Police v Varma

Case [2013] SASCFC 72

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 72

Full Court:      Gray,…

Continue reading Police v Varma

Sign in free to access the full text

Details
AGLC
Police v Varma [2013] SASCFC 72
Case
[2013] SASCFC 72
Decision Date

CaseChat Overview and Summary

The Police appealed to the Full Court of the Supreme Court of South Australia against a Magistrate's decision not to record convictions against the defendant, who had pleaded guilty to driving under the influence of intoxicating liquor and driving without due care and attention. The defendant was observed driving erratically and subsequently provided a blood alcohol reading of 0.180 grams of alcohol in 100 millilitres of blood.

The central legal issue before the Full Court was whether the Magistrate had erred in exercising a discretion not to record convictions, particularly concerning the grounds that the decision was beyond power and that the Magistrate had misapplied the relevant legal principles. The Magistrate had relied on the defendant's good character, promising career as a medical practitioner, and the potential adverse impact on his future studies and professional registration if a conviction were recorded, citing the Medical Board of Australia's Criminal History Registration Standard as an extenuating circumstance.

The Full Court considered the meaning of "conviction" at common law, noting that it generally signifies a determination of guilt by the court, which may occur upon a jury verdict or a plea of guilty being accepted and recorded. The Court examined various authorities distinguishing between a conviction and the subsequent judgment or sentence. While acknowledging the Magistrate's consideration of the defendant's personal circumstances and the potential professional repercussions, the Court ultimately found that the Magistrate's reliance on the Medical Board's registration standard as an extenuating circumstance to avoid recording convictions was an error. The Court held that the discretion to not record a conviction under section 16 of the Criminal Law (Sentencing) Act 1986 (SA) requires exceptional or unusual circumstances that go beyond the mere adverse impact on future employment or professional standing.

The Full Court allowed the appeal, finding that the Magistrate had erred in law by misinterpreting and misapplying the discretion to not record convictions. The matter was remitted to the Magistrate to proceed to record convictions and impose an appropriate sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.