Police v Kostoff - [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; had taken the present situation very seriously indeed; and had put in place preventative measures which make it highly unlikely that another such offence would ever be committed. The appellant was entitled to have the s 16(b) discretion exercised in the context of that positive finding. (at [21]-[22])
4. The test to be applied under s 16 is not whether a 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. (at [23])
5. The cumulative effect of the present circumstances constituted “good reason” not to record convictions. (at [34])
6. Appeal allowed. The convictions recorded by the Magistrate are set aside. No conviction is recorded in relation to either charge. The monetary orders made by the Magistrate are confirmed.
Criminal Law (Sentencing) Act 1988 ss 15, 16(a), 16(b), 39; Expiation of Offences Act 1996 s 15(4); Motor Vehicles Act 1959 ss 9(3), 9(6a), 102(2); Offenders Probation Act 1913 (SA); Statutes Amendment and Repeal (Sentencing) Act 1988 s 78, referred to.
Ashton v Police [2005] SASC 460; Hemming v Neave (1989) 51 SASR 427; House v The King (1936) 55 CLR 499; Ly v Glover (1996) 150 LSJS 449; Piva v Brinkworth (1992) 59 SASR 92; Roder v Police (2000) 32 MVR 359; Rusby v Kerley [2002] SASC 141; Schmidt v Police [2005] SASC 482; Singh v Police [2013] SASC 155; Vitlor v Lewis [2004] SASC 2003, discussed.
Brookes v Police [2014] SASC 22, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"expiation fee", "unregistered vehicle", "uninsured vehicle"

POLICE v KOSTOFF
[2014] SASC 130
Magistrates Appeal

PEEK J Appeal against a Magistrate’s decision to record convictions.
In October 2013, the appellant received an expiation notice from the Expiation Branch of South Australia Police alleging that a motor vehicle that he owned had been driven on the South Eastern Freeway on 29 September 2013 when it was unregistered and uninsured.[1] On 23 October 2013, the appellant sent a letter to the manager of the Expiation Branch requesting that the issuing of an expiation notice be reviewed and explaining in detail the circumstances under which the driving had occurred; the contents of the letter corresponded to the matters later put by the appellant to the Magistrate. The manager of the Expiation Branch replied that the expiation notice would stand.
[1] It transpired that the registration and insurance had expired on 19 August 2014.
It was at this point that the appellant took a seriously wrong turn; he elected to be prosecuted and was charged on complaint with the above offences.[2] If he had simply paid the expiation fees (plus levies), there could never have been a question of a conviction being recorded against him since he would have been protected by s 15(4), Expiation of Offences Act 1996 which provides as follows:
(4)The expiation of an offence under this Act (or the entry into an arrangement under this Act)—
(a)     does not constitute an admission of guilt or of any civil liability; and
(b)     will not be regarded as evidence tending to establish guilt or any civil liability; and
(c)     cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.
[2] Contrary to ss 9(3) and 9(6a) of the Motor Vehicles Act 1959 and s 102(2) of the Motor Vehicles Act 1959, respectively.
Unfortunately, the appellant was unaware of this legislation and thought that the correct thing for him to do was to attend court as a first offender, explain himself, and ask that no conviction be imposed. I accept that he acted honestly and was not trying to waste time; he was simply misguided in what he did.
The hearing before the Magistrate
It was in the above circumstances that the appellant attended court unrepresented, pleaded guilty to both charges, and asked that the fine should be less than as stated in the expiation notice and that no conviction should be recorded. It is agreed by the parties that I may proceed on the basis that the appellant conveyed to the Magistrate (and expanded upon) the following matters which in short form are summarised below:
1The appellant drives approximately 25,000 kilometres per year. He has a clean driving record over at least 25 years. The appellant has had multiple vehicles registered in his name and no mishap in registering or insuring them has previously occurred.
2The appellant departed for overseas on 15 July 2013 and returned on 25 August 2013. Neither he nor his wife saw or received a renewal notice prior to departure or subsequent to return.
3The registration and insurance of the relevant vehicle expired on 19 August 2014.
4The relevant vehicle is not used on a daily basis and would travel less than 3,000 kilometres per year. The appellant took it out for a single drive on a Sunday 29 September 2013 not knowing that its registration and insurance had expired.
5A system of arranging for email and text notifications from “Services SA” to remind the appellant and his wife of registration and insurance expiry dates has now been put in place to prevent any future reoccurrence.
6The appellant is a Company Director and Chief Executive Officer of a green auditing business and is required to comply with a “good character clause” and is also required to report convictions to the industry regulator in respect of his registered training organisation business. He is concerned as to the effect that the recording of these convictions may have on his company positions and also on travel to the United States and on a pending application to be appointed as an Honorary Consul.
