Draoui v Police - [2010] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DRAOUI v POLICE
[2010] SASC 94
Judgment of The Honourable Justice Nyland
8 April 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appellant pleaded guilty in Magistrates Court to a charge of using a mobile phone whilst driving - appellant applied to Magistrate to have the offence found trifling - Magistrate recorded a conviction, imposed a fine and refused the application to find offence trifling - appeal against refusal of trifling application - no error demonstrated in the approach taken by the Magistrate - no basis to interfere with Magistrate's discretion - appeal dismissed.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appellant pleaded guilty in Magistrates Court to a charge of using a mobile phone whilst driving - Magistrate recorded a conviction - appeal against decision to record conviction - in the ordinary course a conviction is to be recorded - discretion to not record a conviction should be used sparingly in respect of social and regulatory offences - no error demonstrated in the approach taken by the Magistrate - no basis to interfere with Magistrate's discretion - appeal dismissed.
Australian Road Rules Rule 300; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 Regulation 50(1); Motor Vehicles Act 1959 s 98B(4); Criminal Law (Sentencing Act) 1988 ss 15, 16, referred to.
House v The King (1936) 55 CLR 499, applied.
Thorley v Police [1977] SASSC 6779; Siviour-Ashman v Police (2003) 85 SASR 23; Police v Federuzzi [2008] SASC 104; Sims v Police (2000) 30 MVR 534; Piva v Brinkworth (1992) 59 SASR 92; Vitlov v Lewis [2004] SASC 83; Forgione v Police [2008] SASC 54; Brown v Police [2009] SASC 45, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""trifling""

DRAOUI v POLICE
[2010] SASC 94

NYLAND J: The appellant was charged on complaint that on 11 February 2009 at Glynde being the driver of a vehicle moving on a road, namely Hilltop Avenue, he used a hand-held mobile phone contrary to the provisions of Rule 300 Australian Road Rules. The maximum penalty prescribed for this offence is a fine not exceeding $2,500.[1]
[1] Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 Regulation 50(1).
The appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Adelaide on 21 October 2009 and pleaded guilty to the charge. The Magistrate recorded a conviction and imposed a fine of $229. In addition, the appellant was required to pay Court costs, prosecution costs and the Victims of Crime Levy. The appellant has appealed against the decision of the learned Magistrate to record a conviction and the rejection of his application for the offence to be found trifling.
The circumstances in which the plea was entered by the appellant in the Magistrates Court are set out in the affidavit of Acting Senior Sergeant Collins, sworn on 5 January 2010. Sergeant Collins appeared in the Magistrates Court on 21 October 2009 to prosecute the appellant with respect to the matter. The appellant was unrepresented. It appears that the complaint was originally listed for trial, but before the trial commenced, Sergeant Collins had a discussion with the appellant, which related to the circumstances in which the offence was alleged to have occurred. Sergeant Collins said that after discussion, the appellant advised him that he would plead guilty to the offence on the factual basis that he had only used the phone for a short period of time as he reversed out of the parking space. Sergeant Collins advised the appellant that the prosecution was willing to accept a plea on that factual basis. He said that the appellant then told him that he was concerned about losing demerit points and Sergeant Collins explained to the appellant that after he had pleaded guilty to the offence he could make an application to have the offence found trifling. Sergeant Collins said that he explained to the appellant the procedure involved in making a trifling application. He advised the appellant that the final decision as to that matter lay with the Magistrate and it would be for the Magistrate to determine whether or not the circumstances of the case were trifling. Sergeant Collins said that the appellant appeared to understand that explanation. The appellant then indicated that he would plead guilty to the offence on the agreed factual basis and would make a trifling application.
The matter was then called on for hearing and Sergeant Collins advised the learned Magistrate of the negotiations between the appellant and himself. The charge was read and the appellant pleaded guilty. The appellant then made a trifling application and gave evidence in support of that application. The appellant told the learned Magistrate that he had been at a McDonald’s car park. He took his food, went to the car and he then started to “drive off reversing”. He said:[2]
The phone rang. I answered it and I said to my son, “I’ll ring you later”. I hung up.
[2] Transcript of Proceedings, South Australia Police v Draoui (Magistrates Court, Forrest SM, 21 October 2009) at p 2.
