Police v Kostoff

Case [2014] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v KOSTOFF

[2014] SASC 130

Judgment of The Honourable Justice Peek

5 September 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES

Appeal against a Magistrate’s decision to record convictions after pleas of guilty. 

The registration and insurance of a vehicle owned by the appellant expired in August 2013 without his knowledge and without him having received a renewal reminder. The vehicle was later detected being driven on the South Eastern Freeway and an expiation notice was issued. The appellant was unaware that s 15(4) of the Expiation of Offences Act 1996 precluded convictions being recorded if expiation fees were paid and was concerned that recorded convictions would impact negatively on his business and professional interests. He wrote to police explaining the circumstances and seeking a review. Police indicated that the expiation notice would stand and the appellant elected to be prosecuted with a view to explaining himself in Court so as to avoid a conviction being recorded. He there pleaded guilty and requested that convictions not be recorded. The Magistrate recorded convictions on the basis that, in his view, such charges should be disposed of by way of monetary penalty equivalent to the expiation fee and the recording of convictions except in “unusual” circumstances. The appellant appealed on grounds including that the Magistrate failed to properly apply s 16 of the Criminal Law (Sentencing) Act 1988.

Held (per Peek J):

1.  The Magistrate erred by approaching the matter on the basis that charges of driving unregistered or uninsured should be disposed of by way of monetary penalty equivalent to the expiation fee together with the recording of convictions, except in “unusual” circumstances.  As to monetary penalty, the role of the Court is to impose a fair penalty according to the circumstances and the justice of the particular case; a monetary penalty less than the expiation fee may not infrequently be called for. (at [8]-[12]) 

2. As to the recording of convictions, the Magistrate proceeded to exercise the discretion under s 16(b) of the Criminal Law (Sentencing) Act 1988 adversely to the appellant without having first considered s 16(a) which required him to make a finding as to whether or not he held the opinion that the appellant was unlikely to commit such an offence again, and, if of that opinion, to then consider the exercise of discretion under s 16(b) in the context of that positive finding. (at [13]-[15])

3. Particularly in light of the Magistrate’s stated view that convictions should be recorded for such offences except in “unusual” circumstances, the appellant was entitled to a positive finding under s 16(a) that he was unlikely to commit such an offence having regard to the uncontested evidence that he had a long driving record without conviction; had successfully managed the registration and insuring of multiple vehicles over many years without incident; had not received a reminder notice;…

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Police v Kostoff [2014] SASC 130
Case
[2014] SASC 130
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CaseChat Overview and Summary

The case before the court involved the appellant, who was appealing a decision made by a Magistrate. The nature of the dispute was the manner in which the Magistrate exercised their discretion under s 16 of the Act, which relates to the recording of a conviction. The court was required to determine whether the Magistrate correctly applied the legal test in considering whether to record a conviction for the appellant. The appellant argued that the Magistrate failed to properly apply the test and, as a result, the court was required to conduct a re-sentencing of the appellant.

The legal issues the court was required to decide centred around the proper application of s 16 of the Act and the discretion afforded to the Magistrate. The court had to determine whether the Magistrate correctly identified the criteria for exercising the discretion and whether the Magistrate correctly considered the relevant circumstances of the case. The appellant argued that the Magistrate did not properly apply the test and, as a result, the court was required to conduct a re-sentencing of the appellant. The court had to consider whether the Magistrate's approach was correct and, if not, what the appropriate outcome should be.

In reaching its decision, the court held that the Magistrate did not properly apply the test under s 16 of the Act. The court held that the test is not whether the defendant has established that the circumstances surrounding his offending are "unusual", but rather whether the defendant has established that there is "good reason" not to impose a conviction. The court found that the Magistrate appeared to take the view that the appellant was required to establish that the circumstances of the offence alleged against him were unusual as compared to other instances of commission of the offences of driving unregistered and uninsured. The court held that this was not the correct approach and that the Magistrate failed to accord to the appellant the appropriate finding that he is "unlikely" to commit such an offence again. The court concluded that a re-sentencing was required.

The court ordered that the appellant be re-sentenced with a fine. The court found that the appellant was highly unlikely to commit such an offence again and that there was good reason not to record a conviction. The court noted that the concept of a good reason not to record a conviction is a broad one, although there are limits to the factors that fall to be considered. The court found that the appropriate outcome in this case was to impose a fine and not to record a conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
In the circumstances of this case, the appellant was positively entitled to a definite finding that the appellant is unlikely to commit such an offence again and to a process whereby the Magistrate approached the exercise of the s 16(b) discretion on that positive basis.Conclusion as to the Magistrate’s approach to the s 16(b) discretion The test to be applied under s 16 of the Act is not whether the defendant has established that the circumstances surrounding his offending are “unusual”. Rather, the test is whether a particular defendant, who in the opinion of the Magistrate is unlikely to commit such an offence again, has established that there is “good reason” not to impose a conviction. The Magistrate here appeared to take the view that the appellant was required to establish that the circumstances of the offence alleged against him were unusual as compared to other instances of commission of the offences of driving unregistered and uninsured. Further, he failed to accord to the appellant the appropriate finding that he is “unlikely” to commit such an offence again (and the consequential differentiation from many other defendants to which he was thus entitled). In all the circumstances of this case, I am not satisfied that the Magistrate properly applied the correct test. Accordingly, a re-sentencing is required.Re-sentencing the appellant For the purposes of s 16 of the Act, I propose to impose a fine. In all of the circumstances of the case, I am of the opinion that the appellant is highly unlikely to commit such an offence again. Turning to s 16(b) of the Act, the correct approach was succinctly summarised by Doyle CJ in Schmidt v Police thus:[11]Section 16 reflects an assumption that ordinarily a conviction will be recorded on a finding of guilt. On the other hand, it gives the court a fairly broad power to refrain from doing so. The power arises only when the court is of opinion that the criteria in subpara (a) and subpara (b) are met. In that event, if the court considers that ‘good reason exists for not recording a conviction’, the court may refrain from doing so. In other words, the specified criteria must first be met, and then it is a question of whether, in the light of those criteria and all the relevant circumstances, there is good reason for not recording a conviction. The concept of a good reason not to record a conviction is a broad one, although there are, of course, limits to the factors that fall to be considered.[11] [2005] SASC 482, [16]. I might add that it has always been accepted that the disjunctive “or” appearing at the end of each placita (i), (ii) and (iii) in subparagraph (b) signifies that a favourable exercise of discretion may be solely based on one only of those placita. Further, within placitum (i), a favourable exercise of discretion may be solely based on the combination of the character, antecedents and age of the defendant; or be solely based on the physical condition of the defendant; or be solely based on the mental condition of the defendant. And still further, matters falling under one placitum can be combined together with matters falling under a different placitum to constitute “good reason”. This same approach was previously taken to the Offenders Probation Act 1913.[12][12] Repealed by s 78, Statutes Amendment and Repeal (Sentencing) Act 1988 on 1 January 1989.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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