SAVAGE v POLICE  SASC 13 (18 February 2011)
Last Updated: 22 February 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
SAVAGE v POLICE
 SASC 13
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against sentence - appellant pleaded guilty in Magistrates Court to a charge of use of a mobile phone whilst driving - appellant maintained he was only using phone to check time - whether that constituted 'use' under Australian Road Rules - offence at lower end of scale of seriousness - Magistrate refused application pursuant to s 98B(4) Motor Vehicles Act to find offence trifling and exercise discretion to reduce demerit points - whether Magistrate erred in recording a conviction - use of a mobile phone other than for calling or texting not atypical - no error demonstrated in exercise of Magistrate's discretion - appeal dismissed.
Australian Road Rules rule 300; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 50(1); Motor Vehicles Act 1959 s 98B; Motor Vehicles Regulations 1996 schedule 7; Criminal Law (Sentencing) Act 1988 ss 15(1), 16; Magistrates Court Act 1991 s 42, referred to.
House v The King  HCA 40; (1936) 55 CLR 499, applied.
Thorley v Police (Unreported Supreme Court of South Australia, Perry J, 16 December 1997, S6779); Siviour-Ashman v Police  SASC 29; (2003) 85 SASR 23;McCade v Chandler (1984) 37 SASR 477; Holness v Police  SASC 314; Piva v Brinkworth  SASC 3629; (1992) 59 SASR 92; Vitlov v Lewis  SASC 83; Forgione v Police  SASC 54; Brown v Police  SASC 45; Sims v Police (2000) 30 MVR 524;  SASC 102, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"trifling", "use", "other proper cause"
SAVAGE v POLICE
 SASC 13
- NYLAND J: The appellant was charged on complaint that on 20 April 2010 at Prospect in the State of South Australia, being the driver of a vehicle moving on a road, he used a mobile phone contrary to Rule 300 of the Australian Road Rules. The maximum penalty for this offence is a fine not exceeding $2,500. In addition, the offence attracts three demerit points.
- The appellant appeared before a Stipendiary Magistrate in the Holden Hill Magistrates Court on 19 October 2010 and pleaded guilty to the charge. The appellant was represented by counsel who made an application pursuant to s 98B(4) Motor Vehicles Act 1959 (“MVA”) for a reduction of demerit points. Section 98B(4) is in the following terms:
If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points or no other demerit points are incurred by the person in respect of that offence.
- As required, the appellant gave evidence on oath as to the circumstances of the offence but the transcript of that evidence was not available on the hearing of the appeal. However, it is summarised as follows in the affidavit of Casey John Isaacs, who appeared as counsel for the appellant at the hearing in the Adelaide Magistrates Court:
- On 20 April 2010 at Prospect, he was driving his vehicle along Prospect Road;
- He was travelling to a work site;
- There were no other vehicles on the road or in the vicinity;
- The weather was fine and visibility was good;
- Prior to being pulled over by police, he reached into his centre console of his vehicle, picked up his mobile phone, holding it in his lap, whereby he looked at the time and then returned it to the centre console;
- The time taken to look at his phone in total would have been approximately 2 seconds;
- The phone was an old analogue phone and consequently he did not have to press a button to view the time;
- He only had two demerit points left on his licence;
- That he is 38 years old;
- He has one child who is 4½;
- He owns his own business, being Charles Savage Construction;
- As part of his employment he requires his licence to see clients, provide quotes and drive from site to site;
- Any loss of licence would cause him severe hardship.
- According to the affidavit of Robyn Gaye Rigney, the Police Prosecutor in the Magistrates Court, the appellant also said in evidence that at the relevant time there was another passenger in the car with him and that he was on his way to work.
- Counsel for the appellant in the Magistrates Court conceded that the offence was not of a trivial nature, but submitted that there was proper cause to reduce the demerit points pursuant to the provisions of s 98B(4) MVA. He submitted that the offending of the appellant was atypical, as he had not used the phone in the traditional sense by using a function. He had not engaged in a prolonged use of the phone which the Rule was specifically designed to prevent. He had utilised the phone in a fashion akin to simply checking his watch, or alternatively the radio to establish the time. His attention was only diverted for a period of two seconds and therefore any risk of incident caused by such behaviour was kept to a minimum. He further submitted that the offending was at the very low end of the scale in terms of seriousness as there were no other vehicles on the road. The visibility and road conditions were good and the breach was fleeting. There would also be hardship caused to the appellant by a loss of licence as a result of the problems associated with his business.
- The Magistrate subsequently recorded a conviction with respect to the offence and imposed a fine of $150 together with court costs. He was not prepared to exercise his discretion to reduce or waive the demerit points. As the appellant only had two demerit points left on his licence, the effect of the conviction was an instant loss of licence. This appeal is only concerned with the refusal by the Magistrate to reduce the demerit points ordinarily incurred for this offence.
