Crotty v Police
[2008] SASC 308
•7 November 2008
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CROTTY v POLICE
[2008] SASC 308
Judgment of The Honourable Justice Kelly (ex tempore)
7 November 2008
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appeal against conviction and sentence - appellant pleaded guilty to offence of driving a motor vehicle whilst unauthorised - magistrate sitting in the Youth Court imposed a licence disqualification of three years, and a fine of $150 - application for an extension of time within which to appeal - complaint stated that the offence is contrary to s 74 of the Motor Vehicles Act 1959, but did not specify the subsection - whether the complaint was sufficient - whether the magistrate sentenced on an incorrect factual basis - whether the sentence was manifestly excessive.
Held: respondent permitted to amend the complaint to include relevant subsection, as no prejudice or manifest injustice to the appellant - appeal against conviction dismissed - magistrate may have sentenced on incorrect factual reasons - no reasons available - extension of time within which to appeal granted - licence disqualification period manifestly excessive - appeal against sentence allowed - period of licence disqualification reduced to 18 months.
Motor Vehicles Act 1959 s 74, s 74(1) and s 74(2); Summary Procedure Act 1921 s 22A, s 181; Road Traffic Act 1961 s 168, referred to.
Willing v Hollobone (No. 2) (1975) 11 SASR 118; Ireland v Police [2005] SASC 202; Police v Warren [2000] SASC 285, discussed.
CROTTY v POLICE
[2008] SASC 308Magistrates Appeal
Kelly J (ex tempore)
The appellant appeals against a conviction and a sentence imposed in the Elizabeth Youth Court on 27 July 2005. On that day the appellant pleaded guilty to the offences of driving an unregistered motor vehicle, driving an uninsured motor vehicle, driving a motor vehicle whilst not the holder of an appropriate licence and driving a motor vehicle without number plates properly attached.
The appellant was unrepresented in the court on the date of his plea. He now seeks an extension of time within which to appeal against the conviction for driving a motor vehicle whilst not the holder of an appropriate licence. In respect of that conviction the learned magistrate imposed a licence disqualification of three years together with a fine of $150 plus court fees.
The appellant seeks to challenge the conviction on the basis that the complaint alleging the offence contrary to Section 74 of the Motor Vehicles Act 1959 (“the Act”) is invalid in that it charges an offence not known to the law at that time. The appellant also challenges the sentence on the basis that the magistrate sentenced on an incorrect factual basis and the sentence imposed was beyond the power of the magistrate.
Finally, the appellant appeals on the basis that in any event the sentence insofar as the magistrate purported to impose a licence disqualification of three years, was manifestly excessive.
The background to the offences is that on 15 April 2005 the appellant was stopped by police as he was driving along Gunther Road in Elizabeth Grove in a Holden Commodore station wagon. Police checks revealed that the vehicle was actually registered under another registration number. The registration of that vehicle had expired on 15 September 2004. As the registration had been expired for more than 30 days the vehicle was also uninsured. The appellant had previously held a driver’s licence which had expired on 9 June 2004. The appellant’s traffic history reveals that this was not the first time the appellant had been convicted of driving a motor vehicle whilst not the holder of an appropriate licence.
On 21 July 2005 the appellant appeared in the Elizabeth Youth Court and pleaded guilty to a number of motor vehicle offences albeit that those offences were committed after 15 April 2005 (on 19 July 2005). Those offences included one count of driving a motor vehicle whilst not appropriately authorised.
On 16 October 2003 in the Adelaide Youth Court the appellant pleaded guilty to a number of offences including three offences of driving a motor vehicle whilst not the holder of an appropriate licence. Those offences were committed on 7 April, 31 May and 23 July 2003 respectively.
