Police v Betts - [2009] SASC 223

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BETTS
[2009] SASC 223
Judgment of The Honourable Justice Anderson
31 July 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Respondent pleaded guilty to offence of drive a motor vehicle when not authorised – magistrate dismissed the charge and did not impose a penalty on the basis that offence was trifling pursuant to s 15 of the Criminal Law (Sentencing) Act 1988 – appeal by prosecution – whether offence was so trifling it was inappropriate to impose any penalty – whether s 15 of the Criminal Law (Sentencing) Act 1988 applied to sentences imposed under s 74(5) of the Motor Vehicles Act 1959.
Held: Offence not trifling – s 15 of the Criminal Law (Sentencing) Act 1988 not applicable in this case – appeal allowed – orders of magistrate set aside – respondent convicted of offence – mandatory driver’s licence disqualification of three years imposed.
Motor Vehicles Act 1959 (SA) s 74(2), s 74(5) and s 74(6); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 15 and s 20; Summary Procedure Act 1921 (SA) s 76A; Road Traffic Act 1961 (SA) s 47B; Offenders Probation Act 1913 (SA) s 4(1), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Miles v Police [2009] SASC 181; Price v Police (2008) 50 MVR 76, applied.
Campbell v Fuss (1991) 55 SASR 355; Hyde v Police (SA) (2006) 167 A Crim R 185; Police v Hodge (1996) 89 A Crim R 290, discussed.
Police (SA) v Ludlow (2008) 181 A Crim R 235; Police v Mutton (2006) 246 LSJS 153; Doecke v Police [2006] SASC 210, considered.

POLICE v BETTS
[2009] SASC 223
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal by the police following the dismissal of a complaint that the respondent drove a motor vehicle when not authorised, contrary to the provisions of s 74(2) of the Motor Vehicles Act 1959 (“the MVA”).
The respondent pleaded guilty to the offence, and purporting to apply s 15 of the Criminal Law (Sentencing) Act 1988 (“the CLSA”), the magistrate declined to record a conviction and dismissed the charge on the basis that the offence was trifling. He imposed no licence disqualification on the respondent. This decision was made after the magistrate recalled his judgment from the previous day. On that occasion he had disqualified the respondent from holding or obtaining a driver’s licence for three years after recording a conviction
The offence was a “subsequent offence” as defined in s 74(6) of the MVA. Therefore under s 74(5) of the MVA there was a mandatory licence disqualification for three years.
The notice of appeal
The appellant contends that the conclusion of the magistrate that the offence was “so trifling that it was inappropriate to impose any penalty” – in the words of s 15 of the CLSA – was not reasonably open on the facts of this matter, because this offending was not trifling.
The appellant also advanced an alternative argument that s 74(5) of the MVA requires a minimum three-year period of licence disqualification, regardless of whether the offence was trifling. The appellant claims that it was not open to the magistrate to exercise the power in s 15 of the CLSA in circumstances where the effect would be to reduce or mitigate the penalty of three years disqualification. The argument involves a consideration of both s 74 of the MVA and ss 15 and 20 of the CLSA and how those sections operate together.
I will deal first with the question of whether the offence was trifling.
Background
The relevant facts are that on the day on which the offence occurred Ms Betts was alone at home with three young children aged 2 years, 1 year and four-weeks. She was unable to leave the children alone and said that she needed to inquire about cashing a cheque made out to her partner, which she had in her possession. Ms Betts drove a motor vehicle to the nearest phone box so that she could make inquiries about the cashing of the social security cheque. Her partner was, at that time, in prison.
Ms Betts’ intention was to contact the prison by telephone to find out if, when she visited her partner at the prison within the next few days, she would be able to take the cheque to him and ask him to endorse it. The police apprehension report shows that that is what the respondent told the police at the time she was apprehended.
Ms Betts wrote a letter to the magistrate in relation to her plea in mitigation. In this letter she referred to another letter which was enclosed from her family support worker. She had been seeing the support worker once a week in her rehabilitation from a previous drug addition. She had also suffered from both physical and mental health problems in the past.
The offence took place at about 10.00 am on 30 December 2008. Her partner had been arrested and imprisoned on 22 December 2008.
