no memory of the events leading up to the charge and his positive criticism of the prosecution evidence, the factual basis of the plea of guilty is far from clear. The entry of that plea of guilty was not followed by any investigation as to what facts were, and were not, being admitted by the respondent, and the Magistrate did not delineate any factual basis for the plea in her remarks.
Indeed, were the appeal to be allowed, it might well be necessary to permit the respondent to withdraw his plea of guilty and start the whole trial process again. Needless to say, that would involve very substantial expense and delay for both sides. However, it would be particularly oppressive for the respondent in circumstances where he lives in New South Wales and the charge alleging the misconduct on 29 March 2013 is already very stale.
The powers of the Court to prevent injustice, oppression or unfairness are very wide and are applied in various different contexts. Thus in Hamilton v Oades, Deane and Gaudron JJ stated:[4]
The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v Sterling Industries Ltd; Tringali v Stewardson Stubbs & Collett Ltd. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay [60], per Deane J.
[4] (1989) 166 CLR 486, 502. This passage was specifically approved by the High Court in Moti v The Queen (2011) 245 CLR 456, 502 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Examples of the exercise of such powers include: the staying of proceedings because of the effect of delay on the fairness of the proceedings; the staying of proceedings for various types of abuse of process;[5] orders made at trial or during sentencing on the basis of what may be referred to (if perhaps sometimes inaccurately) as “double jeopardy principles”.[6] Particularly relevant to the present case is the well established practice of appellate courts to refuse the prosecution leave to appeal, or to dismiss an appeal proper, in the exercise of the residual discretion (which includes, but is not restricted to, considerations of double jeopardy).[7]
[5] See generally Moti v The Queen (2011) 245 CLR 456, 502.
[6] See generally Pearce v The Queen (1998) 199 CLR 610. As Gummow J there observed at 628-629 [66]: “… The submissions for the appellant rather assumed that in this country “double jeopardy” was an independent doctrine of avoidance which of itself would found a stay application. That is not the position. Somewhat like notions of unjust enrichment, double jeopardy is a “concept” rather than “a definitive legal principle according to its own terms. In Australia, concerns with “double jeopardy” have come to be expressed at common law in differing ways by an evolutionary process which has crossed what often in the legal system is a false divide between substance and procedure. Thus, even if a plea in bar is not available, successive prosecutions may be an abuse of process. …”
[7] There remains something of a debate as to the extent to which double jeopardy principles apply in prosecution appeals against sentences passed in summary proceedings. In Police v Cadd (1997) 69 SASR 150, a majority (Doyle CJ, Duggan and Mullighan JJ) decided that double jeopardy principles do so apply, but Doyle CJ also observed obiter that such application is restricted to cases involving imprisonment. In DPTI v Berry [2012] SASC 29, Vanstone J agreed with that obiter observation, but I note that in SA Police v Waters [1997] SASC 6500 Olsson J disagreed with it and that in Rusby v Kerley [2002] SASC 141 at [3], [4] and [74], Lander J (whose position in Cadd had been that double jeopardy principles did not apply in such appeals) now accepted that those principles did so apply, and without any distinction being made between cases involving, and not involving, imprisonment. See also the recent case of Police v Chilton [2014] SASCFC 76.
However, it is unnecessary to take this matter any further. The present is a very unusual case; the discretion to dismiss the appeal here rests on the broader foundation of the residual discretion.
Thus in R v Holder, Street CJ stated:[8]
An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the Court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court’s understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person’s favour.
[8] (1983) 3 NSWLR 245, 255-256.
More recently, in The Queen v JW, Spigelman CJ reproduced this passage and observed (with respect, rightly):[9]
[80]I note that Street CJ does not identify double jeopardy as in any way exhausting what his Honour calls the “discretionary field”, being the “residual discretion to dismiss an appeal notwithstanding that error … may have been established by the Crown”.
…
[85]R v Holder authoritatively established for this State that the Court retains a discretion to dismiss a Crown appeal to be exercised on the basis of unfairness or injustice. As this formulation itself indicates, the discretion is not one to be exercised on the basis of a narrow range of considerations. Numerous authorities affirm the existence of such a discretion. However, the principle of double jeopardy, now abolished by statute, is only one basis upon which it has historically been exercised.
[9] (2010) 77 NSWLR 7.
I consider that these passages sufficiently delineate for present purposes the nature and purpose of the residual discretion for South Australia as well as for New South Wales.[10]
[10] And see generally Green v The Queen (2011) 244 CLR 462.
Sentencing standards
One important function of prosecution appeals is to maintain proper sentencing standards. However, there has always been a certain tension between “precedential sentencing considerations” and “double jeopardy considerations”. As was recently observed in the majority judgment in Green v The Queen, the “guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.” [11]
[11] (2011) 244 CLR 462, 479 (French CJ, Crennan and Kiefel JJ).
Thus, it has been recognised by appellate courts that in appropriate circumstances, both sets of considerations may be served by stating for precedential purposes that a particular sentence was too low and then refusing leave to appeal or dismissing the appeal proper where leave is not required. Indeed, in cases where leave is required, the Court may find it appropriate to grant leave in recognition of the serious nature of the prosecution complaint and then dismiss the appeal proper because of double jeopardy considerations.
The various options were explored in some detail in R v Barilla.[12] Doyle CJ (with whom Prior and Williams JJ concurred) there determined that leave should be granted to the Director of Public Prosecutions but then stated:
[50]It does not follow that the appeal should be allowed. That also requires separate consideration.
