Department of Planning, Transport and Infrastructure v Favotti

The case involved a prosecution appeal against the sentence imposed by a Magistrate on the respondent, a truck driver, who was charged with breaching s 165(1) of the Road Traffic Act 1961 by including a false or misleading written statement in his work diary. The respondent was alleged to have recorded that he was resting at Cockburn from 6:00pm until 12 midnight on 29 March 2013, which was false. The Department of Planning, Transport and Infrastructure (DPTI) appealed on the grounds that the fine imposed by the Magistrate was manifestly inadequate and that the Magistrate erred in declining to record a conviction. The appeal was dismissed, with the Court indicating in broad terms what an appropriate sentence range would have been for the purpose of maintaining proper sentencing standards. The Court found that the fine imposed by the Magistrate was manifestly inadequate and that it was well below the range properly available for this type of offence. 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.

The Court considered that the unrepresented respondent had relied upon the Magistrate’s intimations and it would be oppressive and unfair to allow an appeal by the prosecution. The Court also noted that the circumstances of this case were highly unusual, and the appropriate course was 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. The Court held that a fine of $150 was well below the range properly available for this type of offence, and while it is unusual not to record a conviction for the commission of a regulatory offence, 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. The appeal was dismissed, and the orders made by the Magistrate stood.