The respondent had never held a driver’s licence but was in the process of preparing to obtain a learner’s permit when the offence occurred. As I have indicated, this was a “subsequent offence” because on a previous occasion, 24 January 2008, the respondent was convicted of an offence pursuant to s 74(2) of the MVA. That offence was committed on 28 March 2007 and therefore was within the three years prescribed in s 74(2). That then meant the imposition of a period of licence disqualification of not less than three years pursuant to s 74(5) of the MVA.
In her submissions to me, Ms Betts told me that the temperature was 40 degrees on the day of the offence. She was at home with the three children and it was about a 20 minute walk to the nearest phone box. She reiterated that she was phoning the prison to find out whether, if she took the cheque with her when she visited her partner, he would be able to sign the cheque so that she could pay it into a bank account. She said she had no money and was struggling at the time. She was actually on the phone to the prison when the police pulled up behind her parked car. The car was parked illegally in a bicycle lane.
Ms Betts stated that she was currently trying to obtain her learner’s permit, and had sold the car to avoid the temptation of driving it.
The relevant legislation
Motor Vehicles Act 1959
74—Duty to hold licence or learner's permit
(1) Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b)     is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth, is guilty of an offence.
Maximum penalty: $1 250.
(2)Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b)     is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road, is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
…
(5)Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:
(a)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;
(b)     the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c)     if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(6)In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
Criminal Law (Sentencing) Act 1988
15—Discharge without penalty
(1)Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a)     without recording a conviction, dismiss the charge; or
(b)     upon recording a conviction, discharge the defendant without penalty.
(2)A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
20—This Division does not affect mandatory sentences
Nothing in this Division—
(a)affects the sentence to be imposed by a court for murder or treason; or
(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
As I have said, on the face of it, the provisions of s 74 of the MVA would result in a licence disqualification of three years because it was Ms Betts’ second offence within the specified time, thus making it a subsequent offence. The magistrate considered that the offence was so trifling that it was inappropriate to impose any penalty and applied s 15 of the CLSA. He did not record a conviction.
The magistrate’s reasons
The magistrate gave reasons for his decision. After hearing the matter on 6 May 2009, the magistrate recorded a conviction and ordered that the respondent be disqualified from holding or obtaining a driver’s licence for three years. On the following day, His Honour, pursuant to s 76A of the Summary Procedure Act 1921 set aside his decision of the day before, and found that the offence was trifling within the meaning of s 15 of the CLSA. He then found that it was so trifling that he declined to record a conviction, dismissed the charge, and imposed no licence disqualification.
The magistrate obviously felt compassion for the respondent because of the situation in which she was placed. He took note of the circumstances of the offending, and what was explained to him by the respondent. Her family support worker also spoke to the magistrate on her behalf. It was explained to the magistrate that since the offending the respondent had attempted to obtain her learner’s permit and that funding was being sought through a Family Support Services organisation for Ms Betts to have driving lessons to enable her to obtain the permit and then her licence.
As I have indicated, the family support worker produced a letter to the magistrate setting out all the circumstances and mitigating factors relating to the offending.
After setting out the facts and referring to the decision he had previously made to disqualify Ms Betts from holding or obtaining a driver’s licence, the magistrate said at [5]:
[5]After giving the matter further consideration, I decided that I had proceeded in error and recalled the matter the following day. Pursuant to section 76A of the Summary Procedure Act, I recalled the orders made previously. I considered that the interests of justice required that I so do. I then dismissed the Complaint pursuant to section 15 of the Criminal Law (Sentencing) Act. I now provide my reasons.
The magistrate directed himself as to the meaning of the word “trifling” by reference to the decision of Doyle CJ in Siviour-Ashman v Police (2003) SASR 23 at 29 paragraphs [19]-[20]. This decision is now reported in (2003) 85 SASR 23. The magistrate then referred to a summary of the principles in Siviour-Ashman by White J in Police v Ludlow [2008] SASC 43 at pages 3 to 4, [13], now reported at (2008) 181 A Crim R 235.
The magistrate then applied the interpretation of the word ‘trifling” in s 47B of the Road Traffic Act 1961 to mean of “slight importance, insignificant or of little moment” as per Doyle CJ in Siviour-Ashman at [27]. He directed himself that the focus of his attention must be on the conduct constituting the offence but that regard may also be had to the circumstances which explained how the offence came to be committed.
His Honour then directed himself as follows in paragraph [10]:
[10]It follows from what the proper meaning of “trifling”, that I must be careful not to use section 15 as a licence to substitute my own views of what is “fair and reasonable” in all the circumstances. It would be inappropriate to dismiss a complaint simply because I might feel sorry for an accused. That would be to deny the interests of the public at large and to ignore the proper application of the legislation.
