October 21, 2014

A case involving a traffic charge does not have to be ‘unusual’ for a Court to refrain from recording a conviction. Recently, a man was charged when a car he owned was driven unregistered and uninsured. He was told by a Magistrate that his case was not unusual and therefore he would have to receive a fine equivalent to the expiation fee and a conviction. On appeal to the Supreme Court it was held that the Magistrate had made an error in the way that a Court should deal with the question of whether or not to impose a conviction.

The Criminal Law (Sentencing) Act says that where a Court proposes to impose a fine (or community service) and is of the opinion that the person is unlikely to commit the offence again, and having regard to various factors including the character of the person, good reason exists for not recording a conviction the Court may refrain from doing so. The charges against the man in this case usually result in an expiation notice (or on-the-spot fine) of $1,074 and the Magistrate had taken the view that where this is such an ‘administrative penalty’ then that should be the starting point if the case comes before a Court. The man, who had a clean driving record, had not received a renewal notice for his registration and the car concerned was not used on a daily basis. Nevertheless, the Magistrate said that the circumstances of the case were no different from many instances where people have been caught driving unregistered and uninsured unintentionally as a result of oversight on their behalf.

The Supreme Court allowed the man’s appeal and set aside the convictions observing that the Magistrate’s approach did not adequately recognise the role of a Court of imposing a fair penalty according to the circumstances and the justice of the particular case. The Court noted that a combination of good character, a good driving record, extenuating circumstances surrounding the offending and other relevant matters might not infrequently indicate that a fine less than the expiation fee and sometimes substantially less should be imposed.

In deciding whether to record a conviction, the test is not whether the circumstances of the offending are ‘unusual’. Instead, the question is firstly whether the person charged is unlikely to commit the offence again, and then whether there is ‘good reason’ not to impose a conviction. The Supreme Court has noted that this gives the Court a broad power to refrain from recording a conviction, although there are limits to the factors that need to be considered. These factors include the person’s age, his character, his previous record or mental condition each of which on their own can be the basis for a favourable exercise of the discretion not to record a conviction.

In this case the man, who was a Company Director and CEO of a green auditing business was concerned about the effect a conviction might have on his company positions and travel to the USA as well as his pending application to be appointed as an Honorary Consul. Although for other reasons the convictions were set aside, on those points the Court did not have enough evidence as to how they might be affected by a conviction to take that into account.

The principles considered in this case regarding whether or not a conviction should be recorded don’t just apply to traffic charges, but to all offences where a Court intends to deal with the charge by way of a fine or community service. A conviction can have serous consequences* and if you are charged with any sort of offence it makes good sense to get the help of an expert criminal lawyer who can assist you to present all the relevant information to the Court in support of a case for no conviction. For a free initial consultation with a specialist criminal lawyer in Adelaide or the North-East contact Websters Lawyers as soon as you become aware that you will have to go to Court.

* see What Does “Without Conviction’ Mean For My Employment?

Police v Kostoff [2014] SASC 130