Harding v Police - [2011] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARDING v POLICE
[2011] SASC 114
Judgment of The Honourable Justice Gray
26 July 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal by the defendant against sentence - defendant pleaded guilty to the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA) - the Magistrate when sentencing the defendant imposed the mandatory minimum licence disqualification of six months - a sentence of six weeks imprisonment imposed - imprisonment suspended upon entry into a bond for 12 months in the sum of $500 - whether the Magistrate acted under a misapprehension of law by considering that he had no alternative but to impose a sentence of imprisonment - whether to proceed under section 39 of the Criminal Law (Sentencing) Act 1988 (SA) upon the defendant entering into a good behaviour bond and to nonetheless impose a licence disqualification, conflicts with the phrase "without imposing a penalty" in section 39.
Held: Appeal allowed - the Magistrate acted under a misapprehension of law, misapprehending the scope and reach of section 39 of the Criminal Law (Sentencing) Act - where there are two penalties imposed, one which can be reduced, mitigated or substituted and one which cannot, “otherwise” is to be read between “without” and “imposing” in the phrase “without imposing a penalty” (“otherwise” refers to the penalty that cannot be reduced, mitigated or substituted) - defendant resentenced - order of imprisonment imposed by the Magistrate set aside on the defendant's entry into a 12 month good behaviour bond - other orders of the Magistrate to remain in place including the defendant's disqualification from holding or obtaining a driver's licence for a period of six months.
Road Traffic Act 1961 (SA) s 45; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 18, s 37 and s 39, referred to.
Janz v Woolven (1990) 55 SASR 239; Nattrass v Police [2008] SASC 267; Police v Wait [2008] SASC 153; Ellis v Police (2008) 258 LSJS 262; Miles v Police (2009) 104 SASR 127; Hyde v Police (2006) 246 LSJS 275; Cresswell v Bates (1989) 9 MVR 176, considered.

HARDING v POLICE
[2011] SASC 114
Magistrates Appeal
GRAY J

This is an appeal against a sentence imposed by a Magistrate.
Trent Harding, the defendant and appellant, was charged with the offence of aggravated driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA). The offence was alleged to have occurred on 6 April 2010 at Tungkillo. The circumstance of aggravation was particularised as the causing of serious harm to a passenger in the defendant’s motor vehicle. On 20 April 2011, the defendant pleaded guilty to the charge.
The defendant lost control of his motor vehicle at about 10:00 am while traversing a gentle bend on a bitumen road. His vehicle left the roadway and came to a collision with two trees. At the time, the road surface was wet as a consequence of earlier rain. Examination of the defendant’s vehicle revealed inadequate tread on the rear tyres. A police mechanic considered that the vehicle was generally in poor condition and that the tread on the rear tyres was insufficient to disperse water and maintain contact with the road. The defendant accepted that this was the cause of the vehicle leaving the road.
Both the defendant and his passenger suffered serious injuries. The defendant sustained chest injuries and a punctured lung. The passenger suffered head injuries including a subdural haemorrhage, contusions and lacerations. As a consequence, she sustained amnesia, but generally has made a good recovery.
The defendant was a person of good character, married with two children and in employment. The defendant’s spouse suffers from multiple sclerosis.
Section 45 of the Road Traffic Act relevantly provides:
Careless driving
(1)     A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)     If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)     For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
…
The Magistrate considered that he had no alternative but to impose a sentence of imprisonment:
Pursuant to the Supreme Court authority, (Nattrass v Police was referred to in earlier discussion with counsel), because the licence disqualification is a mandatory disqualification, the Criminal Law Sentencing Act provisions, in particular Sections 16 and 39 do not operate to allow a Court to deal with this matter by the imposition of a penalty other than a sentence of imprisonment. The reasons for that are somewhat technical but they stem from the fact that Section 16 of the Criminal Law Sentencing Act can only be invoked if I consider that a sentence of a fine or community service work only is appropriate, but because I must also impose a licence disqualification Section 16 cannot apply.
Section 39, which allows me to deal with the matter by way of a bond with or without conviction, can only apply if I consider that the matter should be dealt with by way of a bond without further penalty, but here I must also impose a licence disqualification, so I can’t deal with it without further penalty, so Section 39 does not apply.
Consequently there is no power by which I can deal with this matter other than imposing a sentence of imprisonment and licence disqualification.