His Honour then moved to a consideration of what he called “contumacious offending”, and said at paragraph [13]:
[13]I think it is reasonable to conclude that the intention of the legislation in setting the penalty for subsequent offences is to punish the contumacious offending that the commission of the subsequent offence usually manifests. The penalty must be imposed despite the significant hardship to the offender, in the interests of the safety of other road users. A person who has not been properly trained to drive a motor vehicle poses an unacceptable danger to other road users. If that person by their conduct evidences a persistent inclination to continue to drive unlicensed, then the court must prohibit them from so doing. The relevance of contumacy was also alluded to by Doyle CJ in Siviour-Ashman v Police (supra) at [38].
His honour then concluded his reasons as to whether the matter was trifling by saying at paragraph [16]:
[16]Ms Betts’ offending is atypical of the type of offending which normally comes before the court. The usual offending involves older repeat offenders who have not obtained their licence through illiteracy or other issues and who have no intention of doing so. Whilst I do not discount the fact that Ms Betts’ two offences occurred within a twelve month period, her circumstances had radically changed by the time of the second offence, as appears from Ms Browne’s letter.
His Honour continued at paragraph [17]:
[17]I am satisfied that this was an isolated occurrence, which occurred only because Ms Betts was left with the responsibility of housing and caring for three young children without a partner, or any family support. I am satisfied that Ms Betts believed that the emergency she perceived to exist, justified her driving. Her driving per se, offended no law and she drove a very short distance. All of those considerations permit a finding that her offending was trifling.
His Honour then considered whether the offence was so trifling that it was inappropriate to impose a penalty. He had regard to the matters set out in s 10 of the Criminal Law (Sentencing) Act. His Honour then said:
[19]… Relevantly, I should consider personal circumstances of Ms Betts, her rehabilitation, the degree to which she has shown contrition for the offence, the probable effect the mandatory sentence under section 74(5) would have on Ms Betts, her children and the community, the need for general deterrence and the safety of the community at large.
His Honour concluded at paragraph [20]:
[20]I must accept that Ms Betts’ offending is not the most trifling one could imagine. However, Ms Betts presently has a unique opportunity to obtain her driver’s licence. In the absence of her driver’s licence Ms Betts will have extreme difficulty in properly caring for her children and in becoming a contributing member of society. There is strong, independent evidence before the court that Ms Betts wants to obtain her licence. If she obtains her Learner’s Permit, Ms Betts will be unable to offend again by reason of section 74(3)(c) of the MVA. Ms Betts lack of mobility is a much greater hardship in the southern suburbs that it would be in the inner metropolitan area because of the distances between schools, shops and other services. The difficulties this poses for Ms Betts would be visited upon her young children whose disadvantages in life are likely to inhibit their ability to become productive community members. In my view it is in no-one’s interest that a person presently inclined to obtain her driver’s licence and given an opportunity so to do, should be deprived of that opportunity by the imposition of a sentence, which exists principally to prevent contumacious offenders from continuing to breach the law.
As I have indicated, it is clear that His Honour was driven to his decision by the personal circumstances of the respondent and her children, together with his conclusion that he did not regard her as a typical offender.
The appellant’s submissions
Mr McDonald, counsel for the appellant, referred to decisions involving alcohol-related driving offences that were characterised as trifling. He referred to Campbell v Fuss (1991) 55 SASR 355 where a parked car was moved a distance of only a few feet so that the danger posed by the way in which it was previously parked was eliminated. He referred also to Hyde v Police (SA) (2006) 167 A Crim R 185 where the offender moved a car within the car park of a hotel to a different spot within the car park which was better lit, before the offender caught a taxi. Finally, he referred to Police v Hodge (1996) 89 A Crim R 290 where the offender drove a companion from a hotel only a short distance to the Royal Adelaide Hospital after her companion had fainted. He submitted that each of those authorities illustrated how the decisions turned on the facts of those matters.
Mr McDonald submitted that a subsequent offence of driving without a licence was difficult to characterise as trifling. He pointed out that the respondent knew that she was unlicensed when she decided to drive. In fact she had never held a driver’s licence. Moreover, she knew that it was an offence to drive unlicensed, and she had been convicted of driving whilst unlicensed only a year prior to the current offence.
