Johnson v Police - [2011] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNSON v POLICE
[2011] SASC 63
Judgment of The Honourable Justice Sulan
19 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence - appellant pleaded guilty to driving motor vehicle without consent - took golf cart without permission - sentenced to suspended sentence of ten days' imprisonment - disqualified from holding driver's licence for 12 months - conviction recorded - whether sentence manifestly excessive - whether section 86A contemplates a penalty other than imprisonment - whether section 18 allows for substitution of a fine when imposing a disqualification of licence - whether discretion not to record conviction under section 39 - whether discretion not to record conviction under section 16 when imposing a disqualification of licence - offence not trifling - Magistrate erred in imposing imprisonment and recording conviction - appeal allowed in respect of count 1 - imposition of fine and disqualification of licence.
Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 18, s 39; Road Traffic Act 1961 (SA) s 45(2), s 46, s 47b(1), s 47b(3); Statutes Amendment (Illegal Use of Motor Vehicles) Bill (SA), referred to.
Speake v Police [2008] SASC 314, applied.
Janz v Woolven (1990) 55 SASR 239, distinguished.
Nattrass v Police [2008] SASC 267; Police v Jachmann [2010] SASC 345; Harris v Police [2009] SASC 163; Miles v Police [2009] SASC 314; Hemming v Mundy [2001] SASC 105; Siviour-Ashman v Police (2003) 85 SASR 23; Walden v Hensler (1987) 163 CLR 561; Campbell v Fuss (1991) 55 SASR 355; Police v Hodge (1996) 89 A Crim R 290; Police v Mutton [2006] SASC 328, considered.

JOHNSON v POLICE
[2011] SASC 63
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The defendant, Jerome Marvyn Johnson, pleaded guilty to driving a motor vehicle without consent, and was sentenced to ten days’ imprisonment. The sentence was suspended upon the defendant entering into a bond in the amount of $500 to be of good behaviour for six months. He also pleaded guilty to driving an unregistered and uninsured motor vehicle, for which he was fined $800. Finally, he pleaded guilty to driving without due care, for which he was fined $200. The defendant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.
The defendant complains that the sentence was manifestly excessive. He contends that the Magistrate erred in imposing a period of imprisonment and recording a conviction for the illegal use offence. Furthermore, that the Magistrate erred in failing to conclude that the offending was trifling.
Background
On 13 March 2010, the defendant drove a motorised golf buggy without first obtaining the consent of the owner. The defendant had attended the Clipsal 500 with two of his friends. Disheartened by the long walk to their car, the defendant asked an employee of the Clipsal 500 for a lift on a golf buggy. His requests were refused.
Shortly thereafter, the defendant was seen by police driving away in an unattended buggy. He drove the buggy out of the venue and proceeded to cross Fullarton Road, via the pedestrian crossing, with other pedestrians. He drove along Alexandra Avenue to Rose Park Primary School, where he abandoned the buggy. The golf buggy was driven approximately 500 metres in total. No damage was done to the vehicle.
The defendant’s circumstances
The defendant pleaded guilty. The Magistrate was satisfied that the defendant was genuinely contrite. He had been cooperative with police. The defendant was unaware of the seriousness of the offending. The offending was a foolish act committed without thought.
The defendant was 19 years of age at the time of the offence. He has no prior convictions for any criminal or traffic matters. A statement from the Bishop of the defendant’s church attests to him being a kind and helpful individual who seeks to make positive changes in his life. He currently serves as a leader in the youth program and is well supported by his parents and church leaders. The conduct was totally out of character.
The Magistrate concluded that the defendant is unlikely to offend again.
The relevant provision
The defendant was charged with contravention of section 86A of the Criminal Law Consolidation Act 1935 (SA), which states:
86A – Using motor vehicle without consent
(1)     A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence – imprisonment for 2 years;
For a subsequent offence – imprisonment for not less than 3 months and not more than 4 years.
(2)     Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months.
(3)     Notwithstanding the Children’s Protection and Young Offenders Act 1979 where the Children’s Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver’s licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver’s licence, not earlier than when the child attains that age).
