Frick v Police
[2011] SASC 17
•18 February 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRICK v POLICE
[2011] SASC 17
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS
Appeal against sentence - appellant unrepresented in Magistrates Court - pleaded guilty to driving unregistered, uninsured vehicle and driving it on the road in breach of a condition of Learner's Permit - appellant not advised of right to obtain legal advice - not informed that conviction for breach of Learner's Permit would result in automatic disqualification of licence by Registrar of Motor Vehicles for a period of six months - request by appellant for Magistrate to proceed without recording convictions – no reasons given by Magistrate - convictions recorded with respect to all counts – appellant not in breach of Learner’s Permit as vehicle was a four-wheeled bike and not two-wheeled as defined by relevant legislation - charges of driving unregistered, uninsured motorbike regulatory offences - appellant not likely to offend again - extenuating circumstances - appropriate in this case to utilise provisions of s 16 Sentencing Act - appeal allowed and convictions quashed with respect to all offences - request made to Registrar to cancel disqualification notice.
Motor Vehicles Act 1959 (SA) ss 9, 102, 75a, 81B(2); Criminal Law (Sentencing) Act 1988 s 16, referred to.
Cooling v Steel (1971) 2 SASR 249 *quote, discussed.
Hodgson v Police [2002] SASC 35; Piva v Brinkworth (1992) 59 SASR 92; Vitlove v Lewis [2004] SASC 83; Forgione v Police [2008] SASC 54; Brown v Police [2009] SASC 45; Sims v Police (2000) 30 MVR 524, considered.
FRICK v POLICE
[2011] SASC 17Magistrates Appeals
Nyland J: This is an appeal against sentence. The appellant was charged on complaint that on 22 April 2009 at Tollerdown Street, Davoren Park she:
(1)drove an unregistered motor vehicle on a road contrary to the provisions of s 9 Motor Vehicles Act 1959 (“MVA”).
(2)drove an uninsured motor vehicle on the road contrary to s 102 Motor Vehicles Act 1959 (“MVA”).
(3)drove a motor vehicle on the road in contravention of a condition inserted in a Learner’s Permit pursuant to s 75a Motor Vehicles Act 1959 (“MVA”).
The appellant appeared before a Stipendiary Magistrate sitting in the Magistrates Court at Elizabeth on 18 October 2010. The appellant was unrepresented. She entered a plea of guilty to all three counts. The circumstances of the offending as set out in the Police Apprehension Report are as follows:
Police version
On Wednesday 22 April 2009 Police (WALKER) was conducting enquiries on Tollerdown Road, Davoren Park when he observed the accused ride a petrol powered four (4) wheel miniature motorcycle South on Tollerdown Road. The motorcycle was not displaying any registration plates at the time. The accused stopped the motorcycle near Police (WALKER) who spoke to the accused regarding the offences. Police (WALKER) requested the attendance of another patrol as he was busy conducting enquiries.
Police (BYRNE/MARSHALL) attended a short time later and Police (WALKER) indicated the accused as being the operator of the motorcycle. Police (BYRNE) observed that the miniature motorcycle was petrol powered and bore no registration plates. Police (BYRNE) conducted a notebook interview with the accused. Police ascertained that the motorcycle had never been registered and that the accused only held a learner’s C class permit, which did not permit her to operate a motorcycle on a road. Police were unable to locate an engine number on the motorcycle.
Police (BYRNE) reported the accused for driving unregistered, uninsured and contravening a condition of her Learner’s driver’s licence.
At the time of the offence lighting was dusk, the road was sealed and level, and there was no traffic on the road.
Accused version
Accused stated that she rode the motorcycle on Tollerdown Road but that she was under the impression that the motorcycle did not have to be registered. Stated she was trying to get it running for her five (5) year old son and that she was taking it for a test drive. Stated that she did not think that she could get a licence for the motorcycle.
The appellant does not have any prior convictions. According to the affidavit of Abigail Rebecca Foulkes, the police prosecutor, the appellant was not informed of her right to obtain legal advice nor the availability of any discretion under s 16 Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) to proceed without recording a conviction. Ms Foulkes did not recall any information being put before the court regarding the appellant’s mental capacity. However, the appellant provided the Magistrate with a letter[1] in which she said:
I plead guilty to these matters before the court.