The Magistrate rejected the appellant’s application. His Honour imposed monetary penalties equivalent to the total amount set out in the expiation notice and recorded convictions on each charge.
The grounds of appeal
The appellant appealed against the recording of convictions on four grounds, but only the first three were proceeded with:
1.The learned sentencing Magistrate erred in that he failed to properly or adequately consider and/or apply section 16 of the Criminal Law (Sentencing) Act 1988.
2.The learned sentencing Magistrate erred in that he failed to properly or adequately consider whether the Appellant is likely to commit the offences again.
3.The learned sentencing Magistrate erred in that he failed to properly or adequately have regard to the Appellant’s character, antecedents, unblemished driving history and his extenuating circumstances leading to the offence.
The Magistrate’s approach to the disposition of driving unregistered or uninsured charges
The Magistrate expressed a strong view that charges of driving unregistered or uninsured coming before a court should, except in “unusual” circumstances, be disposed of by way of a monetary penalty equivalent to the expiation fee and by the recording of convictions.
As to the aspect of monetary penalty, his Honour stated:[3]
Parliament has fixed an expiation fee in the sum of $1,074 for this offending.[4] Where there is an administrative penalty imposed for offending such as this then that is the starting point for penalty should the matter come before the court. It would defeat the purpose of having an expiation system if the courts did not regard that expiation fee as the starting point. It is Parliament’s intention that these matters be dealt with by way of expiation notice and when it comes to the court imposing penalty a court has to have regard to that intention of Parliament. So it will only be in unusual circumstances where the court would depart from that expiation fee as a starting point.
I understand that you do have a good record in relation to driving matters and I understand that you were driving on this occasion without being aware that the registration and insurance had lapsed. The expiation fee for driving unregistered and uninsured is there to deter people from driving unregistered and uninsured. It is there to remind people that they have to be very careful to ensure that their registration and insurance is up to date. I accept what you have put but in my view the circumstances of this matter are not distinguishable from many instances where people have been caught driving unregistered and uninsured unintentionally as a result of oversight on their behalf. Any criticism of the system for not having registration certificates any more on cars is really a question of policy.
… I am not satisfied that there is any basis for departing from the usual fine that has been imposed. (Emphasis added)
[3] Remarks on Penalty of Magistrate Fisher (MCMTB-13-1646), [5]-[7].
[4] The expiation notice was in the total amount of $1,074 but that amount included two levies of $60 each.
Before turning to the Magistrate’s remarks concerning the matter of recording convictions, I should say that I consider that the above remarks are indicative of error of approach in that they do not adequately recognise the traditional sentencing role of a court which is to impose a fair penalty according to the circumstances and the justice of the particular case.
The fact is that the same expiation fee is offered to all offenders, despite the fact that the antecedents of such offenders, and the circumstances of their offending, may vary greatly. Thus, under the expiation scheme, an offender with an appalling record, who repeatedly drives unregistered and uninsured, would be required to pay the same expiation fee on each occasion as the person who has a long unblemished driving record, who would never intentionally commit the offence and has only done so under extenuating circumstances.
A Magistrate dealing with a person in the latter category should not give undue weight to the prescribed expiation fee; a combination of good character, a good driving record, extenuating circumstances surrounding the offending and other relevant matters may not infrequently indicate that a fine less than the expiation fee – sometimes substantially less – should be imposed. However, I take this particular aspect of the matter no further because the notice of appeal complained only of the recording of the convictions and not the monetary penalty. At the commencement of the hearing of the appeal, counsel for the appellant confirmed that this was so.
The correct approach to s 16, Criminal Law (Sentencing) Act 1988
The Magistrate was specifically asked by the then unrepresented appellant not to record a conviction. Since his Honour proposed to impose a fine, he was therefore required to consider the application of s 16, Criminal Law (Sentencing) Act 1988 (the Act) which provides as follows: [5]
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.
[5]    I do not consider that either s 15 or s 39 of the Act have present relevance.
The Magistrate was required to first consider whether he was of the positive opinion referred to in s 16(a); specifically, he was required to find whether, acting reasonably in all of the circumstances, he was, or was not, of the opinion that the defendant is unlikely to commit such an offence again (to be referred to as “the s 16(a) issue”).