- On the hearing of the appeal the appellant amended the Notice of Appeal to include a further ground, namely that the learned Magistrate had erred in failing to consider and exercise his discretion under either ss 15(1) or 16 of the Criminal Law (Sentencing Act) 1988 (SA) (“Sentencing Act”) not to record a conviction. The effect of a finding pursuant to s 16 would be that no demerit points would be incurred.
- On the hearing of the appeal, counsel for the appellant did not dispute that the actions of the appellant constituted “use” of a mobile phone within the meaning of Rule 300Australian Road Rules, but in effect reiterated the submissions which had been put to the learned Magistrate, namely that this was not a typical or normal offence of its kind. He submitted that the Magistrate had erred in his failure to find either that the offence was “trifling” or alternatively that “no proper cause” existed for a reduction of the demerit points.
- Despite the concession made in the Magistrates Court that this was not a trifling offence, it is clear that the Magistrate nevertheless applied his mind to that aspect of the matter, as he said in his remarks:
In this context I am guided by the full court judgment of Saviour-Ashman v Police (sic) reported in 2003 Volume 85 SASR, commencing at page 23. I particularly refer to the dicta of Chief Justice Doyle. In relation to the Chief Justice’s views as to what firstly relates to trifling offences and applying the principles therein and moving on to whether or not any other proper cause exists, I am of the view that as Mr Savage committed the offence intentionally and in the absence of any urgency or emergency or accidents, which required him to use the phone there is no proper cause for me to exercise my discretion under section 98B of the Motor Vehicles Act. On this token I have also taken into consideration that Mr Savage operates his own construction company. He needs a driving licence to carry out his daily routine i.e. business. He has a young family to support and hardship will certainly be a consequence should he be deprived of a driving licence as a result of his demerits points penalty. Nevertheless I am of the view that the offending by Mr Savage is firstly, not of a trifling nature and that I am not satisfied that there is any other proper cause as existing for me to exercise my discretion and accordingly I decline to do so.
- The characterisation of an offence as trifling is the expression of a discretionary judgment and accordingly should not be interfered with unless the Magistrate acted upon a wrong principle, mistook the facts, acted upon an extraneous or irrelevant matter or did not take into account a material consideration. An offence is trifling in this context “in the sense of being of slight importance, insignificant or of little moment.” In Siviour-Ashman Doyle CJ said that “an offence which is a normal or typical example of its type will not be trifling.”
- Counsel for the appellant accepted Siviour-Ashman as the principal authority on the issue but submitted that the Magistrate had misdirected himself. In particular, he submitted that the Magistrate had treated the issues of intentionality and the absence of urgency, emergency or accident as determinative of the question of whether the offence was “trifling”. Counsel submitted that the Magistrate had not properly considered all of the circumstances of the offending and argued that the circumstances disclosed an offence which was not a typical or normal offence of its kind. The mobile phone had not been used to take or receive a call, or to send a text message, but had simply been used to check the time.
- Counsel further submitted that at the very least the Magistrate should have regarded the insignificant nature of the offending as such to provide proper cause for the exercise of the discretion to reduce the demerit points. He also suggested that this was the sort of case which could be regarded as finely balanced, in which case personal hardship was a factor which could be relevant to the final determination of the issues, as some authorities have suggested is appropriate.
- The relevance of personal hardship in cases such as this was discussed by Sulan J in Holness v Police. In Holness Sulan J discussed the legislative history of s 98B MVA and some of the decisions made with respect to it. He also referred to amendments made to the Act in 2001, which introduced the option of a good behaviour bond as opposed to immediate disqualification. Sulan J then said at  – :
Accordingly, it is clear that the legislative intention of parliament was to remove the hardship provision altogether and to replace it with the good behaviour bond scheme.
A number of decisions subsequent to the amendments have considered whether personal hardship of a defendant can amount to proper cause. Each of the decisions has determined that “proper cause must relate to the circumstances of the offence and does not apply to the circumstances of the offender.”
Accordingly, having regard to the current statutory scheme I am satisfied that the hardship suffered by the appellant is not a relevant consideration in determining whether “any other proper cause” exists for the purposes of s 98B(4). The defendant has failed to demonstrate that any proper cause exists to reduce the number of demerit points.
- As it happens the Magistrate in this case appears to have had some regard to the personal circumstances of the appellant in reaching his decision but, in my opinion, there was nothing in those circumstances which required him to depart from the conclusion reached by Sulan J in Holness.