(4)     The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(5)     The court may, in addition to imposing a penalty under this section, order the defendant to pay to the owner of the motor vehicle driven, used or interfered with in contravention of this section such sum as the court thinks proper by way of compensation for loss or damage suffered by the owner.
(6)     Subsections (1) and (5) do not apply to any person acting in the exercise of any power conferred, or the discharge of any duty imposed, under the Road Traffic Act 1961 or any other Act.
(7)     In this section –
drive, driver’s licence, motor vehicle, road and owner have the same meanings as in the Road Traffic Act 1961.           (Emphasis is mine)
Should a sentence of imprisonment have been imposed?
The Magistrate had regard to the various sentencing options available. He considered whether the offence was of such gravity that a sentence other than a custodial sentence was appropriate. He correctly concluded that the circumstances of this offending and the offender were such that, in ordinary usual circumstances, he would not impose a sentence of imprisonment. He then considered other options.
Section 18
The Magistrate considered whether it was possible to reduce the penalty from imprisonment to a fine, under section 18 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”):
18 – Court may add or substitute certain penalties
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a) where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose –
(i)a fine; or
(ii)a sentence of community service; or
(iii)both a fine and a sentence of community service; or
… (Emphasis is mine)
The Magistrate concluded that it was not open for him to find that the penalty could be reduced, as section 86A not only prescribes a sentence of imprisonment, but a mandatory disqualification of licence.
In Nattrass v Police,[1] Bleby J considered whether a Magistrate had power to impose a fine with respect to an offence of aggravated driving without due care, pursuant to section 45(2) of the Road Traffic Act 1961 (SA). Bleby J observed:
The word “penalty” is not defined. However, this Court has held that “sentence” as presently defined includes disqualification from holding or obtaining a driver’s licence. It follows that s 45(2) of the Road Traffic Act does not prescribe a sentence of imprisonment only for an aggravated offence, and that s 18(a) cannot be invoked to enable the imposition of a fine instead of a sentence of imprisonment.[2] (Citations omitted)
[1] [2008] SASC 267.
[2] Ibid, 4 [16].
In Police v Jachmann,[3] Gray J, in considering the same provision, referred to the above passage and observed:
Counsel for the defendant did not challenge the correctness of the above observations. As earlier mentioned the defendant accepted that the Magistrate erred when sentencing. The Magistrate had no power to impose a fine. He was obliged to sentence the defendant to a term of imprisonment.[4]
[3] [2010] SASC 345.
[4] [2010] SASC 345, [13].
The Magistrate considered himself bound by the decision of Nattrass. He said:
The fact that in the case s84A [sic] of the CLC Act provides for a penalty of imprisonment and a mandatory licence disqualification presents the same situation facing Justice Bleby in Natrass [sic]. I intend to apply and follow the obiter remarks of Justice Bleby in Natrass [sic]. I am not able to use s.18 to reduce the period of imprisonment to a fine by reason of the mandatory licence disqualification.
Mr Anders, for the defendant, submits that irrespective of the application of section 18, imprisonment need not necessarily be imposed. He argues that section 86A(1) of the Criminal Law Consolidation Act 1935 (SA) does not mandate imprisonment as a penalty for a first offence. That is, whilst it requires the imposition of imprisonment for not less than three months as a penalty for a second offence, this is not so for a first offence. He submits that if Parliament intended there to be a mandatory sentence of imprisonment, the section should specifically say so in the same manner as that for the subsequent offence. In Harris v Police,[5] Kelly J considered an aggravated offence of the careless operation of a vessel contrary to section 69 of the Harbours and Navigation Act 1993 (SA). The Act prescribes a maximum penalty of 12 months’ imprisonment. Kelly J said:
If Parliament had chosen to prescribe an absolute penalty in the sense that it prescribed only one penalty which the court is empowered to impose, then it could easily have done so. The fact is that in other sections of the Road Traffic Act the Parliament has required courts to impose specific punishments which cannot be departed from; see ss47B, 47E, 47EAA and others. This is not the case with respect to the amendments to s69 of the Harbours and Navigation Act. The court retains a discretion in an appropriate case if it thinks that good reason exists to impose a fine and/or sentence of community service; see s 18 Criminal Law (Sentencing) Act.[6]
[5] [2009] SASC 163.
