Police v Pfeiffer

Case •

[2025] SASC 155

•

2 September 2025

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal)

POLICE v PFEIFFER

[2025] SASC 155

Judgment of the Honourable Justice Gray (ex tempore)

2 September 2025

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - USE OF INTOXICATING LIQUOR OR DRUGS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION

This is a Crown appeal concerning a sentence imposed in the Magistrates Court for an offence contrary to s 47BA(1) of the Road Traffic Act 1961 (SA). The penalty for a first offence contrary to that provision consisted of a fine of not less than $900 and not more than $1,300, and a mandatory licence disqualification period of not less than six months.

The penalty imposed by the learned Magistrate comprised of a $400 fine and no conviction was recorded, on the basis that the offence was an ‘expiable’ one.

The appellant complains that the learned Magistrate erred by not dealing with the offence as a ‘first offence’ and, therefore, erred by failing to impose a mandatory licence disqualification period, pursuant to s 47BA(4) of the Road Traffic Act 1961 (SA), and by failing to impose the mandatory minimum fine of $900 without reference to s 25 of the Sentencing Act 2017 (SA). The appellant submitted that the respondent should be resentenced on appeal.

The respondent submits that the learned Magistrate’s sentence was not affected by error.

On a resentence, the appellant submitted that the mandatory six-month licence disqualification period and a $900 fine should be imposed. No submission was made as to whether a conviction should be recorded.

The respondent on resentence contended that the offence was ‘trifling’ pursuant to s 47BA(4)(b) of the Road Traffic Act 1961 (SA) and gave evidence on oath. It was also submitted that no conviction ought to be recorded, having regard to s 24 of the Sentencing Act 2017 (SA).

Held, allowing the appeal and resentencing:

1.The matter ought to have been dealt with as a ‘first offence’ pursuant to s 47BA of the Road Traffic Act 1961 (SA): [26];

2.The mandatory licence disqualification period should have been imposed and could not be reduced, mitigated or substituted in any way other than in accordance s 47BA(4)(b) of the Road Traffic Act 1961 (SA): [27]-[28];

3.      There was error in dealing with the offence as an ‘expiable’ one: [30];

4.      On a re-exercise of the sentencing discretion:

4.1.    The offence was an ordinary example of the offence and did not constitute a trifling offence: [37];

4.2.    There is no good reason to reduce the fine below the minimum penalty of $900: [40];

4.3. There is no support for the contention that the respondent is unlikely to commit the offence again, and there is no good reason not to record a conviction having regard to the factors set out in s 24 of the Sentencing Act 2017 (SA): [50], [52]-[53], [56].

The respondent is resentenced as follows:

1.      A licence disqualification period of six months commencing 2 September 2025 is imposed;

2.      A fine of $900 is imposed; and,

3.A conviction is recorded in respect of the offence of driving with a prescribed drug in oral fluid or blood, committed on 12 November 2024.

POLICE v PFEIFFER
[2025] SASC 155

Criminal:   Magistrates Appeal

GRAY J (ex tempore):

Introduction

  1. This is an appeal by the Commissioner of Police concerning a sentence imposed on 1 May 2025 on the respondent, Benjamin Joesef Pfeiffer, in the Magistrates Court. The respondent pleaded guilty to one count of driving a motor vehicle with a prescribed drug in his oral fluid or blood, namely delta-9-tetrahydrocannabinol, or THC, contrary to s 47BA(1) of the Road Traffic Act 1961 (SA) (‘the Act’).

  2. The maximum penalty for a first offence is a fine of not less than $900 and not more than $1,300, and a mandatory licence disqualification period of no less than six months. The learned Magistrate, on the basis that the matter was an ‘expiable’ one, imposed a fine of $400 only.

  3. The appellant appeals, pursuant to s 42(1) of the Magistrates Court Act 1991 (SA), on two grounds. Firstly, the learned Magistrate erred in failing to impose the mandatory licence disqualification period, as required by s 47BA(4) of the Act. Second, the learned Magistrate erred in reducing the minimum fine of $900 without reference to s 25 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’).

    Background and nature of the appeal

  4. The subject offending occurred on 12 November 2024 when the respondent was directed to submit to an oral fluid test whilst driving on Salisbury Highway. A positive result for cannabis was returned, and subsequently a sample was collected from the respondent and submitted for forensic testing. That testing indicated that present in the respondent’s oral fluid was THC. An expiation notice for an offence contrary to s 47BA of the Act was issued to the respondent on 22 November 2024.[1]

    [1]     Appellant’s Written Submissions (FDN 8) (‘AWS’) at [11]-[13]; Affidavit of Harald Josef Scherwitzel sworn 25 July 2025 (FDN 7) (‘Scherwitzel Affidavit’) at [6].

