HA & SB v The Director of Public Prosecutions
[2003] NSWSC 347
•28 April 2003
Reported Decision:
57 NSWLR 653
Supreme Court
CITATION: HA & SB v The Director of Public Prosecutions [2003] NSWSC 347 HEARING DATE(S): 10 March 2003 JUDGMENT DATE:
28 April 2003JURISDICTION:
Common Law DivisionJUDGMENT OF: Dunford J DECISION: Appeals dismissed. CATCHWORDS: CRIMINAL LAW - driving offences - Children's Court - findings of guilt - whether "conviction" - power to disqualify from holding driver licence - WORDS & PHRASES - "conviction" LEGISLATION CITED: Children (Criminal Proceedings) Act 1987, ss 10, 14, 33
Crimes Act 1900, s 556A
Crimes (Sentencing Procedure) Act 1999, s 10, 33, 34, 35
Director of Public Prosecutions Act 1986, s 9
Justices Act 1902, s 80AA(2)
Motor Traffic Act 1909
Road Transport (General) Act 1999, ss 24, 25, 27, 30
Road Transport (Safety and Traffic Management) Act 1999, s 42(2)
Road Transport (Driver Licensing) Act 1998, ss 25, 25A
Traffic Act 1909, s 7A(3)CASES CITED: Burgess v Boetefeur (1844) 7 Man & G 481
Cobiac v Liddy (1969) 119 CLR 257
Dixon v McCarthy [1975] 1 NSWLR 617
Kinney v Green (1992) 29 NSWLR 137
Maxwell v The Queen (1996) 184 CLR 501
R v Felton [2002] NSWCCA 443
R v Ingrassia (1997) 41 NSWLR 447
R v Jerome and McMahon [1964] Qd R 595
R v Tonks [1963] VR 121
Re Stubbs (1947) 47 SR 329
Richards v The Queen (1993) AC 217
S (an infant) v Recorder of Manchester & ors [1971] AC 481PARTIES :
HA (Plaintiff / Appellant)
SB (Plaintiff / Appellant)
Director of Public Prosecutions (Defendant / Respondent)FILE NUMBER(S): SC 13121/02; 13122/02 COUNSEL: AP Cook (Plaintiffs / Appellants)
D Frearson (Defendant / Respondent)SOLICITORS: Legal Aid Commission of NSW (Plaintiffs / Appellants)
SE O'Connor - Solicitor for Public Prosecutions (Defendant / Respondent)
LOWER COURTJURISDICTION: Children's Court LOWER COURT FILE NUMBER(S): LOWER COURT
JUDICIAL OFFICER :JO Crawford and JR Dive
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONDUNFORD J
Monday, 28 APRIL 2003
13121/02 HA v The Director of Public Prosecutions
13122/02 SB v The Director of Public Prosecutions[Note: The Children (Criminal Proceedings) Act 1987, s 10 prohibits the publication of the name of a person who was a child at the time of criminal proceedings against that person under that Act.]JUDGMENT
1 HIS HONOUR: These are appeals pursuant to s 104 of the Justices Act 1902 by SB and HA against orders made in the Children’s Court pursuant to s 24 of the Road Transport (General) Act 1999 (the RTG Act), disqualifying each of them from holding a driver’s licence for a specified period on the ground that the Children's Court had no power to impose such orders for disqualification.
2 SB (born 9 March 1986) pleaded guilty to a number of charges at Bidura Children’s Court on 29 January 2002 before Mr R Dive, Chief Magistrate of the Children’s Court. In respect of a charge of driving in a manner dangerous, contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999, a finding of guilt was made and he was released on probation for two years subject to conditions pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (the CCP Act). In addition he was disqualified from holding a driver’s licence for two years pursuant to s 25 of the RTG Act.
3 HA (born 16 October 1986) was dealt with on two charges at Lidcombe Children’s Court on 10 October 2002 by Mr J Crawford, Children’s Court Magistrate. On a charge of being an unlicensed driver contrary to s 25(2) of the Road Transport (Driver Licensing) Act 1998 he was fined $200 and disqualified from holding a licence for 12 months. That disqualification was pursuant to s 24 of the RTG Act.
4 Both plaintiffs were under the age of 16 years when dealt with by the Children’s Court and consequently the Court could not in respect of a guilty plea or finding of guilt “proceed to, or record such a finding as, a conviction” by reason of s 14(1) of the CCP Act which is as follows:
- Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:
(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and
(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.
5 The Director of Public Prosecutions took over the proceedings as defendant in both matters pursuant to s 9 of the Director of Public Prosecutions Act 1986 and the appropriate notices were given in that regard.
6 Section 24 of the RTG Act, so far as material, provides as follows:
- (1) Subject to section 25 of this Act, … a court that convicts a person of an offence under the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies.
(2) If the court makes an order disqualifying the person, the person is disqualified from holding a driver licence for the period specified by the court.
(3) Any disqualification under this section is in addition to any penalty imposed for the offence. …
7 Subsection (6) provides in effect that a person cannot be given the benefit of a bond without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) in respect of particular offences if during the previous five years that person has received the benefit of a bond under that section or under its predecessor, s 556A of the Crimes Act 1900, whilst s 25 provides for automatic and minimum periods of disqualification in respect of certain offences, including the offence with which SB was charged.
8 The plaintiffs contend that the relevant disqualification provisions, i.e. ss 24 and 25 of the RTG Act are triggered by a “conviction” and neither plaintiff has been “convicted”.
9 The words “convict” and “conviction” are not words of constant meaning with universal application. In Maxwell v The Queen (1996) 184 CLR 501 at 507, Dawson and McHugh JJ said:
- “The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.”