Your honour, I would like to explain my personal circumstances. I have four young children, 7 yrs, 6 yrs, 4 yrs and 8 months. I am a single mother living with the two youngest and have access with the two oldest. I am on a Parenting payment and Disability Support Pension. I only attended year 10 at a disability school. I do want to do something with my life but I am still deciding. I was a foster child and came from difficult family circumstances.
Your honour, I would like to explain the circumstances of the incident. On the day I was test driving my son’s quad bike on the footpath for his birthday, this was a one off occasion. The police that they would give me a warning only and not charge me, however they did.
I ask your honour to consider my personal circumstances and the fact that this is my first offence. I apologise to the court for my behaviour and will not commit this offence again as I understand the serious legal consequences. I respectfully ask the court to show leniency and impose minimum penalty without conviction.
May it please the court, these are my submissions.
[1] Letter dated 15 October 2010 from Karen Frick to Presiding Magistrate.
The Magistrate then recorded convictions with respect to all three counts. With respect to counts 1 and 2 he imposed a fine of $200 and a licence disqualification of two days. With respect to count 3 he only imposed the Victims of Crime levy. However, a consequence of the conviction with respect to count 3 was that on 27 October 2010 the appellant was issued with a Notice of Disqualification by the Department for Transport, Energy & Infrastructure advising her that pursuant to s 81B(2) MVA she was disqualified from holding or obtaining a driver’s licence for a period of six months commencing 24 November 2010.
The appellant subsequently appealed to this court on the following grounds:
(1)The appellant was unrepresented when she appeared before the learned Magistrate and was not advised of the desirability of obtaining legal advice and representation, nor of the consequences of convictions being recorded, namely that such conviction would lead to the Registrar of Motor Vehicles imposing an automatic licence disqualification of six months pursuant to s 81B(2) Motor Vehicles Act 1959.
(2)The appellant suffers from intellectual/learning disabilities and was at special disadvantage in appearing unrepresented before the Court.
(3)That the learned Magistrate erred in failing to advise the appellant of the availability of, and/or alternatively failing to exercise the discretion under s 16 Criminal Law (Sentencing) Act 1988 not to record a conviction in circumstances where the appellant had no prior history of offending whatsoever.
(4) That the penalty imposed was excessive in all the circumstances.
On the hearing of the appeal counsel for the appellant sought and was granted leave to amend the notice to include an additional ground, namely:
That the learned Magistrate erred in accepting a plea of guilty to the offence of contravening conditions of a Learner’s permit as a mini quad bike does not fall within the definition of a motor cycle under the Motor Vehicles Act. Consequently, the appellant was not in breach of the Learner’s Permit condition alleged by the prosecution, viz “operating a motor cycle on the road”.
The learned Magistrate did not give any reasons before imposing sentence. Accordingly, it is not clear whether, in determining penalty he turned his mind to s 16 Sentencing Act nor with respect to count (3) whether he had regard to the provisions of s 81B(2) MVA. That provides that if a person who is the holder of a Learner’s permit commits an offence of contravening a prescribed condition, then he/she is automatically disqualified from holding a permit for a period of six months. This was an important aspect of the matter which required the Magistrate to advise the appellant of the consequences of a conviction being recorded with respect to count (3) and in that circumstance, as an unrepresented person of the desirability of obtaining legal advice and representation. In this regard I refer to the oft-cited observation of Wells J in Cooling v Steel:[2]
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed and R v Maitland, and, in any event, be quick to recognise any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[2] (1971) 2 SASR 249 at 251.
The importance of an unrepresented defendant being made aware of his/her right to obtain legal advice before pleading to a charge is highlighted in this case, as the appellant had a defence to count 3. It is apparent from the police apprehension report that the charge was laid on the basis that the bike being driven by the appellant on the day in question was what is referred to in s 75A MVA as a “motor bike”. However, s 5 MVA defines a motor bike as:
… a motor vehicle (not being a trailer) with two wheels, and includes a two wheeled motor vehicle with a sidecar attached to it that is supported by a third wheel.