  5. On 21 January 2025, the respondent elected to be prosecuted in respect of the offence. An information dated 5 March 2025 was laid in the Magistrates Court in respect of the offence alleged to have been committed by the respondent. The matter was first heard on 8 April 2025 but was adjourned to enable the respondent to obtain legal advice.[2]

    [2]     AWS at [14]-[17]; Scherwitzel Affidavit at [7]-[9].

  6. The matter was next before the Court on 1 May 2025.  The respondent submitted that he had elected to be prosecuted so that he could make sure the matter would not appear on his record, due to his working in the technology field in schools, hospitals, and, sometimes, military bases.[3]  The respondent indicated to the effect that he had medical certificates for medicinal cannabis and that the testing was made 24 hours later.  The learned Magistrate was informed by the prosecutor that this was the first offence and expiation in respect of the respondent.[4]

    [3]     Scherwitzel Affidavit at [11(c)].

    [4]     AWS at [18]; Scherwitzel Affidavit at [11(a)-(e)].

  7. The sentencing remarks of the learned Magistrate record as follows:[5]

    Mr Pfeiffer, you have pleaded guilty to a drug drive offence which occurred on 12 November 2024 on Salisbury Highway at Salisbury Downs. You come before the court having never had a previous expiation notice for drug drive. The question is whether you are deemed a first offender under s. 47BA of the Road Traffic Act.

    Prosecution submit that you are deemed a first offender because you elected to be prosecuted. After perusing the section, I have decided that that section refers only to the determination of first, second, third or subsequent offences. This offence, in my view, is not deemed a first offence as you have not been expiated previously under s.47BA(6).

    PROSECUTION: Your Honour, in regards to the ILOL, I can confirm the defendant is correct. His ILOL has been cancelled. He has not been disqualified.

    If that is defective, then I am not going to impose a disqualification if that was cancelled.

    I impose without conviction so as to treat this matter as if it were an expiation. There will be a $400 fine, victim of crime levy and prosecution fee only.

    I do not find that this offence is a first offence under s.47BA. I am doing something quite unorthodox here but I think if prosecution want to appeal they can and the decision about the interpretation of that section of the Act can be addressed in a higher jurisdiction.

    [5]     Appeal Book (FDN 10) (‘AB’) (Remarks on Penalty of Magistrate Browne, 1 May 2025) at 5

  8. There were subsequent hearings on 14 May 2025 and 25 June 2025, when the issue of correctness of the sentence was raised.  On 25 June 2025, counsel appearing for the appellant submitted that the learned Magistrate was functus officio and the matter was listed for appeal.

  9. The respondent appears self-represented before this Court. He was granted adjournments to obtain legal advice.  The consequence of the appeal and resentence were explained to him.  The respondent indicated he wished to proceed today as a self-represented litigant and to make a trifling application.[6]  The respondent has not been disadvantaged by his self-represented status and proceeded to make both a trifling application and submissions on resentence.

    [6] Pursuant to s 47BA(4)(b) of the Road Traffic Act 1961 (SA).

    Principles regarding Crown appeals

  10. This is an appeal by the Crown.  In respect of Crown appeals against sentence, generally leave to appeal is required and strong reasons are required due to ‘the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.’[7]  Exceptional circumstances warranting appellate intervention may include ensuring adequate standards of punishment, correcting idiosyncratic views of judicial officers as to particular crimes, and correcting sentences which are so inadequate so as to shock the public conscience.[8]

    [7]     Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ).

    [8]     R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ).

  11. An appellate court will not interfere merely to substitute the view of the lower court with its own.[9] It must be demonstrated that a judicial officer erred by acting upon incorrect principle or an incorrect view of the facts, took into account an irrelevant consideration, or failed to take into account a relevant consideration.[10] As was said in House v The King:[11]

    It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    [9]     Singh v Police [2013] SASC 155 at [33] (Kourakis CJ).

    [10]   House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ).