The complaint in this matter filed on 20 April 2005 contained four counts. It is only the third which is relevant to this appeal. I note at this stage that prior to 15 December 2003 s 74 provided as follows:
Duty to hold licence or learner’s permit
74. (1) Subject to this Act, a person must not drive a motor vehicle on a road unless—(a) the person holds a licence under this Act that authorises the holder to drive a motor
vehicle of the class to which the vehicle belongs; or
(b) the person—
(i) holds a licence under this Act; and
(ii) has the minimum driving experience required by the regulations for the grant
of a licence that would authorise the driving of a motor vehicle of the class to which the vehicle belongs; or
(c) the person holds a learner’s permit.
Maximum penalty: $1 250.
(2) When the holder of a licence under this Act drives a motor vehicle on a road as authorised
under subsection (1)(b), the obligations imposed by section 75A on the holders of learner’s permits and qualified passengers for learner drivers apply to the holder of the licence and any
accompanying passenger with such modifications and exclusions as are prescribed by the
regulations.
On 15 December 2003 s 74 of the Act was amended to include the following subsections:
Duty to hold licence or learner’s permit
74. (1) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b) is not authorised to drive a motor vehicle of that class on a road but has previously
been so authorised under this Act or the law of another State or a Territory of the
Commonwealth,
is guilty of an offence.
Maximum penalty: $1 250.
(2) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b)is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
(3) For the purposes of this section, a person is authorised to drive a motor vehicle of a
particular class on a road if—
(a) the person holds a licence under this Act that authorises the holder to drive a motor
vehicle of that class; or
(b) the person—
(i) holds a licence under this Act; and
(ii) has the minimum driving experience required by the regulations for the grant
of a licence that would authorise the driving of a motor vehicle of that class;
or
(c) the person holds a learner’s permit.
(4) When the holder of a licence under this Act drives a motor vehicle on a road as authorised under subsection (3)(b), the obligations imposed by section 75A on the holders of learner’s permits and qualified passengers for learner drivers apply to the holder of the licence and any accompanying passenger with such modifications and exclusions as are prescribed by the regulations.
(5) Where a court convicts a person of an offence against subsection (2) that is a subsequent offence, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver’s licence for such period, being not less than 3 years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c)if the person is the holder of a driver’s licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(6) In determining whether an offence is a first or subsequent offence for the purposes of
subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
It is evident from the amended Act that s 74 was changed to provide for two offences. Subsection (1) of s 74 requires the prosecution to prove that the person had previously been authorised to drive a motor vehicle of a particular class concerned on a road. Subsection (2) of s 74 requires the prosecution to prove that the person has never been authorised to drive a motor vehicle of a particular class concerned on a road. The two offences contain common elements but each contains an element that the other does not.
The appellant argued that the complaint was defective and therefore invalid because it did not specify which of the relevant subsections (1) or (2) was relied upon. He submitted that in alleging a breach of s 74 only, the complaint failed to identify an offence known to the law. He opposed any attempt by the respondent to amend the complaint at this late stage to identify the relevant subsection under which the complaint had been laid arguing that this Court should not permit any such amendment as to do so would be to alter the fundamental nature of the offence some three years after the expiry of the limitation period.
In essence, the appellant has submitted that notwithstanding his plea of guilty some three years ago, he should now be given an extension of time within which to appeal and that the conviction should be set aside. He submits that there was a manifest miscarriage of justice as he could not have been convicted of the offence purportedly charged as it was not an offence known to the law at that time.
The starting point for consideration of the appellant’s argument is Section 22A of the Summary Procedure Act 1921 which provides:
22A—Description of offence
(1) Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3)After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.
It is true the complaint did contain a reference to the section creating the offence namely s 74, however the failure to specify which subsection was relied on may have caused some potential for confusion even though the gravamen of both offences is that the person concerned has driven on a road whilst not being authorised to do so.
However, given the way in which the proceedings in the Elizabeth Youth Court unfolded I do not think that the appellant can now claim to have been prejudiced by the failure to specify which subsection in s 74 was relied on.
