BLEBY J (Ex tempore): The appellant pleaded guilty and was convicted in the Magistrates’ Court sitting at Roxby Downs of an offence of disorderly behaviour contrary to s 7(1)(a) of the Summary Offences Act 1953. The maximum penalty for an offence under that section is a fine of $1,000 or three months’ imprisonment.
On 30 September 1999 at about 9.30pm, the appellant was performing “doughnuts” in his motor car on a grassed area behind the Roxby Downs tennis courts. He wanted to show his friends how well his car performed. He was apprehended by police in the town a short time later. He admitted the offence, and also admitted that he did not have full and correct control of the vehicle at the time.
The Magistrate entered a conviction and imposed a fine of $100. In addition, the appellant was ordered to pay $124 in further fees and costs. The appellant was given three months in which to pay. In recording a conviction and imposing the penalty the Magistrate said that there was “no good reason under the provisions of the Sentencing Act for not recording a conviction”. The Magistrate accepted a plea not to disqualify the appellant from holding a driving licence, a penalty which could have been imposed in the circumstances of this offence: s 168(1) Road Traffic Act 1961.
The appellant appeals against the recording of the conviction. He does not complain about the imposition or amount of the fine. He argues that the Magistrate erred in finding that “no good reason” existed not to record a conviction against him under s 16 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). That section provides:
“16... 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;
(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.”
In examining the way in which the Magistrate dealt with the possibility of not recording a conviction, I am mindful that s 16 of the Sentencing Act contains a number of discretionary elements. The forming of the necessary opinion on the two matters referred to in that section is a condition precedent to the exercise of the court’s discretion to impose the penalty without recording a conviction. In other words, the court must consider that the defendant is unlikely to commit such an offence again, and that good reason exists for not recording a conviction. If the necessary opinion is formed, it is unlikely that the court will record a conviction. But…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sims v Police [2000] SASC 102
Case
[2000] SASC 102
Decision Date
CaseChat Overview and Summary
The appellant, Sims, was convicted in the Magistrates’ Court sitting at Roxby Downs of an offence of disorderly behaviour under s 7(1)(a) of the Summary Offences Act 1953. Sims was performing doughnuts in his motor car on a grassed area behind the Roxby Downs tennis courts. He was apprehended by police and later admitted to the offence. The Magistrate imposed a fine of $100 and additional fees, but did not disqualify Sims from holding a driving licence. Sims appealed against the recording of the conviction, arguing that the Magistrate erred in finding that no good reason existed not to record a conviction under s 16 of the Criminal Law (Sentencing) Act 1988.
The court had to determine whether the Magistrate properly exercised his discretion under s 16 of the Sentencing Act. This section allows a court to impose a penalty without recording a conviction if it believes the defendant is unlikely to commit such an offence again and good reason exists for not recording a conviction. The court considered whether the Magistrate had regard to all relevant factors, including Sims' character, antecedents, age, and the nature of the offence. The court also examined whether the Magistrate's decision was influenced by the need for deterrence in a remote mining town.
The court found that the Magistrate had considered all relevant factors and exercised his discretion appropriately. Although Sims had no previous convictions and was of good character, the Magistrate was not satisfied that good reason existed for not recording a conviction. The court inferred that the Magistrate had considered all elements of s 16 but concluded that no single factor or combination of factors provided good reason not to record the conviction. The Magistrate's decision was within his discretion, and the court saw no error in his exercise of discretion. Therefore, the appeal was dismissed.
The final orders of the court were to dismiss Sims' appeal against the recording of the conviction.