SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
M, PA v POLICE
[2012] SASCFC 24
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Kourakis)
15 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - OTHER CASES
Appeal from the decision of a Youth Court Judge ordering the defendant to serve seven days detention - defendant was issued with an expiation notice for stopping his vehicle on a yellow line - when the defendant failed to pay the fine within the prescribed time, his licence was suspended for 60 days - during that 60 day period, the defendant on two separate occasions was detected driving his vehicle, which was also unregistered - defendant was charged on two separate complaints with two counts of driving an unregistered motor vehicle contrary to section 9(1) of the Motor Vehicles Act 1959 (SA) and two counts of driving while his licence was suspended contrary to section 91 of the Motor Vehicles Act - defendant pleaded guilty - defendant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of seven days detention - defendant appeals the findings of guilty for the offences of driving while his licence was suspended on the basis that he was not open to be prosecuted under that section and that as a consequence a miscarriage of justice had occurred - further complained that Judge erred in proceeding under section 18A of the Sentencing Act in circumstances where the defendant was being sentenced for charges not carrying with them a term of imprisonment - where the respondent conceded that the appeal should be allowed.
Consideration of history of penalty enforcement orders.
Held: appeal allowed - the relevant legislative history makes it clear that persons who drive contrary to an order for licence suspension for non-payment of fines are not to be exposed to a sentencing regime which includes imprisonment and accordingly, it was not open for the defendant to be prosecuted under any section other that section 70E of the Sentencing Act for driving while his licence was suspended - section 18A of the Sentencing Act was not open to be utilised by the Judge when the defendant was being sentenced on more than one count, only one of which carrying a penalty of imprisonment - orders associated with the charges for driving in contravention of section 91 of the Motor Vehicles Act set aside and those counts dismissed - sentence imposed set aside and complaints remitted for further hearing in the Youth Court.
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 18A and s 70E; Motor Vehicles Act 1959 (SA) s 9(1) and s 91; Acts Interpretation Act 1915 (SA) s 50; Statutes Amendment (Fines Enforcement) Act 1998 (SA); Expiation of Offences Act 1996 (SA) s 13; Young Offenders Act
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CaseChat Overview and Summary
The legal issues before the Full Court were whether the defendant had been wrongly found guilty of driving while his licence was suspended, on the basis that he was not liable to be prosecuted under the relevant section, and whether a miscarriage of justice had occurred as a consequence. Further, the appeal questioned whether the Youth Court Judge had erred in sentencing the defendant under section 18A of the Sentencing Act when the charges themselves did not carry a term of imprisonment. The respondent, the Police, conceded that the appeal should be allowed.
The Court considered the defendant's argument that he was not liable to be prosecuted under section 91 of the Motor Vehicles Act 1959 (SA) for driving while his licence was suspended. The Court also examined the appropriateness of applying section 18A of the Criminal Law (Sentencing) Act 1988 (SA) for sentencing purposes in this context. Given the respondent's concession that the appeal should be allowed, the Court did not need to definitively rule on these points, but the concession indicated a recognition of potential error in the original proceedings.
The appeal was allowed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: ANDERSON J
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