Heyne v Police; Heyne v Police - [2019] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEYNE v POLICE; HEYNE v POLICE
[2019] SASC 52
Judgment of The Honourable Justice Parker
4 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
MAGISTRATES - ORDERS AND CONVICTIONS - CONVICTION - WHAT CONSTITUTES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
These are two appeals in which the appellant contends that the Magistrate should have exercised the power under s 98B(4) of the Motor Vehicles Act 1959 (SA) to order that no demerit points be imposed following his plea of guilty to two speeding offences contrary to s 79B(2) of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules (SA). The respondent also cross-appeals against the decision of the Magistrate not to record a conviction for these two speeding offences.
Held, per Parker J, dismissing the appeals and upholding the cross-appeal:
1. The appellant’s inability to identify the driver of the vehicle at the time of the offending is irrelevant to the question of whether the offending was trifling for the purposes of s 98B(4) of the Motor Vehicles Act (at [15]-[19]).
2. For the purposes of s 98B of the Motor Vehicles Act, “proper cause” is limited to the circumstances of the offence, and does not extend to the personal circumstances of the offender (at [20]-[26]).
3. The matters to be taken into account when determining whether an extension of time should be granted include the length of the delay, reasons for the delay, prospects of success and prejudice to the other party (at [32]).
4. The discretion to extend time is given for the sole purpose of the Court doing justice between the parties (at [33]).
5. Section 98B(1) of the Motor Vehicles Act operated of its own force to impose demerit points upon the appellant entering a plea of guilty and that plea being accepted by the Court. The fact that the Magistrate did not record a conviction against the appellant did not in any way affect the operation of s 98B(1) (at [40]-[42]).
6. The decision of the Magistrate not to record a conviction displays an outcome error (at [43]-[50]).
Motor Vehicles Act 1959 (SA) s 98B; Road Traffic Act 1961 (SA) ss 79B, 98B; Australian Road Rules (SA) r 20; Supreme Court Civil Rules 2006 (SA) r 285; Sentencing Act 2017 (SA) s 24; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Holness v Police [2010] SASC 314; Chan v Police [2014] SASC 35; Svilans v Police [2014] SASC 173; Ferdinands v District Court of South Australia [2011] SASCFC 139; Ulowski v Miller [1968] SASR 277; Gallo v Dawson (1990) 93 ALR 479; Police v Varma (2013) 116 SASR 532, applied.
Miles v Police [2012] SASC 69, not followed.
Cobiac v Liddy (1969) 119 CLR 257; Police v Hallett [2010] SASC 256; Savage v Police (2011) 208 A Crim R 571; Jones v Police [2009] SASC 137, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"conviction", "proper cause", "trifling"

HEYNE v POLICE; HEYNE v POLICE
[2019] SASC 52
Magistrates Appeal: Civil

PARKER J: The appellant, Anthony Heyne, contends in these two appeals that the Magistrate should have exercised the power under s 98B(4) of the Motor Vehicles Act 1959 (SA) to order that no demerit points be imposed following his plea of guilty to two offences contrary to s 79B(2) of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules (SA). Both offences were detected by a photographic detection device, i.e. a speed camera.
Mr Heyne represented himself in the initial proceedings in the Magistrates Court and on appeal to this Court.
Background
The first offence occurred on 4 August 2017 when a vehicle owned by Mr Heyne was driven at a speed of 68 km/hr on a road to which a speed limit of 60 km/hr applied, i.e. the speed limit was exceeded by less than 10 km/hr. This offence attracts two demerit points.
The second offence occurred on 28 August 2017 when a vehicle owned by Mr Heyne was driven at a speed of 92 km/hr on a road to which a speed limit of 80 km/hr applied, i.e. the speed limit was exceeded by 10 to 19 km/hr. Three demerit points apply to this offence.
The vehicles involved in these offences were two of six vehicles owned by Mr Heyne and used in the course of his business. Various employees of Mr Heyne drove different vehicles at any given time. Although Mr Heyne denies that he was the driver of either vehicle when the offences occurred, he accepts that the drivers must have been his employees. However, they have all denied responsibility and, for the reasons referred to below, Mr Heyne is unable to identify the driver or drivers responsible.