[6] Ibid, [35].
Mr Anders submits that section 86A is unique as the licence disqualification is expressly prescribed to apply whether or not a conviction is recorded. These factors distinguish this case from Nattrass[7] and Miles[8] which deal with different legislation. Counsel referred to Budnjo v Police,[9] and Engelhardt v Police[10] cases which, it was submitted, are apposite in that sentencing options other than imprisonment were considered to be open.
[7] Nattrass v Police [2008] SASC 267.
[8] Miles v Police [2009] SASC 81.
[9] [2003] SASC 14.
[10] [2001] SASC 431.
The issue which I must consider is whether a penalty for a first offence, other than imprisonment, is contemplated by section 86A, and if so, whether the Court can impose a fine. The authorities of Budnjo, and Engelhardt, inasmuch as they are pertinent to the facts, do not resolve this issue. In Budnjo, the defendant pleaded guilty to driving a motor vehicle without first obtaining the consent of the owner, contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA). The facts were not dissimilar to this case. The defendant drove a golf cart around the Wirrena Cove Resort as part of a drunken prank. He was sentenced to two months’ imprisonment, which was suspended. He was also subject to a mandatory disqualification from holding or obtaining a driver’s licence for 12 months.
Gray J considered that the case did not come within the provisions of section 11 of the Sentencing Act, and the Court should consider options other than imprisonment. Gray J had regard to section 16 of the Sentencing Act. He observed that a licence disqualification of 12 months was mandatory. He found the Magistrate had failed to have regard to relevant considerations and had regard to irrelevant considerations. It is not necessary for me to detail those matters. He determined to re-sentence the defendant. He said:
Although counsel for the Crown contested the appeal it was submitted that if error was demonstrated then the Crown was supportive of the bond being imposed with a condition that required the appellant to abstain from alcohol consumption. …[11]
[11] Budnjo v Police [2003] SASC 14, 3 [29].
It was not argued before Gray J, as in this case, that a sentence of imprisonment must be imposed because of the requirement that the Court order a licence disqualification. Gray J applied section 16 of the Sentencing Act, which provides:[12]
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 a penalty without recording a conviction.
[12] Criminal Law (Sentencing) Act 1988 (SA) s 16.
It was not argued that section 18 of the Sentencing Act could not apply; nor was it argued that section 16 could not apply, because the Court was required to impose a sentence of imprisonment. Budnjo therefore did not specifically deal with the argument which has now been put by counsel for the Police. In Budnjo, the parties assumed that Gray J had the power to impose a bond.
In Engelhardt, the defendant was charged with contravening section 86A of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to three months’ imprisonment, which was suspended. His driver’s licence was disqualified for 12 months. The defendant appealed. Gray J observed:
There were many sentencing options available to the magistrate. They included discharge on a bond without conviction, discharge on a bond with conviction, a fine and community service. These options are intended to provide the court with alternatives to imprisonment. Their focus is rehabilitative. However courts have recognised that punishment is still part of these alternatives. It was open to the magistrate to impose a sentence that included a number of the above options. This is particularly so given Mr Engelhardt’s age, character, personal circumstances, lack of antecedents and the circumstances of the offence.[13]
[13] Engelhardt v Police [2001] SASC 431, 6 [16].
Gray J concluded that the Magistrate’s discretion had miscarried. In resentencing the defendant, Gray J discharged the defendant without conviction upon the defendant entering into a bond to be of good behaviour for a period of 12 months. The mandatory licence disqualification of 12 months was confirmed.
As in Budnjo, counsel did not submit that it was not open to the judge to make the order. The argument counsel now advances was not argued before Gray J.
In Speake v Police,[14] Doyle CJ considered an appeal against sentence imposed by a magistrate for reckless driving, contrary to section 46 of the Road Traffic Act 1961 (SA). The maximum penalty for the offence was two years’ imprisonment. The section also required the Court to disqualify the person from holding or obtaining a driver’s licence for a minimum period of 12 months. The Magistrate had convicted the appellant, imposed a fine of $500, and ordered that he be disqualified from holding or obtaining a driver’s licence for a period of 12 months. On appeal, Doyle CJ assumed that the Magistrate had exercised the power conferred by section 18 of the Sentencing Act to impose a fine rather than imprisonment.