    [11]   House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

  12. In the case of Crown appeals against non-custodial sentences, a more liberal approach to a grant of leave to appeal should be taken, as the role of an appellate court includes a supervisory function over the lower courts within the same hierarchy.[12]  As was stated by Doyle CJ in Police v Cadd,[13] appellate courts are not concerned only with errors of principle, but the maintenance of standards and uniformity in sentencing, insofar as consistency and adequacy of sentencing form part and parcel of the broader interests of the administration of justice. The principles of double jeopardy, whilst not wholly irrelevant, are tempered in Crown appeals against non-custodial sentences.[14] There is no requirement of leave in an appeal pursuant to s 42(1) of the Magistrates Court Act 1991 (SA).

    [12]   Police v Cadd (1997) 69 SASR 150 at 159 (Doyle CJ).

    [13]   Police v Cadd (1997) 69 SASR 150 at 159 (Doyle CJ).

    [14]   Police (SA) v Grosser [2022] SASC 146; (2022) 103 MVR 61 at [24]-[25] (Stanley J).

    Asserted error in the learned Magistrate’s sentencing discretion and submissions of the parties

  13. The first ground of appeal relates to the learned Magistrate failing to impose the mandatory licence disqualification period, namely, not less than six months, as required for a first offence in s 47BA(4)(a)(i) of the Act. It is convenient to deal with this ground in two parts. Firstly, the learned Magistrate’s treatment of the offence as not being a ‘first offence’; and, secondly, the learned Magistrate’s failure to impose the mandatory licence disqualification period.

    The treatment of the offence as a ‘first offence’

  14. The appellant complains of a misinterpretation by the learned Magistrate of ss 47BA(5)-(6) of the Act insofar as her Honour determined the matter was not one to be dealt with as a ‘first offence’ within the meaning of the Act, and, instead, treated it as an ‘expiable’ one. Sections 47BA(5)-(6) read as follows:

    (5)In determining whether an offence is a first, second, third or subsequent offence for the purposes of this section (other than subsection (6)), any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.

    (6)If—

    (a)     a person aged 16 years or more is alleged to have committed an offence against this section; and

    (b)     the information available to members of SA Police at the relevant time for the alleged offence indicates that the person has not committed or allegedly committed another drink driving offence or drug driving offence within the prescribed period immediately preceding the date on which the offence under consideration was allegedly committed,

    the person cannot be prosecuted for that offence unless the person has first been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence.

    Note—

    For the avoidance of doubt, if at the relevant time for an alleged offence (the subject offence), the information available indicated that the person had allegedly committed another offence but, at some later time, the expiation notice for that other offence is withdrawn or proceedings for that other offence are discontinued, that does not affect the prosecution of the person for the subject offence, and does not mean that the person should have been given an expiation notice for the subject offence.

  15. The appellant submits that, contrary to the approach of the learned Magistrate, a person who is expiated initially, but elects to be prosecuted, should be dealt with for their ‘first offence’.

  16. The appellant contends that, in these circumstances, service of an expiation notice is sufficient to fulfil the requirement of s 47BA(6) of the Act which requires service of the expiation notice prior to the commencement of a prosecution.

  17. The respondent submitted that no error was made by the learned Magistrate and that her Honour did all that was possible to accommodate his personal circumstances.

    The failure to impose the mandatory licence disqualification period

  18. The appellant, consistently with the approach taken in Police v Varma (‘Varma’),[15] on the basis that the offence was a ‘first offence’, contends that there was no discretion for the learned Magistrate to mitigate the mandatory licence disqualification period other than in accordance with s 47BA(4)(b) of the Act, which concerns an offence that is ‘trifling’. Given the way in which the matter proceeded before the Magistrates Court, no such application under that provision was made.

    [15]   Police v Varma [2013] SASCFC 72; (2013) 116 SASR 532 at 539, [18]-[20] (Gray, Sulan and Blue JJ).

  19. The respondent submitted that the learned Magistrate in not disqualifying the appellant from driving properly had regard to his personal circumstances, including his business which primarily relies on vehicle travel. He submitted that, if an error was found, on appeal he wished to make a ‘trifling’ application.[16]

    Failure to apply s 25(1) of the Sentencing Act 2017 (SA)

    [16]   Road Traffic Act 1961 (SA) s 47BA(1)(a).

  20. The second ground of appeal states that the learned Magistrate failed to apply the test in s 25(1) of the Sentencing Act when exercising her Honour’s discretion to reduce the amount of the fine below the amount prescribed by the Act. The prescribed amount is not less than $900 and not more than $1,300.[17] The fine imposed by the learned Magistrate was $400,[18] an amount laying outside that range.

