Sadler v Police
[2010] SASC 281
•16 September 2010
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SADLER v POLICE
[2010] SASC 281
Judgment of The Honourable Justice White (ex tempore)
16 September 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE - PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
Appellant, who was unrepresented at first instance, pleaded guilty to driving without due care - the Special Justice recorded a conviction and imposed a fine of $200 for the offence - the appellant appealed against the recording of the conviction contending that the Special Justice had not explained that the Court could impose a penalty without recording a conviction nor the matters which would be relevant to a decision not to record a conviction.
Held: allowing the appeal, the Special Justice erred in failing to inform the appellant of the Court's power to refrain from recording a conviction - the checklist that the Special Justice had used in the sentencing process was flawed - checklists, whilst of some utility, should not be used to impose sentences in a formulaic way - appellant re-sentenced.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, referred to.
Ivanoff v Linnane (1979) 20 SASR 279; Taylor v Police [1988] SASC 6540; Datson v Police [1999] SASC 59; McQuade v Police [1999] SASC 277; Cuthbert v Police [2003] SASC 55; Schmidt v Police [2005] SASC 482; Pollard v Police [2010] SASC 23; Geyer v Police [2004] SASC 220; Roder v Police [2000] SASC 432, considered.
SADLER v POLICE
[2010] SASC 281Appeal from a Special Justice
WHITE J (ex tempore):
The appellant pleaded guilty to the offence of driving without due care contrary to s 45 of the Road Traffic Act 1961 (SA). The maximum penalty for this offence was a fine of $2,500. A Special Justice, sitting at Naracoorte, recorded a conviction and imposed a fine of $200. In addition, the Special Justice ordered the appellant to pay a total of $288 by way of costs and the Criminal Injuries Compensation Levy.
The appellant was unrepresented at the hearing before the Special Justice.
The appellant appeals against the recording of the conviction, but not against any other aspect of the sentence. He contends first that the Special Justice failed to inform him that the court could impose a penalty without recording a conviction and of the matters which he would need to establish in order to persuade the court to proceed in that way. Secondly, he submits that the Special Justice erred in any event by recording a conviction.
The offence occurred in the mid afternoon of 4 March 2010, one week after the appellant’s 20th birthday. The appellant, an apprentice electrician, was driving a Mitsubishi van in Naracoorte. He turned from Rolland Street into Smith Street and, another 10 or 15 metres later, ran into the back of a car which had stopped while the car in front of it was parallel parking. The appellant did not see the stopped car because he was waving to a friend whom he had spotted on the adjacent footpath. The speed of the appellant’s van at the time of the collision was not disclosed in the material before the Special Justice, but it appears to have been low. The collision caused damage to the two vehicles but no apparent injuries.
This was the appellant’s first traffic offence. He readily acknowledged that he had been driving without due care, cooperated with the police and pleaded guilty at the first opportunity.
As the appellant was unrepresented, the Special Justice was required to explain to him the critical features of the sentencing process and to inform him of his rights and entitlements in relation to sentencing. In this respect the reasons of Wells J in Cooling v Steel[1] continue to be a valuable statement of the duties of a sentencing court when dealing with an unrepresented offender. Those reasons have been endorsed in a number of subsequent decisions of this Court including: Ivanoff v Linnane;[2] Taylor v Police;[3] Datson v Police;[4] McQuade v Police;[5] Cuthbert v Police;[6] Schmidt v Police;[7] and Pollard v Police.[8]In particular, the authorities show that, when there is a possibility that the court may be able to sentence a defendant without recording a conviction, the court should draw the defendant’s attention to that possibility. In McQuade v Police,[9] Martin J said:
… [T]his was a case where consideration should have been given to the possibility of not recording a conviction. The appellant should have been advised of the availability of that option and of his right to ask the Court to exercise its discretion in that manner. It is unclear whether his Honour considered that option, but there is no dispute that the appellant was not advised of it.
Obviously, whether a failure to advise an unrepresented offender of the availability of such an option amounts to an error in the sentencing process will depend upon the circumstances of each case.[10]
[1] (1971) 2 SASR 249.
[2] (1979) 20 SASR 279.
[3] [1998] SASC 6540.
[4] [1999] SASC 59.
[5] [1999] SASC 277.
[6] [2003] SASC 55.
[7] [2005] SASC 482.
[8] [2010] SASC 33.
[9] [1999] SASC 277.
[10] Ibid at [11]-[12]. See also Cuthbert v Police [2003] SASC 55 at [16] and Geyer v Police [2004] SASC 220 at [15].
In my opinion, having regard to the appellant’s relative youth, the absence of any prior record, his good character, about which I will say more shortly, and the nature and circumstances of the offence to which he had pleaded guilty, this was a case in which it was appropriate for the Special Justice at least to consider invoking either s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) so as to refrain from recording a conviction. This means that, in my opinion, the Special Justice should have alerted the appellant to that possibility and to the matters which were relevant to a decision concerning the recording of a conviction.