The Magistrate concluded his remarks as follows:
Had I not been restrained by the interpretation of the legislation which has currently been adopted by the Supreme Court I would have had no hesitation in dealing with this matter by means other than the imposition of a sentence of imprisonment, however my hands are tied. I cannot in all concience [sic] find this offence to be trifling and having made that decision I must impose a sentence of imprisonment, but I point out that that sentence will be suspended as a consequence of your character and the other matters to which I have referred.
A sentence of three months imprisonment in my view having regard to the tariff that I have read about in other cases would be too high. A sentence of two months imprisonment would be appropriate but I would reduce that to six weeks imprisonment to take into account your guilty plea, and due to your personal circumstances that sentence will be suspended upon entering into a bond for 12 months in the sum of $500. I am obliged to disqualify your licence. I have no choice. The minimum period is six months. In my view that is the appropriate period having regard to all of the circumstances. Your licence is disqualified for a period of six months to commence 12.01am on 27 April 2011.
Counsel appearing for the defendant placed reliance on section 39 of the Criminal Law (Sentencing) Act 1988 (SA) in submitting that error had occurred. That section relevantly provides:
Discharge without sentence on defendant entering into bond
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
Reliance was also placed on sections 16[1] and 18[2] of the Sentencing Act.
[1]    16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)      that the defendant is unlikely to commit such an offence again; and
(b)      that, having regard to—
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)   the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
[2]    18—Court may add or substitute certain penalties
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)     where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i)a fine; or
(ii)a sentence of community service; or
(iii)both a fine and a sentence of community service; or
(b)     where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
(i)a sentence of imprisonment only; or
(ii)a fine only; or
(iii)a sentence of community service; or
(iv)both a fine and a sentence of community service; or
(c)     where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
(i)a sentence of community service; or
(ii)both a fine and a sentence of community service; or
(d)     where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
Counsel appearing for the Police conceded that the Magistrate acted under a misapprehension of law. It was accepted that the Magistrate was entitled to consider a sentence other than imprisonment by his powers under section 39 of the Sentencing Act. However, it was disputed that sections 16 and 18 had any application.
Counsel for the Police submitted that, as the Magistrate had acted under a misunderstanding of law, the appeal should be allowed and the defendant resentenced. It was said that it would be appropriate for this Court to resentence the defendant. It was acknowledged that it was within the exercise of the discretion of the Court, having regard to the terms of section 11 of the Sentencing Act,[3] the circumstances of the offending and the personal antecedents of the defendant, to proceed with sentencing under section 39 by having the defendant enter into a good behaviour bond. It was contended that the defendant should be convicted of the offence and disqualified from holding or obtaining a driver’s licence for a period of six months. It was said that the disqualification should take effect from the time imposed by the Magistrate; that is, from 12:01 am on 27 April 2011.
[3]    11—Imprisonment not to be imposed except in certain circumstances
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)    the defendant has shown a tendency to violence towards other persons; or
(ii)   the defendant is likely to commit a serious offence if allowed to go at large; or
(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)      if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)     This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
In Janz v Woolven,[4] King CJ addressed the scope of the powers under section 39 of the Sentencing Act. The legislation then under consideration, as it does today, mandated a minimum licence disqualification if the court convicted the defendant. The Court was concerned with the question of whether sections 16 and 39 could be used so as not to record a conviction, leading to the outcome that the mandated licence disqualification would not apply. The Court rejected the submission that sections 16 and 39 could be so used. The Court, however, in the course of its reasons addressed the application of section 37 of the Sentencing Act to an offence which has two penalties, one of which cannot be reduced, mitigated or substituted.[5] The Court held that in such a case, notwithstanding that section 37 precluded the powers under section 39 being used in relation to the penalty that could not be reduced, mitigated or substituted. It remained the case that section 39 could be used in relation to the other penalty. In particular, King CJ reasoned:[6]
Although the use of the expression "in relation to ... any other offence" presents a problem of construction, I consider that the intention disclosed by s 37 is that the prohibition against the exercise of the Pt V powers is limited to such exercise as would operate to reduce, mitigate or substitute for, a penalty which is subject to the prohibition in the special Act. Where the prohibition in the special Act is restricted as in s 47b(3) to one type of penalty only, there is no reason why the Pt V powers should not be used in relation to any other penalty. Thus the prohibition against reduction, mitigation or substitution in respect of the licence disqualification does not preclude, in my opinion, the grant of a bond in substitution for a fine. I would add that, by parity of reasoning, if the offence were against s 47, which provides for imprisonment for subsequent offences, it would not preclude a bond in substitution for fine or imprisonment or as a condition of suspension of a sentence of imprisonment. I think, however, that the argument that s 37 does not apply unless the prohibition in the special Act applies to all penalties is contrary to the grammatical structure of the provision and its evident intention. I construe the section as meaning that the Pt V powers cannot be used in a way which would effect a reduction, mitigation or substitution in respect of a penalty where the special Act prohibits the same in respect of that penalty.
