Schwarz v City of Port Adelaide Enfield - [2020] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHWARZ v CITY OF PORT ADELAIDE ENFIELD
[2020] SASC 63
Judgment of The Honourable Chief Justice Kourakis
21 April 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - WHERE POINT NOT RAISED IN COURT BELOW
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against penalty and conviction imposed by a Magistrate.
On 30 June 2019, an officer of the respondent observed the appellant’s vehicle to be parked within 3 metres of a continuous dividing line. The appellant was issued with an expiation notice in the amount of $68 for an offence under r 208(6) of the Australian Road Rules. The appellant did not expiate the offence and elected to be prosecuted.
The Magistrate convicted the appellant and imposed a fine of $68. The appellant appeals against the conviction to this Court on four grounds, relevantly, that the Magistrate erred in failing to exercise the power conferred by s 24 of the Sentencing Act 2017 (SA).
Held per Kourakis CJ, allowing the appeal:
1. The penalty and conviction imposed in the Magistrates Court is set aside.
2. The appellant is to pay a fine of $68, with no conviction recorded.
3. The appellant is to pay the court fee of $286, VIC levy of $160 and counsel fees of $1,150 in the Magistrates Court, totalling a sum of $1,596.00.
4. The respondent is to pay the appellant’s costs of this appeal in the sum of $300.
Australian Road Rules r 208(6); Sentencing Act 2017 (SA) ss 23, 24, referred to.
Singh v Police [2013] SASC 155, discussed.

SCHWARZ v CITY OF PORT ADELAIDE ENFIELD
[2020] SASC 63
Magistrates appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction recorded against the appellant, Mr Schwarz, in the Magistrates Court on 7 February 2020. The Magistrate convicted Mr Schwarz of the regulatory offence of parking less than 3 metres from a dividing line, contrary to r 208(6) of the Australian Road Rules and imposed a penalty of a fine in the sum of $68.
Background facts
On 30 June 2019 at approximately 8.15 am, an officer of the City of Port Adelaide Enfield (the Council) observed the appellant’s vehicle to be parked on Karka Cove, New Port, within 3 metres from a continuous dividing line. The appellant was issued with an expiation notice in the amount of $68 for an offence under r 208(6) of the Australian Road Rules.
Mr Schwarz did not expiate the offence. Instead, he wrote to the Council requesting that the expiation be withdrawn and, if necessary, a caution be issued. In this letter, Mr Schwarz gave cogent reasons in support of his application:
·he had never heard of the offence; and
·there were no signs to indicate that parking in that location was not permitted, in particular, there was no yellow line on the road, which is present at other locations in New Port where parking is not permitted.
Mr Schwarz enclosed photographs of the vehicle parked on Karka Cove and of other locations in New Port where roads were marked with yellow lines.
There was an email exchange between the appellant and the Council in which Mr Schwarz elected to be prosecuted.
The matter was heard in the Port Adelaide Magistrates Court on 28 November 2019 and 7 February 2020. I am informed today, by counsel for the Council from the bar table, that in the course of the proceedings, the Council advised Mr Schwarz that it would not oppose the imposition of a penalty without conviction. However, on 7 February 2020, Mr Schwarz submitted only that the offence was trifling and that the complaint should be dismissed without penalty or conviction pursuant to s 23 of the Sentencing Act 2017 (SA) (the Sentencing Act). The Magistrate rejected that submission. Her Honour convicted Mr Schwarz, imposed a fine of $68 and ordered that Mr Schwarz pay the usual levies and charges and that he pay the Council’s costs in the sum of $1,150.00.
Personal circumstances
Mr Schwarz is 36 years of age and has no prior convictions. He is a Senior Constable, general patrols, of the South Australian Police Force and has previously served in the Australian Army Reserves. However, since 2015 he has been on extended medical leave without pay as a result of a workplace incident which left him with depression and anxiety.
