HARRIS v Police

[2008] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HARRIS v POLICE

[2008] SASC 58

Judgment of The Honourable Justice White

5 March 2008

TRAFFIC LAW - OFFENCES - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appellant sentenced to imprisonment for six months (suspended) in respect of one offence of driving while unauthorised in contravention of s 74(2) of the Motor Vehicles Act 1959 - magistrate purported to take other offences of driving while unauthorised into account pursuant to s 18A of the Criminal Law (Sentencing) Act - whether imprisonment an available sentence for the offence for which it was imposed - whether magistrate made inappropriate use of s 18A.

Held: magistrate erred in imposing a term of imprisonment for the particular offence of driving while unauthorised - magistrate erred in application of s 18A - appeal allowed - remitted for re-sentencing.

Motor Vehicles Act 1959 (SA) s 9, s 74, s 75, s 91, s 102; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Road Traffic Act 1961 (SA) s 42; Bail Act 1985 s 17; Australian Road Rules r 264, referred to.
Ryszawa v Samuels [1969] SASR 158; Police v Nowak (2000) 76 SASR 551; R v Gilbert [1975] 1 WLR 1012; R v Garrett (1978) 18 SASR 308; R v Colson [1999] SASC 184, applied.
R v Batchelor (1952) 36 CR App R 64, discussed.
Mill v Police [2007] SASC 253; R v J (1992) 59 SASR 145, considered.

HARRIS v POLICE
[2008] SASC 58

Magistrates Appeal

1. WHITE J: This appeal against sentences imposed by a magistrate has the unusual feature that it was instituted nearly two years after the sentences were imposed.

2. It was submitted nevertheless that an extension of time within which to appeal should be granted, and the appeal allowed, because the sentences imposed were irregular, including the unauthorised imposition of a (suspended) sentence of imprisonment.  The respondent agreed that the magistrate had erred, did not oppose an extension of time for the commencement of the appeal, and agreed that the appeal should be allowed so that the appellant may be re-sentenced.

   Circumstances Giving Rise to the Appeal

3. The appellant has driven a vehicle on a road while unauthorised, in contravention of s 74(2) of the Motor Vehicles Act 1959 (SA) (MVA), on several occasions. On the same occasions, the appellant committed a number of other traffic offences as well. Details of the offences and the sentences imposed by the magistrate are set out in the table which is Appendix A to these reasons. It can be seen that contraventions of s 74(2) of the MVA (as well as other offences) were committed on 2 September 2004, 17-18 November 2004, 25 March 2005 and 26 September 2005.

4. In respect of all the offences committed on 2 September 2004, the magistrate invoked s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) and imposed a single penalty, being a fine of $500. That sentence was independent of the sentences imposed for the offences committed on the later dates. The sentence for those offences appears to have been irregular, but no appeal, whether by the prosecution or the defendant, has been brought against that sentence. For present purposes this sentence can be ignored.

5. In relation to the remaining offences, the magistrate said (omitting remarks which are not material for the purpose of this appeal):

   In relation to 05-9020 (taking 05-277 and 05-4632 into account pursuant to s 18A of the Criminal Law (Sentencing) Act 1988) – Count 3 – driving unauthorised – you will be convicted and sentenced to six months imprisonment.  That sentence will be suspended upon you entering into a $100.00 bond, to be of good behaviour for two years …

   In relation to Count 1 of 05-9020 you will be fined $200.

   In relation to Count 2 of 05-9020 you will be fined $200.00 and disqualified from holding or obtaining a driver’s licence for two months, to be served concurrent with licence disqualification imposed on Count 3 of this file.

   In relation to Count 4 of 05-9020 you will be fined $500.00.

   In relation to Count 3 of 05-9020 you will be disqualified from holding or obtaining a driver’s licence for three years, to commence forthwith at 12.15 pm. …

   In relation to 05-4632 you will be convicted without penalty on all three counts. (Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988) this file is taken into account on 05-9020). …

   In relation to 05-277 you will be convicted without penalty on both counts. (Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 this file is taken into account on 05-9020). …

6. The end result of those orders (which is confirmed by the endorsements initialled by the magistrate on the Court files) is, first, that a sentence of six months imprisonment (suspended) was imposed in respect of the offence of driving while unauthorised committed on 26 September 2005. That sentence was reached “taking into account”, purportedly pursuant to s 18A of CLSA, all of the offences (including the offences of driving while unauthorised) committed on 17 November 2004 and on 25 March 2005.