Mr Heyne elected to be prosecuted. He pleaded guilty to both offences and applied for a demerit point reduction. The Magistrate explained to Mr Heyne that the Court’s power to reduce demerit points is confined to the circumstances of the offence and may only be exercised if the offence was trifling or if there was other proper reason. Mr Heyne was given the opportunity to address those issues in sworn evidence. After hearing his evidence, the Magistrate declined to reduce the demerit points as he was not satisfied that the grounds for granting a reduction had been established.
The Magistrate imposed a fine of $10 in respect of the first count and $111 on the second count. His Honour did not record a conviction on either count and waived the court fees. Mr Heyne was ordered to pay prosecution costs and the victims of crime levy.
At the time of the offences, the expiation fee for exceeding the speed limit by less than 10 km/hr was $166 and the maximum fine $2,500. The expiation fee and fine for exceeding the speed limit by 10 to 19 km/hr were respectively $363 and $2,500. In that light, the fines imposed by the Magistrate, combined with the waiver of court fees, may properly be described as very merciful. Unsurprisingly, Mr Heyne has confined his appeal to the demerit points issue.
The appeals by Mr Heyne
Notices of appeal and extension of time
On 30 November 2018, Mr Heyne attempted to lodge a notice of appeal in respect of both offences. That was within the 21 day time limit. However, the notice of appeal was apparently defective and rejected by the Registry.
On 2 January 2019, Mr Heyne filed the two notices of appeal that are currently before the Court. Because these two notices of appeal were filed out of time Mr Heyne seeks an extension of time. He has stated that the delay can be attributed to difficulties associated with the “time of year”. That explanation has little merit as more than three weeks elapsed between rejection of the initial notices and the start of the Christmas and New Year holiday period. Nevertheless, the Crown does not oppose the grant of an extension of time. In those circumstances, I extended the time for lodgement of the appeals until 2 January 2019.
The appellant’s submissions
Mr Heyne contends that he had been granted a demerit point reduction previously in similar circumstances. As I explained to Mr Heyne during the hearing, any prior decision is irrelevant to the present matter. Moreover, either the circumstances must have been materially different or the matter was wrongly decided.
Mr Heyne primarily relies on the fact that at the time of the two speeding offences he was seriously ill, being regularly admitted to hospital and heavily medicated on morphine. On the day the matter came before the Magistrates Court he had forgotten that he was due to appear in Court and therefore arrived unprepared without a medical certificate.
Mr Heyne submits that his illness restricted his ability to run his business and keep track of who was driving his vehicles. He has questioned his staff as to who was driving the vehicles on the relevant occasions but they all denied responsibility. He further alleges that he has since found out that five of his six employees had been using methamphetamine. They have now left his employment. I understand Mr Heyne’s point to be that those employees were not trustworthy.
The respondent’s submissions
The respondent submits that demerit points may only be waived or reduced if the offence is trifling or if there is other “proper cause” to do so. The fact that another person was driving the vehicle at the time of a speeding offence who cannot be identified does not, of itself, render the offence trifling. That fact will also not necessarily give rise to a “proper cause”. In the circumstances presented by Mr Heyne it was not open to the Magistrate to reduce the demerit points. The appeal should be dismissed with costs.
Consideration
Section 79B(2) of the Road Traffic Act provides that where an offence is detected through the operation of a camera the owner of the vehicle is guilty of that offence unless they supply to the police a statutory declaration stating the name and address of some other person who was driving the vehicle at the relevant time.
As I have already noted, Mr Heyne has been unable to identify another person who was driving the vehicles when the offences occurred. Thus, he is taken to have committed the offences and to be liable for the prescribed penalties. The penalties for the offences in question included the imposition of two and three demerit points respectively.
Power to reduce demerit points
Section 98B(4) of the Motor Vehicles Act empowers a court to order that a reduced number of demerit points, or no demerit points, are incurred by a person in respect of an offence of which they have been convicted. Before exercising that power the Court must be satisfied by evidence given on oath that the offence is trifling or that any other proper cause exists. The primary issue in this appeal is whether the power conferred by s 98B(4) was available to the Magistrate.
In Siviour-Ashman v Police, Doyle CJ set out the matters that may indicate that an offence is trifling.[1] Doyle CJ noted that the word “trifling” means “of slight importance, insignificant or of little moment.” Amongst other considerations, his Honour held that a normal or typical example of the offence will ordinarily not be trifling.
[1] (2003) 85 SASR 23.
