Police v ILLMAN - [2011] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ILLMAN
[2011] SASC 15
Judgment of The Honourable Justice Nyland
18 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Prosecution appeal against sentence - respondent pleaded guilty to driving without due care and driving whilst exceeding prescribed concentration of alcohol – Magistrate applied s 16 Sentencing Act not to record conviction for either offence – penalty for PCA offence included mandatory period of licence disqualification – Magistrate erred as s 16 not enlivened when a court is required by law to impose a penalty other than a fine or community service – respondent involved in accident whilst affected by alcohol - respondent genuinely contrite but seriousness of offence required conviction to be recorded – appeal allowed and conviction recorded with respect to both offences.
Road Traffic Act 1961 ss 45(1), 47A, 47B; Summary Procedure Act 1921 s 991(1); Criminal Law (Sentencing) Act 1988 s 16, referred to.
House v The King (1935) 55 CLR 499; Hyde v Police [2006] SASC 362, applied.
R v Osenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; Police v Cadd & Ors (1997) 69 SASR 150; Miles v Police [2009] SASC 181; Police v McDiarmid [2010] SASC 178, considered.

POLICE v ILLMAN
[2011] SASC 15
Magistrates Appeal

NYLAND J: This is a prosecution appeal against sentence. On 21 October 2010 the respondent appeared before a Stipendiary Magistrate in the Christies Beach Magistrates Court. He was represented by counsel. The respondent pleaded guilty to an offence of driving without due care (the due care offence), contrary to s 45(1) Road Traffic Act 1961 (SA) and to an offence of driving whilst exceeding the prescribed concentration of alcohol (“the PCA offence”), contrary to s 47B Road Traffic Act 1961 (SA). The relevant alcohol concentration made this a Category 2 offence, as defined by s 47A Road Traffic Act 1961 (SA). The appellant also pleaded guilty to an offence of failure to comply with a restraining order contrary to s 99I(1) Summary Procedure Act 1921 which was charged on a separate complaint. This appeal relates only to the due care and PCA offences.
Background
The circumstances of the offending were that on 2 July 2010 the respondent attended a hotel in the Willunga area. The respondent’s friend asked him to drive him home. Whilst driving along St Andrews Terrace, Willunga, the respondent attempted to navigate an S-bend and lost control of the car. The vehicle fish-tailed, spun 180 degrees and crashed into a tree. The street lighting was poor and conditions were wet. The respondent’s vehicle was the only vehicle on the road. The distance that the respondent was intending to drive was two kilometres. Police attended the accident scene and submitted the respondent to an alco test, which resulted in a positive reading. Subsequent breath analysis tests at the police station disclosed a reading of 0.12 grams in 100 millilitres of blood. The respondent had no relevant prior convictions.
The sentence
Counsel for the respondent first made submissions with respect to the breach of restraining order and asked for that matter to be dealt with by not recording a conviction pursuant to s 16 Criminal Law (Sentencing Act) 1988 (SA) (“Sentencing Act”) on grounds that the breach was trivial and the prosecution did not oppose that course. The Magistrate then heard submissions with respect to the PCA and due care offences. Counsel for the respondent did not make any further application pursuant to s 16 Sentencing Act and the prosecution did not make any submissions in relation to that matter.
The Magistrate then said at [8]:
I have already invoked s 16 in relation to the breach of the restraining order for the reasons that I have previously outlined. I consider that given your excellent background to date and your plea of guilty and the fact that it is out of character for you to have faced charges of this nature, I am prepared to invoke s 16 of the Criminal Law Sentencing Act and not record a conviction both with respect to counts 1 and 2. However, the penalty in relation to count 2 with respect to the period of disqualification is as follows:
I take into account the instant licence suspension that has already been served from 2 July 2010 of three months and 19 days, and I impose a further period of two months and 11 days, making a total period of disqualification of six months.
In relation to monetary penalty in relation to counts 1 and 2 I impose one global penalty under s 18A of the Criminal Law Sentencing Act, and in that regard that penalty will be $600. There are court fees, prosecution fees and victims of crime levy of $408.50 which are to be added to that.
Ground of appeal
The appellant’s sole ground of appeal is that the Magistrate erred in law by not recording a conviction with respect to either offence. The appellant submits that in relation to the PCA offence the learned Magistrate did not have the power to exercise the discretion provided by s 16 and in relation to the driving without due care offence the Magistrate had erred in the exercise of her discretion as there was no good reason established to enable her to proceed without recording a conviction.