[4]    Janz v Woolven (1990) 55 SASR 239.
[5] The current version of section 37 of the Criminal Law (Sentencing) Act 1988 (SA) is as follows and remains in substantially the same terms as that in Janz v Woolven:
37—The powers vested in a court by this Part—
(a)      are exercisable despite the fact that a special Act prescribes a minimum penalty; but
(b)      are not exercisable in relation to—
(i)    murder or treason; or
(ii)   any other offence in respect of which a special Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
[6]    Janz v Woolven (1990) 55 SASR 239, 241-242.
It may be observed that the observations in Janz v Woolven, although obiter, have direct application to the interaction between sections 37 and 39 of the Sentencing Act and section 45 of the Road Traffic Act in circumstances where the Court is addressing aggravated driving without due care. In particular, the reasoning in Janz v Woolven allows the conclusion that the Court can utilise section 39 powers in regard to the discretionary penalty of imprisonment.
The Magistrate in his sentencing remarks referred to the decision in Nattrass v Police.[7] However, it appears that the Magistrate misunderstood the import of the following reasoning of Bleby J:[8]
…The Magistrate declined to exercise his discretion pursuant to s 39 of the Criminal Law (Sentencing) Act by discharging Mr Nattrass without sentence upon his entering into a bond to be of good behaviour. I agree that, in all the circumstances, that was not an option properly open to the Magistrate.
[7] Nattrass v Police [2008] SASC 267.
[8] Nattrass v Police [2008] SASC 267, [17].
I understand Bleby J to acknowledge that section 39 is available as a matter of law, but considered that it was a discretion not “properly open” to be exercised on the facts in Nattrass.
Other decisions of judges of this Court have applied Janz v Woolven in this way and have acknowledged the scope and reach of section 39 as outlined above. In Police v Wait, David J reasoned:[9]
The magistrate convicted the respondent and disqualified him from holding or obtaining a driver’s licence for a period of eight months and one day, discounting a period of four months of licence disqualification which he had already served since the commission of the offence. Instead of a fine, the magistrate ordered the respondent to enter into a bond to be of good behaviour for six months in the sum of $500. Although the magistrate has not, in his brief sentencing remarks, stated the statutory basis upon which he substituted the penalty, it was presumably pursuant to the power conferred by s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) which reads:
…
The respondent (who was represented by counsel at sentencing but not on appeal) put to the magistrate that he was a pensioner and would find it very difficult to pay a fine. Although the magistrate does not mention the respondent’s personal circumstances in his remarks, it was nevertheless clear from the presentation of the matter both at sentence and on appeal that this was the reason why the magistrate invoked s 39 and imposed a bond instead of a fine.
The appellant argues that the magistrate erred in imposing a bond. The appellant argues that if the magistrate found, pursuant to s 13 of the CLSA, that the respondent did not have the means to pay the fine, the magistrate should have instead, pursuant to s 18 of the CLSA, imposed a sentence of community service. Originally the argument was that the magistrate simply did not have the power to substitute a bond pursuant to s 39 of the CLSA for the minimum fine prescribed by s 47B of the [Road Traffic Act 1961 (SA)]. However, the decision of the Full Court in Janz v Woolven makes it clear that the power to substitute a bond for a fine does in fact exist in these circumstances. The Full Court held that even though s 39 could not be used in relation to the minimum period of licence disqualification mandated by s 47B(3) of the [Road Traffic Act], it could nevertheless be used in relation to other penalties, including the prescribed fine. The appellant conceded this on appeal.
[Footnotes omitted. Emphasis added.]
[9] Police v Wait [2008] SASC 153, [4]-[6].