A finding of a positive opinion that the defendant is unlikely to commit such an offence again (to be referred to as “the requisite opinion”) is required before the Magistrate can exercise the s 16(b) discretion. However, the Magistrate did not make any finding as to the s 16(a) issue but simply proceeded to exercise the discretion in s 16(b) adversely to the appellant. His Honour stated:[6]
You have asked that the matters be dealt with without recording a conviction. I do have that discretion under Section 16 of the Sentencing Act. It requires the court to be satisfied that the defendant is unlikely to commit the offence again and having regard to character, antecedents, age, the physical and mental condition of the defendant good reason exists for not recording a conviction. This is a matter where ordinarily a conviction would be imposed. [You] are concerned about the effects of a conviction on a number of things, your green auditing business, travel to the [United] States and your application for an Honorary Consul position but I have to say that I find it very difficult to understand and accept that a conviction for this regulatory offence of driving unregistered and uninsured could have any effect on your business, could have any effect on your travel to the United States and could have any effect on your application to be made Honorary Consul. It is not an offence that in any way reflects upon your character. It is a regulatory offence and it is an offence that has been committed by oversight which is, unfortunately, not uncommon in relation to this particular matter. I am not satisfied that there is good reason that exists for not recording a conviction. … (Emphasis added)
[6] Remarks on Penalty of Magistrate Fisher (MCMTB-13-1646), [7].
Whether the Magistrate did, or did not, hold the requisite opinion under s 16(a) was a finding of fact for him to make. No exercise of discretion was involved and the appellate Court’s ability to find that the Magistrate should reasonably have held the requisite opinion is not constrained by House v The King principles. [7]
[7] (1936) 55 CLR 499; Cf Brookes v Police [2014] SASC 22 at [9] (Nicholson J).
It should be noted that a Magistrate may quite reasonably not hold the requisite opinion in relation to many defendants for many reasons. As an example, a Magistrate may not hold the requisite opinion in relation to a defendant who has committed the same offence in the past despite his or her protestations that he or she will not do so again in the future. As another example, a Magistrate may rightly consider that it is difficult (though not impossible) to hold the requisite opinion in the case of particular types of offending; thus Duggan J noted in Roder v Police in the context of the charge of driving without due care:[8]
I do not suggest that s 16 should never be applied to an offence of driving without due care, just as I do not suggest that s 15 should never be applied to such an offence. However, the circumstances in which it would be appropriate to apply s 16 to a case such as the present must be rare. The requirement that the court be of the opinion that the defendant is unlikely to commit such an offence again is difficult to establish in the case of an offence of driving without due care. Such acts are often committed unintentionally, as was the case here. It would seem difficult to reach an opinion that any driver was unlikely to commit an offence of this nature in the future. In my view it cannot be said that, in the case of this appellant, he is unlikely to commit an offence of driving without due care at any time in the future.[9]
[8] (2000) 32 MVR 359, 361 [16].
[9] Of course, the present case of the appellant implementing systems to ensure that procedural details such as registration and insurance are attended to is very different to the spur of the moment unforeseen occurrences that may lead to a momentary lack of attention sufficient to constitute driving without due care.
So it is that if a Magistrate follows the correct statutory process, he or she may frequently determine that he or she does not hold the requisite opinion. But if in a particular case he or she finds that he or she does in fact hold the requisite opinion in relation to the defendant, he or she will then be in a position to approach the following exercise of the s 16(b) discretion against the background to which such a defendant is entitled – namely, a finding that the defendant is favourably differentiated from the many defendants in relation to whom the Magistrate would not hold the requisite opinion. Further, it may be added that if the Magistrate holds not just a bare requisite opinion that a defendant is “unlikely” to commit such an offence again but rather holds the opinion that such unlikelihood is of a high order, that too may further differentiate that defendant’s position from that of many others.
The appellant was entitled to a clear finding that he is unlikely to commit such an offence again

I note that in Ashton v Police, Debelle J held that a failure to address the s 16(a) issue constituted a serious breach of process and led ipso facto to the need for a re-sentencing. His Honour stated:[10]
… The magistrate has failed to address the question whether the defendant was unlikely to commit such an offence again. That is the first matter which must be determined when considering an exercise of discretion conferred by s 16 of the Sentencing Act. It is a prerequisite to proceeding to consider the other matters listed in s 16(b). The magistrate has not addressed the issue at all and his failure to do so justifies this Court in exercising the sentencing discretion afresh. In reaching this conclusion I repeat that I have regard to the fact that these are ex tempore remarks made by the magistrate. (Emphasis added)
[10] [2005] SASC 460, [9].