[51]I have given careful thought to the powerful mitigating circumstances in this connection and in particular to the fact that during the two years since their arrest the organisers have had the prospect of imprisonment hanging over them and have had the opportunity to demonstrate that their prospects of rehabilitation are good. On the other hand I must bear in mind that in complicated cases like this, there will often be a substantial period of time between arrest and disposition of the matter. I have also reminded myself that this is a prosecution appeal. The grant of leave to appeal, and a clear statement of the inadequacy of the sentence imposed, would achieve some of the purposes which are the concern of the Court.
[52]However, under all the circumstances I consider that the Court should intervene. The social evils of the trade in drugs, and the seriousness of the offences, require the Court to give careful consideration to the public duty which it has to punish and deter offenders. This is not a duty which overwhelms other considerations, but it is a duty which must be considered carefully.
[12] [2002] SASC 106.
Thus his Honour decided that in the particular circumstances of the case, the magnitude of the serious drug offending (requiring a head sentence of six years for the major figures) simply overwhelmed the otherwise viable option of a clear precedential statement as to the appropriate sentence.
Statement for precedential purposes
However, in the present case, the circumstances are very different to that in Barilla and strongly point to the appropriate disposition being a dismissal of the appeal coupled with a precedential statement.
Putting aside the unusual problems in the present case already referred to, I consider that if it were established that a driver breached s 165 by deliberately including in his record a written statement that is false or misleading in a material particular, then (in the absence of truly exceptional circumstances) a fine of $150 would be well below the range properly available to a Magistrate.
Counsel for the appellant referred me to the decision in Department of Transport, Energy and Infrastructure v Neil[13] where the maximum penalty (on a sliding scale) for a different regulatory offence was $9,000 and the fine imposed by the Magistrate was $200. Sulan J there stated:
[22]The purpose of the legislation is to ensure the safety of road users. A part of that is the requirement that roads and infrastructure be maintained. The scheme of penalties is such that more serious breaches will attract greater penalties. Parliament intended that penalties not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers and owners who cart loads which are overweight.
[23]The Magistrate failed to have adequate regard to the scheme of the Act. Although she stated that the penalties for offences are severe, and that the maximum penalty for the offending is $9800, she failed to consider the categorisation of this offence as a serious risk offence. The Magistrate did not give sufficient consideration to the wear and tear on the road, or to the harm to infrastructure resulting from the respondent’s conduct.
[24]The fine of $200 imposed by the Magistrate for a severe breach is well below an adequate penalty for this offending. It is important that drivers who drive large-loaded vehicles understand the importance of complying with the requirements of the Act.
[25]I consider that the starting point for a first offender in a usual case should be in the order of 25 per cent of the maximum penalty. The starting point for the breach in this case should be $1800. The penalty may vary, having regard to mitigating and aggravating factors in a particular case.
[13] [2009] SASC 285.
Although we are here concerned with a different offence, I accept that there are certain parallels and analogies available. Thus, just as in Neil, the purpose of the present legislation is to ensure the safety of road users; Parliament here likewise intended that penalties would not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers and owners not to disobey the requirements as to comply with prescribed minimum rest periods during long distance heavy vehicle driving.
In Neil, Sulan J indicated as suitable a starting point of $1,800 for a “first offence” which could then be adjusted for mitigating factors in the particular case. On the particular facts in the case of Neil itself, the maximum penalty was $9,000 and the fine imposed by the Magistrate was $200; his Honour eventually fixed a fine of $1,000 as the appropriate penalty having regard to all of the circumstances.
My own preference would be to indicate a starting point for a “basic offence” (irrespective of the defendant’s prior good or bad record) and to recognise that an offence with particular aggravating features (for example, a large scale sophisticated and deceptive scheme) would warrant a higher than usual starting point. Once the appropriate starting point is determined, it is to be adjusted downward by reference to mitigating features present in the particular case; a previous good record over a very long period of driving is obviously an important mitigating factor, as is a prompt plea of guilty.
Here the maximum penalty is imprisonment for six months or a fine of up to $10,000. An appropriate starting point for a “basic offence” might be in the broad vicinity of $2,000 to $2,500 with that figure being substantially reduced for particular mitigating circumstances including the respondent’s favourable antecedents and the plea of guilty. It could perhaps have been reduced below the figure of $1,000 suggested by the prosecutor, although, I would venture to think, not by a great deal. However, the fine of $150 imposed by the Magistrate was a manifestly inadequate amount, even when full regard is had to the fact that the respondent, at 59 years of age, had been a truck driver for some 40 years and had no prior convictions.
As for the Magistrate’s decision not to record a conviction, while it is the case that it is unusual to abstain from recording a conviction in relation to a commission of a regulatory offence, one may envisage circumstances where a Magistrate may properly address precedential considerations by imposing a fine within the appropriate range and recognise unusually strong mitigatory features by declining to record a conviction via the medium of s 16, Criminal Law (Sentencing) Act 1988.[14] It is unnecessary to pursue this matter further.
[14] And particularly s 16(b)(i).
Disposition of the appeal
I recognise that counsel for the Department made clear to the Magistrate the Department’s opposition to her proposed course; the Department is not open to criticism in its conduct of either the prosecution in the Magistrates Court or of the appeal.
However, for the reasons stated above, in the present very unusual circumstances, I consider that justice will best be served if the orders made by the Magistrate stand.
Accordingly, in the exercise of the residual discretion, I dismiss the appeal. I make no order as to costs.
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