Hyde v Police - [2006] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HYDE v POLICE
[2006] SASC 362
Judgment of The Honourable Justice Bleby
1 December 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Appeal against recording of conviction – Appellant pleaded guilty to driving with prescribed concentration of alcohol in blood contrary to s 47(B)(1), Road Traffic Act 1961 (SA) – Minimum fine and licence disqualification imposed by Magistrate – Where circumstances of offending are trifling under s 47B(3), Road Traffic Act 1961 – Consideration of application of s 16 and s 20 of Criminal Law (Sentencing) Act 1988 (SA) in relation to s 47B, Road Traffic Act 1961 – Appeal dismissed.
Road Traffic Act 1961 (SA) s 47A, s 47B; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 20, s 37; Fisheries Act 1982 (SA) s 66, referred to.
Hemming v Mundy [2001] SASC 105, distinguished.
Cresswell v Bates (1989) 9 MVR 176; Glover v Haseldine (1990) 48 A Crim R 118; Glover v Romanowcyz (1991) 55 SASR 524; Janz v Woolven (1990) 55 SASR 239; Mancini v Vallelonga (1981) 28 SASR 236, considered.

HYDE v POLICE
[2006] SASC 362
Magistrates Appeal: Criminal

BLEBY J: This is an appeal against the recording of a conviction. The appellant first appeared before a magistrate at the Christies Beach Magistrates Court on 17 November 2005. On that date he pleaded guilty to driving with the prescribed concentration of alcohol being present in his blood, contrary to s 47B(1) of the Road Traffic Act 1961 (SA) (“the Act”) on 21 August 2005.
The appellant had present in his blood at the relevant time 0.142 grams of alcohol per 100 millilitres of blood, making the offence a “category 2” offence under s 47A(1) of the Act. This was the appellant’s first offence against s 47B of the Act.
The appellant was liable to pay a fine of not less than $500 and not more than $900.[1] He was also liable to be disqualified from holding or obtaining a driver’s licence for a period of not less than 6 months.[2] However, that disqualification period may be reduced to not less than one month if the court is satisfied, by evidence given on oath, that the offence is trifling.[3]
[1] Section 47B(1), Road Traffic Act 1961 (SA).
[2] Section 47B(3)(a)(i)(A), Road Traffic Act 1961 (SA).
[3] Section 47B(3)(b), Road Traffic Act 1961 (SA).
At the hearing at Christies Beach Magistrates Court on 17 November 2005 submissions were made by a legal practitioner on behalf of the appellant, supported by evidence on oath from the appellant, to the effect that the appellant’s offending should be considered trifling, given the circumstances surrounding the offending.
Briefly, the circumstances of the offending were as follows. On 19 August 2005 the appellant booked a taxi to collect him from the Alma Hotel, Willunga, at midnight on 20 August 2005. Between approximately 8.15pm and 11.35pm on 20 August the appellant attended at the Alma Hotel and consumed about 5 glasses of beer and several glasses of bourbon and coke. At around midnight he went to the car park of the hotel to wait for his taxi. He decided to move his car from where he had initially parked it to a better lit parking space, as he intended to leave it there overnight and to go home in the taxi. He got into the car and, as he was moving it in the car park, police arrived. The car was stationary when police spoke to the appellant, although the engine was running and the lights were on. He submitted to an alco-test and was subsequently charged with driving with the prescribed concentration of alcohol in his blood.
The application that the offence be considered trifling was not opposed by the prosecution, and was agreed to by the magistrate. The magistrate commented that the application was “arguably one of the most compelling, if not the most compelling, trifling applications [he had] heard in the last 20 years”.
Counsel for the appellant submitted that the finding that the offending was trifling should be used in two ways. First, it should be used in order to reduce the licence disqualification period under s 47B(3) of the Act from a minimum of 6 months to a minimum of 1 month. Secondly, he argued that it should be used to order that no conviction be recorded, in accordance with the provisions of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
The magistrate refused to hear further submissions in relation to the recording of a conviction. He was of the view that he was not permitted so to order because the offence to which the appellant pleaded guilty was a “regulatory offence” and therefore the court “must impose a conviction”. The magistrate cited Mancini v Vallelonga[4] as authority for this proposition. He added, nevertheless, that if it were open to him to proceed without conviction, in that instance he would have done so.
[4] (1981) 28 SASR 236.
The magistrate ordered that a conviction be recorded, that the appellant pay a fine of $500 together with a victims of crime levy of $35, and that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 1 month, to commence forthwith.
The appellant appeals against the recording of the conviction. The grounds of appeal allege that the magistrate erred in law in declining to entertain a submission that no conviction should be recorded, and that he wrongly applied Mancini v Vallelonga. He seeks an order, pursuant to s 16 of the Sentencing Act, that no conviction be recorded.
I am happy to proceed on the footing that, if the magistrate had power to do so, there was justification under s 16 of the Sentencing Act for not recording the conviction. The appeal therefore concerns the power of the court, in the circumstances, to invoke that section.
