Aaron Schilg v Kyle Saltmarsh
[2013] ACTSC 181
•29 August 2013
HUMAN RIGHTS ACT 2004
AARON SCHILG v KYLE SALTMARSH
[2013] ACTSC 181 (29 August 2013)
APPEAL FROM MAGISTRATES COURT – Appeal against sentence – Appeal allowed
CRIMINAL LAW – Specific offences – ‘Burnout’
CRIMINAL LAW – Statutory interpretation - Meaning of ‘repeat offender’
CIVIL AND POLITICAL RIGHTS – Human rights – Right to fair hearing
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 34
Human Rights Act 2004 (ACT), s 21
Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 5B, 10AA, 10B, 10D
Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 119 ALF 655
Theophanous v Commonwealth (2006) 226 ALR 602
REASONS FOR DECISION
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 14 of 2013
Judge: Higgins CJ
Supreme Court of the ACT
Date: 29 August 2013
IN THE SUPREME COURT OF THE )
) No. SCA 14 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AARON SCHILG
Appellant
AND:KYLE SALTMARSH
Respondent
ORDER
Judge: Higgins CJ
Date: 12 June 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal against the making of the forfeiture order be allowed. That order be substituted with an order that the vehicle be impounded for three months from 12 March 2013.
This was an appeal from an order made by Magistrate Boss on 12 March 2013 that a motor vehicle, being a Holden Commodore, be forfeited to the Territory (that is, the ACT). On 12 June 2013 I allowed the appeal against the making of that order and substituted an order that the vehicle be impounded for three months from that date. I indicated that reasons would be later published as the matter involved a question of statutory interpretation upon which a difference of opinion, I was told, has arisen. These are those reasons.
First, the foundational facts. The appellant, Aaron Schilg, was on 29 January 2013 charged by summons that he:
... on 26 December 2012, a repeat offender, being the driver of a motor vehicle, did burnout the vehicle on a road.
He was subsequently charged that he:
... on 18 January 2013, a repeat offender, being the driver of a motor vehicle, did burnout the vehicle on a road.
The appellant appeared in person on 12 March 2013 and entered a plea of guilty to each charge. For the first charge it appeared that the appellant had been depicted on a Facebook video, posted publicly, doing a “burnout” that is, revving the engine of the subject Commodore so that the tyres lost traction and spun so as to emit large plumes of smoke as the tread on the rear tyres burnt away.
The appellant attended on police when asked about it on 21 January 2013 and made full admissions not only as to that matter but also as to the second matter.
Prior to that date, on 18 January 2013, a road user had observed the appellant’s Commodore turning onto a road in Gungahlin. It began to accelerate heavily, the rear tyres began to spin and lose traction on the road surface producing a large cloud of white smoke. That incident was reported to police and led to the second charge.
Performing a burnout is an offence pursuant to s 5B(2)(b) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the RT (S & TM) Act). That section provides:
5B Burnouts and other prohibited conduct
(1) In this section:
“burnout” means—
(a) in relation to a motor vehicle other than a motorbike—operate the vehicle in a way that causes the vehicle to undergo sustained loss of traction by 1 or more of the driving wheels; or
(b) in relation to a motorbike—operate the motorbike in a way that causes the motorbike to undergo sustained loss of traction by the driving wheel.
“other prohibited conduct” means conduct that—
(a) is associated with the operation of a motor vehicle for speed competitions or other activities prescribed by regulation; and
(b) is prescribed by regulation for subsection (4).
“prohibited substance”, in relation to the burnout of a motor vehicle, means—
(a) petrol, oil, diesel fuel or any other flammable liquid; or
(b) any other substance that increases the risk of death, injury or damage to property (including damage to the surface of any road or to any prescribed traffic control device) from the burnout.
(2) The driver of a motor vehicle must not burnout the vehicle on a road or road related area.
Maximum penalty:
(a) if a prohibited substance had been placed on the surface of the road or road related area under, or near, a tyre of the vehicle— 30 penalty units; or
(b) in any other case—20 penalty units.