On the hearing of the appeal, I received an affidavit from the appellant as to the course of events at the sentencing. When swearing that affidavit the appellant mistakenly thought that he had been sentenced by a magistrate and not by a special justice and his affidavit refers to a particular magistrate. This mistake by the appellant is of no consequence, because the duties which were incumbent upon the court when sentencing him were the same, whether or not the court was constituted by a magistrate or by a special justice. In the passages which follow, I will make the necessary correction.
The appellant deposed:
When [the Special Justice] asked about the circumstances surrounding the event, I stated that I was apologetic for the accident occurring. I stated that the accident occurred after I had attended a job near Frances, some twenty (20) kilometres out of town, and was advised that I would have to return to that job to make alterations to the work I had done. I further advised [the Special Justice] that at the time of the accident I was thinking about my next job and had a deeply regrettable momentary lapse of concentration upon seeing a friend on the footpath.
[The Special Justice] asked me whether I should be convicted and I responded by saying that I did not understand what he meant by this.
I asked [the Special Justice] for an explanation of what a conviction was and after he explained what a convictions is he again asked whether I felt I should be convicted. I replied “it is up to you”.
My response to [the Special Justice] was by no means facetious, I was simply extremely overwhelmed by the situation and was attempting to be respectful to the [Special Justice].
[The Special Justice] recorded a conviction against me on the basis that I did not provide adequate reasons for no conviction to be recorded.
After receiving legal advice, I now realise [the Special Justice] was providing me with the opportunity to detail my good character, lack of previous driving convictions, unlikelihood of [committing] such an offence again, and my personal circumstances that would have supported no conviction being recorded against me.
If I had an opportunity to answer [the Special Justice’s] question again, I would have outlined my continuing community and church involvement as evidenced by the statements provided by the Church Pastors copies of which are exhibited hereto amd marked “JRS1”.
I also would have outlined how, by having a conviction that will show on my Police Check, my involvement as a community youth group volunteer may be restricted especially for such roles as I now partake in such a driving the youth group members to and from meetings.
I would have also outlined my secure fulltime employment commitments with DAS Electrical, my career ambitions within that Company and the character reference
The account in the appellant’s affidavit was not contested by the Crown, the Police Prosecutor having no recollection of the exact course of events.
On the basis of the appellant’s affidavit, it appears that the Special Justice simply asked him for submissions about whether he should be convicted and explained what a conviction was. It does not appear that the Special Justice drew the appellant’s attention to the matters about which he would need to be satisfied in order to exercise his power under either s 16 or s 39 of the CLSA, to refrain from recording a conviction. That appears to have been a significant omission because, given the appellant’s youth and inexperience with the court process, it is understandable that he may well have been over-awed and overwhelmed at the time of his attendance before the Special Justice.
The Magistrates Court file does not contain any record of sentencing remarks from the Special Justice and it is not known whether he gave any. However, in an affidavit sworn by the Special Justice on 10 August 2010, he deposed:
I use a checklist for guilty plea & unrepresented defendants, this checklist is always in front of me and I follow the steps to ensure the defendant has the best opportunity to respond to matters put before the Court. I have attached the checklist (Annexure 1).
Once the prosecution had put their case I invited Mr Sadler to respond to the prosecution and also put his case and tell me what happened in this matter.
Mr Sadler did not offer a great deal of information other than that he had a “bad day at work” I have attached a copy of my hand written notes taken on the 5th of July 2010 (Annexure 2).
I did put to the defendant that I was considering recording a conviction and asked Mr Sadler to respond; to the best of my recollection Mr Sadler had nothing to say. As this is a traffic matter I considered that imposing a conviction and fine was an appropriate outcome.
Mr Sadler was courteous, [c]ooperative and sorry for his actions, but did not submit good reason for not recording a conviction.
The Special Justice’s affidavit tends to confirm that the appellant was relatively inarticulate in his sentencing submissions. Importantly for present purposes, it also seems to confirm that the Special Justice did not inform the appellant that he had power not to record a conviction or of the matters about which he would need to be satisfied before he could exercise that power in the appellant’s favour. All the Special Justice says is that he put to the appellant that he was considering recording a conviction and asked him to respond. He does not suggest that he gave the appellant any assistance by identifying the matters which he (the appellant) should address if he wished to avoid the recording of a conviction.
The Special Justice exhibited to his affidavit the draft checklist which he used when sentencing the appellant. It is not necessary to recite the full terms of that checklist. It is sufficient to say that it lists a number of matters which a sentencing court should raise with an unrepresented defendant. Relevantly to this appeal, the checklist includes the following item:
If defendant is a first offender (non-traffic matters) ask them what impact a criminal conviction might have upon them and if they ask you to consider not imposing a conviction.