In this case the motor bike in question was a four-wheeled miniature motor cycle or quad bike. It does not come within the definition set out in s 5 MVA. The minimum licence required to drive a miniature quad bike is a Class C licence and it appears that the appellant held such a permit at the time of these events. The appellant was not in breach of a condition of her Learner’s Permit and was not guilty of the offence alleged in count 3. The learned Magistrate was therefore in error in recording a conviction with respect to count 3. On the hearing of the appeal, the respondent conceded that in the interests of justice the conviction as to count 3 should be quashed and the six months licence disqualification imposed as a result of that conviction cancelled and I ordered accordingly. I then reserved my decision with respect to the other appeal grounds which complain of the convictions recorded with respect to counts 1 and 2.
In her letter to the Magistrate the appellant asked that the matter be dealt with by imposing the minimum penalty without recording a conviction. As earlier indicated, the Magistrate did not give any reasons before proceeding to record a conviction with respect to each of the charged offences. Section 9(1) Sentencing Act requires a court when sentencing a defendant who is present in court to state the reasons for imposing the sentence and provide an explanation of the legal effect and obligations of that sentence and where appropriate the consequences of non compliance with it. Section 9(2) Sentencing Act however provides that the validity of a sentence is not affected by non compliance or insufficient compliance with s 9(1). Nevertheless, it is still open to an appeal court to set aside the sentence for lack of reasons. However, this particular case, on the face of it was a relatively straightforward matter and in Hodgson v Police[3] Doyle CJ observed at [8]:
… in a simple case in which there is no dispute about the facts, the absence of reasons might not embarrass an appellate court in any way. It might be that in such a case a failure to give reasons is not an error of law and the sentence should not be set aside unless it is excessive.
[3] [2002] SASC 35
and further at [32]:
… in some cases I think there will be no real need for the Magistrate to give reasons because it will be fairly obvious why the Magistrate would not have exercised the discretion or alternatively it would be a case where the giving of reasons will be unlikely to add m much.
However, the appellant made a very clear request in her letter to the Magistrate for the Magistrate to proceed without recording convictions and set out the reasons to support that request. That therefore required the Magistrate to turn his mind to whether this was an appropriate case to exercise the discretion afforded by s 16 Sentencing Act. In view of the failure by the Magistrate to provide any reasons for sentence, it is not possible to discern whether the Magistrate gave any consideration to that question or, if he did, the basis upon which he declined to exercise his discretion. In the circumstances I consider that in this case the failure by the learned Magistrate to provide reasons for recording convictions amounts to an error of law, which enables me to exercise the sentencing discretion afresh.
Section 16 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.
On the hearing of the appeal counsel for the respondent submitted that this was not a case to which s 16 applied. She submitted the offences were regulatory in nature and there were no extenuating circumstances advanced by the appellant which would permit the exercise of the s 16 sentencing discretion.
In this regard it is well established that the discretion not to record a conviction should be used sparingly in respect of social and regulatory offences[4] and the assumption that underlies s 16 is that in the ordinary course a conviction will be recorded, unless good reason exists not to do so.[5]
[4] 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).
[5] Sims v Police (2000) 30 MVR 524; [2000] SASC 102 Bleby J at [7].
However, in this case there are features arising out of the circumstances of the appellant which, in my opinion, requires the court to consider a departure from the traditional approach. The appellant has no prior convictions. I accept that she is genuinely contrite and honest in her assertion that she will not offend again. I am therefore satisfied that the discretion provided by s 16(a) Sentencing Act is enlivened. Nevertheless, and bearing in mind the nature of the charges, it is still necessary to consider whether there is good reason to proceed without recording a conviction.
At the present time the appellant is aged 27 years. She is a single mother with four dependent children. She suffers from intellectual learning disabilities and is in receipt of a Disability Support Pension. The motor bike which gave rise to these charges had been given to her five year old son as a birthday present and she only rode it on the street for a short distance to test it for safety. Given its size, she had the genuine belief that the vehicle did not need to be registered or insured. The appellant has already served a period of disqualification of about four months as a result of the cancellation of her licence following the conviction with respect to count 3. That has caused her a great deal of hardship in coping with the care of her children, which includes difficulty with transport, particularly with respect to the child who suffers from developmental problems and requires regular health check-ups. In my opinion, all of these matters amount to extenuating circumstances which in this case provide good reason for not recording a conviction with respect to counts 1 and 2. The appeal is therefore allowed to the extent that the convictions recorded with respect to counts 1 and 2 will be quashed.
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