Police v Varma
[2013] SASCFC 72
•2 August 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v VARMA
[2013] SASCFC 72
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
2 August 2013
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
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 - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The defendant pleaded guilty in the Magistrates Court to driving while under the influence and without due care. The Magistrate imposed a fine and licence disqualification, but exercised discretion under section 16 of the Criminal Law (Sentencing) Act 1988 (SA) not to record a conviction.
The Police appeal against the decision not to record convictions on the grounds that the Magistrate had no power to do so or alternatively erred in the exercise of her discretion.
Held (by the Court):
(1) The mandatory licence disqualification under section 47(3) of the Road Traffic Act 1961 (SA) upon conviction for driving under the influence is triggered by a formal finding of guilt which is not avoided by exercise of the discretion under section 16 of the Sentencing Act not to record a conviction (at [18]-[23]).
(2) The imposition of a licence disqualification does not prevent exercise of discretion under section 16 of the Act not to record a conviction (at [27]-[34]).
(3) There was no material before the Magistrate capable of satisfying her that the defendant was unlikely to commit either of the offences again (at [40]-[42]).
(4) The material before the Magistrate was incapable of satisfying the Magistrate, having regard to the factors prescribed in section 16(b) of the Sentencing Act, that good reason existed for not recording a conviction (at [40], [43]-[44]).
(5) Appeal allowed. Decision of the Magistrate not to record convictions set aside. Defendant convicted of each offence and otherwise penalties imposed by the Magistrate confirmed (at [46]).
Road Traffic Act 1961 (SA) s 45, s 47(1) and s 47(3); Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 18 and s 20, referred to.
Hemming v Mundy (2001) 213 LSJS 453, applied.
Hyde v Police (2006) 246 LSJS 275; Police v McDiarmid (2010) 55 MVR 597, not followed.
Griffiths v The Queen (1977) 137 CLR 293; Maxwell v The Queen (1996) 184 CLR 501; Miles v Police (2009) 104 SASR 127; Janz v Woolven (1990) 55 SASR 239, discussed.
R v Jerome and McMahon [1964] Qd R 595; Police v Berzins (2011) 111 SASR 319; Roder v Police (2000) 32 MVR 359; Sadler v Police (2010) 56 MVR 439, considered.
POLICE v VARMA
[2013] SASCFC 72Full Court: Gray, Sulan and Blue JJ
THE COURT.
On 31 January 2013, the defendant and respondent, Daniel Dhiren Varma, pleaded guilty in the Magistrates Court to the offences of driving without due care[1] and driving while under the influence.[2]
[1] Road Traffic Act 1961 (SA) section 45.
[2] Road Traffic Act 1961 (SA) section 47(1)(a).
Following submissions, the Magistrate found that good reason existed not to record convictions. The Magistrate then, without recording convictions, imposed a fine and a licence disqualification and made an order that the defendant pay court costs and vehicle impounding costs.
The Police appealed against the decision of the Magistrate not to record convictions. On 2 May 2013, the appeal was listed for hearing before a Judge of this Court who, with the agreement of both parties, referred the appeal to the Full Court. The reason for the referral was that one of the grounds of appeal advanced by the Police was that the Magistrate’s decision not to record convictions was beyond power.
Background
On 19 August 2012, at about 6.45 am, the defendant was driving on Main South Road near Sellicks Beach. A witness observed the defendant’s vehicle veering between lanes. The witness called the police, who attended at a residence at Sellicks Beach. The vehicle was parked in the driveway. During conversation at the residence, the defendant was observed by the attending police officers to be unsteady and appeared to be under the influence of alcohol. He was subjected to testing which disclosed a blood alcohol reading of 0.180 grams of alcohol in 100 millilitres of blood. The defendant made admissions to police that he had been drinking prior to driving and that he had consumed no further alcohol after he arrived home.
At the time of sentencing, the defendant was 28 years of age. He was of good character and had no criminal antecedents. He was a medical practitioner engaged in neurological research. He intended to undertake further studies and research at the Johns Hopkins Institute in the United States of America. At that time, the defendant was engaging in locum work and also in pursuing his semi-professional soccer career. The defendant was seeking to increase his financial resources to enable him to finance his research at the Johns Hopkins Institute. A character reference from a medical specialist described the defendant as a responsible person who is well respected by his colleagues, and a medical practitioner who has demonstrated respect for patients and their families. He was described as a valuable member of the medical profession.