[14] [2008] SASC 314.
It was not argued by the Crown that section 18 could not apply. The issue which the Chief Justice determined was whether he should reduce the period of the licence disqualification to a period of not less than one month, which he was empowered to do if the offence was trifling. Doyle CJ allowed the appeal and reduced the licence disqualification to five months. The Chief Justice did not interfere with the fine. It follows that he did not consider that the terms of section 18 precluded its operation where there is a period of licence disqualification coupled with a period of imprisonment. Again, in Speake, the Crown did not argue that section 18 could not apply.
The scope of section 18 is ambiguous insofar as it purports to operate only where a penalty of imprisonment is the only sentence prescribed by the special Act. If a narrow interpretation of the section is correct, as submitted by counsel for the Police, then anomalous outcomes could result. On the one hand, a serious offence against a person, such as an assault, may have a penalty reduced from imprisonment to a fine, in accordance with section 18. However, a less serious offence, such as the present case, where it might have already been determined that a custodial sentence would be inappropriate, pursuant to section 11, could not be reduced by reason of the mandatory licence disqualification. In my view, it could not be said that Parliament would have intended this result.
In the second reading speech for the Statutes Amendment (Illegal Use of Motor Vehicles) Bill (SA),[15] the effect of the imposition of the mandatory disqualification period, pursuant to section 86A, was discussed. The Minister said:
It will bring about consistency in the courts, in that anyone who embarks on an illegal use offence, apart from the penalties that are already prescribed by way of fines or imprisonment, in addition, faces a fixed period of disqualification for 12 months, which means consistency and certainty. (Emphasis is mine)
[15] Hansard: Legislative Council, 1 April 1992.
It may be inferred, therefore, that it was the Minister’s intention that a sentencing judge be permitted to impose a fine where appropriate for a contravention of the section, at least for a first offence.
In Hemming v Mundy,[16] Martin J considered the effect of Division 2 of the Act.[17] He observed:
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 Div 2 derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
…
Section 18 is a general power that enables the court to depart from a penalty provided by a special Act if the court thinks that good reason exists for such a departure. The extent of the departure is identified, but no other criteria need to be satisfied before the power is enlivened.
[16] [2001] SASC 105, [24].
[17] Criminal Law (Sentencing) Act 1988 (SA).

Section 18 is one of a number of sentencing provisions which enable the Court to extend leniency in an appropriate case. It should be construed beneficially. In my view, a commonsense reading of section 18 effectively divorces the sentence in respect of the licence disqualification from the words of subsection (a) in which the section speaks of “imprisonment only”. Therefore, where a court finds good reason to substitute a fine for a sentence of imprisonment, it may do so in addition to imposing the mandatory licence disqualification.
The Magistrate determined that, in accordance with section 11, it could not be said that any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence. I agree. The circumstances of the offence and the personal circumstances of the defendant did not require the Court to impose a sentence of imprisonment
The defendant is 20 years of age and a first offender. Whilst his actions were self-motivated, they were not malicious, nor motivated by anger or greed. The gravity of the appellant’s conduct is not so grave or serious that a sentence of imprisonment should be imposed.
Once determined that imprisonment would not be the appropriate penalty, then it would require clear language for the Court to be compelled to order imprisonment. The section separates the requirement of the licence disqualification from the maximum penalty of two years’ imprisonment for a first offence. I reject the submission that section 18 cannot have effect where, in addition to any sentence imposed, the Court must order that the defendant be disqualified from driving. If Parliament had intended that section 18 have no application, in those circumstances it could have so provided. In the case of a second offence, Parliament made it clear that a mandatory sentence of imprisonment must be imposed.
The Magistrate was in error in concluding that he was required to impose a sentence of imprisonment.
Should a conviction have been recorded?
Section 39
The Magistrate was asked to exercise his discretion pursuant to section 39 of the Sentencing Act, and not record a conviction.