The checklist has a space opposite each item in which the Special Justice may insert notes including notes of a defendant’s response. On the copy of the checklist which the Special Justice says he used when sentencing the appellant, the spaces for the notes are entirely blank. If the Special Justice did ask the appellant what impact a conviction may have upon him, he did not record the appellant’s response. I note, however, that the Special Magistrate did record on a separate page his conclusion that the appellant had not demonstrated good reason for not recording a conviction.
In my opinion the terms of the checklist item regarding the recording of a conviction tend to confirm that the Special Justice did not alert the appellant to the matters to be established under s 16 or s 39 of the CLSA. First, because the appellant’s offence was a traffic offence, the Special Justice may not have thought it necessary at all to ask the particular question identified in the checklist.
Secondly, the checklist question as framed would not have served to bring to the appellant’s attention the matters which should be addressed under ss 16 and 39. The last part of the question, which indicates that the Special Justice should enquire of defendants whether they ask for a conviction not to be recorded, assumes that the defendants have been properly informed of the circumstances in which they may make that request.
I observe that the assumption implicit in the quoted checklist question concerning the recording of convictions, ie, that refraining from recording a conviction is not available in relation to traffic offences, is wrong. In that respect I refer to the judgment of Duggan J in Roder v Police[11]. It may be that refraining from recording a conviction will not usually be appropriate in cases of the present kind, but it is a power which is available in all cases, both traffic and non‑traffic matters.
[11] (2000) SASC 432.
The use of checklists can of course be quite helpful, especially for a Special Justice who does not have legal qualifications. However, the sentencing process is not to be a formulaic process in which a sentence is reached after the rote application of checklist items. A sentencing court is required to evaluate all relevant considerations after considering the weight to be attached to each in the circumstances of the particular case. Accordingly, even when a checklist is used, a sentencing court must still consider all relevant matters, and not just those identified by the checklist. The use of a checklist should not have the effect of confining the matters to which a sentencing court has regard, or the discretion which is to be exercised by the Court when carrying out the sentencing process properly.
Having regard to the affidavit of the appellant, the affidavit of the Special Justice and the implications which can be drawn from his checklist, I am satisfied that he did not comply with his obligations to the appellant as an unrepresented defendant, as discussed in the authorities to which I referred earlier. That means that the sentencing process miscarried. Accordingly, it is necessary for this Court to re-sentence the appellant.
On re-sentencing, the references which the appellant has exhibited to his affidavit are important. These references were not provided to the Special Justice. Although none of the references refer to the appellant’s present offence, I do not think that in the circumstances of this case that that detracts from their weight.
The references indicate that the appellant is a responsible young man of undoubted good character for whom the present offence has been an aberration. They indicate his reputation for honesty, maturity and reliability. One of the referees describes the appellant as an outstanding role model and confirms the extensive volunteer work which he has performed in his local community, both while at school and since leaving school. The contents of the appellant’s affidavit and of his references suggest that he is a rather exceptional young man.
Both s 16 and s 39 of the CLSA reflect an assumption that, ordinarily, convictions will be recorded upon a finding of guilt. Nevertheless, they vest the courts with a discretion to refrain from doing so when there is good reason to do so.
In order to exercise its discretion under s 16(a), the first matter about which a sentencing court must be satisfied is that the defendant is unlikely to commit the offence in question again. As the reasons of Duggan J in Roder v Police indicate, that is not an easy matter to establish in relation to the charge of driving without due care. It is an offence which can be committed without any intention and may result, as in this case, from momentary inattention or carelessness. Nevertheless, it seems that a great many drivers do manage to go throughout their driving careers without ever being found guilty of this offence.
I consider that the appellant’s experience of the present prosecution is likely to have been salutary for him. That is especially so given his well developed sense of self-responsibility. I consider that he is likely to be much more alert to his responsibilities as a driver in the future. So, not without some hesitation, I am prepared to conclude that the appellant has satisfied the criterion contained in s 16(a).
Next, I am satisfied under s16(b) that, having regard to the appellant’s relative youth, his undoubted good character and his well developed sense of self-responsibility, good reason does exist in the present case not to record a conviction. Accordingly, I allow the appeal and set aside the sentence imposed by the Special Justice.
In place of that sentence I direct, without recording a conviction, that the appellant be fined the sum of $200 and that he pay the costs and Criminal Injuries Compensation levy fixed by the Special Justice. I note that the appellant has already paid the $200 imposed by the Special Justice and I do not intend by this to be imposing a fine of an additional $200.
The orders I make are these:
1. The appeal is allowed.
2. The sentence imposed by the Special Justice is set aside.
3. Exercising the power under s 16 of the Criminal Law (Sentencing) Act 1988 (SA), without recording a conviction, I fine the appellant $200 and order him to pay the costs and Criminal Injuries Compensation levy imposed by the Special Justice.
4. The respondent is to pay the appellant’s costs of and incidental to the appeal which, by the agreement of the parties, I fix in the sum of $250.
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