Mr McDonald submitted that the driving was not unusual but fairly typical. He submitted that although the circumstances put in mitigation related to humanitarian reasons, it was a rare case in which such reasons would enable a finding that the offence was trifling. For that proposition, he referred to Police v Mutton (2006) 246 LSJS 153 at [15].
Mr McDonald submitted that His Honour, in taking into account the personal circumstances of the respondent, including her prospects of rehabilitation, her degree of contrition, the effect of the mandatory disqualification, her unique opportunity to obtain a driver’s licence, and the fact that after the offence she took steps to obtain a learner’s permit were not relevant as to whether the offence was trifling. He submitted that, pursuant to s 15(1)(a) of the CLSA, the only relevant question was whether the offence was “so trifling that it would be inappropriate to impose any punishment”.
Mr McDonald referred to that part of the magistrate’s reasons where he referred to contumacious offending. He submitted that s 74(5) is not evidence of any legislative intention that the minimum penalty fixed by the section should apply only in cases where the offending can be described as contumacious. He submitted that the magistrate wrongly substituted a test of contumacy for the test set out in s 15(1) of the CLSA.
Analysis
It is my view that the magistrate has erred. On the face of it, this was not a trifling offence. It was a deliberate action by the respondent in driving a motor vehicle when she knew that she was not authorised to do so. This had been brought home to her only one year earlier when she was convicted of the same offence.

I can see why the magistrate was sympathetic to her cause, but it is my view that His Honour did not properly apply the correct test, and took into account extraneous considerations which, although relevant for the background, were not matters which should have influenced the findings which he made.
I consider that the magistrate was wrong in his reasoning regarding contumacious offending. There was no warrant for the magistrate to introduce the concept of contumacy into the statutory meaning of a trifling offence when he considered whether he should discharge the offender without penalty.
On the very limited information available regarding the circumstances of the offending, there is nothing to suggest that at the point in time when Ms Betts drove the vehicle it was necessary for her to drive her vehicle. She was not going to visit her partner in prison for at least two or three days. The cheque was not going to be endorsed any earlier than that visit, even if she had been told by the authorities at the prison that it was appropriate for that to happen. In short, there was not even an immediate urgency, let alone an emergency.
Despite the heat of the day and the fact that she had three young children, the appellant could have walked to the telephone box at a time in the day when it was cooler and made her inquiry if she needed to know the answer before visiting the prison. This all may sound very harsh in retrospect but the fact is that Parliament has intended very strict penalties in relation to a second offence of driving whilst not authorised to drive pursuant to s 74(2) of the MVA.
Section 74, in the form that now exists, came into operation in 2003. In the second reading speech for the Bill introducing the legislation the Minister said that driving by somebody who has never held a driver’s licence is a most serious offence, and that the penalty is appropriately severe. It was stated that the second offence within a three-year period will attract a penalty of a fine of up to $5,000 or 12 months imprisonment, with an automatic disqualification from holding or obtaining a driver’s licence for a minimum period of three years. This was obviously to reflect the seriousness of the second offence.
Conclusion
I have concluded that the offence is not atypical. There was not any emergency. It was a decision made deliberately by someone aware of the consequences because of her previous conviction for the same offence.
Even though the appellant only drove a relatively short distance, the reason offered by her does not, in my mind, justify the driving. It was simply for the purpose of a phone call to ascertain something that she was going to find out within two or three days in any event. The cheque could not be endorsed until she visited her partner in prison.
The magistrate has erred by taking into account largely irrelevant factors in considering whether the offence was trifling. This offending was not so trifling as to justify the magistrate in not imposing a penalty, nor recording a conviction and dismissing the charge pursuant to s 15(1) of the CLSA.
Alternative argument
It is not strictly necessary, because of my conclusion that the offence was not trifling, to go on and consider the balance of Mr McDonald’s argument. However, in case the matter goes further, I will briefly summarise the arguments Mr McDonald put in the alternative and give my brief views on those arguments, even though I have not had the benefit of argument to the contrary because Ms Betts represented herself.
Mr McDonald submitted that it was clear that the magistrate reasoned that s 74(5) of the MVA did not require him to impose a disqualification of at least three years if he found the offence to be trifling within the meaning of s 15(1) of the CLSA. That was because he decided that by declining to record a conviction the offence would not be a subsequent offence within the meaning of s 74(5) of the MVA.