    [17]   Road Traffic Act 1961 (SA) s 47BA(1)(a).

    [18]   AB (Remarks on Penalty of Magistrate Browne, 1 May 2025) at 5.

  21. The appellant submitted that the learned Magistrate had a discretion to impose the fine as her Honour did, but erred in doing so without having regard to the test in s 25(1) of the Sentencing Act.

  22. Section 25(1) of the Sentencing Act provides as follows:

    (1)Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence and after having regard to—

    (a)     the character, antecedents, age, or physical or mental condition, of the defendant; or

    (b)     the fact that the offence was trifling; or

    (c)     any other extenuating circumstances,

    the court thinks that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.

  23. The appellant points to the lack of remarks around the provision itself, or the terminology of the section, that is, whether ‘good reason exists’ in determining to reduce the fine below the minimum penalty.

  24. The respondent submitted that the learned Magistrate did not err in reducing the fine below the minimum.

    Consideration

    Ground 1

  25. I accept the submission of the appellant that an ordinary reading of the statutory language of ss 47BA(5)-(6) of the Act indicates that it is sufficient that the respondent was served with an expiation notice to satisfy the requirement that ‘the person has first been given an expiation notice’. The withdrawal as a result of the legislative machinery[19] does not affect the fact that the expiation notice had been issued in the first instance.

    [19]   Expiation of Offences Act 1996 (SA) s 8(3).

  26. Applying an ordinary reading of the legislation, and having regard to circumstances of this case, this matter should have been dealt with as a ‘first offence’ within the meaning of s 47BA. The matter being a ‘first offence’ within the meaning of that provision, the question arises as to whether a power existed for the learned Magistrate to reduce the mandatory licence disqualification period other than in accordance with s 47BA(4)(b) of the Act.

  27. I accept the submission of the appellant that once a plea of guilty is entered, or a finding of guilt is made, there is no discretion to reduce, mitigate or substitute the penalty in any way other than in accordance with the trifling provision in s 47BA(4)(b) of the Act. This interpretation follows from the mandatory language of the Act.

  28. Accordingly, I find ground 1 made out and allow the appeal on that ground.

    Ground 2

  29. I find there is an error of principle in the manner in which the fine was reduced. In this case, the learned Magistrate reduced the fine consequent upon the erroneous determination that the matter was to be dealt with as if it were an expiation and not a first offence.

  1. I, therefore, find ground 2 made out and I would also allow the appeal on that ground.

    Conclusions on grounds of appeal

  2. I allow the appeal against sentence. Having found error, I consider, having regard to the need for finality and the interests of justice, it is preferable for me, rather than to remit the matter to the Magistrates Court, to re-exercise the sentencing discretion.

    Resentence

  3. In re-sentencing the respondent, I have had regard to all of the submissions advanced by the parties and to the evidence given by the respondent before this Court. I have considered all of the submissions advanced, including the submissions concerning the trifling application.

    Licence disqualification period

  4. On the appeal, the respondent gave evidence in respect of whether the offence was ‘trifling’, pursuant to s 47BA(4)(b) of the Act. Submissions were also advanced by the respondent in support of that application.

  5. On the appeal, the respondent gave evidence in respect of whether the offence was trifling pursuant to s 47BA(4)(b) of the Act. The submissions advanced by the respondent in support of the application were that his circumstances were exceptional. The respondent indicated that he drove a limited distance of between 500m and 1km. The respondent indicated that he drove for work purposes and he was required to maintain his driver's licence to maintain his employment contracts. The respondent indicated that this was an isolated incident and submitted that licence disqualification was a harsh and disproportionate penalty and would cause undue hardship due to his need to maintain his employment. The respondent sought to distinguish the cases relied upon by the appellant on the basis that the cases cited involved blood alcohol readings which were high.[20]

    [20]   Police v Garnett [2017] SASC 125 (Stanley J); Police v Davidson (Supreme Court of South Australia, Nyland J, 31 October 1997).

  6. The appellant submitted that the offence was not trifling and, amongst other things, contended that the offence in the case before this Court was an ordinary example of the offence, and that an ordinary example of an offence was not capable of satisfying the ‘trifling’ test in s 47BA(4)(b) of the Act.

  7. Having regard to the principles in Siviour-Ashman v Police[21] and having regard to the need to assess the conduct of the offending and circumstances surrounding it as a whole, I find that that the offence was not trifling.  I accept the appellant’s submission that the offence involved consumption of a cannabis product, which led to a positive reading at a roadside random breath testing station, and that this is an ordinary example of the offence.