- I am not persuaded that the Magistrate misdirected himself as to the proper approach with respect to matters arising under s 98B(4) MVA. He had regard to the circumstances of the offending as explained in evidence by the appellant and he referred to appropriate authority. The fact that he made specific reference in his remarks as to the important questions of intentionality and the absence of emergency does not mean that he treated those issues as conclusive of the matter and that he ignored all other relevant matters. It should be borne in mind that these were ex tempore remarks undoubtedly delivered in the course of a busy list and the remarks reveal an appropriate approach by the learned Magistrate. They were delivered immediately after the appellant had given evidence as to the circumstances of the offence and after submissions of counsel on his behalf.
- The Magistrate appears to have accepted that the offence was at the lower end of the scale of seriousness, as reflected by the fine which he imposed. That factor alone, however, is insufficient justification for the exercise of discretion to reduce the demerit points. In my opinion, this cannot be regarded as an atypical example of the offence. The offence created by Rule 300 is directed at the distraction that is created by use of a phone and the consequent danger to road users or pedestrians from a distracted driver. In modern times mobile phones have a multitude of functions, all of which have the potential for distraction and that is not limited to simply making a call or texting.
- As Gray J pointed out in Burns v Police, an evident purpose of Rule 300 is to prevent motorists becoming distracted by mobile phones whilst driving. In Kyriakopoulos v Police, White J held that using a flexible cord attached to a mobile phone to conduct a conversation was “use” of a mobile phone in just the same way as holding the phone to one’s ear was a “use”. The appellant has failed to identify any error in the approach taken by the learned Magistrate with respect to the application of s 98B(4) MVA.
- The appellant further argued that the Magistrate had erred in failing to exercise his discretion under either ss 15(1) or 16 Sentencing Act not to record a conviction. No such application was made by counsel who appeared for the appellant on the hearing in the Magistrates Court, but s 42 Magistrates Court Act 1991 (SA) provides that an appeal is by way of re-hearing. On that basis the appellate court is required to examine for itself the Magistrate’s assessment of the evidence, bearing in mind that it does not have the advantage of seeing or hearing the witnesses.
- Section 15(1)(a) Sentencing Act enables the Court to refrain from recording a conviction if the Court finds that the offence is so trifling that it is inappropriate to impose any penalty and s 16 Sentencing Act provides that 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 –
- (1) the character, antecedents, age or physical or mental condition of the defendant, or
- (2) the fact that the offence was trifling, or
(3) any other extenuating circumstance,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
- The issue of s 15(1)(a) Sentencing Act can be dealt with briefly, as the reason for rejecting the argument that the offence was trifling in respect of s 98B MVA has equal application to s 15 – i.e. an offence is not trifling if it is a typical offence of the class described.
- As far as s 16 is concerned, it is well established that the discretion not to record a conviction should be used sparingly in respect of social and regulatory offences. The assumption that underlies s 16 is that in the ordinary course a conviction will be recorded, unless good reason exists not to do so.
- The submission made on behalf of the appellant with respect to ‘good reason’ mirrored the submissions with respect to the issue of ‘proper cause’ arising under s 98B MVA, namely that the circumstances of the offending were of such slight gravity that the power was available to the Magistrate to proceed without recording a conviction.
- This was not a serious offence of its kind, but for the reasons already mentioned I do not consider the circumstances were sufficient to provide good reason not to record a conviction. In any event, the s 16 discretion is only enlivened where a court is satisfied that the defendant is not likely to commit such an offence again. In this case the appellant has a prior conviction for the same offence recorded in 2007. On that occasion he was the recipient of leniency from the Magistrate who waived the imposition of demerit points. As the appellant has a prior conviction for the same offence I would not be prepared to find that he is unlikely to commit such an offence again, which is a precondition to the exercise of discretion under s 16(b) Sentencing Act. The appeal is therefore dismissed.
 Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999, reg 50(1).
 Motor Vehicles Act 1959, s 98B and Motor Vehicle Regulations 1996, schedule 7.
 Thorley v Police (Unreported Supreme Court of South Australia, Perry J, 16 December 1977, S6779).
 House v The King  HCA 40; (1935) 55 CLR 499 at 504 (Dixon, Evatt and McTiernan JJ).
 Siviour-Ashman v Police  SASC 29; (2003) 85 SASR 23 at 27  (Doyle CJ).
 Siviour-Ashman v Police  SASC 29; (2003) 85 SASR 23 at 27  (Doyle CJ).
 McCade v Chandler (1984) 37 SASR 477 at 479.
  SASC 314.
  SASC 191 at .
  SASC 71 at .
 Piva v Brinkworth  SASC 3629; (1992) 59 SASR 92 at 95 (Duggan J); Vitlov v Lewis  SASC 83 at  (Kelly J); Forgione v Police  SASC 54 at (Kelly J); Brown v Police  SASC 45 at  (Nyland J).
 Sims v Police (2000) 30 MVR 524;  SASC 102 Bleby J at .