KJG v Tasmania
[2024] TASSC 34
•5 July 2024
[2024] TASSC 34
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | KJG v Tasmania [2024] TASSC 34 |
| PARTIES: | KJG |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 3314/2022 |
| DELIVERED ON: | 5 July 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 15 May 2023 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Traffic Law – Licensing of drivers – Tasmania – Disqualification, cancellation or suspension of licences – Generally – Power of Magistrates Court (Youth Justice Division) – Whether disqualification may be imposed when no conviction recorded.
Aust Dig Traffic Law [1059]
Case referred to:
Attorney-General v Smith [2002] TASSC 10.
Legislation:
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 17(3)
REPRESENTATION:
Counsel:
Applicant: C Jones Respondent: L King-Roberts
Solicitors:
Applicant: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 34 |
| Number of paragraphs: | 23 |
Serial No 34/2024 File No 3314/2022
KJG v STATE OF TASMANIA
| REASONS FOR JUDGMENT | BLOW CJ 5 July 2024 |
1 This is a motion for the review of a driving disqualification order made by the Chief Magistrate, Ms C Geason, in proceedings in the Youth Justice Division of the Magistrates Court. In May 2022 the applicant pleaded guilty to a number of charges, including a charge of driving a motor vehicle whilst a prescribed illicit drug was present in his oral fluid, contrary to s 6A(1) of the Road Safety (Alcohol and Drugs) Act 1970. Her Honour made a release and adjournment order under s 47(1)(d) of the Youth Justice Act 1997. Convictions were not recorded but, on the charge that I have mentioned, her Honour ordered that the applicant be disqualified from driving for 9 months with effect from 15 November 2022.
2 The applicant contends that her Honour did not have the power to order his disqualification from driving in the situation where no conviction was recorded.
3 Section 5(a) of the Sentencing Act 1997 provides that, subject to an exception of no present relevance, that Act does not apply to the Magistrates Court (Youth Justice Division). The sentencing regime in the Youth Justice Division is governed by the Youth Justice Act. Section 47(1) of that Act lists a number of different sentencing options that are available to magistrates sentencing youths. Relevantly, s 47(1)(d) empowers a magistrate to "release the youth and adjourn the proceedings on conditions". By virtue of s 49(1) of that Act, when the Magistrates Court imposes a sentence under s 47(1)(d), "a conviction is not to be recorded".
4 Section 49(5) of the Youth Justice Act provides as follows:
"Except as otherwise provided by this or any other Act, a finding of guilty without the
recording of a conviction is not taken to be a conviction for any purpose."
5 Section 46(2) of the Youth Justice Act contains the following:
"(2) When determining a sentence, the Court – …
(c) must comply with a requirement under any other Act that a loss of a licence or other penalty, other than an amount of money or term of imprisonment, must be imposed as a penalty for the offence."
6 The learned Chief Magistrate held that that provision required her to comply with a requirement under the Road Safety (Alcohol and Drugs) Act, s 17(3)(b), that requires a court "that convicts a person of an offence" specified in a table forming part of that section must disqualify the person from driving for a period fixed in accordance with that section.
7 The applicant contends that her Honour erred in law because s 49(5) of the Youth Justice Act, which I have set out above, provides that a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose. It is contended that, by virtue of that provision, her Honour did not have the obligation that s 17(3)(b) of the Road Safety (Alcohol and Drugs) Act imposes on "a court that convicts a person".
8 The learned Chief Magistrate's reasoning can be summarised as follows:
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• Section 17(3)(b) of the Road Safety (Alcohol and Drugs) Act, subject to a proviso relating to exceptional circumstances, requires a sentencing court to disqualify a driver who has contravened s 6A(1) of that Act. • When the Youth Justice Act does not apply, s 10(2)(b)(v) of the Sentencing Act provides that a finding of guilt without the recording of a conviction "has the same effect as if a conviction had been recorded for the purpose of … enactments providing for any kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits." That is to say, when the Youth Justice Act does not apply, that provision means that a finding of guilt without the recording of a conviction has the same effect as if a conviction has been recorded for the purpose of the statutory provision providing for mandatory disqualification from driving. • The mandatory disqualification provision in s 17(3)(b) of the Road Safety (Alcohol and Drugs) Act is, within the meaning of s 46(2)(c) of the Youth Justice Act, "a requirement under any other Act that a loss of licence … be imposed as a penalty for the offence". • That mandatory disqualification requirement applies when there has been a finding of guilt without a conviction. • For the purposes of s 46(2)(c) of the Youth Justice Act, that requirement is one that must be imposed whether a conviction has been recorded or not. • It follows that a period of disqualification in accordance with s 17(3) of the Road Safety (Alcohol and Drugs) Act must be imposed whenever a youth is sentenced in the Youth Justice Division for a s 6A(1) offence, whether a conviction is imposed or not. 9 The applicant contends that that reasoning is erroneous. His argument can be summarised as
follows:
• By virtue of s 49(5) the finding of guilty in this case without the recording of a conviction must not be taken to be a conviction for any purpose. • Section 17(3) of the Road Safety (Alcohol and Drugs) Act applies to "a court that convicts a person" but, by virtue of s 49(5), it cannot be said that the court convicted him. • It follows that, for the purposes of s 46(2)(c), there was no requirement that "a loss of a licence … must be imposed". 10 The word "convict" and its derivatives, including "convicts" and "conviction", are ambiguous. In some contexts, such words refer to the formal imposition of a conviction following a finding of guilt. In other contexts such words refer to the making of a finding of guilt. A number of the principal authorities relating to the meanings of such words were referred to by Crawford J (as he then was) in Attorney-General v Smith [2002] TASSC 10 at [23]. There is no need for me to repeat that list here. In my view the outcome of this case must depend on the meaning of the word "convicts" in the opening words of s 17(3) of the Road Safety (Alcohol and Drugs) Act. The question is whether it refers to the recording of a conviction or only to a finding of guilt.