7. Secondly, in relation to the offence of driving while unauthorised on 26 September 2005, a licence disqualification of three years was also imposed.

8. Thirdly, individual penalties were imposed for the offences committed on 26 September 2005 alleged in Counts 1, 2 and 4.  The appellant does not appeal against those orders.

9. Fourthly, in relation to all of the offences committed on 17 November 2004 and 25 March 2005 (including the respective offences of driving while unauthorised) the appellant was convicted without penalty.  The magistrate said that those offences had been “taken into account” in the penalty imposed on MCPAR-05-9020 (which concerned the offences committed on 26 September 2005).  Although it is not clear, it seems that the magistrate was then referring to the sentence of six months imprisonment (and perhaps also to the three year licence disqualification) imposed in respect of the offence of driving while unauthorised committed on 26 September 2005.

10. On appeal, the appellant’s principal complaint is that the sentence of six months imprisonment was imposed in respect of an offence for which imprisonment was not an available sentence. A related submission is that the magistrate made inappropriate use of s 18A of the CLSA. I am satisfied that the appellant’s submission should, in both respects, be accepted.

    Driving While not Authorised

11. Section 74(2) of the MVA provides:

    (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.

12. It can be seen that imprisonment is an available sentence for the offence of driving while unauthorised (contrary to s 74(2)) only in respect of a “subsequent” offence. In the case of an offence which is not a subsequent offence, a fine is the available sentencing option.

13. Section 74(6) defines the circumstances in which a later offence is to be regarded as a subsequent offence for the purpose of s 74(2). It provides:

    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.

14. In short, an offence is a subsequent offence for the purposes of s 74(2) only if it was committed within three years of the date of a previous contravention of s 74 or s 91(5) of the MVA for which the defendant has been convicted. Section 74(6) provides explicitly that conviction for the previous offence is a requirement. The authorities concerning analogous provisions indicate that in order that a later offence be a subsequent offence, it must have occurred after the conviction for the earlier offence. See, for example, Ryszawa v Samuels[1] and Police v Nowak.[2] 

    [1] [1969] SASR 158 at 158-9.

    [2] [2000] SASC 82 at [5]-[17]; (2000) 76 SASR 551 at 552-3.

15. The appellant did have a relevant previous conviction. On 9 December 2002 he had been convicted of the offence of driving without a licence, contrary to s 74 of the MVA, committed on 21 March 2002. Accordingly, any contravention of s 74(2) of the MVA committed after 9 December 2002 but before 21 March 2005 would in his case be a “subsequent” offence for sentencing purposes.

    The Sentencing Errors

16. The magistrate imposed the sentence of six months imprisonment for the offence of driving while unauthorised committed on 26 September 2005.  Imprisonment was not an available sentence for that offence.  It could not have been regarded as a subsequent offence (for which imprisonment could have been imposed) because it was committed more than three years after the offence of 21 March 2002.  The offences committed on 2 September 2004, 17 November 2004 and 25 March 2005 could not have the effect that the offence of 26 September 2005 was a subsequent offence because, as at 26 September 2005, the appellant had not been convicted of those offences.  Accordingly, the magistrate had no power to impose a sentence of imprisonment for the offence of driving while unauthorised committed on 26 September 2005.

17. Imprisonment was available as a sentence in respect of the offence of driving while unauthorised committed on 17 November 2004.  That offence was committed within three years of the offence of 21 March 2002 (and after the appellant had been convicted for that offence).  However, in relation to that offence, the magistrate recorded a conviction without further penalty on the basis that “account had been taken” of that offence in the sentence for the later offence.

18. The magistrate was also in error, in my opinion, in his use of s 18A of the CLSA. That section provides:

    If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

19. Section 18A contemplates that one penalty may be imposed for two or more offences. When it is invoked, the effect is that the single sentence is the penalty for all the offences for which it is imposed. It cannot be invoked for the purpose of taking some offences (for which an offender is to be sentenced) into account in fixing a penalty for one particular offence. As I have said, a proper application of s 18A results in a single penalty being imposed for all of the offences. That single penalty should be determined having regard to the circumstances of all the offences for which it is imposed.