The Magistrate exercised a purported discretion not to record a conviction on either count on the basis that there were extenuating or special circumstances, observing as follows:
I have also considered more importantly the registration standard that the Medical Board of Australia adheres to and even though in the law we consider traffic offences not to be criminal history, it would appear that the Medical Board of Australia does consider any conviction or any finding of guilt recorded for any charge to be a criminal history. In particular, the definition of criminal history includes either plea of guilty or finding of guilt whether or not a conviction is recorded for the offence and that offending goes beyond criminal offending and can include traffic offending.
With respect to the requirements of the Criminal History Registration Standard that has been submitted to me by [counsel for the defendant], it is indicated that less adversity and relevance is given to an individual who has had no conviction recorded despite a plea of guilty. In the circumstances, [counsel for the defendant] has indicated that I should invoke Section 16 of the Criminal Law (Sentencing) Act 1986 [sic] knowing this is an exceptional and unusual circumstance that this person finds himself in. It is clear that traffic offences normally do not warrant a Section 16 situation where no conviction is recorded. However, in the case of [the defendant], it appears to me that he will be adversely affected more than the average person and the penalty, given his background and given his career prospects, is a heavy penalty indeed, if in fact the Medical Board of Australia does take such an adverse view as indicated to me today with respect to the recording of a conviction for traffic offences.
I am mindful that [the defendant] has come before the court with no prior history whatsoever. He is a young man with exceptional skills and has a career ahead of him which would have a detrimental effect upon it if a conviction is recorded. I note that the prosecution is opposed to no conviction being recorded and that is understandable given that this is a traffic matter, but I do consider there are extenuating circumstances in this case because of the Medical Board of Australia’s Criminal History Registration Standard.
I am also convinced that [the defendant] will not commit this kind of offence again and I find good reason does exist to not record a conviction on counts 1 and 2 on the basis that there are extenuating or special circumstances for the reasons I have just outlined. He did co-operate with the authorities and did state he had not consumed any other alcohol at home when the Police arrived later. He does not come before the court for any previous offending whatsoever and for all these reasons there will be no conviction with respect to this matter.
It is to be recalled that against this background, the Magistrate sentenced the defendant, without recording convictions, to a fine, a licence disqualification, impounding costs and court costs.
Before coming to discuss the issues on the appeal, it should be pointed out that the prosecutor made no submission to the Magistrate that it was beyond her power to not record a conviction on the two counts. However, as noted by the Magistrate, the prosecutor opposed the non-recording of convictions, submitting that the circumstances precluded such a course.
The Appeal – The Issue of Power
The Solicitor-General, who appeared for the Police on the appeal, submitted that the Magistrate did not have power to proceed without recording convictions. This submission was based on a suggested analysis and construction of relevant statutory provisions.
The offence of driving without due care involved a breach of section 45 of the Road Traffic Act 1961 (SA). That section relevantly provides:
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
…
The offence of driving under the influence involved a breach of section 47(1)(a) of the Road Traffic Act. That section provides:
(1) A person must not—
(a) drive a vehicle; or
(b) attempt to put a vehicle in motion, while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
Penalty:
(a) if the vehicle concerned was a motor vehicle—
(i) for a first offence—
(A) a fine of not less than $1 100 and not more than $1 600; or
(B) imprisonment for not more than 3 months; and
(ii) for a subsequent offence—
(A) a fine of not less than $1 900 and not more than $2 900; or
(B) imprisonment for not more than 6 months;
(b) if the vehicle concerned was not a motor vehicle—$500.
(2)For the purposes of subsection (1), a person is incapable of exercising effective control of a vehicle if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired.
This subsection does not restrict the meaning of the words "incapable of exercising effective control of a vehicle".
(3)Where a court convicts a person of an offence against subsection (1) in which the vehicle concerned was a motor vehicle, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than twelve months as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(d) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;
(e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section.
(4)In determining whether an offence is a first or subsequent offence for the purposes of this section, 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.
