DRAPER v Police - [2009] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DRAPER v POLICE
[2009] SASC 264
Judgment of The Honourable Justice Nyland
3 September 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appellant charged with driving unregistered and uninsured motor vehicle ie a trailer - order for disqualification of licence - Magistrate in error in relying on s 102(1) Motor Vehicles Act 1959 to impose order for disqualification - whether power provided by s 168 Road Traffic Act 1961 - inappropriate in this case to rely on s 168 to impose order for disqualification - appeal allowed and disqualification set aside.
Motor Vehicles Act 1959 ss 9, 102(1); Criminal Law Sentencing Act 1996 s 18A; Road Traffic Act 1961 s 168(1)(b), referred to.
Maher v French (1974) 7 SASR 504; Dean v Williams [1968] SASR 339; Reeves v Police (1997) 70 SASR 451; Farrellyl v Howells (1976) 12 SASR 520; Dixon v Steel (1972) 3 SASR 116; Bailey v Nelson (1976) 13 SASR 388; Turner v Deed (1966) SASR 374; McDonald v Maher (1976) 13 SASR 438, considered.

DRAPER v POLICE
[2009] SASC 264
DRAPER
Magistrates Appeal

NYLAND J: This is an appeal against a sentence imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 30 June 2008. The appellant, who was unrepresented, pleaded guilty to a charge that on 21 April 2008 on Magill Road, he drove a vehicle, namely a trailer, whilst the registration was not then in force in contravention of s 9 Motor Vehicles Act (1959) (“MVA”). He also pleaded guilty to the charge that on the same date he drove a motor vehicle, namely a trailer, whilst the policy of insurance was not then in force, in contravention of s 102 MVA.
The learned Magistrate recorded convictions with respect to both offences and pursuant to s 18A of the Criminal Law Sentencing Act (1996) imposed a fine of $200 for the offending. On the charge of driving an uninsured vehicle, however, the Magistrate further ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two days, commencing at 12.01 am on 5 July 2008. In making that order, the learned Magistrate relied on s 102(1) MVA.
The appellant subsequently made an application to the Magistrate for her to revoke the order made for disqualification of the licence. The appellant submitted that she had erred in disqualifying his licence when the offence related to a trailer as opposed to a motor vehicle. The application was refused. The learned Magistrate indicated to the appellant that she had a discretion pursuant to s 168 Road Traffic Act (1961) (“RTA”) to make an order for disqualification with respect to any offence that involved the use of a motor vehicle. She said however that had she been familiar with the fact that this was a trailer, she might not have made the order for disqualification of licence. She suggested that if the appellant wished to pursue the matter further, he should do so by way of an appeal to this court.
The appellant subsequently filed a notice of appeal complaining about the order of the Magistrate on a number of grounds. He did not take issue with the recording of the convictions, nor the fine imposed. The only issue on appeal was the order for disqualification of licence. The appellant indicated that he wished to pursue this matter, notwithstanding the fact that he had already served the period of licence disqualification imposed by the Magistrate.
The circumstances of this offence are set out in the Police Apprehension Report annexed to the affidavit of Brendon John Beh, the prosecutor who appeared in court with respect to these proceedings. It appears that at about 10.15 am on Monday, 21 April 2008, police on uniform mobile patrol observed a silver Ford Falcon station wagon travelling ahead of the vehicle and towing a trailer, Registration Number TYM 556. Police conducted a check on the registration of the trailer, which revealed that the registration had expired on 27 January 2008. They spoke to the appellant, who informed them that he was not the owner of the trailer, which was owned by his girlfriend, and he was going to his mother’s address nearby. He told the police he was unaware that the registration had expired.
The order for disqualification of the appellant’s licence was made pursuant to s 102(1) MVA, which at the time of the offence was in the following terms:
A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
In the case of an offence arising out of the towing of an uninsured trailer that is not a heavy vehicle—$250.
In any other case—$2 500 and disqualification from holding and obtaining a driver's licence for a period of not more than 12 months.
That section does not provide for disqualification of licence where a trailer is being towed. On the hearing of the appeal, Ms Stirling, who appeared for the Respondent, conceded that the learned Magistrate had fallen into error when she purported to rely on s 102(1) MVA to impose the period of licence disqualification. She submitted however that the power to impose a period of disqualification was provided by s 168(1)(b) RTA, which is in the following terms:
A court that convicts a person of—
(a) an offence against this Act relating to motor vehicles; or
(b)an offence (under this Act or any other Act or law) in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle,
may do one or more of the following:
(c)order that the person be disqualified from holding or obtaining a driver's licence for a period fixed by the court or until further order; …
Ms Stirling submitted that it was appropriate to impose an order for disqualification in this case, as the appellant had a previous conviction for driving an unregistered and uninsured motor vehicle, recorded in the Magistrates Court at Holden Hill on 20 May 1997.
The use of s 168 RTA to disqualify a person from holding or obtaining a driver’s licence where a motor vehicle was used or involved in the commission of an offence has been discussed in a number of cases. Under s 168(1)(b) RTA, a disqualification order may be made if an offence was “facilitated” by a motor vehicle. As such, it must be determined whether this offence comes within the statutory scope and definition of “facilitation”.