(3) In a prosecution for an offence against subsection (2), it is a defence if the driver establishes that the motor vehicle, although operated in contravention of the subsection, was not deliberately operated in that way.
(4) A person must not engage in other prohibited conduct on a road or road related area.
Maximum penalty: 20 penalty units.
(5) This section does not apply to the operation of a motor vehicle for a race, attempt or trial carried out in accordance with an approval given under section 5A by the road transport authority.
Note Automatic licence disqualification applies to an offence against this section (see Road Transport (General) Act 1999, s 63).
In this case subsection 2(b) applied not 2(a). Nor was there any “other prohibited conduct”.
A conviction was recorded on each matter following submissions on sentence made by the appellant in person.
In respect of 1218/2013 (the December offence) the appellant was fined $500 plus costs of $69, Criminal Injuries Compensation $50 and Victim Services Levy $10. He was allowed 12 months to pay and disqualified from holding a driver licence for 12 months.
The same penalty was imposed in respect of 1219/2013 (the January offence).
The prosecutor then tendered a vehicle forfeiture request and notice purportedly pursuant to s 10B of the RT (S & TM) Act.
The learned Magistrate was referred to the appellant’s criminal history. [Redacted for legal reasons].
Her Honour acceded to the prosecution request and made an order for forfeiture of the subject Commodore in respect of 1218/2013 (the December offence) but not in respect of 1219/2013 (the January offence). Section 5B had come into effect on 1 March 2000.
The power to order forfeiture derives from s 10B of the RT (S & TM) Act; inserted by the same amending enactment (that is, 4/2000).
10B Impounding or forfeiture of vehicles on conviction etc for certain offences
(1)If a court convicts a person, or finds a person guilty, of an offence against section 5A (Races, attempts on speed records, speed trials etc), section 5B (Burnouts and other prohibited conduct) or section 8 (Menacing driving), the motor vehicle used by the person in committing the offence is—
(a) for a first offender—to be impounded for 3 months, unless the court otherwise orders under subsection (2); or
(b) for a repeat offender—forfeited to the Territory, unless the court otherwise orders under subsection (2).
(2)The court may, by order, specify a shorter period of impounding, dispense with the period of impounding or commute a forfeiture to a period of impounding to avoid excessive hardship or other injustice to anyone.
(3) In deciding whether to make an order under subsection (2), the court—
(a) must have regard to the circumstances of the offence, including the risk to the safety of road users; and
(b) may seek evidence from the prosecution about the circumstances of the offence.
(4)Subsection (3) does not limit, by implication, the matters to which the court may have regard or prevent the defendant from presenting evidence about the circumstances of the offence.
(5)Any period for which the motor vehicle was impounded under section 10A (Impounding of vehicles used for menacing driving on court order before conviction etc) or section 10C (Powers of police officers to seize and impound vehicles used in committing certain offences) counts towards a period of impounding of the motor vehicle under this section.
(6) If—
(a) a court convicts a person, or finds a person guilty, of an offence against section 5A, section 5B or section 8; and
(b) the motor vehicle used in committing the offence is subject to impounding or forfeiture under this section; and
(c) the vehicle has not already been impounded under section 10C;
the court may order the responsible person for the vehicle to surrender the vehicle to the chief police officer within a stated time and in a stated way.
(7)The court may also make an order authorising any police officer to seize the vehicle from any place if the order under subsection (6) is not complied with.
(8)The impounding or forfeiture of a motor vehicle under this section is in addition to any other penalty imposed for the offence.
(9) For any rights of appeal against penalty, the impounding or forfeiture of a motor vehicle under this section is, or is part of, the penalty imposed for the offence.
Section 10AA defines, for the purposes of s 10B, an “impounding offence” and “repeat offender”. An impounding offence includes an offence against s 5B. There is a reference to “pre-commencement” offences. Section 10AA was inserted with effect from 4 April 2012. It provides:
10AA Meaning of first offender and repeat offender—div 2.3
(1) A person who is convicted or found guilty of an impounding offence is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.