The Solicitor-General drew particular attention to section 47(3)(a) of the Road Traffic Act, which provides for a mandatory disqualification of licence. It is to be noted that section 47(3)(a) refers to “convicts” and not to “recording a conviction”.
Attention was also drawn to section 16 of the Criminal Law (Sentencing) Act 1988 (SA), which provides:
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.
It was pointed out that section 16 is within Division 2 of the Sentencing Act. Attention was drawn to section 20 from the same Division, which is in the following terms:
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 was the submission of the Solicitor-General that “convicts” in section 47(3)(a) requires the formal recording of a conviction. It was the submission of the defendant, on the other hand, that the word “convicts” appearing in section 47(3)(a) encompasses a finding of guilt and also an acceptance of a plea of guilty.
The High Court, in several decisions, has considered the meaning of the words “convict” and “conviction” and has noted the several meanings that may attach. In Griffiths,[3] the High Court approved the following statements of Gibbs J in Jerome and McMahon:[4]
In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons.
[3] Griffiths v The Queen (1977) 137 CLR 293.
[4] R v Jerome and McMahon [1964] Qd R 595, 604.
In Maxwell, Dawson and McHugh JJ when approving the above extract, observed:[5]
And that view was implicitly (explicitly in the case of Aickin J) adopted by a majority of this Court in Griffiths v The Queen. Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.
In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court, a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester:
It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.
It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. For that reason, it seems to us that the hesitancy displayed by Gibbs J, when he said in the passage cited above from R v Jerome and McMahon that a determination of guilt may “even perhaps” be made “by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained”, was justified.
[Emphasis added. Footnotes omitted.]
[5] Maxwell v The Queen (1996) 184 CLR 501, 508-509; see also Miles v Police (2009) 104 SASR 127.
The above propositions are also supported by the following observations of Toohey J in Maxwell:[6]
[6] Maxwell v The Queen (1996) 184 CLR 501, 519-521.
In Burgess v Boetefeur, Tindal CJ said:
The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.
However, in Cobiac v Liddy, Windeyer J said that if "more strictly legal sense" meant use by lawyers: "I think the opposite of what he said is more accurate." In the same case McTiernan J said of "conviction":
[It] may mean a mere determination of guilt or a finding of guilt plus a judgment on the finding.
The meaning of "conviction" generally depends on determining the sense in which it is used in the statute under consideration. For example, where "conviction" is used in the statutory context of sentencing guidelines, it clearly refers to the determination of guilt alone. While in the present case an understanding of conviction or convicted is to be considered in the general context of the Act, there is nothing in the Act relevantly to suggest that the common law understanding of these terms has been displaced.
…
In R v Tonks, the Full Court of Victoria held that "[a] conviction is a determination of guilt" but that a plea of guilty was not in itself a conviction as there had to be some act on the part of the court to indicate a determination of the question of guilt. This was followed by Gibbs J in R v Jerome and McMahon. In Cobiac v Liddy, Windeyer J examined the cases, statutes and writings and concluded that there is a distinction between conviction and judgment. In Griffiths v The Queen, Jacobs J and Aickin J differentiated between conviction and judgment, holding that the former preceded the latter. Judgment may arise from the recording of the conviction or from the passing of sentence. The same view was also taken in Frodsham v O'Gorman, Director of Public Prosecutions v McCoid and Della Patrona v Director of Public Prosecutions [No 2]. Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.
There are a number of ways in which a court may show acceptance of a guilty plea. The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction. Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier. The allocutus was not given here. There may also be implied acceptance, for instance, by proceeding to pass sentence, or by calling for the record from the gaol recorder. In Griffiths v The Queen, Aickin J held that the remanding of an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty because the step of remanding could not be taken without there having been a conviction. In the present case, the appellant was remanded for sentence on 25 October 1993 and so, on Aickin J's view, there was already a conviction. There may be a conviction when the judge enters into a consideration of what should be done in relation to sentencing, for example, by hearing evidence relevant to sentencing, or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentencing to be obtained.
In Griffiths v The Queen, Jacobs J held that, whether a conviction arose from a jury verdict or a plea of guilty, there was a conviction when the verdict or plea was recorded. In the present case, the plea of guilty was not formally recorded. The only relevant record in the appeal book is an endorsement by the judge's associate against "Plea" as follows:
Not guilty of murder but guilty of manslaughter — accepted by Crown in full satisfaction of indictment.
