Police v MCDIARMID - [2010] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCDIARMID
[2010] SASC 178
Judgment of The Honourable Justice Kelly
18 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
Crown appeal against Magistrate's failure to record a conviction - respondent pleaded guilty to driving with a prescribed concentration of alcohol in blood contrary to s 47B(1)(a) Road Traffic Act 1961 (SA) – minimum fine and licence disqualification imposed by Magistrate – whether Magistrate was in error by failing to record a conviction – consideration of application of s 16 and s 20 of the Criminal Law (Sentencing) Act 1988 (SA) in relation to s 47B of the Road Traffic Act 1961.
Held: appeal allowed – conviction recorded.
Road Traffic Act 1961 (SA) s 47B(1)(a); Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 40; Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 20, referred to.
Hyde v Police [2006] SASC 362; Miles v Police [2009] SASC 181, applied.

POLICE v MCDIARMID
[2010] SASC 178
Magistrates Appeal: Criminal
KELLY J
Introduction

The appellant appeals against a sentence imposed in the Port Adelaide Magistrates Court on 24 March 2010.
The respondent was charged on complaint with one count of driving with excess blood alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). The respondent had a blood alcohol level of 0.124, with a consequence that it was a category two offence. At the time of the offence on 11 November 2009 the police imposed an immediate licence disqualification on the respondent.
The penalty prescribed for a category two offence is a fine of not less than $500 and not more than $900. Further, where the court convicts a person of a category two offence in addition to any fine imposed the court must order that the person be disqualified from holding or obtaining a drivers licence for a period of not less than six months. This period of disqualification cannot be reduced, mitigated or substituted unless the court is satisfied by evidence on oath that the offence is trifling. Where the court finds that the offence is trifling, the court may impose a lesser period of disqualification, but the period of disqualification imposed even in those circumstances must be at least one month.
The learned Magistrate imposed a fine of $500 and disqualified the respondent from holding or obtaining a drivers licence for a period of two months and 17 days in addition to the three months and 13 days that the respondent had already served by virtue of the immediate licence disqualification imposed on 11 November 2009. The Magistrate went on to find that there was good reason not to record a conviction in this case. It is this latter aspect of the sentence which the appellant appeals. The appellant submits that the Magistrate was in error by failing to record a conviction.
Background
At the date of the offence the respondent was a serving police officer aged 39 years. She had no prior convictions. On 11 November 2009 she was stopped by a random breath testing team at about 11.00 pm as she was driving along Diagonal Road, Glenelg. She returned a positive reading of 0.124 grams in 100 millilitres of blood and was given an immediate licence disqualification.
The respondent appeared unrepresented before the Magistrate. Submissions made in the form of a letter to the Magistrate were to the effect that the respondent had been at home cleaning between the hours of 6.00 pm and 9.30 pm on the night of the offence. During that period she consumed four glasses of wine. Later that evening she drove and accompanied her teenage son to a local hotel where she consumed another half a glass of wine. On the journey home from the hotel she was subjected to the random breath test.
The respondent referred to her problems with high blood pressure, her recent diagnosis of Lichens disease and a failure by her to take the required medication. The respondent expressed regret and embarrassment for the incident.
At the hearing the police prosecutor advised the Magistrate that it was expected that the respondent would face police disciplinary proceedings in respect of the offence, under the provisions of s 40 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). The Magistrate enquired with the prosecutor as to what possible consequences would eventuate from disciplinary action including the likelihood of termination. The prosecutor was unable to tell the Magistrate what the penalty would be but indicated that in his view termination of the respondent’s employment was unlikely to be the consequence.
There was no suggestion, nor could there be, that the offence committed by the respondent was, in the circumstances, trifling. The Magistrate’s focus seems to have been on the respondent’s personal circumstances.
Discussion
On the hearing of this appeal the respondent was again unrepresented. She indicated that she understood the submission made by the appellant and did not wish to put any alternative submission to the Court, however was prepared to abide the decision of the Court.
It is clear from the Magistrate’s reasons that the decision not to record a conviction was based upon the Magistrate’s view that the discretion in s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) not to record a conviction in certain circumstances was open to her.
Section 16 of the Act states:
16—Imposition of penalty without conviction
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.
The Magistrate made express findings that the respondent was a person of prior good character and that there were, in the circumstances, extenuating circumstances which caused the Magistrate to form the opinion that good reason existed for not recording a conviction.
The Magistrate was not referred to any authority relevant to the power of the court under the provisions of s 16 of the Act to exercise the discretion not to record a conviction in respect of offences attracting a mandatory minimum licence disqualification.
In Hyde v Police [2006] SASC 362 Bleby J dealt with an appeal against a decision of a magistrate to record a conviction in relation to an offender who had been charged with an identical offence, namely a category two offence under the provisions of s 47B(1) of the Road Traffic Act 1961 (SA). In the course of his reasons Bleby J said at [32]:
Section 16 is clearly intended to operate in limited circumstances. Apart from compliance with the provisions of paragraphs (a) and (b), it can only apply in respect of "an offence for which (the court) proposes to impose a fine, a sentence of community service, or both". That category of offence will usually be at the lower end of the scale of seriousness. There is nothing to suggest that, where the court proposes to impose a sentence of imprisonment or some other penalty for the offence, the provisions of the section can be invoked. The necessary criteria of proposed fine, community service or both are, in my opinion, exclusive of any other proposed penalty for the offence, whether required to be imposed or merely proposed in the exercise of the court's discretion. The penalty proposed for the offence in this case, albeit that it was a mandatory requirement, included a period of licence disqualification of not less than one month. In those circumstances, s 16, by its own terms, had no application.
Section 16 of the Act expressly limits the penalties which can be imposed where the power to not record a conviction is exercised. Section 20 of the Act is also relevant and states:
20—This Division does not affect mandatory sentences
Nothing 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.
It follows that the power to not record a conviction under s 16 of the Act is not available where the penalty involves the imposition of a mandatory licence disqualification, as was the case here.
The decision of Bleby J in Hyde was followed in Miles v Police [2009] SASC 181. I respectfully agree with the conclusions of both Bleby J and Kourakis J in Miles that a court cannot proceed by not recording a conviction under s 16 of the Act and yet impose a licence disqualification.
As the offence for which the respondent was sentenced attracted a mandatory minimum licence disqualification as a penalty, the discretion not to record a conviction did not arise.
In light of this conclusion the appellant has established an error on the part of the Magistrate which calls for this Court’s intervention. I therefore make the following orders:
1The appeal is allowed.
2The order of the Magistrate not to record a conviction is set aside.
3The respondent is convicted.
4Apart from the order not to record a conviction, the Magistrate’s sentence is otherwise undisturbed.