I have reached this conclusion because it is obvious from the lower court file that the certificate of record contains a reference to an offence committed under s 74(1). Furthermore, the material on which the prosecution relied included a police apprehension report which was used as the basis of the prosecutor’s submissions to the magistrate. That report included the allegation against the appellant that he had previously been authorised to drive a motor vehicle but that his driver’s licence had expired on 9 June 2004. There was even a reference in the apprehension report to the former licence number AC6206. The report contained a further allegation that the accused had been spoken to at the time of his arrest and stated that he was aware that his driver’s licence had previously expired.
In light of this I consider that the only real issue that arises from the defect on the face of the complaint is whether in describing only the section and not the particular subsection relied on, the complaint was pleaded with sufficient particularity. Even if it was not, the further question arises as to whether the defect could in any event have been cured by an appropriate amendment had it been brought to the prosecutor’s attention at the time.
There is no doubt that the magistrate had power to amend the complaint. S 181 of the Summary Procedure Act provides:
181—Charges
(1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
This Court has held that where a complaint fails to sufficiently identify the precise section of an Act, that error can be cured by amendment provided that this would not result in the occasion of substantial prejudice, Willing v Hollobone(No. 2) (1975) 11 SASR 118. It is also well established that an amendment to a complaint can be made upon appeal, Ireland v Police [2005] SASC 202.
Given that the allegations put before the magistrate made it plain that the prosecutor was relying on s 74(1) of the Act, I do not consider the appellant can now complain if the prosecution is given permission to amend the complaint.
I accept that the appellant was unrepresented at the date of the hearing however there has been no suggestion then, or even since, that he was unaware of the gist of the charge against him. He could hardly have done so given that he told the police he was aware his driver’s licence had expired.
In light of these facts I do not consider it to be necessary for any amendment to the complaint to be made. However, if I were to be wrong about that, I do not consider that the appellant would suffer any prejudice or that any manifest injustice would result from the prosecution being permitted to cure, what is a formal defect in the complaint.
Insofar as it might be necessary, I grant permission to the respondent to amend the complaint to identify s 74(1). That disposes of the appeal against conviction.
I turn now to deal with the appeal against sentence. The appellant submitted that the sentence imposed upon him was manifestly excessive and in any event was beyond the power of the court.
The substance of the appellant’s argument on appeal was that because the period of licence disqualification was three years, a strong inference arises that the magistrate may have sentenced on an incorrect factual basis, namely, that the appellant had never previously been authorised to drive a motor vehicle.
The appellant also complains that the period of three years licence disqualification is so high in any event, and so out of the ordinary range for an offence of driving whilst unauthorised when previously authorised, that the sentence is manifestly excessive.
After the conclusion of submissions at the hearing of this appeal, counsel for the appellant, Mr Blake helpfully forwarded to my chambers some supplementary information concerning the average and maximum lengths of licence disqualifications ordered for offences contrary to s 74(1) and s 74(2) of the Act.
Whilst I am very cautious about using statistical information of this kind, nevertheless I do draw some assistance from the compilation of the files dealt with by Mr Blake’s office in the previous two years and from the Office of Crime Statistics and Research which shows the cases dealt with between 1 July 2006 to 30 June 2008 where disqualifications were imposed under either s 74(1) or s 74(2) of the Act. The statistics do lend some support to Mr Blake’s submission.
I bear in mind counsel for the respondent, Ms Nikoloff’s submissions that in light of the appellant’s history, a period of three years disqualification, although quite high, was within the discretion of the magistrate.
Nevertheless, I have had regard to the following matters in arriving at a final decision. The magistrate dealt with the appellant for three other offences on that day. Without going into the details of each sentence in relation to those other offences, I observe that she imposed the minimum disqualification appropriate and very low fines.
The magistrate did not give any reasons and I make no criticism of her. As I said during the course of the argument on appeal, the Magistrates Court is required to deal with this type of offence every day of the week and magistrates would never get through their list if they were required to give detailed reasons in every matter.
However, in a case like this where an issue has arisen some three years later, it is one of the matters I put into the scale when deciding whether I should interfere or not with the sentence in relation to the licence disqualification.