The absence of a formal record is not determinative as that is a purely administrative act and court practice is not consistent
[Emphasis added. Footnotes omitted.]
In our view, the submission that the word “convicts” as used in section 47(3)(a) of the Road Traffic Act includes both a finding of guilt and an acceptance of a plea of guilty is correct.
The phrase “recording a conviction” is a reference to an act of a judicial officer formally pronouncing that a finding of guilt is to be recorded as a conviction. A finding of guilt amounts to a conviction. A decision then needs to be made as to whether to record that conviction.
Once it is understood that the acceptance of a plea of guilty falls within the meaning of “convicts”, it follows that the Magistrate in the present proceeding convicted the defendant, despite having not formally recorded that conviction.
It is to be noted that section 16 of the Sentencing Act provides a court with a discretion to impose a penalty without recording a conviction. That discretion is enlivened by a court forming the opinion that the defendant is unlikely to commit such an offence again and the further opinion that, having regard to specific matters, the court considers good reason exists for not recording a conviction.
The Solicitor-General drew the Court’s attention to section 20 of the Sentencing Act and emphasised that the terms of that section made it plain that section 16 does not derogate from the terms of section 47(3)(a) of the Road Traffic Act. That subsection, as noted above, required the Court to impose a mandatory licence disqualification. We agree that section 16 of the Sentencing Act does not derogate from section 47(3)(a) of the Road Traffic Act, and that it remained the obligation of the Court to impose a licence disqualification in accordance with that provision.
We do not, however, consider that section 16 of the Sentencing Act operates so as to reduce, mitigate or substitute any other penalty or sentence in respect of the mandatory licence disqualification. To the contrary, in the event that a court accepts a plea of guilty or makes a finding of guilt, the court has relevantly convicted the defendant. In these circumstances, section 47(3)(a) operates according to its terms.
The Solicitor-General submitted that this Court, in an earlier decision, expressed a contrary view. In Janz v Woolven,[7] the Court was concerned with the question of whether section 16 of the Sentencing Act,[8] as it was then enacted, could have any application to an offence against section 47B of the Road Traffic Act. Section 47B(3) is relevantly the equivalent for present purposes of section 47(3)(a). The Court in Janz v Woolven[9] considered that the mandatory licence disqualification prescribed by section 47B(3) depended on a defendant being convicted and that section 16 would derogate from that provision. King CJ concluded his reasons on this topic by observing:[10]
I have been somewhat troubled by the difference in the wording of s 20 and s 37, but I have reached the conclusion that the effect of s 20 is the same and that the power under s 16 cannot be exercised so as to avoid the mandatory licence disqualification. I agree with the reasoning of Jacobs J in Cresswell v Bates and see no point in repeating it.
[7] Janz v Woolven (1990) 55 SASR 239.
[8] Section 16 as considered in Janzv Woolven (1990) 55 SASR 239 provided as follows:
Where a court finds a person guilty of an offence for which it proposes to impose a fine (but no other penalty) 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;
(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 fine without recording a conviction.
[9] Janz v Woolven (1990) 55 SASR 239.
[10] Janz v Woolven (1990) 55 SASR 239, 242.
It is relevant to observe that no submission was put to the Court in Janz v Woolven[11] that “conviction” includes the acceptance of a plea of guilty or the finding of guilt. The reasoning of King CJ, with whom the other members of the Court agreed, proceeded on the basis that the power under section 16 could not be exercised so as to avoid the mandatory licence disqualification required by section 47B(3).
[11] Janz v Woolven (1990) 55 SASR 239.
As discussed above, this Court accepts that the words convict, convicts and conviction include an acceptance of a plea of guilty, a finding of guilt, as well as the formal recording of a conviction.
The Solicitor-General further submitted that the power of a court to act under section 16 of the Sentencing Act only arises where the court proposes to impose a fine, a sentence of community service, or both and no other penalty. It was said that, as an additional penalty by way of licence disqualification was to be imposed, there was no power to act under section 16.