Counsel for the respondent, properly conceded that the magistrate erred in law in holding that he was bound by the decision in Mancini v Vallelonga[5] in refusing to entertain the submission that conviction should not be recorded. That case stands for no such proposition. There remains, nevertheless, a question whether s 16 of the Sentencing Act can have any application.
[5] (1981) 28 SASR 236.
It is necessary to set out in more details the relevant legislative provisions. Section 16 of the 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.
However, s 20 of the Sentencing Act also provides:
Nothing in this Division-
(a) …
(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
Section 16 is in the same division of the Sentencing Act as s 20.
Section 47B(1) of the Road Traffic Act, besides prescribing the offence with which the appellant was charged, provides for a series of monetary penalties for a first, second and third or subsequent offence in each of the three categories of offence defined in s 47A. Subsection (3) paragraph (a) provides that where a court convicts a person of an offence against subsection (1), other than a category 1 offence that is a first offence, varying minimum periods of disqualification from holding or obtaining a driver’s licence must be ordered by the court.
Paragraph (b) then provides:
(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
The starting point for a consideration of the appeal is Janz v Woolven.[6] Among other things, the decision of the Full Court in that case affirmed the earlier decision of Jacobs J in Cresswell v Bates[7] that licence disqualification is properly regarded as a penalty for the purposes of the Sentencing Act.
[6] (1990) 55 SASR 239.
[7] (1989) 9 MVR 176.
It was also established in Janz v Woolven that in the case of a non-trifling offence under s 47B of the Road Traffic Act, s 16 of the Sentencing Act as it then stood could not be used to avoid a mandatory licence disqualification. It is necessary to analyse the Full Court’s reasons for reaching that conclusion.
The court noted, as is still the case, that s 47B(3) of the Road Traffic Act provides that “where a court convicts a person of an offence against subsection (1)”, certain minimum periods of licence disqualification apply, but that only they apply where there is a conviction. The court held that the application of s 37 and s 16 of the Sentencing Act, in a non-trifling case would be to remove the obligation to impose the minimum periods of disqualification provided for by s 47B(3) of the Road Traffic Act. Because of the effect of s 20, the power under s 16 could not be exercised, for to do so would avoid the obligation to impose the mandatory licence disqualification provided for in that subsection. The court did not deal with the situation where the offence was held to be trifling, or the effect (if any) of s 20 on the ability of the court to refrain from ordering a conviction in those circumstances.
The appellant seeks to distinguish Janz v Woolven on two bases. In the first place, he argued that s 47B(3)(b) was not a “no reduction” provision. In other words, the operation of s 16 of the Sentencing Act was not affected by s 20 where a finding of the offence was trifling has been made.
In my opinion the argument has no substance. Where a court finds that an offence against s 47B(1) of the Road Traffic Act is trifling, s 47B(3)(b) allows the court to impose a lower period of disqualification than that prescribed in paragraph (a) of subsection (3), but still requires the imposition of a disqualification period of not less than one month. That is the ultimate minimum penalty. If s 16 of the Sentencing Act could be utilised where an offence had been found to be of a trifling offence under s 47B(3)(b) of the Road Traffic Act, that would result in the mandatory minimum penalty of one month’s disqualification being avoided. That consequence is forbidden by s 20 of the Sentencing Act. The reasoning of the court in Janz v Woolven therefore applies equally to the situation where the offence is held to be trifling.
The second ground of distinction relied on by the appellant is based on the amendment of s 16 of the Sentencing Act since the decision in Janz. When Janz was decided, the opening words of s 16 of the Sentencing Act were:
Where a court finds a person guilty of an offence for which it proposes to impose a fine (but no other penalty) and the court is of the opinion ….
The words “(but no other penalty)” have since been substituted by the words “, a sentence of community service, or both”. The appellant relies on the decision of Martin J in Hemming v Mundy[8] as authority for the proposition that the removal of the words in brackets means that if some penalty in addition to a fine is imposed, s 16 of the Sentencing Act can still apply. The short response to that submission is that s 47B(3)(b) of the Road Traffic Act still imposes a minimum penalty by way of licence disqualification, and whatever the effect of s 16 of the Sentencing Act, s 20 prevents it from operating in relation to s 47B(3)(b) of the Road Traffic Act.
[8] [2001] SASC 105.
However, there is another reason why Hemming v Mundy is to be distinguished. Hemming v Mundy involved a prosecution for offences under s 59(4) and s 44(2)(a) of the Fisheries Act 1982 (SA). Each offence involved either the taking or being in possession of fish in a quantity in excess of that prescribed by or under the Act. For each offence there was prescribed a maximum fine. However, s 66 of the Fisheries Act required that if a person was convicted of an offence against the Act involving fish taken in contravention of the Act, in addition to any other penalty prescribed by the Act, the court must impose a penalty equal to 5 times the wholesale value of the fish taken or $30,000, whichever is the lesser amount. The prosecution in that case argued that the extra penalty prescribed by s 66 was not a fine for the purposes of s 16 of the Sentencing Act in its present form.
Martin J referred to an earlier decision of Jacobs J of this Court in Glover v Haseldine.[9] At that time the opening words of s 16 of the Sentencing Act had not been amended, and the section only applied if the court proposed to impose a fine but no other penalty.