Since 2015, Mr Schwarz has undertaken university studies and has recently completed a Bachelor of Science, majoring in Psychology and Physiology, in addition to an Honours in Medical Science. He is currently completing a PhD in Medicine.
Mr Schwarz hopes to work and research overseas. Alternatively, he may return to the South Australian Police Force and re-enlist in the Army Reserves. Mr Schwarz is concerned that a conviction might jeopardise his plans. He is also concerned about disciplinary action in his current employment as a Police Officer. If that were to occur, the mole-hill of his offending would assume Everest-like proportions.
Appeal grounds
This appeal is against the Magistrate’s order recording a conviction and is brought on the following grounds:
1. The Magistrate erred by failing to properly discharge her duty to inform the self-represented defendant of the possibility of having penalty imposed without recording a conviction pursuant to s 24 of the Sentencing Act 2017.
2. The Magistrate erred by failing to provide the self-represented defendant a proper opportunity to make submissions and/or to present evidence about whether there was good reason to impose penalty without recording a conviction pursuant to s 24 of the Sentencing Act 2017.
3. The Magistrate erred by failing to properly take into account material considerations relevant to whether good reason existed to impose penalty without recording a conviction pursuant to s 24 of the Sentencing Act 2017, namely, the Magistrate did not properly take into account:
(i)The proper legislative context in which offences of this kind, namely expiable regulatory offences, fall to be penalised.
(ii)The potential effects of a conviction upon the appellant, including those related to future travel and employment.
(iii)Whether the appellant was likely to commit such an offence again.
(iv)The character and antecedents of the appellant.
4. The Magistrate acted on a wrong principle by failing to properly consider the possibility of not recording a conviction pursuant to s 24 of the Sentencing Act 2017.
Mr Schwarz contends that he should be resentenced and that, by exercising the power conferred by s 24 of the Sentencing Act, a fine of $68 should be imposed without recording a conviction.
It is unnecessary to proceed on any ground other than that the Magistrate erred in failing to exercise the power conferred by s 24 of the Sentencing Act.
For the reasons which follow, I would allow the appeal and sentence in accordance with Mr Schwarz’s submissions.
The Magistrate’s reasons
The Magistrate’s remarks on penalty were delivered ex tempore and were as follows:
I understand your argument but I do not accept that it makes it trifling. In those circumstances, I note the original expiation was $68, you will be convicted, fined $68 but on top of that you are going to have to pay the $1150 counsel fee, plus the filing fee in court, plus there will be a levy. Those are the figures. You will have to organise to pay it off through the fines payment unit. I will placed [sic] these photographs on the file so that is clear should you appeal, what you have put before the court and what has been taken into account.
Defendant: Is your Honour in a position to explain to me why this matter is not trifling?
The fact is that there is a white line there, the fact that you did not know what the law was, isn’t an excuse. I think it is clear that you should not have been parked there and I do not accept that it is trifling.
Circumstances of the guilty plea
At the hearing before the Magistrates Court on 28 November 2019, Mr Schwarz appeared without legal representation and informed the Magistrate that he wished to be heard in relation to the matter being trifling which should justify no penalty and no conviction. However, the matter was adjourned until 7 February 2020. On 7 February 2020, Mr Schwarz again appeared without representation and entered a guilty plea in respect of the offence. Mr Schwarz again submitted the matter was trifling and that no penalty should be imposed and no conviction recorded. Mr Schwarz made submissions in line with the argument he had put to the Council in written correspondence prior to the hearing.
Mr Schwarz deposed in an affidavit received by me that he was not informed of the power conferred by s 24 of the Sentencing Act and that if he had been aware of the power, he would have argued for the exercise of that power. It appears that he did not understand the full import of the communication from the Council that it did not oppose the imposition of a penalty without conviction.
The appellant annexed character references to this affidavit, which he would have obtained if the Magistrate had advised him that good character was relevant to whether or not to record a conviction.
The appellant’s submissions
On this appeal Mr Schwarz is represented by counsel.