10 In Maxwell, where an accused charged with murder had pleaded guilty to manslaughter and the plea accepted, but he had not been sentenced, it was held that notwithstanding the plea there had in the absence of the sentence been no final judgment of the Court and accordingly no “conviction”. As I understand the judgments in that case, it can be said that generally, unless the context requires a different meaning, the meaning of the word “conviction” is a final judgment of guilt by the Court signified by the passing of a sentence or imposition of a penalty.
11 Reference may also be made to Dixon v McCarthy [1975] 1 NSWLR 617 at 623-4 where Yeldham J drew attention to the different meanings of the expression “conviction” in different sections of the Justices Act and Kinney v Green (1992) 29 NSWLR 137 where it was held that the expression, “conviction” had a different meaning in s 7A(3) of the Traffic Act 1909 to its meaning in s 80AA(2) of the Justices Act 1902.
12 As Gleeson CJ pointed out in R v Ingrassia (1997) 41 NSWLR 447 at 450, “It is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a court”, echoing what had been said by Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 275. The corollary of this principle is that if following a plea or determination of guilt the Court imposes a punishment, the person concerned has been “convicted”. See also S (an infant) v Recorder of Manchester & ors [1971] AC 481 at 489 per Lord Reid.
13 Generally, the Justices Act 1902, the Crimes Act 1900, the CSP Act and the RTG Act relate to adult offenders, whilst the CCP Act provides a different regime in respect of child offenders. One of its provisions, s 14, avoids the use of the words “convict” or “conviction” in respect of children and instead refers to findings of guilt, presumably to avoid the stigma of a young person having a “conviction” recorded against his or her name. The Act then provides that if the Children’s Court finds a person guilty it shall deal with the child in accordance with s 33 which is headed “Penalties”. These provisions, at least s 33(1) have their equivalents in respect of adult offenders in the CSP Act, namely dismissing the charge, releasing the person subject to a bond or recognisance, fine, community service, deferral of sentence on probation and detention, the Children’s Court equivalent of imprisonment.
14 It follows that under the legislation applicable to children the finding of guilt followed by imposition of a penalty is the equivalent of a finding of guilt followed by imposition of a penalty in the case of adults and, in the absence of specific provision to the contrary or a context which requires a different meaning, constitutes a “conviction” for the purposes of other legislation, including s 24 of the RTG Act. This is consistent with the manifest object of the latter Act which is to exclude persons who have been convicted of various types of driving offences which constitute a risk of potential harm to other road users from driving motor vehicles, and hopefully brought to a realisation of the dangers of negligent, dangerous or drunken driving. There is no logical or philosophical reason why such considerations should not apply to young persons any more than to adults.
15 That this conclusion was the intention of the legislature is confirmed by s 33(5) of the CCP Act, the section dealing with penalties, which is as follows:
- Nothing in this section limits or affects any power that the Children's Court may have apart from this section:
(a) to impose any disqualification under the road transport legislation within the meaning of the Road Transport (General) Act 1999 on a person whom it has found guilty of an offence,
(b) to order the forfeiture of any property that relates to the commission of an offence of which it has found a person guilty, or
(c) to make an order for restitution of property under section 126 of the Criminal Procedure Act 1986 .
16 This provision clearly envisages the imposition of disqualifications under the RTG Act on persons whom the Children’s Court has found guilty notwithstanding that such Court has no power to make or record a “conviction”. Otherwise it is difficult to see how subs (5)(a) could have any operation.
17 In Re Stubbs (1947) 47 SR 329 it was held that there was no power to impose a period of disqualification under the then equivalent legislation, the Motor Traffic Act 1909, where a person had been discharged under s 556A of the Crimes Act, now s 10 of the CSP Act, however, the reasoning of that case, particularly that of Davidson J at 336 and of Street J at 339 makes it clear that whilst “conviction” is a word of variable meaning, in the context of s 556A it meant the final adjudication and imposition of sentence because, if the offender was released conditionally and failed to observe the conditions, he could be required to appear “for conviction and sentence” and accordingly had not previously been “convicted”. In addition the section authorising the application of the provisions of the section contained the express words “without proceeding to conviction”. Re Stubbs is accordingly distinguishable.
18 Reference should also be made to R v Felton [2002] NSWCCA 443 where it was held that in respect of offences taken into account on a Form 1 pursuant to s 33 of the CSP Act, s 34 (which may be compared with s 33(5) of the CCP Act) authorised the making of orders for disqualification under s 25A of the Road Transport (Driver Licensing) Act, notwithstanding that s 35(4) of the CSP Act provides that an offence taken into account in such manner is not to be regarded for any purpose as an offence of which the offender has been convicted. On the other hand, it was also held that, as there was no conviction and no reference to such an order in s 34 of the CSP Act, matters taken into account on Forms 1 could not be used to ground a declaration as an “habitual traffic offender” pursuant to s 30 of the RTG Act because, although s 27(2) of that Act made express reference in the definition of “relevant offence” to findings of guilt without proceeding to conviction pursuant to s 10 of the CSP Act and s 556A of the Crimes Act, it did not contain any reference to ss 33 or 34 of the CSP Act.
19 For these reasons I am satisfied that for the purposes of s 24 or s 25 of the RTG Act, a finding of guilt followed by the imposition of a penalty pursuant to s 33(1) of the CCP Act amounts to a “conviction”, and that the Children’s Court in those circumstances has power to impose a disqualification under the RTG Act. Accordingly both appeals are dismissed with costs.
Last Modified: 05/07/2003
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