SIMS v POLICE No. SCGRG-00-138 [2000] SASC 102

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 S_entencing 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 in forming the opinion, particularly as to the second limb, namely that good reason exists, the court will first need to be satisfied that one or more of the elements of the requisite nature referred to in paragraph (b) exists. It will also need to be satisfied that having regard to that element or those elements, the necessary opinion can be formed. Those elements, if they exist, will need to be balanced against other circumstances, particularly those relating to the nature and commission of the offence. That plainly involves the exercise of a discretion.

In this case the Magistrate was not satisfied that good reason existed for not recording a conviction. He did not specifically refer to each element contained in paragraph (b) of s 16, nor did he refer specifically to other counter-balancing elements. He was well informed to make a judgment about all of those issues, having been assisted by submissions from the police prosecutor and by extensive and seemingly helpful submissions from the appellant's counsel. The fact that he did not refer specifically to each of those matters does not mean that he did not direct his mind to them. In making the observation he did, he used the precise words of the section. It is reasonable to infer, therefore, that he had regard to all the possible relevant factors.

Furthermore, the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction. By ruling as the Magistrate did in this case, he was saying that he was unable to identify any single factor or combination of factors that would enable him to form the necessary opinion. It was not incumbent upon him to identify the factors which did not enable him to form the necessary opinion.

That is not to say that one or more of the relevant factors did not exist. They may well have. The appellant was frank with police when apprehended, and he pleaded guilty. He was aged 18 at the time. He had no previous convictions or any previous involvement with the police. He was a man of good character. He was employed as an apprentice fitter and turner.

The Magistrate's decision merely means that, after having regard to those factors, the Magistrate was unable to form the necessary opinion that good reason existed for not recording a conviction.

That was a view which the Magistrate was entitled to take. It was a discretionary judgment which the Magistrate formed after necessarily taking into account the gravity of the offence. His counsel had candidly admitted that in relation to the circumstances of the offending, there was nothing that could be put by way of mitigation.

The Magistrate was the circuit Magistrate sitting at Roxby Downs, a mining town in a remote area of the State. He was entitled to form the view he did against his background knowledge and assessment of law and order issues and the need for deterrence against anti-social behaviour in that town. He was uniquely in a position to do that. There was nothing in the appellant's personal circumstances, or affecting his employment, which required the Magistrate to form the necessary opinion under s 16.

It seems to me that another relevant factor also was the nature of the conviction and its possible effect, if any, on the appellant's employment. That sort of consideration distinguishes this case from that of McGregor v Police (1995) 66 SASR 269. The conviction in that case involved two offences of larceny, convictions for which would have far greater effect on a person's employment opportunities than would convictions for many other offences in the criminal law regulatory calendar. In my opinion, the Magistrate was entitled to take into account the nature of the offence as well as his view of the severity of the offending.

The Magistrate has not been shown to have misapprehended his function or the principles upon which is discretion was to be exercised, to have misunderstood relevant facts, to have failed to have taken into account relevant circumstances, or to have taken into account irrelevant considerations.

The Magistrate correctly observed that the appellant could well have been charged with driving recklessly or in a manner dangerous to the public, for which a mandatory licence disqualification and a substantially greater minimum fine would have been applicable. He also considered, but rejected, the possibility of a licence disqualification in any event. It is not surprising that in those circumstances he felt unable to form the necessary opinion under s 16 of the Sentencing Act.

In my opinion, no error in the exercise of the discretion has been demonstrated. In those circumstances it is not for this Court to interfere: Uzanski v Searle (1981) 26 SASR 388 at 389; Lanham v Brake (1983) 34 SASR 578 at 585.