(2)A person who is convicted or found guilty of an impounding offence (the relevant offence) is a repeat offender in relation to the offence if—
(a) the person has been convicted or found guilty of an impounding offence committed at any time before the relevant offence was committed (whether or not the person has been convicted or found guilty of the impounding offence when the person committed the relevant offence); or
(b) the person is convicted or found guilty of 1 or more impounding offences concurrently with being convicted of the relevant offence, and 1 or more of the impounding offences were committed before the relevant offence.
(3)However, a person who is convicted or found guilty of an impounding offence that was committed before the commencement of the Road Transport (General) Amendment Act 2012, section 15 (the pre-commencement offence) is a repeat offender in relation to the offence only if—
(a) the person has been convicted or found guilty of an impounding offence within 5 years before being convicted or found guilty of the pre-commencement offence; or
(b) the person is convicted or found guilty of 1 or more impounding offences concurrently with being convicted or found guilty of the pre-commencement offence, and 1 or more of the impounding offences were committed before the pre-commencement offence.
(4) Subsection (3) and this subsection expire 5 years after the day this section commences.
(5) In this section:
“impounding offence” means an offence against any of the following sections:
(a) section 5A (Races, attempts on speed records, speed trials etc);
(b) section 5B (Burnouts and other prohibited conduct);
(c) section 8 (Menacing driving).
Note Found guilty, of an offence, includes having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing) (see Legislation Act, dict, pt 1).
The first difficulty is that arising from the definition of a repeat offender. [Redacted for legal reasons].
Thus, in connection with the conviction in respect of the December offence, the offender was not at the time he committed that offence, a repeat offender, by virtue of s 10AA(3). In relation to the January offence, of course, the appellant was found guilty concurrently with the conviction for the December offence and thus, by virtue of s 10AA(2)(b), became a repeat offender in respect of that latter offence.
The application for forfeiture was preceded by a notice purporting to have been given in accordance with s 10D of the RT (S & TM) Act.
10D Registered operator and interested people to be notified
(1) If a motor vehicle is seized under section 10C (1) (a) (Powers of police officers to seize and impound vehicles used in committing certain offences), the chief police officer must give notice of the seizure to the registered operator of the vehicle.
Note For how documents may be served, see the Legislation Act, pt 19.5.
(2) If a prosecution is started against a person for an offence against section 5A (Races, attempts on speed records, speed trials etc), section 5B (Burnouts and other prohibited conduct) or section 8 (Menacing driving) involving a motor vehicle, the chief police officer must give notice of the prosecution to—
(a) if the prosecution is against a person other than the registered operator (or a registered operator) of the vehicle—the registered operator; or
(b) if the vehicle may be subject to forfeiture if the person is convicted or found guilty of the offence—the holder of any registered interest in the vehicle.
(3)The notice must be given within 7 days after the seizure or the start of the prosecution.
(4)The notice must—
(a) state—
(i) the short description prescribed under the Road Transport (General) Act 1999 for the offence for which the motor vehicle has been seized or the prosecution started (or the provision of this Act contravened by the person); and
(ii)the place where the offence was committed and the date and approximate time of the offence; and
(iii)the particulars that are, under the regulations under the Road Transport (General) Act 1999, identifying particulars for the vehicle; and
(c) for a notice under subsection (1)—tell the registered operator that an application may be made to the chief police officer or the Magistrates Court for the release of the vehicle; and
(d) for a notice under subsection (2)—tell the person that the vehicle may be subject to impounding or, if appropriate, forfeiture under section 10B.
