SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HALLETT
[2010] SASC 256
Judgment of The Honourable Justice Gray
20 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
Police appeal against sentence – defendant pleaded guilty to offences of driving a motor vehicle while unauthorised and while that motor vehicle was unregistered and uninsured contrary to the Motor Vehicles Act 1959 (SA) – incident giving rise to charges was the defendant riding a mini-motorcycle on a public roadway – whether Magistrate’s failure to hear the prosecution constituted a denial of procedural fairness – whether Magistrate inappropriately took into account extraneous matters in finding that offence “trifling” – whether evidence on oath required when determining if offence trifling.
Held: appeal allowed – orders of the Magistrate set aside – matter remitted for rehearing – Police denied procedural fairness – Magistrate took into account extraneous matters when finding that the offence was trifling – evidence on oath not required when considering trifling pursuant to sections 15 and 16 of the Criminal Law (Sentencing) Act 1988 (SA) – meaning of conviction discussed – effect of proceeding without recording a conviction on obligation to impose mandatory licence disqualification discussed – reach and effect of sections 15 and 16 of the Sentencing Act discussed – nature of mini-motorcycle discussed.
Motor Vehicles Act 1959 (SA) s 5, s 9(1), s 24, s 74, s 98B and s 102; Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 17, s 18, s 20 and s 39; Motor Vehicles Regulations 2010 (SA) reg 5, reg 6, reg 7, reg 8, reg 9 and reg 10, referred to.
Przybytniak v Police (1998) 100 A Crim R 196; W v Marsh (1983) 35 SASR 333; Francis v Police (1997) 193 LSJS 443; Police v Bridges (1998) 100 A Crim R 20; Dean v Police (2008) 49 MVR 416; Maxwell v The Queen (1996) 184 CLR 501; Attorney-General v Smith [2002] TASSC 10; Miles v Police (2009) 104 SASR 127; Price v Police (2008) 254 LSJS 275; Ramsay v Samuels (1975) 14 SASR 77; Cobiac v Liddy (1969) 119 CLR 257; Police v Betts (2009) 104 SASR 442; McLean v Kowald (1979) 9 SASR 384; Goodwin v Phillips (1908) 7 CLR 1; Maybury v Plowman (1913) 16 CLR 468; Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Conviction"
POLICE v HALLETT
[2010] SASC 256Magistrates Appeal
GRAY J:
Introduction
This is an appeal by the Police against sentence.
Christopher Gary Hallett, the defendant and respondent, pleaded guilty to the offences of driving a motor vehicle while unauthorised,[1] and while that…
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CaseChat Overview and Summary
The court found that the Magistrate's failure to hear the prosecution did indeed constitute a denial of procedural fairness, which warranted setting aside the Magistrate's decision. Furthermore, the Magistrate had taken into account extraneous matters, such as the community interest in not disqualifying the defendant from driving and the confusion about the need for registration of mini-motorcycles, when assessing whether the offence was trifling. The court held that these considerations were inappropriate in determining the triflingness of an offence. Additionally, the court clarified that evidence on oath is not required when considering whether an offence is trifling under sections 15 and 16 of the Sentencing Act, rejecting the argument that such evidence was necessary based on an interpretation of section 98B of the Motor Vehicles Act.
As a result of these findings, the appeal was allowed, the orders of the Magistrate were set aside, and the matter was remitted for rehearing. The court emphasised the importance of adhering to the social policy embodied in legislation and not tailoring penalties to fit personal social theories or other extraneous matters.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The denial of procedural fairness is sufficient to disturb the Magistrate’s decision. However it is appropriate to comment on the further matters arising on the appeal.Consideration of Extraneous Matters in Finding Offence “Trifling” The Magistrate’s sentencing remarks disclose that in proceeding without imposing any penalty, the Magistrate took into account what he described as the community interest in not disqualifying the defendant from driving in addition to the confusion about the need for registration of mini-motorcycles. On the hearing of the appeal, the Police contended that these matters were extraneous to a consideration of trifling.[5] It was said that the relevant penalty to be applied had been identified by Parliament and that the Magistrate was in error in taking into account a suggested community interest in overriding that penalty. It was submitted further that despite any confusion occasioned by the fact that mini-motorcycles are able to be purchased lawfully but unable to be registered, it was not appropriate for the Magistrate to take into account such considerations when assessing triviality.[5] For the purposes of this judgment I use the words “trivial” and “trifling” as interchangeable expressions; see discussion in W v Marsh (1983) 35 SASR 333 at 337-339 (Johnston J) regarding the interrelation of those terms. In Francis,[6] King AJ made the following apposite remarks in relation to the role of social policy in sentencing:[6] Francis v Police (1997) 193 LSJS 443 at 444-445 (King AJ). …It is not the role of the courts to tailor penalties to fit some social theory held by some sections of the public. The social policy which is binding on the courts is that which is embodied by parliament in legislation. …In Bridges[7] Bleby J referred to the remarks of King AJ and continued:[7] Police v Bridges (1998) 100 A Crim R 20 at 22-24.Likewise it is not the role of the magistrate to tailor a penalty or lack of it to suit some social theory of the magistrate concerned. The only relevant social policy is that reflected by Parliament in the Acts which it passes…In relation to the relevance of social policy when undertaking a consideration of trifling pursuant to section 15 of the Sentencing Act, Bleby J continued:…Nor will it be a relevant consideration that the magistrate, as a matter of policy or for some other reason, considers that the offender should not have been charged or that the magistrate holds some view about the policy of the law or of its administration, and whether it is or is not appropriate to charge the offender with the offence in question.So much was made clear in Phillips v Evans [1896] 1 QB 305 where the court had dismissed a charge against a dog owner for not having paid a licence fee when the owner had applied to commissioners for, but had not obtained, a certificate of exemption. Section16 of the Summary Jurisdiction Act at that time was in similar terms to s 15(1)(a) of the Criminal Law (Sentencing) Act. Kay LJ said (at 308):"It comes to this - that as the commissioners have not granted a certificate of exemption to the respondent, although he refuses to pay for a dog licence, we (the magistrates) think his offence so trifling that we shall not convict. How can it be said that a man refusing to pay the dog tax commits a trifling offence? Of course if all the facts were not before us we could not interfere with the discretion of the justices; but here we have not only a full account of them, but also what amounts to an explanation of the reason why the magistrates think the offence a trifling one. They think so because in their opinion the commissioners ought to have granted the respondent a certificate of exemption. They have no right to entertain that question, and therefore they have no ground for saying that the offence is trifling."…Other judges have made it quite clear that a magistrate's view of the appropriateness of the offence, or of the policy of the law, cannot be taken into account in determining whether an offence is trifling: Mancini v Vallelonga per Mitchell J at 239; Hughes and Hodge (1996) 89 A Crim R 297 per Debelle J at 291.