[9] (1990) 48 A Crim R 118.
Jacobs J had found it impossible to characterise the additional penalty imposed by s 66 of the Fisheries Act simply as a fine. Like the penalty of forfeiture of fish illegally taken, Jacobs J considered that the payment to be ordered under s 66 was not a fine but an additional penalty on conviction, and that s 16 in its then form was only available where the offence carried no other penalty in addition to the prescribed fine. The conclusion and reasoning of Jacobs J was approved by White J in Glover v Romanowcyz.[10]
[10] (1991) 55 SASR 524 at 527.
Martin J in Hemming v Mundy distinguished those cases by virtue of the amendment to s 16 of the Sentencing Act. He said:[11]
In my opinion, the deletion in 1991 of the words “but no other penalty” is significant. In its original form, the words “but no other penalty” in s 16 encompassed a penalty additional to the penalty prescribed for an offence. If Parliament had intended in 1991 to widen the operation of s 16 only to the extent of including those matters in which a sentence of community service was imposed, the mere addition of reference to community service orders would have achieved that limited purpose. In that event it would have been unnecessary to remove the words “but no other penalty”. In choosing to delete the words “but no other penalty”, in my opinion Parliament evinced an intention that the imposition of a penalty additional to the penalty prescribed for an offence should not prevent the operation of s 16.
It is necessary to have regard to the scheme of the relevant provisions of the Sentencing Act and the particular purpose of s 16. Division 2 of the Sentencing Act is concerned with general sentencing powers. Sections 15-18 are ameliorating provisions which enable the court in identified circumstances to extend leniency. The power to extend leniency is circumscribed by s 20 which provides that nothing in Division 2 derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences. There is no provision in the Fisheries Act that contains such an express prohibition. [Emphasis added]
[11] [2001] SASC 105 at [23]-[24].
A little later, Martin J observed:[12]
Section 16 is one of a number of remedial provisions and it should be construed beneficially: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384. The first question to be asked is whether s 20 prevents the operation of s 16. If the answer to that question is in the negative, the court must then consider the penalty that it proposes to impose for the offence of which the person has been found guilty. The penalty the Court “proposes” to impose for that offence is the penalty fixed within the constraints of the maximum penalty prescribed for that particular offence. The possibility of a penalty additional to that prescribed for the offence is irrelevant in determining the penalty the Court “proposes” to impose for the offence, regardless of whether the additional penalty must be imposed by force of legislation or is an additional penalty that the court imposes by way of discretion.
[12] Ibid at [29].
The appellant argued in this case that the amendment to s 16 of the Sentencing Act meant that where there is a penalty (the licence disqualification) additional to the fine, by parity of reasoning s 16 of the Sentencing Act would now allow the court not to record a conviction. Quite apart from the fact that, for reasons previously given, s 20 of the Sentencing Act precludes that conclusion, Hemming v Mundy is to be distinguished for other reasons.
In the first place, Martin J distinguished a penalty prescribed for the offence and some other or additional penalty, such as that provided for in s 66 of the Fisheries Act. In this case, the licence disqualification is an integral part of the penalty for the offence. It cannot be regarded as something different or additional which applies to an offence, as in the case of the Fisheries Act, only when the offence involves the taking of fish in contravention of the Act.
Martin J was also careful to observe that s 20 of the Sentencing Act could have no application to the case before him because there was no provision in the Fisheries Act that contained an express prohibition on the reduction, mitigation or substitution of penalties or sentences. There is clearly such a provision in s 47B(3)(b) of the Road Traffic Act. His Honour also pointed out that the only penalty that the court “propose[d]” to impose for the offence was the penalty fixed by the relevant sections. Any other penalty required by s 66 of the Fisheries Act fell outside the ambit of s 16.
The situation here is quite different. The court was required to impose a minimum fine. It was also required to impose a minimum licence disqualification as part of the penalty for the offence, even although the offence was considered to be trifling. The combined penalty was the minimum required to be imposed for an offence against s 47B(1) of the Road Traffic Act. The magistrate could have imposed a higher monetary penalty and a longer period of licence disqualification. The penalty in fact fixed was the penalty that was “proposed” to be imposed by the magistrate and it was something other than merely a fine, a sentence of community service or both.
Section 16 is clearly intended to operate in limited circumstances. Apart from compliance with the provisions of paragraphs (a) and (b), it can only apply in respect of “an offence for which (the court) proposes to impose a fine, a sentence of community service, or both”. That category of offence will usually be at the lower end of the scale of seriousness. There is nothing to suggest that, where the court proposes to impose a sentence of imprisonment or some other penalty for the offence, the provisions of the section can be invoked. The necessary criteria of proposed fine, community service or both are, in my opinion, exclusive of any other proposed penalty for the offence, whether required to be imposed or merely proposed in the exercise of the court’s discretion. The penalty proposed for the offence in this case, albeit that it was a mandatory requirement, included a period of licence disqualification of not less than one month. In those circumstances, s 16, by its own terms, had no application.

It follows that the magistrate was correct in holding that he was required to record a conviction. However, he did so for the wrong reasons. The appeal nevertheless, must be dismissed.