There was no evidence, so far as I can see, of compliance with that provision from the terms of the Notice tendered or otherwise. The notice was as follows:
Vehicle Forfeiture
Request & Notice
AFP
Section 10B Road Transport (Safety & Management) Act 1999
Impounding or forfeiture of vehicles on conviction etc
Application for forfeiture of vehicle to the TerritoryTo Be Completed by Informant
Defendant Aaron SCHILG Date of Birth 19-Dec-1991 Offence Perform burnout (2 counts) Charge Number CC2013/1218-1219 PROMIS Number 5270166 Request to Forfeit Pursuant to s 10B Road Transport (Safety & Traffic Management Act 1999
Consideration having been given to the Defendant’s prior conduct (a repeat offender) and the nature of these offences, an application is hereby made for the forfeiture of the offending vehicle; a 1998 red coloured Holden Commodore sedan bearing ACT registration YJC35B.
To be Completed by Prosecutor
Magistrate/Judge Date Conviction Recorded Activating Automatic Forfeiture
[state offence]
.................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Forfeiture Ordered
[state order made]
....................................................................................................................................................................................................................................................................................................................................................................................................................................................Date
Prosecutors Name Prosecutor Signature
It is not stated expressly in s 10B that the giving of the notice under s 10D is a condition precedent to the activation of the power of the Court to order forfeiture.
However, given the disproportionate penalty represented by the forfeiture of a motor vehicle and the discretion under s 10B(2) to relieve from seizure or forfeiture, it is to be expected that a person must be given a fair opportunity to address possible “excessive hardship” or “other injustice” and thus to seek to have relief from the forfeiture or even the impounding of the vehicle as the case may be.
It does not appear that the learned Magistrate gave consideration to that provision. The prior burnout matter was considered, as was the driving in question, but hardship was only addressed in the following exchange:
Appellant:I have respect to pay my rent and if I cannot get to work how am I going to pay? I do not deny that it is stupid. I know it is wrong, but if I cannot get to work how am I meant to pay rent? How am I meant to pay a loan? How am I meant to get through?
Her Honour: That is a consequence of your actions. You made a choice. There are consequences that flow from your choices. I see no reason for the car not to be forfeited. As the prosecutor quite properly point out, the fact that this was placed on Facebook in order to ---
Appellant:I did not post it. It was posted on my account, but it was not me.
Her Honour: Well, again, that is a consequence for your actions. If you had not done the burnout it would not have been on Facebook.
I make an order for the forfeiture of the vehicle.
This could not in any way be viewed as an inquiry into whether the order proposed would create an injustice. Nor, given the defendant was self-represented, could the hearing on a penalty which potentially might well exceed $20,000, and may have involved a finance debt about the same level, be regarded as “fair” within the meaning of s 21 of the Human Rights Act 2004 (ACT).
The same qualification arises even on an impounding of a vehicle, though the value of it is not then permanently taken from a defendant. In this case I was satisfied that, as the period of seizure has passed, no further injustice would be visited upon this appellant by the making of an impounding order.
It should also be noted that, although s 51(xxxi) of the Constitution allows a power to be conferred on an ACT legislative body to acquire property only “on just terms”, the confiscation of criminal assets is not per se unjust, (see Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 119 ALF 655). The same is the case for a power of confiscation such as is provided for by s 10B of the RT (S & TM) Act, but it does require a just process (see Theophanous v Commonwealth (2006) 226 ALR 602. That implies that there will be a proper balance struck between the burden imposed by the penalty represented by the particular confiscation and the circumstances of the offending behaviour including, of course, the criminal history of the defendant and the usual considerations for sentencing referred to in the Crimes (Sentencing) Act 2005, ss 7, 33 and 34. It must also be borne in mind that a penalty has already been imposed for the particular offending behaviour. That said, there remains much force in her Honour’s observation that those who engage in the proscribed driving behaviour render themselves liable to the penalty of impounding or forfeiting of the subject motor vehicle. It is, and it is intended to be, a powerful deterrent in the interests of road safety.
In the present case, as I have observed, it was not open to have imposed the confiscation order on the subject offence. The sentence must therefore be set aside and varied as I ordered on 12 June 2013.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 29 August 2013
Counsel for the Appellant: Mr P Woodhouse
Solicitor for the Appellant: Ben Aulich & Associates
Counsel for the Respondent: Mr D Sahu Khan
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 12 June 2013
Date of judgment: 29 August 2013
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