11 Section 17 contains a table of penalties that is referred to in s 17(3). That subsection contains
the following:
"(3) Subject to subsection (5) , a court that convicts a person of an offence
specified in column 1 of the Table –… 3 No 34/2024
(b) must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table." (My emphasis.)
12 The opening words of s 17(3) have been in their present form ever since the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991. It commenced long before the enactment of the Youth Justice Act and the Sentencing Act.
13 When the Road Safety (Alcohol and Drugs) Act was first enacted in 1970, s 17 contained provisions as to fines and imprisonment that could be imposed upon "a person who is guilty of an offence". Similarly, s 18 contained provisions for individuals to be disqualified from obtaining or holding drivers' licences that were expressed to apply where "a person is convicted of an offence".
14 By s 17 of the Road Safety (Alcohol and Drugs) (No 2) Act 1975, the original ss 17 and 18 were repealed and a new s 17 was substituted. The new s 17(1) provided for a fine and/or imprisonment and possible disqualification for "a person who is guilty of an offence under this Act".
15 That section was repealed and replaced by the 1991 Act. Ever since then s 17(3) has contained provisions as to fines, imprisonment and disqualification to be imposed by "a court that convicts a person of an offence specified in column 1 of the Table".
16 When the new s 17 was enacted in 1991, no question of interpretation was likely to arise in relation to the scope of the word "convicts" in s 17(3). That section required either a fine or imprisonment to be imposed. At that time neither of those penalties could be imposed without a conviction. That changed in March 2017, when the Sentencing Act was amended by the Sentencing Amendment (Fines Without Recording Convictions) Act 2017. In the 1991 Act, provision was made in s 17(5) for the mandatory minimum penalties not to apply when a defendant satisfied the sentencing court that there were special circumstances, but even then the court was authorised only to "impose a lesser fine or a lesser period of disqualification".
17 No question of the scope of the word "convicts" in s 17(3) was likely to arise at that time when a child was charged in a children's court with offences to which s 17(3) applied. That was because of s 20 of the Child Welfare Act 1960. A children's court had a discretion under s 20(1) not to impose a conviction unless it was imposing a sentence of imprisonment on a child. Section 20(2) provided as follows:
"A reference in any enactment to a person convicted or a conviction shall, in the case of a child, be construed as including a reference to a person found guilty of an offence or a finding of guilt, as the case may be."
18 It seems to me that an analysis of the relevant legislative history does not indicate one way or the other what sort of meaning should be given to the word "convicts" in s 17(3). That being so, I think the issue must be resolved by applying s 8A of the Acts interpretation Act 1931, which requires an interpretation that promotes the purpose or object of an Act to be preferred to an interpretation that does not promote the purpose or object.
19 In my view the purpose of the disqualification provisions in the Road Safety (Alcohol and Drugs) Act is to promote road safety by preventing offenders from driving and by deterring individuals from driving under the influence of intoxicants. Interpreting the reference to a court that convicts a person as a reference to a court that finds a person guilty will promote that purpose.
20 If that interpretation is adopted, the result will be consistent with magistrates having the power to impose fines under the Road Safety (Alcohol and Drugs) Act without imposing convictions. That consequence would be consistent with the amendment in 2017 that was introduced for the purpose of enabling sentencing courts to impose fines without convictions.
4 No 34/2024
21 For the reasons stated, I find that the word "convict" in s 17(3) of the Road Safety (Alcohol and Drugs) Act should be interpreted as meaning "makes a finding of guilt" and not as "imposing a conviction". It follows that the Chief Magistrate was correct in holding that she had the power to impose a disqualification.
22 The motion to review must therefore be dismissed.
23 I apologise to the parties for my delay in delivering this judgment.
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