Mr McDonald submitted that s 74(5) applied in this matter. He submitted that the respondent’s plea of guilty followed by the magistrate’s decision not to record a conviction was still within the meaning of “convicts” as contained in that provision.
In Miles v Police [2009] SASC 181, Kourakis J considered s 16 and s 39 of the CLSA. Section 16 deals with the imposition of a penalty without conviction, and s 39 deals with the discharge of a defendant without sentence where the defendant enters into a bond. His Honour regarded the expression “without recording a conviction” as being in the nature of a declaration. He reasoned that it was a subsequent step following from the earlier stage of an “adjudication of guilt”.
Kourakis J traced the history of the expression “without recording a conviction” in considering s 16 and s 39 of the CLSA at [54]. His Honour said:
[54]Doing the best I can with the language employed in ss 16 and 39 of the Act, I can only conclude that the phrase “without recording a conviction” is a peculiar form of court order in the nature of a declaration which signifies that the offence was committed in special and extenuating circumstances. It is not open, I think, to give the phrase the meaning “without proceeding to a conviction” for the reasons to which I have already adverted.
Kelly J in Price v Police [2008] SASC 119 (later reported in 50 MVR 76) considered the meaning of “convicted” in s 74(6) of the MVA. This matter involved a previous offence whilst the appellant was a youth. The Youth Court did not record a conviction. The magistrate nevertheless regarded the second offence as a subsequent offence.
Her Honour then concluded that the legislative intent of s 74 of the MVA was that “conviction” would include a finding of guilt despite the fact that no formal conviction was recorded in the Youth Court. Therefore the offence in question became a subsequent offence within the meaning of s 74(6) of the MVA.
Her Honour, referring to a decision by White J, said at [19]:
[19]The MVA does not provide any definition of “conviction” for the purposes of s 74. However, as White J pointed out in Doecke v Police [2006] SASC 210 the legislative intention manifested in s 74 of the MVA is that it should, by the imposition of a severe sanction, be brought home to persons that they must not drive a vehicle on a road unless authorised to do so.
I agree with the approach of both Kelly J in Price and Kourakis J in Miles. If it had been necessary, I would have found that the magistrate erred in finding that s 75(5) did not apply when he declined to record a conviction. The power to decline to “record a conviction” is, as submitted by Mr McDonald, not the same as the power which was formerly conferred by s 4(1) of the Offenders Probation Act 1913 to dismiss complaints without “proceeding to conviction”.
Mr McDonald submitted that the meaning of “convicts” in s 74(5) and “convicted” in s 74(6) of the MVA should be consistent. He submitted that “convicts” in s 74(5) refers to the adjudication of guilt stage. He submitted that the legislation was intended to provide a deterrence by disqualifying those persons who drove without a licence but had never held a licence. He submitted that the intention of Parliament in s 74 was to construe “convicts” in such a way that it applies to all offenders who commit offences more than once within the three-year period. I agree with that submission.
Mr McDonald then submitted that if s 74(5) of the MVA was applicable in this case then the magistrate’s application of s 15 of the CLSA was in error. Section 15 must be read in conjunction with s 20 of the CLSA. I have set out s 20 earlier in these reasons. Section 20 operates to prevent s 15 from overriding provisions in Special Acts that prohibit the reduction or mitigation of minimum sentences. As I have found that s 74(5)(a) was applicable in this case, the magistrate was required to impose a minimum licence disqualification of three years. Section 74(5)(b) then provides that the minimum licence disqualification cannot be reduced or mitigated. Therefore s 20 of the CLSA would operate to prevent s 15 of the CLSA from overriding s 74(5)(b).
Therefore, in brief, if it had been necessary, I would have upheld Mr McDonald’s arguments in the alternative. Section 74(5) did apply in this matter, despite the fact that the magistrate declined to record a conviction after the respondent’s guilty plea. In my view, the magistrate was wrong in using s 15(1) of the CLSA in the way that he did because of the clear intention of s 20 of that Act.
I would therefore make the following orders:
1.     Appeal allowed.
2.     Set aside the orders of the magistrate dated 7 May 2009.
3.     In lieu thereof I substitute the following orders:
(a)The respondent is convicted of the offence.
(b)The respondent is disqualified from holding or obtaining a driver’s licence for a period of three years commencing on today’s date.