He said he then reversed back into Hilltop Avenue, where he was stopped by police who told him he was not allowed to use the phone while he was driving. The appellant said he told the police that he answered the phone in the car park and was not driving in the street. He said that he reversed back between the car park and where he was stopped, which was no more than 10 to 15 metres.
Sergeant Collins did not cross-examine the appellant. He told the Magistrate that he stood mute on the question of the trifling application. He informed the Magistrate of the basis upon which the appellant had changed his plea from not guilty to guilty, namely that:[3]
… it was a very short reversing, a very short time on the phone. He immediately put the phone down. What he was disputing was that he drove further whilst talking on the phone and I was prepared to accept that did occur.
[3] Ibid at p 6.
The Magistrate then asked the appellant whether he wished to make any submissions with respect to his application and the appellant responded that: [4]
Maybe, legally, I break the law, but I feel morally I didn’t harm anybody and plus I’m a pensioner, I can’t afford big money, I don’t want to lose three demerit points, I don’t own my own house.
[4] Ibid at p 7.
The Magistrate then delivered ex tempore reasons for his decision.
The Magistrate acknowledged that as a consequence of discussions between the appellant and Sergeant Collins, the appellant had resolved to enter a plea of guilty and subsequently make an application pursuant to s 98B(4) Motor Vehicles Act 1959 for the offence to be found trifling so that the Court would order a reduced number of demerit points upon conviction or that no demerit points be incurred in respect of the offence.[5]
[5] A power to find the offence trifling and dismiss it without penalty was also available to the Magistrate pursuant to s 15 Criminal Law (Sentencing) Act 1988 (“Sentencing Act”).
The Magistrate acknowledged that the plea had been entered on the basis of an agreement with the police that the use of the mobile phone occurred only whilst the appellant was in the course of reversing his vehicle in the car park and that the police did not persist with the allegation that the appellant had used the mobile phone whilst turning on to or travelling on Hilltop Avenue.
The Magistrate noted that the trifling application was based on the fact that the use of the phone was for a very short distance, presumably not exceeding 10 or 15 metres. The Magistrate recited the requirements necessary to find an offence to be trifling, and acknowledged that:[6]
… there have been some cases where the fact that a vehicle was driven over a short distance has been significant in the Court coming to the view that the offence was trifling, but, by and large, in those cases, something more than the fact of the vehicle having been driven over a short distance is usually present, if not required.
[6] Transcript of Proceedings at p 9.
He then gave the example of a car being moved a short distance from where it had been left in danger thus making it not typical offending. The Magistrate went on to say that in this case there was no issue of urgency or exigency which required the driving of the vehicle. The appellant was simply leaving the café to travel to his place of residence. There was no urgency or other contingency which prevented the appellant from reversing his direction of travel, that is, by moving forward and parking his car before he answered the phone.
In considering whether proper cause existed to find that the offending was trifling the Magistrate took into account the short distance driven, the short period of time that the phone was in use and that no risk or embarrassment was caused to other road users. The Magistrate found, however, that none of these matters, either alone or in conjunction, justified a reduction or cancellation of the demerit points, the offence being one of strict liability. He cited the potential risk, not the actual risk as being at the heart of the offence:[7]
… it is a dangerous thing for drivers of motor vehicles to be … driving the vehicle and to be answering a mobile phone at the same time.
[7] Ibid at p 10.
In the course of his evidence with respect to the application, the appellant referred to his personal circumstances, which included him being a pensioner with limited financial means. The Magistrate indicated that whilst he could take the appellant’s circumstances into account for the purposes of determining the appropriate fine, they were irrelevant to the determination of whether the offence was trifling.
Having considered all of these matters, the Magistrate refused the application by the appellant. He then recorded a conviction and imposed the fine to which I have earlier referred.
As in the Magistrates Court, the appellant was unrepresented on the hearing of the appeal. The thrust of his argument was that he should not have been convicted as his car was stationary at the time that he used the phone. He had therefore not committed any offence. He maintained that he had been misled by the police into entering the plea of guilty on the basis of the facts agreed. As a result of his discussion with the police he understood that the matter was likely to be treated as trifling and he had pleaded guilty accordingly.