There is nothing in the language or the introductory words of section 16 of the Sentencing Act which limits the circumstances in which a court can exercise its discretion not to record a conviction to those in which the only penalty proposed is a fine, a sentence of community service, or both. The Solicitor-General’s contention seeks to read in words to the effect “but no other penalty” after the word “both” in section 16.
The Sentencing Act proceeds on the basis that the principal types of sentence or penalty which can be imposed are imprisonment, fines and community service.[12] This is reinforced by the terms of subsection 18(a) of the Sentencing Act, which provides:
Where, on convicting a defendant or finding a defendant guilty of an offence, the Court thinks that good reason exists for departing from the penalty provided by the special act, the court may sentence the defendant as follows:
(a) Where the special act prescribes a sentence of imprisonment only for the offence, the court may instead impose –
(i)a fine; or
(ii)a sentence of community service; or
(iii)both a fine and a sentence of community service.[13]
[12] The Sentencing Act provides for these in Part 3 – Imprisonment, Part 4 – Fines and Part 6 – Community service and supervision.
[13] See, generally, Police v Berzins (2011) 111 SASR 319, 331-332 per Gray J (David and Stanley JJ agreeing).
The evident purpose of providing that section 16 may be applied where the court proposes to impose a fine, a sentence of community service, or both is to exclude those cases in which a court proposes to impose a sentence of imprisonment. There is nothing in the structure, context or evident purpose of section 16 which indicates that the power to act under the section is excluded merely because a court imposes an ancillary penalty such as a licence disqualification.
When section 16 of the Sentencing Act was first enacted in 1988, it empowered a court to not record a conviction only in circumstances where the court proposed to impose a fine and then expressly added the words “but no other penalties”. In 1991, those words were deleted. The legislative history suggests that Parliament did not intend to confine the operation of section 16 to situations in which no ancillary penalty is imposed in addition to a fine, or later, in addition to a fine, a sentence of community service, or both.
In Hemming v Mundy,[14] Martin J held that section 16 of the Sentencing Act was not confined to the situation in which a court does not propose to impose any additional penalty beyond a fine, a sentence of community service, or both. His Honour observed:[15]
[14] Hemming v Mundy (2001) 213 LSJS 453.
[15] Hemming v Mundy (2001) 213 LSJS 453, 458-460.
The decisions in Glover v Haseldine and Glover v Romanowcyz had the effect of strictly circumscribing the ambit of the operation of s 16. Not only did mandatory additional penalties, including additional monetary penalties, licence disqualification and forfeiture, prevent the operation of s 16, but if the court imposed an additional penalty of any description in the exercise of the sentencing discretion, s 16 was inapplicable.
Section 16 of the Sentencing Act was amended by the Statutes Amendment (Criminal Law Sentencing) Act 1991 (SA). The words "(but no other penalty)" were deleted and the words "a sentence of community service, or both" were inserted. In Clark v Glover Perry J observed that, in view of the amendment, the decisions in Glover v Haseldine and Glover v Romanowcyz must now be regarded as open to question in so far as they might be thought to govern the operation of s 16 …
In my opinion, the deletion in 1991 of the words "but no other penalty" is significant. In its original form, the words "but no other penalty" in s 16 encompassed a penalty additional to the penalty prescribed for an offence. If Parliament had intended in 1991 to widen the operation of s 16 only to the extent of including those matters in which a sentence of community service was imposed, the mere addition of reference to community service orders would have achieved that limited purpose. In that event it would have been unnecessary to remove the words "but no other penalty". In choosing to delete the words "but no other penalty", in my opinion Parliament evinced an intention that the imposition of a penalty additional to the penalty prescribed for an offence should not prevent the operation of s 16.
It is necessary to have regard to the scheme of the relevant provisions of the Sentencing Act and the particular purpose of s 16. Division 2 of the Sentencing Act is concerned with general sentencing powers. Sections 15-18 are ameliorating provisions which enable the court in identified circumstances to extend leniency. The power to extend leniency is circumscribed by s 20 which provides that nothing in Div 2 derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences. …
…
Section 16 permits the court to exercise the power not to record a conviction in circumstances where the court proposes to impose a fine or community service or both for the particular offence. This allows for the exercise of the power where the gravity of the offending is more serious than the offending which would permit the use of the power in either of s 15 or s 39. Viewed in this way, the operation of s 16 is circumscribed by the gravity of the offending as reflected in the penalty of a fine or community service or both.