    [21]   Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27-31, [23]-[42] (Doyle CJ). See also Police v Garnett [2017] SASC 125 at [7]-[8] (Stanley J) and Police v Davidson (Supreme Court of South Australia, Nyland J, 31 October 1997) at 1-2.

  8. I therefore impose a licence disqualification period of 6 months, in accordance with s 47BA(4)(a)(i) of the Act.

    Fine

  9. In Glover v Romanowcyz, which considered the predecessor to s 25 of the Sentencing Act, White J held: [22]

    Section 17 is the machinery specifically providing for amelioration of any injustice arising from minimum pecuniary penalties in special Acts such as this. Normally the legislature only fixes a maximum penalty, leaving it to the courts to fix lesser penalties in particular cases. Where the legislature fixes minimum penalties in special Acts, the courts would be bound, in the absence of a power like that given by s 17 of the Sentencing Act, to insist that the minimum penalty be paid no matter how harsh that result might be. Section 17 was the appropriate section to use if a reduction was in fact called for.

    [22]   Glover v Romanowcyz (1991) 55 SASR 524 at 528 (White J). See also Golden King (Australia) Pty Ltd v Dietman [2014] SASC 183; (2014) 121 SASR 230 at 238-9, [40] (Stanley J). Cf Cresswell v Bates (1989) 9 MVR 176 at 179 (Jacobs J).

  10. Whist s 25 of the Sentencing Act may provide power for the reduction of the fine, I do not consider that there was ‘good reason’ in reducing the fine below $900 in this case.  Having regard to the circumstances of the offending, the circumstances of the respondent, and the relevant statutory provisions, on a re-exercise of the sentencing discretion, I consider a fine of $900 should be imposed.

    Recording a conviction

  11. The appellant submits that it is open to this Court to decline to record a conviction in respect of the offence, pursuant to s 24 of the Sentencing Act, provided the conditions in that section are satisfied.

  12. The respondent makes the same submission.  In support of that submission, he states that he is unlikely to commit the offence again, and that having regard to his prior good character, that the offence was trifling, and that as his line of work is dependent on driving, there is good reason that exists to not record a conviction.

  13. The Court of Appeal in Varma held that the operation of what was then s 16 of the Criminal Law (Sentencing) Act 1988 (SA)[23] did not preclude declining to record a conviction after having imposed a mandatory licence disqualification period.[24]

    [23] Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) is in analogous terms to s 24 of the Sentencing Act 2017 (SA).

    [24]   Police v Varma [2013] SASCFC 72; (2013) 116 SASR 532 at 544, [37] (Gray, Sulan and Blue JJ). See further Cresswell v Bates (1989) 9 MVR 176 (Jacobs J); Janz v Woolven (1990) 55 SASR 239 (King CJ, with Duggan and Mullighan JJ agreeing).

  14. Varma has similarly since been followed as authority for the proposition that s 24 of the Sentencing Act is not rendered inoperable by virtue of the fact that a mandatory licence disqualification period under the Act is imposed upon conviction of a person.[25]  The decision in Varma is binding upon me.

    [25]   Heyne v Police [2019] SASC 52; (2019) 133 SASR 429 at 436, [42] (Parker J).

  15. The provision is founded on an assumption that the usual course is to record a conviction.[26] I accept, following Varma, there is power not to record a conviction. That said, for the reasons that follow, I do not consider that the discretion under s 24 of the Sentencing Act is enlivened in this case.  I have formed this view having regard to the matters set out below, as to the ordinary reading of that provision and to the principles set out in the decisions of Duggan J in Roder v Police[27] and in particular to the application of those principles by the Full Court in Varma.

    [26]   Sims v Police (SA) [2000] SASC 102; (2000) 30 MVR 524 at 525, [7] (Bleby J).

    [27]   Roder v Police [2000] SASC 432; (2000) 32 MVR 359 at 362-3, [16]-[18] (Duggan J).

  16. I have regard to the submissions of the respondent that he would not commit this offence again and that the cannabis products were consumed over a day prior to the roadside test.  The appellant made no submission as to whether the defendant was unlikely to commit this offence again.[28]  The appellant also took no position on whether or not this Court should record a conviction. I find that course remarkable, particularly given this is a Crown appeal, and having regard to the legislative intent of the Expiation of Offences Act 1996 (SA) as referred to by Blue J in Walker v Police (SA).[29]

    [28] Sentencing Act 2017 (SA) s 24(a).