In the absence of reasons and having taken into account the material forwarded by Mr Blake, I have concluded that a three year licence disqualification for this offence does appear to be inordinately high.
Mr Blake’s hypothesis that the magistrate may have made a simple error by imposing what she thought was the minimum period available to her under s 74(2), is an attractive argument. However, I take into account that the appellant was a repeat offender who had committed numerous other motor vehicle offences including at least three other offences for the very same offence that he was being dealt with on this occasion.
It would not be surprising in light of that background if the magistrate took the view that previous sentences had not had any deterrent effect on the appellant.
Nevertheless, I must bear in mind that the appellant was still a youth. I take into account all of the principles applicable under the Young Offenders Act 1993, to which the magistrate was also required to have regard.
The submission that the imposition of the licence disqualification was beyond the magistrate’s power was abandoned during the course of the hearing. S 168 of the Road Traffic Act 1961 makes it plain that the magistrate did have the power to impose a licence disqualification in the circumstances. The real issue here is whether it would be unjust to allow the sentence to stand.
The appellant sought an extension of time within which to bring the appeal. He was sentenced on 27 July 2005 and the notice of appeal was filed on 27 August 2008. A period of over three years has elapsed since the date the appellant was sentenced and the period of licence disqualification has now been completed.
Although the appellant had the opportunity to challenge the sentence within an appropriate time following his sentencing on 27 July 2005, I accept the explanation which was proffered by his counsel for his failure to do so. The appellant was unrepresented in 2005 and it was only when he was arrested earlier this year for other matters that his legal advisors first considered the sentence imposed by the magistrate on 27 July 2005.
The question is whether it would be contrary to the public interest and to the orderly and efficient administration of justice to allow the appellant to challenge the length of the disqualification period in circumstances where he has, by reason of that earlier disqualification, subsequently been charged with driving whilst disqualified. In this sense it is obvious that the challenge to the conviction and sentence at this stage was prompted by the appellant’s arrest on 9 May 2008.
Notwithstanding the gross delay in instituting the appeal, there is no doubt that the court has a discretion to extend the time within which to appeal, if the court determines that it is just to do so.
The principles to be applied when considering an application for an extension of time within which to appeal are well understood. A convenient summary of those principles is to be found in the judgment of Gray J in Police v Warren [2000] SASC 285 and I rely upon them:
(1) The discretion exists for the sole purpose of doing justice between the parties.
(2) Some material must be advanced upon which the court can exercise its discretion.
(3) There is an obligation to explain with frankness and candour the reason for delay.
(4) The longer the delay the more exceptional or substantial the explanation required.
(5) If no sufficient grounds of appeal are disclosed an extension will not be granted.
(6) The court is not obliged to consider the merits in detail.
(7)The court will consider whether any substantial ground exists for apprehending a miscarriage of justice.
(8)Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a manifest miscarriage of justice.
(footnotes omitted).
Having considered all of these matters and having considered the merits of the appeal, I have concluded that the appellant was properly convicted. However, in light of the concerns that I have mentioned regarding the licence disqualification imposed in relation to the offence contrary to s 74(1) of the Act, I am satisfied that if I do not interfere there may well be a manifest miscarriage of justice in relation to the appellant.
In this regard I note that the appellant is still a very young man. He is, as of today’s date, 21 years old. At the date when the magistrate dealt with him he was still a youth. Even in light of his poor history I consider that a period of three years licence disqualification for an offence contrary to s 74(1) to be disproportionate.
Therefore I will allow the appeal against sentence in relation to the disqualification period imposed by the magistrate. Taking into account the same factors relied on by counsel for the respondent and in particular the youth’s poor history, I would reduce the period of disqualification made by the magistrate to eighteen months.
In these circumstances I am satisfied it is proper to extend the time within which to file the appeal to 27 August 2008. The appeal against conviction is dismissed. The appeal against sentence is allowed to the extent that the order for disqualification made under the provisions of s 74(1) of the Act is reduced to a period of eighteen months.
13
2
1