In Dixon v Steel[1] an employee of the Postmaster-General stole components of a telephone and took them home in his car to assemble them. The appeal against disqualification was allowed as the theft was not dependent upon the use of the car. As the use of the vehicle was incidental to the crime, it was found that the vehicle was not used to “facilitate” the crime and therefore the learned Special Magistrate had no jurisdiction to disqualify the appellant. Bray CJ said that although the appellant had transported the ill-gotten components in the car itself, it had not been used to “facilitate” the crime as the vehicle was not instrumental in the offence in the sense of making the offence itself easier.[2]
[1] (1972) 3 SASR 116
[2] Dixon v Steel (1972) 3 SASR 116 at 117.
In Bailey v Nelson[3] Zelling J agreed with Bray CJ’s interpretation of “facilitate”. The appellant was found guilty of stealing petrol. He and another person had driven to the scene where “the taking and carrying away” of petrol occurred[4]. Disqualification was found on appeal to be an appropriate penalty as the appellant’s vehicle was instrumental in the commission of the crime. The offence was made easier and therefore “facilitated” by the use of the vehicle.
[3] (1976) 13 SASR 338.
[4] Bailey v Nelson (1976) 13 SASR 388 at 389.
In Turner v Deed[5] the defendant was convicted of stealing rabbit traps from a property and transporting them home on the tray of his utility. Mitchell J found that by putting the traps on the tray of the utility and then driving home, the statutory requirement was met.[6]
[5] (1966) SASR 374.
[6] Turner v Deed (1966) SASR 374 at 378.
In McDonald v Mather[7], Walters J was satisfied that while the appellant was stealing petrol from another car, his actions of standing behind the bonnet of his own car so that passing motorists could not see the crime in commission was “deliberately intended by him to cover or camouflage his dishonest conduct.”[8] It followed that the appellant’s car was used to “facilitate the crime”.
[7] (1976) 13 SASR 438.
[8] McDonald v Mather (1976) 13 SASR 438 at 443.
In Farrelly v Howells[9] which also involved the seemingly endemic problem in the 1970s of petrol theft, the appellant parked his car adjacent to another car to conceal his actions in siphoning petrol out of the other car’s tank. Wells J found that:
When the appellant drove his car away from the scene after replenishing it with stolen petrol … he was simply enjoying the fruits of a completed crime, not continuing with its perpetration.[10]
[9] (1976) 12 SASR 520.
[10] Farrelly v Howells (1976) 12 SASR 520 at 526-527.
Comparing the appellant to a bank robber who stands outside a bank pretending to tinker with a broken down car so that passers by have no reason to suspect any wrongdoing, Wells J found that the appellant had used the car to give the impression that he was waiting for someone while he stole the petrol. As such, the car itself was used as a foil and was integral in the facilitation of the crime.
Both of these cases demonstrate a wilful intent to commit a crime where a vehicle has been used in the commission of that crime. As such, the vehicle had been the instrument in the facilitation of the offence.
After nearly being involved in a car crash caused by the victim in Reeves v Police[11], the appellant pulled up next to the victim and banged his car door against hers causing about $100 worth of damage. By causing this to occur, either intentionally or through recklessness, the appellant was found to have used his motor vehicle in the commission of the offence, thus “facilitating” it.
[11] (1997) 70 SASR 451.
In Dean v Williams[12] an altercation broke out between a taxi driver and a member of the public about where two vehicles were parked. The appellant in the case was charged with the assault of the driver of a different car. Although the vehicle’s locations were the cause of the altercation, as the appellant had not used the vehicle itself in the commission of the offence the court held it had not facilitated the offence. In Maher v French[13] an assault occurred as a result of a disagreement between two drivers, but similarly, it was found that the offence was not facilitated by the vehicle.
[12] [1968] SASR 339 at 340.
[13] (1974) 7 SASR 504.
In Keynes v Kowald[14] a driver and his friend drunkenly claimed to be police officers to teenage girls whom they approached in their car. The court found there was nothing about their clothing or the vehicle of the appellant that could have conveyed the impression that he really was a police officer[15] Bray CJ found that “there was nothing about the car which suggested that it was a police vehicle”[16]. As the offence was impersonating a police officer, and the vehicle itself did not support the offence, the offence was not facilitated by the vehicle.
[14] (1976) 13 SASR 354.
[15] (1976) 13 SASR 354 at 355.
[16] (1976) 13 SASR 354 at 358.
Each of these cases demonstrates that the focus of the court has been on the use of a motor vehicle to “facilitate” a crime and it is clear that s 168 empowers a court to impose a period of disqualification in that circumstance.
In this case however there is no suggestion that the appellant intended to commit any criminal offence, nor for that matter was aware that he had breached the provisions of s 102(1). Section 102 is concerned with the duty to insure against third party risks. In fixing the maximum penalty for an offence under ss (1), Parliament has differentiated between an offence arising out of the towing of an uninsured trailer that is not a heavy vehicle, for which a fine of $250 was prescribed as opposed to any other case, the latter having a maximum fine of $2,500 with power to disqualify for a period of nor more than 12 months.
If Parliament had intended that the offence of towing an uninsured trailer warranted a period of disqualification of licence it could have included that in the penalty provided by s 102(1) but chose not to do so. In my opinion, it would be inappropriate to rely on the provisions of s 168 RTA to impose a licence disqualification in the circumstances of this case. There was no power to impose the disqualification pursuant to s 102(1) MVA. The appeal is therefore allowed and licence disqualification set aside.