No information was provided to the Magistrate about the circumstances of the offences other than the extent to which the speed limit was breached in each instance. Thus there was no information that in any way suggested that either of the two offences was of slight importance, insignificant or of little moment or that it was not a normal or typical example of a speeding offence. In those circumstances, the Magistrate correctly concluded that it was not open to him to find that either of the offences was trifling. The fact that Mr Heyne cannot identify the drivers is irrelevant to the question of whether the offending was trifling.
There has been some division amongst the authorities in this Court as to whether “proper cause” may extend to the personal circumstances of an offending driver or whether it is limited to the circumstances of the offence.
In Holness v Police after conducting a detailed examination of the earlier authorities and the history of legislative amendments, Sulan J held that the concept of “proper cause” was limited to the circumstances of the offence and does not relate to the circumstances of the offender.[2] Blue J adopted the same approach in Chan v Police.[3]
[2] [2010] SASC 314 at [13]-[22] (Sulan J).
[3] [2014] SASC 35 at [22] (Blue J) citing Gilbert v Owen (1991) 14 MVR 235 (Olsson J).
Because of some division amongst the authorities, Doyle CJ decided in Miles v Police that it was appropriate to consider both the circumstances of the offender and of the offence.[4]
[4] [2012] SASC 69 at [25] (Doyle CJ).
In Svilans v Police[5] Kourakis CJ declined to follow Miles and adopted the interpretation favoured by Sulan J in Holness and Blue J in Chan. No doubt because it was an ex tempore judgement, Kourakis CJ did not explain why he preferred the approach of Sulan J.
[5] [2014] SASC 173.
Sulan J noted in Holness that amendments made to the Motor Vehicles Act in 2001 provided in s 98BE that a person who is liable to licence disqualification due to the accumulation of demerit points may elect to accept a condition being placed on their licence by the Registrar of Motor Vehicles which permits them to continue to drive but renders them liable to double the period of disqualification that would otherwise have applied if they accumulate a further two demerit points. Under the earlier s 98b(15) a driver was able to apply to the court for a reduction in demerit points based upon undue hardship. The reasoning of Sulan J was that, because of the substitution of an administrative scheme to deal with cases of undue hardship, it was no longer necessary or appropriate for the Court to have regard to personal circumstances when determining whether “proper cause” existed. Sulan J also noted that in a series of cases decided in this Court after the enactment of the 2001 amendments it had been held that “proper cause” was limited to the circumstances of the offence.
I consider the reasoning of Sulan J in Holness to be correct. His Honour’s approach also accords with the weight of authority, including the decision of Kourakis CJ in Svilans and of Blue J in Chan.
I therefore find that the Magistrate correctly held that he was not entitled to consider the circumstances of Mr Heyne when determining whether proper cause existed to reduce the demerit points attached to the two offences. His Honour was only entitled to consider the circumstances of the offences. There was nothing known about the circumstances of the offences that could have provided a basis to reduce the demerit points.
I would therefore dismiss the appeals for the foregoing reasons.
The cross-appeal
Lodgement of the cross appeal
Section 98B(1) of the Motor Vehicles Act provides for the imposition of demerit points upon conviction or upon expiation of an offence. The offences were not expiated and the Magistrate did not record convictions against Mr Heyne. At the hearing on 4 February 2019, I asked counsel for the respondent and Mr Heyne whether s 98B(1) had operated to impose demerit points in circumstances where a conviction was not recorded. I reserved my decision but granted leave to both parties to make further written submissions on this topic.
Mr Heyne did not make any further written submissions. However, the respondent did make further written submissions and also sought permission to lodge a cross-appeal challenging the decision of the Magistrate not to record a conviction.
Mr Heyne had re-submitted his notices of appeal to the Registry on 2 January 2019. While he did not serve the notices of appeal upon the respondent, the Registry provided copies of the notices of appeal to the Crown Solicitor by email on 2 January 2019. In these circumstances I consider that the time limit for the cross‑appeal set by r 285(1) of the Supreme Court Civil Rules 2006 (SA) must run from 2 January 2019 when the respondent became aware of the appeal, albeit it was not served by Mr Heyne. Thus, the respondent was required to file any notice of cross-appeal within 14 days, i.e. by 16 January 2019. However, it was not lodged until 11 February 2019.
The notice of cross-appeal was lodged within the time allowed to the respondent to make further written submissions. Mr Heyne did not avail himself of the further 10 days I allowed for lodgement of his written submissions.