20. The magistrate seems to have been under the apprehension that s 18A contemplates some form of “taking account” of other offences in the fixing of a penalty for a single offence. His sentencing remarks show that on three separate occasions he said that “pursuant to s 18A” certain offences were taken into account in the sentence imposed for one offence. This appears to indicate that the magistrate imposed a higher penalty for the offences committed on 26 September 2005 than he would otherwise, and that he did so because of the account which he had taken of the other offences. As I have endeavoured to indicate above, that was not a correct application of s 18A.

21. The practice of taking some offences into account on other offences involves quite different considerations.  S 10(1)(b) of the CLSA provides that a sentencing court may take account of other offences when sentencing.  It continues the previous practice by which a sentencing court may take into account other offences acknowledged by the offender but which are not then before the court.[3]  The practice of taking offences into account was described by the Court of Criminal Appeal in R v Batchelor:[4]

    It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with only on the charge mentioned in the indictment.[5]

    [3]    R v J (1992) 59 SASR 145 at 152.

    [4] (1952) 36 Cr App R 64.

    [5] Ibid at 67-8.

22. When offences are taken into account in the way described in Batchelor, the offender is not actually sentenced for those offences.  The offender is sentenced only for the offence(s) then before the court.  In the present case, the magistrate said that he had taken the offences committed on 17 November 2004 and 25 March 2005 into account, but then later imposed sentences (convictions without further penalty) for those offences.

23. Finally (and this may simply be putting in a different way what I have already said) the magistrate did not impose a single sentence for a number of offences (which s 18A authorises). Instead he imposed a (suspended) sentence of imprisonment and a licence disqualification in respect of one offence, and convictions without penalty in relation to others.

24. In summary, I am satisfied that the magistrate has erred in the way for which the appellant contends and as acknowledged by the respondent.

    Remittal to the Magistrates Court

25. The errors of the magistrate affect the sentences imposed for all the offences committed on 17 November 2004, 25 March 2005 and the offence of driving while unauthorised on 26 September 2005.  Both parties submitted that the appeal should, on account of those errors, be allowed, the sentences set aside, and the matter remitted to the Magistrates Court for re-sentence.

26. I was concerned about the potential for double jeopardy in any re-sentencing of the appellant, ie, that the correction of one injustice may involve the imposition of another.  The appellant has already served over two years of the licence disqualification imposed by the magistrate.  On a re-sentence for the offence of driving while unauthorised committed on 17 November 2004, the appellant would have to be disqualified for a minimum of three years.[6] That period of disqualification could not be reduced on account of the period of disqualification already served,[7] and the commencement of the period of disqualification cannot be made retrospective. There is no general power at common law to backdate the commencement of a sentence[8] and the MVA does not grant power to do so.[9]  There is therefore the potential for double punishment in the licence disqualification.

    [6]    MVA, s 74(5)(a).

    [7]    MVA, s 74(5)(b).

    [8]    R v Gilbert [1975] 1 WLR 1012, R v Garrett (1978) 18 SASR 308; R v Colson [1999] SASC 184.

    [9]    The position is similar to that applying under the Road Traffic Act 1961 (SA). See Mill v Police [2007] SASC 253 at [30]-[35].

27. The sentence of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for a period of two years.  That period has now expired.  The appellant has suffered the significant detriment of being subject to a suspended sentence of imprisonment for two years.  A further sentence in this respect also has the potential to involve a double punishment.

28. Mr Blake, who appeared for the appellant, submitted nevertheless that the sentence should be set aside and the matter remitted.  I gather that the appellant faces at least one further charge of driving while unauthorised and also an application for the revocation of the bond.  The setting aside of the suspended sentence of imprisonment will have an effect on the revocation application.  Further, the fact that he has suffered the burden of a suspended sentence for two years is a matter that the magistrate re-sentencing him is likely to take into account.  Mr Blake accepted that the appellant faces, in respect of a later further offence, another period of licence disqualification of at least three years.  He submitted, in effect, that in all these circumstances the potential for any double jeopardy in the sentencing of the appellant is likely to be more theoretical than real.

29. In those circumstances, and despite my reservations, I am satisfied that a remittal of the matter to the Magistrates Court is appropriate.  The appellant should be re-sentenced by a different magistrate.  The magistrate carrying out the re-sentencing will have to be alert to the potential for double jeopardy in the re‑sentencing.