Section 39 provides:
39 – Discharge without sentence on defendant entering into a bond
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond –
(a)to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(c)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)Where a defendant is discharged under this section –
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
Mr Anders submits that, having regard to the circumstances of the offence and the good character of the defendant, good reason exists to discharge the defendant without recording a conviction. Mr Anders submits that, to satisfy the mandatory requirement of the licence disqualification, the Court could make it a term of any bond that the defendant not drive for 12 months. Mr Anders’ submissions must be rejected.
In Janz v Woolven,[18] the Full Court determined that the effect of granting a bond without recording a conviction in a non-trifling case would be to remove the obligation to impose the minimum period of disqualification, and to effectively substitute a bond for the mandatory licence disqualification. This was said to be plainly forbidden. The suggestion that a mandatory licence disqualification can be substituted by making it a condition of a bond that a defendant not hold or obtain a driver’s licence for 12 months is plainly incorrect. That is simply demonstrated by considering the consequences if the defendant were to drive. In the case of a disqualification, the act of driving constitutes a new offence which may well result in the defendant being imprisoned. If the driving amounted to a breach of bond, the sanctions are entirely different. The breach would result in the defendant being sentenced for the original offence.
[18] (1990) 55 SASR 239.
Section 16
The Magistrate was of the view that section 16 is unavailable where the court proposes to impose a licence disqualification.
16 – Imposition of penalty without conviction
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 appeal, whether it was open to not record a conviction pursuant to section 16 was not pursued by Mr Anders. Counsel for the Police, Mr Howell, submits that the reasoning in the Full Court decision of Janz v Woolven[19] must apply to restrict the use of section 16 where a licence disqualification is imposed.
[19] (1990) 55 SASR 239.
Janz involved two appeals against decisions of magistrates refusing to refrain from recording convictions for offences under section 47b(1) of the Road Traffic Act 1961 (SA). The Full Court held that the power under section 16 of the Sentencing Act cannot be exercised so as to avoid the mandatory licence disqualification by reason of section 20 of that Act. Importantly, the terms of section 47b(1) and section 86A may be contrasted.
Section 47b(3) of the Road Traffic Act provides that “where a court convicts a person of an offence against sub-section (1)”, certain minimum periods of disqualification from holding or obtaining a driver’s licence apply. It was therefore observed by the Full Court that the minimum periods of licence disqualification apply only where there is a conviction. In Janz, the Full Court did not refuse to convict. A refusal to convict would result in avoiding the licence disqualification in its entirety, contrary to section 47b(3)(b).
However, the terms of section 86A(2) state that “the court must (whether or not it convicts the person of the offence and in addition to any other order it may make in relation to that person) order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months.” It may be inferred, therefore, that a court may proceed without recording a conviction whilst still imposing the disqualification of licence.
It should also be noted that since Janz, section 16 of the Sentencing Act has been amended. At the time of Janz, the use of section 16 was available where “a court finds a person guilty of an offence for which is proposes to impose a fine (but no other penalty)…” In Hemming v Mundy[20] Martin J considered the legislative history of section 16. He observed:
“Section 16 of the Sentencing Act was amended by the Statutes Amendment (Criminal Law Sentencing) Act 1991 (SA). The words “(but no other penalty)” were deleted and the words “a sentence of community service, or both” were inserted.
…
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.”
[20] [2001] SASC 105, [22], [23].
I agree. I consider that Janz is distinguishable on the ground that section 86A contemplates a court refraining from recording a conviction. Further, section 16 is not restricted where a licence disqualification is to be imposed.
It follows that if I consider that the defendant is unlikely to commit such an offence again, and having regard to the considerations in section 16(b), good reason exists for not recording a conviction then there is no prohibition in making such an order.
Does good reason exist for not recording a conviction?
The Magistrate considered that he could exercise the power under section 15 to refrain from recording a conviction, without imposing the mandatory licence disqualification, where the offence may be properly characterised as trifling. The Magistrate was of the opinion that the offence was not trifling
The Magistrate had regard to various factors which led him to determine that the offence could not be characterised as trivial. He noted that there was a self-interested motive by the appellant. He was aware of being pursued by police, and sought to avoid responsibility by absconding. Additionally, the vehicle was valuable, and the lack of consent in operating it had already been emphasised to the appellant by employees of the event.