The matters to be taken into account when determining whether an extension of time should be granted include:
·the length of the delay;
·the reasons for the delay;
·the prospects of success, i.e. the merits of the application; and
·the prejudice to the other party.[6]
[6] Ferdinands v District Court of South Australia [2011] SASCFC 139; Ulowski v Miller [1968] SASR 277 at 282-283 (Bray CJ).
It is also important that the discretion to extend time is given for the sole purpose of the Court doing justice between the parties.[7]
[7] Gallo v Dawson (1990) 93 ALR 479 at 480 (McHugh J).
I held some reservations about the appropriateness of granting the respondent an extension of time so as to authorise the lodgement of the cross‑appeal. That is because the respondent did not lodge the cross-appeal until after I had questioned counsel as to whether demerit points must be recorded in view of the decision of the Magistrate not to record a conviction. On the other hand, the respondent submits that the notice of appeal was not directed to the question of conviction and the appellant did not file an outline of argument. For that reason, it was only when I raised a question about the effect of the failure to record a conviction that the respondent realised that the discretion under s 24 of the Sentencing Act 2017 (SA) had miscarried. Thereafter the respondent acted diligently to pursue the cross-appeal. The cross appeal was then lodged during the period I had allowed for the making of written submissions on this question.
In the particular circumstances of this case, I consider that the most important considerations in determining whether to grant an extension of time are the merits of the application and the need to ensure that the Court does justice between the parties. I consider that those two considerations strongly support an extension of time for lodgement of the cross appeal. I hold that view because it is quite clear for the reasons stated at paragraphs [43] to [50] below that the Magistrate erred in determining not to record a conviction.
The other considerations also favour the grant of an extension. The respondent acted quickly once it realised that the Magistrate may have erred by failing to record a conviction. Mr Heyne will not suffer any prejudice in the sense that the relatively short delay on the part of the respondent has not caused him difficulties in defending the cross-appeal. For these several reasons, I grant the respondent the extension of time required for the lodgement of the cross-appeal.
Effect of failure to record a conviction
In addition to seeking permission to lodge a cross-appeal against the failure of the Magistrate to record a conviction against Mr Heyne, the respondent has submitted that the fact that a conviction was not recorded does not affect the operation of s 98B(1). It has long been recognised by the courts that the word “convicted” is capable of bearing different meanings depending upon the statutory context.[8]
[8] Cobiac v Liddy (1969) 119 CLR 257 at 266-267 (McTieman J), 271 (Windeyer J); Police v Hallett [2010] SASC 256 at [37] (Gray J).
The respondent submits that the present circumstances are indistinguishable from Police v Varma where the Full Court held that the word “convicts” in s 47(3)(a) of the Road Traffic Act included both the finding of guilt and the acceptance of a plea of guilty.[9] Thus, the Full Court held that even though a conviction had not been the recorded against the respondent, upon entering a plea of guilty he was subject to the mandatory licence disqualification.
[9] (2013) 116 SASR 532 at 539-540 [19]-[20] (Gray, Sulan and Blue JJ).
Mr Heyne has not made any submissions as to whether he was “convicted” for the purposes of s 98B.
Consideration
The basis for the decision of the Full Court in Varma was the distinction between a person being convicted and the recording of that conviction. The Full Court, comprising Gray, Sulan and Blue JJ, observed that:[10]
The phrase “recording a conviction” is a reference to an act of a judicial officer formally pronouncing that a finding of guilt is to be recorded as a conviction. A finding of guilt amounts to a conviction. A decision then needs to be made as to whether to record that conviction.
Once it is understood that the acceptance of a plea of guilty falls within the meaning of “convicts”, it follows that the magistrate in the present proceeding convicted the defendant, despite having not formally recorded that conviction.
[10] Ibid.

The Full Court in Varma rejected a submission by the Crown that where a mandatory licence disqualification applies upon conviction and there is a statutory prohibition upon reducing that disqualification, the Court has no discretion not to record a conviction. Thus, the Full Court concluded that the Magistrates Court had retained the discretion not to record a conviction. However, the exercise of the statutory power not to record a conviction did not affect the operation of the mandatory licence disqualification.