Section 16 is one of a number of remedial provisions and it should be construed beneficially: Bull v A-G (NSW) … The penalty the court "proposes" to impose for that offence is the penalty fixed within the constraints of the maximum penalty prescribed for that particular offence. The possibility of a penalty additional to that prescribed for the offence is irrelevant in determining the penalty the court "proposes" to impose for the offence, regardless of whether the additional penalty must be imposed by force of legislation or is an additional penalty that the court imposes by way of discretion.
In my view, this interpretation accords with the ordinary and natural meaning of the words and best achieves the remedial objects of s 16. It is an interpretation that accords with the 1991 removal from s 16 of the words "but no other penalty". On the other hand, if the alternative view was correct, the existence of a mandatory penalty such as that prescribed by s 66 of the Fisheries Act or a decision to impose an additional penalty by way of licence disqualification or forfeiture would dictate that s 16 was inapplicable. This interpretation would unduly restrict the ambit of the operation of s 16 and it would work injustice. For example, a relatively minor offence might attract a mandatory additional penalty or a discretionary additional penalty such as forfeiture and, notwithstanding the minor nature of the offence, the court would be obliged to record a conviction.
[Footnotes omitted.]
In Hyde,[16] Bleby J distinguished Hemming v Mundy[17] and held that, where a court proposes to impose a licence disqualification which is mandatory under section 47B, section 16 of the Sentencing Act is not available because the necessary criterion of proposed fine, community service, or both was exclusive of any other proposed penalty.[18] In Miles,[19] Kourakis J, as he then was, expressed doubt about the correctness of Hemming v Mundy[20] and followed the approach of Bleby J in Hyde.[21] In McDiarmid,[22] Kelly J followed the approach of Kourakis J in Miles.[23]
[16] Hyde v Police (2006) 246 LSJS 275.
[17] Hemming v Mundy (2001) 213 LSJS 453.
[18] Hyde v Police (2006) 246 LSJS 275, 280.
[19] Miles v Police (2009) 104 SASR 127.
[20] Hemming v Mundy (2001) 213 LSJS 453.
[21] Hyde v Police (2006) 246 LSJS 275.
[22] Police v McDiarmid (2010) 55 MVR 597, [18].
[23] Miles v Police (2009) 104 SASR 127.
The decision in Hemming v Mundy[24] should be followed in preference to the decisions in Hyde,[25] Miles[26] and McDiarmid.[27]The mere fact that a court proposes, or is required, to impose by way of additional penalty a licence disqualification does not deprive the court of power to act under section 16 of the Sentencing Act where the court also proposes to impose a fine, a sentence of community service, or both.
[24] Hemming v Mundy (2001) 213 LSJS 453.
[25] Hyde v Police (2006) 246 LSJS 275.
[26] Miles v Police (2009) 104 SASR 127.
[27] Police v McDiarmid (2010) 55 MVR 597.
It follows that the Magistrate in the present proceeding had the power under section 16 of the Sentencing Act to proceed without recording convictions, provided that the preconditions contained in subsections 16(a) and 16(b) were satisfied. The Magistrate’s acceptance of the defendant’s unequivocal plea of guilty relevantly was a conviction for the purposes of section 47(3)(a) of the Road Traffic Act. Accordingly, the Magistrate was obliged to impose the mandatory licence disqualification in accordance with that section. The defendant did not challenge the Magistrate’s obligations in this respect, either in the Magistrates Court or in this Court.
The Solicitor-General raised section 15 of the Sentencing Act. That section provides:
(1)Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a) without recording a conviction, dismiss the charge; or
(b) upon recording a conviction, discharge the defendant without penalty.
(2)A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
We do not consider that this provision detracts from our earlier reasoning. The section refers to either a dismissal of the charge, or a discharge of a defendant.
For these reasons, we conclude that the Magistrate had a discretion, once enlivened in accordance with the terms of section 16, to proceed without recording convictions.
The Appeal – The Discretion
We turn to the remaining complaint on the appeal. It was the submission of the Solicitor-General that, even if the Magistrate did have the power to exercise her discretion under section 16 of the Sentencing Act, that discretion miscarried in the circumstances. The Solicitor-General therefore submitted that this Court should reconsider whether the discretion under section 16 was enlivened in the circumstances of this case and should reach the conclusion that convictions should be recorded on both counts.