In written submissions, his counsel submits that the finding that the offence was not trifling is not a sufficient reason to decline to proceed without recording a conviction under s 24 of the Sentencing Act. That submission must be accepted.
Mr Schwarz made submissions as to why this court should find that he is unlikely to offend again:
27.1The appellant has no prior convictions.
27.2The appellant has given evidence that he was not aware of the law behind this offence prior to receiving the expiation notice.
27.2.1The offence in question is a relatively obscure one, which might make it easier for the court to accept and understand the appellant’s evidence that he was not aware of the offence.
27.2.2As the appellant submitted to the Magistrate, there were no specific road markings or sings [sic] indicating that it was an offence to park where he did. Again, this might make it easier to accept and understand the appellant’s submission that he was not aware that he was committing an offence.
27.2.3The appellant’s ignorance was a contributing factor to the commission of the offence; it was not committed in deliberate disregard for the law.
27.3The court can accept that the appellant is of good character and is generally a law-abiding citizen. The appellant’s antecedents are consistent with this (and in my submission sufficient to establish it in themselves) and the references annexed to his affidavit support this.
27.4The appellant is now well aware of the potential consequences if he were to commit such an offence again.
I accept that submission. On the material before me, Mr Schwarz appears to be a careful man who chose to serve in an office in which he is bound to uphold the law. He now knows of this particular parking regulation. I am satisfied that there is no risk of recidivism as far as this particular parking offence is concerned. I am satisfied also that he will not commit any other offences.
Earlier in these reasons, I have summarised Mr Schwarz’s relevant personal circumstances.
Mr Schwarz’s counsel has referred to authorities in this Court on the correct approach to exercise the power conferred by s 24 of the Sentencing Act with respect to regulatory offences which are expiable. In Singh v Police (Singh), I made the following observations:[1]
[39]The MVA is regulatory legislation. The preventative and deterrent aspects of punishment generally assume relatively greater importance in sentencing for offences against such legislation. However, the force of this consideration is much reduced in the case of offences which can be expiated. It is difficult to see why a conviction is generally necessary in the case of the few offenders who, for whatever reason, fail to take advantage of the expiation process, pursuant to which the great preponderance of offender escape convictions without jeopardising the integrity of the registration and insurance scheme.
(Footnote omitted)
[1] Singh v Police [2013] SASC 155 at [39].
The Council’s submissions
The Council, by its written submissions, consents to the appeal being allowed. It contends only that a finding should not be made that the offence is trifling. It is unnecessary to make that finding because Mr Schwarz now relies only on s 24 of the Sentencing Act. I, therefore, make no finding one way or another.
Discussion
Mr Schwarz’s offending was at the very low end of the scale of parking offences. His decision not to expiate the offence and to seek an exercise of the power in s 23 of the Sentencing Act was reasonable and completely understandable.
However, in the application of s 24 of the Sentencing Act, considerations broader than whether the offence can be characterised as trifling are relevant. The case for a favourable exercise of the discretion in Mr Schwarz’s case is overwhelming. The Magistrate erred by failing to consider that power and by failing to exercise it.
Conclusion
I would allow the appeal and set aside the penalty and conviction imposed in the Magistrates Court. Pursuant to s 24 of the Sentencing Act, without recording a conviction, I fine Mr Schwarz $68. I order, in addition, that Mr Schwarz pay:
Court Fee:         $   286.00
VIC Levy:         $   160.00
Counsel Fees:    $1,150.00
Total:                 $1,596.00
I order that the Council pay Mr Schwarz’s costs of this appeal fixed in the sum of $300. Even though the Council had informed Mr Schwarz that it would not oppose a favourable exercise of s 24 of the Sentencing Act, it would have been preferable if it had stated that position before the Magistrate. Moreover, this appeal may have been dealt with more quickly and with less cost if the Council had informed Mr Schwarz that it would consent to the setting aside of the conviction. However, I have reduced the lump sum that would otherwise have been ordered having regard to the position which the Council did take.