It may be the case that the appellant did not fully appreciate the advice given by Sergeant Collins that the final decision with respect to the trifling application lay with the Magistrate. The appellant did, however, give evidence on oath, which was not led or prompted by the prosecutor. When asked a question by the Magistrate about the version of facts which appeared in the expiation notice, which related to a more serious factual situation of driving on a road, the appellant re-stated that he did not agree that he was talking on the phone in Hilltop Avenue, and then went on to say: [8]
… Well, in this case if you say I driving in the street I have nothing to say I’m not driving the street. My phone rang, I answered the phone and I hung up. I reversed back and between the car park and where he stopped me it’s no more than 10 to 15 metres. I was back in the car park and McDonald and the corner of Hilltop Street and Lower North East Road or Payneham Road, I’m not too sure.
[8] Ibid at p 4.
In answer to a question from the Magistrate, the evidence was: [9]
A.Yes, I looked. When my son rang, I answered and said “I ring you back. I’m on my way home”.
Q.And you did that as you were reversing the car in the car park.
A.Yes.
[9] Ibid at p 5.
The Magistrate then made findings based on the evidence given by the appellant that he answered the phone while reversing in the car park.
The offence committed by the appellant is at the lower end of the scale of seriousness and justified the prosecutor’s suggestion that the appellant make an application to the Court for the offence to be declared trifling. As the prosecutor pointed out, however, the final decision as to that matter was for the Magistrate. It may be that another Magistrate would have reached a different conclusion with respect to that application, but that is not a reason to interfere with the decision reached. The characterisation of an offence as trifling is the expression of a discretionary judgment.[10] Accordingly, that discretion should not be interfered with unless the Magistrate acted upon a wrong principle, mistook the facts, acted upon an extraneous or irrelevant matter or did not take into account a material consideration.[11] To succeed on appeal, the appellant is required to identify some error on the part of the learned Magistrate which would justify this Court in interfering with the decision he made.
[10] Thorley v Police [1977] SASC 6779 (Unreported Judgment, Supreme Court of South Australia, Perry J, 16 December 1997).
[11] House v The King (1936) 55 CLR 499 at 504 (Dixon, Evatt and McTiernan JJ)
For an offence to be trifling, it must be of slight importance. An offence which is a normal or typical example of its kind cannot be regarded as trifling.[12] Although the appellant only travelled a short distance, he was in the act of reversing his car, thereby creating a situation of potential danger. As the Magistrate commented, there was no exigent circumstance which justified the appellant answering his mobile phone. The appellant gave sworn evidence as to the circumstances of his offending. The learned Magistrate made findings on the basis of that evidence and concluded that it was appropriate to reject the application to find the offence trifling. The Magistrate properly found that there was no proper cause to reduce or cancel the demerit points. No error has been demonstrated in the approach taken by the learned Magistrate.
[12] Thorley v Police [1977] SASC 6779 (Unreported Judgment, Supreme Court of South Australia, Perry J, 16 December 1997); Siviour-Ashman v Police (2003) 85 SASR 23 at 27 [25] (Doyle CJ); Police v Federuzzi [2008] SASC 104 at [9] (David J).
The appellant also appeals against the Magistrate’s decision to record a conviction. The Magistrate had power not to record a conviction pursuant to s 15(1)(a) Sentencing Act upon finding the offence trifling, or pursuant to s 16 Sentencing Act where it is appropriate to impose a penalty without conviction. Section 16 may be used where a Court is of the opinion that the defendant is unlikely to commit such an offence again and, having regard to certain factors in s 16(b), good reason exists for not recording a conviction.
The assumption behind s 16 is that in the ordinary course a conviction will be recorded and s 16 is only to be used where there is good reason to do so.[13] It is well established that in respect of social and regulatory offences the discretion not to record a conviction should be used sparingly.[14] As with the characterisation of the offence as trifling, the decision to not record a conviction is a discretionary judgment of the Magistrate. The appellant has failed to satisfy me of any error made by the Magistrate that would justify this Court interfering on appeal.
[13] Sims v Police (2000) 30 MVR 524; [2000] SASC 102 (Bleby J) at [7].
[14] Piva v Brinkworth (1992) 59 SASR 92 at 95 (Duggan J); Vitlov v Lewis [2004] SASC 83 at [9] (Kelly J); Forgione v Police [2008] SASC 54 at [15] (Kelly J); Brown v Police [2009] SASC 45 at [13] (Nyland J).
The appeal is dismissed.