    [29]   Walker v Police (SA) [2014] SASC 32; (2014) 66 MVR 190 (Blue J).

  17. I have regard notably to the fact that the offence against s 47BA of the Act is one which can be said to generally be committed unintentionally.[30] Having regard to the evidence given by the respondent in this Court, I am not persuaded that the respondent is unlikely to commit the offence again.

    [30] See, eg, noting that the case concerned offences against ss 45(3) and 47(1)(a) of the Road Traffic Act 1961 (SA), Police v Varma [2013] SASCFC 72; (2013) 116 SASR 532 at 544-5, [39]-[40] (Gray, Sulan and Blue JJ).

  18. The Court must also have regard to, in assessing whether there is good reason for not recording a conviction:[31]

    (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.

    [31]   Sentencing Act 2017 (SA) s 24(b).

  19. I have had regard to the respondent’s age and lack of antecedents.  Of note, as was stated before the learned Magistrate, this was the first offence in relation to the respondent.[32]  That said, I consider, as was noted by the Full Court in Varma, that a person coming before this Court with no antecedents in relation to an offence of this type is unremarkable.[33]

    [32]   AB (Remarks on Penalty of Magistrate Browne, 1 May 2025) at 5.

    [33]   Police v Varma [2013] SASCFC 72; (2013) 116 SASR 532 at 545, [42]-[43] (Gray, Sulan and Blue JJ).

  20. I have already determined, in accordance with s 47BA(4)(b) of the Act, that the offence was not trifling.

  21. As to extenuating circumstances, the respondent submitted that the recording of a conviction had the potential to occasion an adverse effect upon his career as he submitted his work was in the technology space within schools, hospitals, and sometimes military bases.

  22. In my view, what amounts to extenuating circumstances should be something that is exceptional or takes the case out of the ordinary type of case.  Such an approach is required by reason of the text of the statutory provision, which, read in context, provides for a statutory scheme which encourages expiation so as to avoid the risk of a conviction being recorded.  This topic was most recently discussed by the Court of Appeal in City of Playford v Mathie, noting that ‘despite the implication of criminal liability, the expiation scheme is fundamentally administrative in nature.’[34] In that regard, the Court quoted Blue J in Walker v Police (SA) as follows:[35]

    The object of the Act is to provide a simple and expedient alternative to the institution of prosecution proceedings for relevant summary offences. This provides advantages to the issuing authority in avoiding the time and expense of instituting criminal proceedings. It provides advantages to alleged offenders of avoiding the time, expense, distraction and emotional cost of being involved in criminal proceedings and it also avoids any finding of guilt being made or conviction being recorded against the alleged offender. It provides advantages to the government in that it reduces the resources otherwise committed to and expenses otherwise incurred in a larger court system to deal with prosecutions for all summary offences.

    (own emphasis added)

    [34]   City of Playford v Mathie [2025] SASCA 45 at [55] (Kourakis CJ, S Doyle and David JJA).

    [35]   Walker v Police (SA) [2014] SASC 32; (2014) 66 MVR 190 at 197, [26] (Blue J).

  23. The lack of a recorded conviction, or finding of guilt, is a feature of the expiation scheme.[36] The respondent ran the risk of the recording of the conviction by his election to be prosecuted.  This consequence is difficult to reconcile with the respondent’s submission that he sought to have the matter brought before the Court to avoid a conviction being recorded.

    [36]   Expiation of Offences Act 1996 (SA) s 15(4).

  24. Having regard to all of these matters, I do not find that good reason exists for not recording a conviction.

    Conclusion and orders

  25. I allow the appeal and resentence the appellant. The orders of this Court will be:

    1.That the sentence of the learned Magistrate imposed on 1 May 2025 be set aside;

    2.That the respondent be disqualified from holding or obtaining a driver’s licence for a period of six months from today’s date, pursuant to s 47BA(4)(a)(i) of the Road Traffic Act 1961 (SA);

    3.That the respondent be fined $900, pursuant to s 47BA(1)(a) of the Road Traffic Act 1961 (SA); and,

    4.That a conviction be recorded in respect of the offence of driving with a prescribed drug in oral fluid or blood, committed on 12 November 2024.

  26. I will hear from the parties as to any other matters.


Most Recent Citation
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