Miles v Police - [2012] SASC 69

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MILES v POLICE
[2012] SASC 69
Judgment of The Honourable Chief Justice Doyle (ex tempore)
24 April 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
Appeal against a sentence imposed by the Magistrate’s Court – the appellant plead guilty to driving his motor vehicle at a speed of 122 kilometres per hour in a 110 kilometre per hour zone – the appellant had previously expiated a number of driving offences to the point that he was liable to be disqualified from holding or obtaining a driver’s licence for a period of three months by operation of s 98BC(1) of the Motor Vehicles Act 1959 (SA) (the MVA) – the appellant avoided that result by electing, pursuant to s 98BE(2) of the MVA, to accept as a condition of his licence that he be of good behaviour for a period of 12 months – if the appellant incurred two or more demerit points while subject to that condition, he would be disqualified from holding or obtaining a driver’s licence for a period of six months – the appellant had already lost one of the two points – the Magistrate exercised her discretion to record a conviction – the Magistrate declined to find that the offence was trifling, or that any other proper cause existed to reduce the number of demerit points, in exercise of the power conferred by s 98B(4) of the MVA – the appellant incurred a demerit point and his driver’s licence was suspended for a period of six months.
The issues on appeal were: (1) whether the Magistrate should have exercised her power under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to not record a conviction; and (2) whether, on the basis of the evidence before the Magistrate, she should have been satisfied that the offence was trifling or that some other “proper cause” existed to reduce the number of demerit points.
Held: (1) s 16(a) of the Sentencing Act was not satisfied because it was not unlikely that the appellant would commit a further speeding offence – s 16(b) of the Sentencing Act was also not satisfied as even though the appellant was of general good character, the offence was not trifling and there were no extenuating circumstances; (2) considering the circumstances of the offence and the circumstances of the offender, no “proper cause” existed to reduce the demerit points.
Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98B(1), s 98B(4), s 98BC(1), s 98BE(2) and s 98BE(2a); Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 16(b)(i), referred to.
Holness v Police [2010] SASC 314; (2010) 56 MVR 510, considered.