While I agree with Debelle J that a proper consideration by the Magistrate of the s 16(a) issue is a very important part of the statutory process, I find it unnecessary to decide whether such a failure alone must always lead to a re-sentencing (although it may well be so). However, I do consider that a re-sentencing is required in the circumstances of the present case, particularly having regard to the Magistrate’s emphasis on a perceived need for the appellant’s case to have been “unusual” before he could depart from a regime consisting of a starting point of a fine equivalent to the expiation fee and convictions being recorded.
In the present case, the appellant had placed his cards face up from the beginning. The Expiation Branch had every opportunity to check the facts stated in his letter, his driving record, and his general background. When he later made the same submissions to the Magistrate, those submissions were not controverted by the prosecution. The Magistrate therefore had strong uncontested material before him that the appellant: has a long driving record of at least 25 years without conviction; is a man of good character with many responsibilities in the community; had successfully managed (without any previous mishap) the registration and insurance over many years of multiple vehicles; has taken very seriously indeed the present situation and has put in place procedures which make it highly unlikely that another such offence would ever be committed.
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.
In the present case, the required criteria for enlivening the discretion under s 16(b) are plainly met by the combination of the appellant’s good character, exemplary driving record and general antecedents (all falling under placitum (i)) taken together with extenuating circumstances surrounding the commission of the offence (falling under placitum (iii)).
Turning to the exercise of my discretion, the matters militating in favour of the appellant obviously include the matters that have been relied upon to enliven the discretion and I consider that their cumulative weight is substantial. To these must be added the appellant’s cooperation with the police and his plea of guilty. As noted above, the appellant’s decision not to pay the expiation fee was no doubt unfortunate but it does not reflect adversely upon him here.
The fact that the appellant did not receive the expected reminder notice is a further circumstance to be taken into account. If it stood alone, it might be insufficient to require a favourable exercise of discretion but it is to be taken together with the combination of the appellant’s character, antecedents and age, and also with the detailed precautions that have been taken by the appellant to prevent any reoccurrence. The result is both to increase the cumulative effect of the circumstances relied on to constitute “good reason” and to reinforce one’s confidence that such offending will not reoccur.
As to the appellant’s concern that the recording of two convictions will alter his previously unblemished record and may be detrimental to him in a number of ways, I place some, but not a great deal of, weight on this aspect. I accept that the appellant perceives the matter as important and that it is productive of stress for him. I also accept that there would be some inconvenience and embarrassment caused to the appellant in having to disclose the existence of these convictions in the contexts to which he refers. However, there is a dearth of evidence as to the potential for real damage to be caused to him.
Finally, I bear in mind the statements in various cases to the effect that convictions are usually recorded for regulatory offences.[13] However, such statements are usually encountered in the context of offences with a high penalty regime and with no availability of expiation without conviction. It is to be stressed that the use of the word “unusual” is not to be considered as a summary of, or gloss upon, the correct test to be applied in such cases; rather, it is no more than an observation that a consideration of the cases shows that usually (but not always) the application of the correct test to such cases leads to the recording of a conviction.
[13] See for example: Piva v Brinkworth (1992) 59 SASR 92, 95 (Duggan J); Ly v Glover (1996) 150 LSJS 449, 459 (O’Loughlin J); Hemming v Neave (1989) 51 SASR 427, 429 (Bollen J); Rusby v Kerley [2002] SASC 141, [77]-[80] (Lander J); Vitlor v Lewis [2004] SASC 2003, [9] (Vanstone J).
However, it must be borne in mind that the non-recording of a conviction may be perceived by some as particularly important. Where that very outcome was available through the expiation fee process, but the person has somehow ended up in court over the matter, it seems to me that the words of the Chief Justice in Singh v Police (with which I entirely agree) are particularly important. His Honour there stated:[14]
The [Motor Vehicles Act 1959] is regulatory legislation. The preventative and deterrent aspects of punishment generally assume relatively greater importance in sentencing for offences against such legislation. However, the force of this consideration is much reduced in the case of offences which can be expiated. It is difficult to see why a conviction is generally necessary in the case of the few offenders who, for whatever reason, fail to take advantage of the expiation process, pursuant to which the great preponderance of offenders escape convictions without jeopardising the integrity of the registration and insurance scheme.
[14] [2013] SASC 155, [39] (Kourakis CJ).
Conclusion
Taking into account all of the matters to which I have referred, I find that in relation to both charges, good reason exists for not recording a conviction and I exercise the s 16(b) discretion not to record a conviction in favour of the appellant.
I impose a fine by confirming the monetary orders made by the Magistrate, including his Honour’s imposition of a fine.
Orders
1I set aside both of the two convictions recorded by the Magistrate and order that no conviction be recorded in relation to either charge.
2In all other respects, the other orders made by the Magistrate remain on foot.