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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Betts

Details

AGLC: Police v Betts [2009] SASC 223
Case: [2009] SASC 223
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the case of Police v Betts, the respondent was found guilty of driving a motor vehicle without a license, specifically for the second time within a three-year period. The magistrate dismissed the charge and did not impose a penalty, finding the offence trifling under section 15 of the Criminal Law (Sentencing) Act 1988. The prosecution appealed against this decision. The primary legal issues in this case were whether the offence was trifling enough to warrant no penalty and whether section 15 of the Criminal Law (Sentencing) Act 1988 applied to sentences imposed under section 74(5) of the Motor Vehicles Act 1959.

The court examined whether the offence was trifling, considering the respondent's previous conviction for the same offence and the deliberate nature of her actions. The court held that the offence was not trifling, as the respondent was fully aware of the consequences of her actions and had intentionally driven despite having no license. The court further reasoned that section 74(5) of the Motor Vehicles Act 1959 applied, mandating a minimum three-year disqualification from holding or obtaining a driver's licence. The court found that the magistrate had erred in considering irrelevant factors in determining the offence's trifling nature and in applying section 15 of the Criminal Law (Sentencing) Act 1988. Consequently, the appeal was allowed, the magistrate's orders were set aside, and the respondent was convicted of the offence with a mandatory driver’s licence disqualification of three years imposed.

The court's final orders mandated that the respondent be disqualified from holding or obtaining a driver's licence for a period of three years, reflecting the seriousness of the offence and the legislative intent to deter repeat offenders.

Orders

Orders of the court

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Background

Background to the litigation

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 legislationMotor Vehicles Act 195974—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 198815—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 sentencesNothing 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

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”.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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