Appeals against sentence
In order for an appeal against sentence to be successful, some error in the exercise of the sentencing discretion must be demonstrated. It must be shown that the Magistrate acted upon a wrong principle, was guided by extraneous or irrelevant matters, mistook the facts or did not take into account some material consideration.[1] In the case of prosecution appeals, appeal Courts must recognise that there is always a place for the exercise of leniency in sentencing and the proper place for such appeals is to maintain adequate standards of punishment, to correct idiosyncratic views of judges and to correct sentences so disproportionate to the seriousness of the crime as to shock the public conscience.[2] It has also been said that prosecution appeals serve the purpose of ensuring uniformity in sentencing.[3] The importance of that supervisory role was recognised by this Court in Police v Cadd & Ors.[4] Nevertheless, it is not for this Court to interfere unless some error be demonstrated in the exercise of the sentencing discretion.
[1]    House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[2]    R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ).
[3]    Everett v R (1994) 181 CLR 295 at 306 (McHugh J).
[4] (1997) 69 SASR 150 at 159 (Doyle CJ).
PCA offence
The respondent was unrepresented on the hearing of the appeal. He did not make any submission with respect to the question of law raised by the notice of appeal. However he made submissions which appeared to mirror the matters put to the learned Magistrate as to his personal circumstances and which had resulted in her taking a merciful approach with respect to penalty by not recording a conviction with respect to either offence.
However, counsel for the appellant submitted that the learned Magistrate had incorrectly directed herself with respect to s 16 Sentencing Act with respect to the PCA offence and had invoked the discretion to proceed without recording a conviction in circumstances in which the Court did not have the power so to do. Section 16 Sentencing Act is in the following terms:
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.
Counsel for the appellant submitted that the court’s discretion not to record a conviction only arises 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. If any other penalty is imposed by the court, either under its own discretion or as a penalty required by legislation then the s 16 discretion not to record a conviction does not arise.
In this case the respondent was charged with a category 2 PCA offence. That attracts a mandatory driver’s licence disqualification period of not less than six months.[5] In Hyde v Police[6] Bleby J concluded that s 16 was clearly intended to operate in limited circumstances and had no application where there was a mandatory licence disqualification. Hyde was followed in Miles v Police[7] and in Police v McDiarmid.[8] McDiarmid was also concerned with a first PCA category 2 offence. In that case Kelly J concluded[9] that as the offence attracted a mandatory minimum licence disqualification as penalty the discretion not to record a conviction did not arise. Those decisions support the appellant’s submission that the Magistrate fell into error by not recording a conviction for the PCA offence. The appeal in respect of this offence must be allowed and a conviction recorded.
[5] Section 47B(3)(a)(i)(A) Road Traffic Act 1961.
[6] [2006] SASC 362, para 32.
[7] (2009) 104 SASR 127.
[8] [2010] SASC 178.
[9] [2010] SASC 178 at [19].
Due care offence
As far as the due care offence was concerned, s 16 permitted the learned Magistrate to proceed without recording a conviction if there was good reason to take that course, provided that the matters set out in paras 16(a) and (b) were fulfilled. There does not appear to be any dispute that the respondent was genuinely remorseful and that the pre-condition contained in s 16(a) was enlivened. However, counsel for the appellant submitted that no good reason had been established to support the exercise of discretion. She submitted that the assumption behind s 16 was that in most cases a conviction would be recorded.[10]
[10] Sims v Police (2000) 30 MVR 524; [2000] SASC 102.
The Magistrate’s remarks are relatively brief and do not precisely explain the basis on which she found that there was good reason to invoke s 16. However, it would appear that she was impressed by the contrition expressed by the respondent, his good work history, his absence of prior convictions and her finding that the offending was out of character. She also appeared to accept that the respondent would not have made the decision to drive if he had properly assessed the amount of alcohol he had consumed.
On the hearing of the appeal, the respondent similarly impressed as a decent young man who was genuinely remorseful and aware of the foolishness of his behaviour. He lost his employment as a result of his licence disqualification and was well aware of his good fortune in not having caused injury or death to himself or anyone else. Those are all matters that supported a sympathetic approach to sentence by the learned Magistrate, and that is reflected in the modest fine imposed upon the appellant for both offences and the mandatory period of disqualification she imposed.
However, the respondent had a blood alcohol reading of 0.120 at the time of this offence. He had a passenger in the car and the subsequent accident cannot be regarded as minor. The question of whether a conviction should be recorded is always one of weighing up the personal interests of an offender against the public interest.[11] The serious circumstances of this offence are such that the public interest in a conviction being recorded outweighs factors personal to the respondent. The appeal will also be allowed with respect to the due care offence to the extent that a conviction will be recorded with respect to it.
[11] Jaworski v Police [2009] SASC 284 at [33] – [34], Sulan J. Tonks v Police [2010] SASC 285.