MILES v POLICE
[2012] SASC 69
Magistrates Appeal: Criminal

DOYLE CJ. This is an appeal against a sentence imposed by the Magistrates Court.
Mr Miles pleaded guilty to a speeding offence. The Magistrate recorded a conviction and imposed a fine. The Magistrate declined to find that it was an appropriate case not to record a conviction. That meant that Mr Miles was liable to incur a demerit point pursuant to s 98B(1) of the Motor Vehicles Act 1959 (SA) (the MVA). The Magistrate declined to find that the offence was trifling, or that any other proper cause existed for reducing the number of demerit points, in exercise of the power conferred by s 98B(4) of the MVA. The end result was that Mr Miles incurred a demerit point.
By this appeal, he challenges each of the two decisions by the magistrate referred to.
The significance of incurring the further demerit point is this.
Mr Miles had expiated several speeding offences, with the result that by December 2010 he was liable, pursuant to s 98BC(1) of the MVA, to be disqualified from holding or obtaining a driver’s licence for a period of three months.
He avoided that result by electing, pursuant to s 98BE(2) of the MVA, to accept as a condition of his licence that he be of good behaviour for a period of 12 months from the day on which the disqualification would have taken effect.
The risk with that approach is that, by virtue of s 98BE(2a) of the MVA, if he incurred two or more demerit points in relation to one or more offences whilst subject to that condition, he would be disqualified from holding or obtaining a driver’s licence for a period of six months.
Mr Miles had already lost one demerit point. The demerit point that was at stake in the proceedings before the Magistrate was therefore crucial. The loss of that demerit point would activate the six months’ loss of licence.
The only escape from that was to persuade the Magistrate that she should not record a conviction, or to persuade the Magistrate that she should reduce to zero the number of demerit points that Mr Miles would incur.
The circumstances of the offending were straight forward. Mr Miles was detected driving his motor car mid afternoon on 17 May 2011 at a speed of 122 kilometres per hour in a zone in which 110 kilometres per hour was the maximum permitted speed.
It is not disputed that the traffic was light, that the road had a good surface and was relatively straight, that visibility was good, and that no other road users were endangered by Mr Miles’ driving. It was also accepted that he exceeded the speed limit over a short distance, having topped a rise and begun to travel down the rise. As soon as he realised he had exceeded the speed limit he reduced his speed. The vehicle was in good condition.
Mr Miles has employment that requires him to travel considerable distances in rural and country areas. His licence is critical to his employment. Without it his employment is at risk.
Mr Miles was cooperative with the police.
Although he had expiated a number of traffic offences over time, he gave evidence by affidavit that he had never before appeared before a court.
Another relevant circumstance put before the Magistrate was that Mr Miles lived in a country town. His young son suffered from a medical condition, which meant that he required fairly regular appointments with a number of specialists in Adelaide. Although Mrs Miles had a driver’s licence, she was not a confident driver, and became anxious when driving long distances or in Adelaide. When Mr Miles’ son was required to attend a medical appointment in Adelaide, Mr Miles usually drove and his wife attended to the child in the back seat of the car.
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) provides:
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.
I turn to the question of whether the Magistrate should have exercised his power. An affidavit filed before me suggests that the Magistrate took the approach that the Magistrate could not exercise the power conferred by s 16 because of Mr Miles’ previous speeding offences. It is the case that Mr Miles was not a first offender. Mr White, counsel who appeared for Mr Miles before the Magistrate and on appeal, submits that he should be viewed as a first offender because previously he had expiated traffic offences, and this was his first time in court. I do not accept that submission.
However, it would not be right to say that s 16 could not be used simply because Mr Miles had previous offences. If that is what the Magistrate said or held it is wrong, but it is not necessary to decide whether this is what the Magistrate said or not.
Even assuming s 16 was able to be used, as I do assume, it was inappropriate to do so. I would so decide, even if I were exercising the power myself.
First, having regard to all the circumstances it would not have been appropriate to find that Mr Miles was unlikely to commit a speeding offence again. One of the conditions for the application of s 16 could not be met. The offence could not be called trifling in my opinion. There were no relevant extenuating circumstances. While Mr Miles’ general good character was in his favour, even if the Magistrate concluded that he was unlikely to commit a speeding offence again, I do not consider that, having regard to his character and other matters referred to in s 16(b)(i), there would have been good reason for not recording a conviction.
In short, in my opinion, even if this point were reconsidered afresh, Mr Miles could not succeed.
I turn to the second question, which is whether, on the basis of the evidence before the Magistrate, she should have been satisfied that the offence was trifling or that some other proper cause existed to reduce the number of demerit points. Section 98B(4) of the MVA provides:
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
It is my opinion it is clear that the offence was not trifling. There was no good reason for Mr Miles to exceed the speed limit. The circumstances in which he did so were not such as to render the offence trifling. He was sufficiently in excess of the speed limit for the excess not to be disregarded as trifling. There is nothing about the circumstances of the offending that would lead one to say that the offence was trifling. The fact that it was not a serious offence, which I acknowledge, does not point to a conclusion that it was trifling.
That leaves the question of whether there was “other proper cause” to reduce the number of demerit points.
Decisions dealing with the meaning of proper cause in s 98B(4) are not all to the same effect. A number of them, perhaps the majority, reflect an approach that “proper cause” relates to the circumstances of the offence and not to the circumstances of the offender. I refer in particular to the decision of Sulan J in Holness v Police (SA) [2010] SASC 314; (2010) 56 MVR 510. However, there are some cases in which consequences for the offender have been taken into account. As to the circumstances of the offence, the cases suggest that “proper cause” refers to something different from a trifling offence, and so not necessarily as minor a matter as that, but nevertheless something sufficiently out of the ordinary to warrant a reduction in demerit points. Because the cases are not uniform on this point, I propose to consider both aspects, that is, the circumstances of the offence and the circumstances of the offender.
In my opinion, the circumstance that unless the number of demerit points is reduced, Mr Miles will breach the requirement of s 98BE(2) to be of good behaviour for 12 months is not a relevant circumstance. Mr Miles made the choice to utilise this “last chance” offered by s 98BE(2) and the fact that he is now at risk of failing that last chance can not itself be relied on.
As to the circumstances of the offence, I have already indicated that I accept that the offence involved Mr Miles exceeding the speed limit for only a short distance, after topping a rise, and that there was no risk to the safety of others. But, in the end, to say this is to say no more than that the offence is a relatively minor one and not a serious offence. It is not a case in which Mr Miles was confronted by something unexpected, and to which he had to react quickly. There was no emergency. There were no circumstances justifying him travelling so close to the speed limit, other than his own work program. Indeed, there is nothing out of the ordinary about the circumstances of the offence, by which I mean it is the kind of offence that is committed fairly often.
I am not able to identify anything in the circumstances of the offence which, standing alone, would amount to proper cause to reduce the number of demerit points.
I turn to Mr Miles’ circumstances. Mr Miles must have known from the time when he made the election under s 98BE(2) that a failure to comply with the obligation would put his earnings, and possibly his employment, at risk. The consequence that he faces is a hardship. But it is a hardship which he well knew would result from a further speeding offence, and so there was all the more reason for him to take particular care. This consequence is in no sense an unusual consequence. The loss of a driver’s licence adversely affects the lives of many people, because transport by motor car is so widely depended upon by so many people in so many circumstances. This is not to deny the element of hardship. It is merely to make the point that this is a form of hardship which is so common that it would be difficult to treat it standing alone as sufficient.
The hardship that Mr Miles and his wife will suffer because of the condition of their son is of a different order. This is unusual. But it is something of which Mr Miles was aware from the outset. It is not a circumstance that arose after he made the election under s 98BE(2), nor is it something that has occurred unexpectedly.
Even when I put together the circumstances of the offending, the impact on Mr Miles’ employment and the impact on his family, I am not persuaded that there is proper cause to reduce the number of demerit points.
In my opinion, what has happened here is the very thing that Mr Miles knew might happen, and should have taken greater precautions to avoid. That is, driving at a speed in excess of the speed limit due to inattention to the circumstances of his driving.
For those reasons, in my opinion, the appeal must be dismissed.