The Solicitor-General submitted that the circumstances in which it would be appropriate to apply section 16 to an offence of driving without due care must be rare. Generally such an offence would be committed unintentionally and, accordingly, it would be very difficult for a court to be able to form the opinion that a defendant would be unlikely to commit such an offence again. The Court’s attention was drawn to the following observations of Duggan J in Roder:[28]
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.
[28] Roder v Police (2000) 32 MVR 359, [16]; see also Sadler v Police (2010) 56 MVR 439, [18].
We do not consider that there was any adequate basis to enliven the discretion to proceed without recording a conviction on the charge of driving without due care. It cannot be concluded that the defendant is unlikely to commit the offence again. Nor can it be said that the character, antecedents, age, or physical or mental condition of the defendant gave rise to good reason not to record a conviction. Nor can it be said that the offence was trifling. Nor can any other extenuating circumstances be identified. The Magistrate’s discretion miscarried. The defendant should be convicted of the offence of driving without due care.
As earlier noted, the Magistrate, in her reasons as extracted above, concluded, “I am also convinced that [the defendant] will not commit this kind of offence again…”. This would appear to be a reference to the drink driving offence. The Solicitor-General submitted that there was no material before the Magistrate that would justify this finding or conclusion. Nothing was said in the reasons of the Magistrate about the reasons for the defendant’s intoxication on this occasion. A reading of 0.180 is a high reading. It may be inferred that the defendant had consumed a substantial quantity of alcohol. No explanation was provided to the Court as to why he had consumed alcohol, why he had consumed such a quantity of alcohol and why he had chosen to drive when in such an intoxicated state. In the absence of such information or explanation, it was not open to the Magistrate to be satisfied that the defendant would not reoffend.
Counsel for the defendant accepted that no explanation had been offered to the Magistrate. In the further material tendered before this Court, no explanation of these matters has been advanced. In these circumstances, we consider that the Magistrate’s discretion miscarried. Not only did the Magistrate fail to identify any material to support her conclusion, there was nothing in the material, either before the Magistrate or this Court, to justify such a conclusion.
Further, the other matters identified in section 16 of the Sentencing Act also call for close attention. The fact that the defendant was 28 years of age, was of good character, had no criminal antecedents and was physically and mentally fit, did not, to our minds, provide good reason for not recording a conviction. Many offenders before the courts have these attributes. Drink driving offending is serious. The defendant drove his motor vehicle while his faculties were materially impaired. He was a danger to other road users. The above matters, in our view, do not give rise to good reason not to record a conviction.
Finally, the Court is to consider whether there were any other extenuating circumstances. In this respect, counsel for the defendant submitted that a drink driving conviction may have an adverse effect on the defendant’s medical career and, in particular, his pursuit of studies at the Johns Hopkins Institute in the United States of America. A substantial body of material addressed the defendant’s high standing as a medical practitioner and his high standing as a researcher. It is clear from that material that the Johns Hopkins Institute is keen to have the defendant attend and to pursue his research at the Institute. However, there is no evidence that a conviction for drink driving will preclude him from continuing as a medical practitioner or as a medical researcher, either in this country, in the United States of America, or elsewhere. On the material before this Court, the defendant’s registration as a medical practitioner in Australia has been renewed. The Registration Board was aware at the time that it considered his renewal application of his offending the subject of these proceedings. There is no evidence that would justify a finding that his prospects of attending the Johns Hopkins Institute would be materially impaired by the recording of convictions.
The above analysis compels the conclusion that the prerequisites to enliven a discretion under section 16 of the Sentencing Act to proceed without recording a conviction have not been established. There is no material that justifies the conclusion that the defendant is unlikely to commit the offence of drink driving again. There is no material which establishes that good reason exists for not recording convictions.
Conclusion
For these reasons, we allow the appeal. The decision of the Magistrate not to record convictions is set aside. The defendant is convicted of the offence of driving without due care. The defendant is convicted of the offence of driving under the influence. Formal convictions are recorded. Otherwise, the penalties imposed by the Magistrate are confirmed.
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