    Conclusion

30. For the reasons given above, I extend the time for the commencement of the appeal to 24 December 2007 and allow the appeal.  The sentences imposed for the offences committed on 17 and 18 November 2004 (Magistrates Court File No MCPAR-05-277), the sentences imposed for all the offences committed on 25 March 2005 (File No MCPAR-05-4632), and the sentence imposed for the offence of driving while unauthorised on 26 September 2005 (File No MCPAR-05-9020 – Count 3) are set aside.  Those matters are remitted to the Magistrates Court for re-sentence.  That re‑sentencing should be carried out by a different magistrate.

HARRIS v POLICE APPENDIX A
COMPLAINT	COUNT	DATE OF OFFENCE	OFFENCE	MAXIMUM PENALTY	PENALTY
File MCPAR-04/8048 Sentenced: 12/1/06	1	02/09/04	Fail to wear seat belt: Rules 264(1) and (2) Aust Road Rules	$1,250.00	Conviction on all four counts s 18A CLSA - one penalty of $500.00
	2	02/09/04	Fail to truly answer questions asked by Police:  s 42 RTA	$1,250.00
	3	02/09/04	Driving unregistered vehicle on a road s 9(1) MVA	$750.00 or twice applicable yearly vehicle registration fee
	4	02/09/04	Driving while not authorised (no licence) - never been authorised: s 74(2) MVA	$5,000.00 or imprisonment for one year  (subsequent offence)
File MCPAR-05/277 Sentenced: 12/1/06	1	17/11/04[10]	Driving while not authorised (no licence) - never been authorised: s 74(2) MV Act	$5,000.00 or imprisonment for one year  (subsequent offence).	Conviction without penalty - pursuant to s 18A CLSA, file taken into account on 05/9020
	2	18/11/04	Fail to answer truly questions asked by Police: s 42 RTA	$1,250.00	Conviction without penalty - pursuant to s 18A CLSA, file taken into account on 05/9020
File MCPAR-05/4632 Sentenced: 12/1/06	1	25/03/05	Driving unregistered vehicle: s 9(1) MVA	$750.00 or twice applicable yearly vehicle registration fee.	Conviction without penalty - pursuant to s 18A CLSA, file taken into account on 05/9020
	2	25/03/05	Driving vehicle without required insurance: s 102 MVA	$2,500.00 and disqualification for 12 months.	Conviction without penalty - pursuant to s 18A CLSA, file taken into account on 05/9020
	3	25/03/05[11]	Driving while not authorised (no licence) - never been authorised: s 74(2) MVA	$2,500.00 (first offence).	Conviction without penalty - pursuant to s 18A CLSA, file taken into account on 05/9020
COMPLAINT	COUNT	DATE OF OFFENCE	OFFENCE	MAXIMUM PENALTY	PENALTY
File MCPAR-05/9020	1	26/09/05	Driving unregistered vehicle:  s 9(1) MVA	$750.00 or twice applicable yearly registration fee.	Fine of $200
	2	26/09/05	Driving vehicle without required insurance: s 102 MVA	$2,500.00 and disqualification for 12 months.	Fine of $200 and disqualified from holding licence for 2 months (concurrent with disqualification on count 3)
	3	26/09/05[12]	Driving while not authorised (no licence - never been authorised): s 74(2) MVA	$2,500.00 (first offence).	6 Months imprisonment - suspended on entry into $100.00 bond PLUS disqualified from holding or obtaining licence for 3 years NOTE - takes into account 05/277 and 05/4632 pursuant to s 18A CLSA
	4	26/09/05	Contravened term or condition of bail agreement: s 17 Bail Act	$10,000.00 or 2 years.	Fine of $500.00

[10]   The offence in Count 1 on file 05/277 was a “subsequent offence” for the purpose of penalty as it was committed within three years of the commission of the previous offence on 21 March 2002 for which the appellant had been convicted on 9 December 2002.

[11]   The offence in Count 3 on file 05/4632 was a “first offence” for the purpose of penalty as it was committed more than three years after the offence of 21 March 2002 and before any conviction for the offence on 25 March 2002.

[12]   The offence in Count 3 on file 05/9020 was a “first offence” for the purpose of penalty as it was committed more than three years after the offence on 9/12/02 and before any conviction for the offences on 17/11/05 and 25/03/05.