In determining whether an offence is trifling, the court will have regard to the conduct which constitutes the offence and to the actual circumstances in which the offence is committed.[21] It is relevant to consider the mischief which the statute seeks to prevent, and whether the offence is a normal or typical example of its type.
[21] See Walden v Hensler (1987) 163 CLR 561.
In Siviour-Ashman v Police,[22] Doyle CJ said:
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something it has treated as an offence should routinely be regarded as of trifling significance.
[22] (2003) 85 SASR 23 at [25].
Section 86A was enacted to address the illegal or fraudulent use of motor vehicles. It was thought to highlight concern about the rising incidence of car theft in the community. The social policy underlying the legislation is to discourage those who illegally use other people’s motor vehicles.
Despite the defendant’s offending being atypical of the offending presumably contemplated by Parliament when drafting this section, it cannot be said that this renders this particular offending any less serious.
Authorities on whether an offence may be considered trifling often concern situations where there is a sense of urgency or necessity to drive, or where there was a minor breach. Though the case before us does not fit within these categories, observations from these authorities are nonetheless relevant.
In Campbell v Fuss,[23] an appellant who had a blood alcohol reading of 0.2 moved a car a few metres to avoid a danger which had arisen from the way in which the car had originally been parked. The car was moved at a time and place where there was no danger likely to arise, nor did any danger eventuate. As this was only a minor adjustment of a parking position, the offence was considered trifling.
[23] (1991) 55 SASR 355.
It cannot be said that in the case before us there was no immediate risk or danger likely to arise from the circumstances of the offending. The appellant drove the buggy across a pedestrian crossing in the presence of other pedestrians. Further, although at the time of the offending it was not suggested that there was any traffic on Alexandra Avenue, the buggy was driven in the opposite direction to the direction of traffic in which he was travelling. Notwithstanding that no harm was caused, the appellant’s conduct created a potential danger to other road users.
In Police v Hodge,[24] Doyle CJ noted that the explanation offered in Campbell’s case removed any element of intent and defiance of the law. The Chief Justice contrasted that situation from one where a person defies the law and drives, no matter what their explanation may be. In Siviour-Ashman, he accepted that there may be exceptional humanitarian reasons which justify the court concluding that an offence is trifling. These cases are rare and exceptional. Only in the most exceptional cases could an offence committed with intent and defiance of the law be regarded as trifling on the basis that the person had driven for humanitarian reasons.[25]
[24] (1996) 89 A Crim R 290.
[25] See Police v Mutton [2006] SASC 328.
The circumstances of this offence were such that the defendant was aware that he was prohibited from using the buggy. The employee’s refusal to permit the defendant to use the vehicle was ignored by the defendant. Although the distance travelled in total may not have been great, the defendant crossed a main road and proceeded to drive the buggy whilst blatantly disregarding the police who were pursuing him. It could not be said that this conduct in defiance of the law is so exceptional as to make it trifling. The Magistrate was correct in finding that the conduct is not trifling.
The Magistrate was satisfied in relation to section 16(a) and (b) that it is unlikely that the defendant would commit this offence again, and that his age, antecedents and good character warrant the exercise of the discretion to deal with the matter without recording a conviction.
The impact of imposing convictions on young people has been widely considered by this Court in the past. Convictions may significantly impact on an individual’s future. Having regard to the defendant’s age, antecedents and reference I agree with the Magistrate that this is a case in which the Court might refrain from recording a conviction.
In varying the sentences, I have had regard to the total amount of the fine the defendant is required to pay.
Orders as to penalty
1. With respect to count 1, the appeal is allowed. I set aside the order of imprisonment and the order recording a conviction. I impose a fine of $400.00, without recording a conviction.
2. With respect to counts 2 and 3, I uphold the conviction and impose a fine of $200 on each count.
3. With respect to count 4, I uphold the conviction and fine of $200.
4. In addition, the defendant is disqualified from obtaining or holding a driver’s licence for 12 months, to date from 22 December 2010.