I consider that the decision of the Full Court in Varma cannot be distinguished from the present circumstances despite the slightly different statutory context. The fact that the Magistrate did not record a conviction against Mr Heyne did not in any way affect the operation of s 98B(1). That provision operated of its own force to impose the stipulated number of demerit points upon Mr Heyne entering a plea of guilty and that plea being accepted by the Court.
Decision not to record a conviction
The Magistrate did not give any reasons for his decision not to record a conviction against Mr Heyne. I infer that the Magistrate may have taken into account that the situation Mr Heyne found himself in was the product of his illness. Be that as it may, the Magistrate was only empowered to not record a conviction if the requirements of s 24 of the Sentencing Act were satisfied. Section 24 provides as follows:
24—Imposition of penalty without conviction
If 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.
The respondent has submitted an affidavit in support of its cross-appeal setting out Mr Heyne’s extensive record of driving offences. Mr Heyne is aged 48 years. Since 1994 he has recorded more than 60 driving offences. The majority of these offences occurred when Mr Heyne exceeded the speed limit. However, amongst other offences there have been five offences of failing to obey a red traffic light, a further four offences of disobeying provisional licence conditions, three offences of using a handheld mobile phone, two offences of driving uninsured, five offences of failing to wear a seatbelt and three offences of failing to give way at a give way sign. He has also been convicted on one occasion for driving without due care in 1995 and on another occasion for driving in a reckless or dangerous manner in 1997. On four separate occasions between 1997 and 2001 he was convicted of driving whilst under disqualification or suspension. He was imprisoned on three occasions for these offences.
Mr Heyne has been subject to licence disqualifications on 14 occasions between 1995 and 2019. On eight of those occasions the suspension has resulted from the accumulation of demerit points. His licence has also been suspended on 24 occasions between 2000 and 2017. In fact, Mr Heyne was disqualified from driving due to accumulated demerit points when he appeared before the Magistrate. He has had his licence restored on two occasions in 2007 and 2014 under the good behaviour condition scheme.
I infer that Mr Heyne’s business as a landscape gardener may require him to use a vehicle more frequently than the average motorist. Nevertheless, he has a very poor record of compliance with the laws covering the use of vehicles on roads. While the most serious offences occurred twenty or more years ago, Mr Heyne continues to offend. Leaving aside the offences that are the subject of this appeal, he has committed approximately two or three offences over each of the last several years. Those offences have mostly involved speeding.
Section 24(a) of the Sentencing Act only permits a court not to record a conviction if it is satisfied that the defendant is unlikely to commit such an offence again. In Savage v Police, Nyland J made the following observation concerning the former s 16 of the Criminal Law (Sentencing) Act 1988 (SA):[11]
As far as s 16 is concerned, it is well established that the discretion not to record a conviction should be used sparingly in respect of social and regulatory offences. 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.
(Footnotes omitted)
[11] (2011) 208 A Crim R 571 at 576 [21] (Nyland J).
The police prosecutor has deposed that she cannot recall whether she informed the Magistrate of Mr Heyne’s driving record but has stated that it is her usual practice to do so. If the prosecutor did inform the Court of Mr Heyne’s persistent failure to comply with the laws governing driving over a period of more than 25 years, and in particular his regular commission of speeding offences over recent years, I cannot see any proper basis upon which the Magistrate could have formed the opinion that he was unlikely to commit such an offence again.
If the police prosecutor did not inform the Magistrate of Mr Heyne’s poor driving record, the lack of information would have prevented the Magistrate from properly forming the necessary opinion under s 24(a) that he was unlikely to offend again.
For the reasons set out in the preceding three paragraphs, it is clear that the decision not to record a conviction displays an outcome error. It is therefore not necessary to decide upon the correctness of the respondent’s submission that the failure of the Magistrate to provide reasons for his decision, of itself, demonstrates error. However, the failure of the Magistrate to make even the briefest of references to the statutory criteria in s 24 so as to explain his Honour’s decision not to record a conviction suggests that there was probably also a process error.[12] This was not a case where the reasons for the exercise of the judicial discretion were self-evident.
[12] See generally Jones v Police [2009] SASC 137.
Conclusion
I grant the extension of time for both of the appeals by Mr Heyne and dismiss both appeals. I grant the extension of time for the respondent to file the cross‑appeal, uphold the cross‑appeal, and order that a conviction be recorded in respect of the offences that occurred on 4 August 2017 and 28 August 2017.
I will hear the parties as to costs.