In Ellis v Police,[10] Kelly J made reference to the above observations in Wait in arriving at the same conclusion as to the reach and scope of section 39. In particular, Kelly J reasoned:[11]
The circumstances in which the discretion in s 39 to discharge a defendant with or without recording a conviction and without imposing a penalty are not circumscribed in the same way as s 16 of the CLSA. The exercise of the Court’s powers under s 39 has been considered in a number of different contexts in various decisions of this Court.
My examination of the relevant authorities leads me to conclude that courts have in the main, exercised the powers available under s 39 for ameliorative purposes and not to impose a more onerous burden on a defendant than would have been the case if the usual penalty was imposed.
[10] Ellis v Police (2008) 258 LSJS 262.
[11] Ellis v Police (2008) 258 LSJS 262, [13]-[14].

However, counsel for the Police, in my view, correctly submitted that neither Janz v Woolven nor Nattrass directly canvas the issue raised by the Magistrate in relation to section 39 in the within proceeding. The Magistrate was concerned that to proceed under section 39 of the Sentencing Act upon the defendant entering into a good behaviour bond and to nonetheless impose a licence disqualification, conflicts with the phrase "without imposing a penalty" in section 39. In particular and as extracted earlier, the Magistrate remarked:
Section 39, which allows me to deal with the matter by way of a bond with or without conviction, can only apply if I consider that the matter should be dealt with by way of a bond without further penalty, but here I must also impose a licence disqualification, so I can’t deal with it without further penalty, so Section 39 does not apply.
It is settled that a penalty includes a licence disqualification.[12] Accordingly, reading down the word “penalty” to exclude a licence disqualification is not the appropriate way to resolve the issue raised by the Magistrate. In my view, the appropriate way to resolve the issue is to infer from the conclusion reached in obiter in Janz v Woolven that where there are two penalties imposed, one which can be reduced, mitigated or substituted and one which cannot, the word “otherwise” is to be read between the words “without” and “imposing” in the phrase “without imposing a penalty” which appears in section 39. The word “otherwise” refers to the penalty that cannot be reduced, mitigated or substituted which, in both Janz v Woolven and the present proceeding, is a licence disqualification. Adopting this construction, the licence disqualification can be imposed in conjunction with a bond to be of good behaviour, which is imposed in lieu of a term of imprisonment pursuant to the terms of section 39.
[12] Janz v Woolven (1990) 55 SASR 239, 241; Miles v Police (2009) 104 SASR 127, [57]; Hyde v Police (2006) 246 LSJS 275, [17]; Cresswell v Bates (1989) 9 MVR 176.
I consider that the Magistrate misapprehended the scope and reach of section 39. The appeal should be allowed and the defendant resentenced. Had the Magistrate understood that he had power to release the defendant on a good behaviour bond rather than order a term of imprisonment, it is clear that he would have done so. As noted above, counsel for the Police accepted that it would be open to this Court to act in that way when resentencing the defendant. Having reviewed all of the circumstances, in my opinion it is appropriate to proceed in this way.
In these circumstances, it is unnecessary to enter into the detailed treatment of the alternative contentions of the defendant, namely that the Court had power to impose a penalty other than imprisonment utilising either section 16 or section 18 of the Sentencing Act. The interpretation of these sections, and in particular their scope and reach, has been the subject of considerable discussion and of differing views in the judgments of members of this Court. In the circumstances, I consider it appropriate to resist the temptation to further enter this dialogue. The concession of the Police concerning the interpretation of section 39 is sufficient to address the substance of the matter. The guidance that the Magistrate has sought has been provided.
Having regard to the foregoing, it is appropriate to set aside the order of imprisonment imposed by the Magistrate on the defendant’s entry into a 12 month good behaviour bond.
The other orders of the Magistrate are to remain in place. The defendant remains suspended from holding or obtaining a driver’s licence for a period of six months with effect from 12:01 am on 27 April 2011.
Conclusion
I order:
-That the appeal is allowed.
-That the penalty imposed by the Magistrate on 20 April 2011 is set aside and, that the following penalty is substituted:
1. That a conviction is recorded.
2.That pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA) the defendant enter into a bond for a period of 12 months on the condition that he be of good behaviour.
3.That the defendant is disqualified from holding or obtaining a driver’s licence for a period of six months commencing at 12.01 am on 27 April 2011.
-That otherwise the orders of the Magistrate with respect to the Court fee, prosecution costs and the victims of crime levy remain.