M, PA v Police
[2012] SASCFC 24
•15 March 2012
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 1993 (SA) s 30, referred to.
Police v Cadd (1997) 69 SASR 150; Hermel v Police (2000) 76 SASR 336; Cooling v Steel (1971) 2 SASR 249; P v Police [2003] SASC 198; BJY v Police (2002) 136 A Crim R 77; R v Al-Zuain (2009) 103 SASR 567; Papps v Police (2000) 77 SASR 210; KBS v Police (2001) 122 A Crim R 477; Hill v Police [2002] SASC 28; Corak v Police [2006] SASC 172; Lawson v Lee (1978) 19 SASR 442; Frank v Police (2007) 98 SASR 547; Szewczuk v Police [2001] SASC 223; Germain v Police [2006] SASC 340; Jones v Police [2009] SASC 137, considered.
M, PA v POLICE
[2012] SASCFC 24Full Court Gray, Anderson and Kourakis JJ
GRAY J:
This is an appeal from a decision of Judge of the Youth Court, ordering the defendant to serve seven days in detention.
Background
The defendant and appellant, M, who is a youth, was issued with an expiation notice on 13 February 2011 for stopping his vehicle on a yellow line. An authorised officer of the Fines Payment Unit at the Adelaide Youth Court issued a notice of suspension of the defendant’s driver’s licence after he had failed to pay the fine within the prescribed time, pursuant to section 70E(1) of the Criminal Law (Sentencing) Act 1988 (SA). By letter dated 22 June 2011, the defendant was notified that his licence was suspended for a period of 60 days commencing at 12:01am on 14 July 2011 and ending at midnight on 12 September 2011. The notice did not contain any warning as to the consequence of driving contrary to the order suspending the defendant’s licence.
On 17 August 2011, on two separate occasions several hours apart, the defendant was detected driving his vehicle, which was also unregistered, in contravention of the order suspending his driver’s licence. He was charged, on two separate complaints laid before the Youth Court, with 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, arising out of the two separate incidents of driving. The first complaint, dated 1 September 2011, provided as follows:
1.On the 17th day of August, 2011, at GOLDEN GROVE, in the said State, drove a vehicle namely a motor sedan registered number …, on a road namely The Grove Way, the registration of such a motor vehicle not then being in force under the provisions of Part II of the Motor Vehicles Act 1959.
Section 9(1) of the Motor Vehicles Act 1959.
2.On the 17th day of August, 2011, at GOLDEN GROVE, in the said State, drove a motor vehicle on a road namely The Golden Way, while his licence was suspended.
Section 91 of the Motor Vehicles Act 1959.
These are summary offences
The second complaint, dated 28 October 2011, provided as follows:
1.On the 17th day of August, 2011, at GOLDEN GROVE, in the said State, drove a vehicle namely a motor sedan registered number …, on a road namely The Grove Way, the registration of such a motor vehicle not then being in force under the provisions of Part II of the Motor Vehicles Act 1959.
Section 9(1) of the Motor Vehicles Act 1959.
2.On the 17th day of August, 2011, at GOLDEN GROVE, in the said State, drove a motor vehicle on a road namely The Golden Way, while his licence was suspended.
Section 91 of the Motor Vehicles Act 1959.
These are summary offences
On 28 October 2011, the defendant appeared unrepresented before the Youth Court Judge. He pleaded guilty to each count on the two complaints. At the time, the defendant was aged 17 years and had no criminal history. He was employed by Hungry Jacks. He provided a letter of reference from his shift supervisor to the Judge.
On the same occasion, the Judge sentenced the defendant, pursuant to section 18A of the Sentencing Act to seven days detention. No reasons were provided for so sentencing, but the following remarks appear:
HIS HONOUR: There will be one penalty for these matters. You will be sentenced to seven days detention. The matter will proceed without conviction. …
Although the Court fiat is not entirely clear, it appears to be endorsed that no conviction was recorded on any of the four charges.
The Appeal
The defendant appeals the findings of guilt for the offences of driving while his licence was suspended and, in the alternative, against the sentence imposed upon him. It is contended that the finding of guilt in relation to count 2 on each of the two complaints set out above, constitutes a miscarriage of justice in that a person whose driving licence has been suspended under section 70E of the Sentencing Act can only be prosecuted for driving a motor vehicle while his licence has been suspended pursuant to the provision of subsection (5) of that section and not otherwise. It is to be recalled that the defendant was prosecuted under section 91 of the Motor Vehicles Act.
It is further complained on appeal that the Judge erred in proceeding under section 18A of the Sentencing Act, as that section is only available where the offence provides for the imposition of a term of imprisonment. Count 1 on each complaint laid a charge not carrying with it exposure to a term of imprisonment.
Finally, it was contended on appeal that the sentence imposed was manifestly excessive.
The respondent conceded that the appeal should be allowed on the basis of any one of the three grounds above. It was accepted that the Court orders associated with the charges for driving in contravention of section 91 of the Motor Vehicles Act, should be set aside, that those counts should be dismissed, that the sentence imposed should be set aside and the complaints remitted for further hearing in the Youth Court.
On 5 March 2011, this Court ordered that orders of the Youth Court made on 28 October 2011 be set aside. The counts alleging a breach of section 91 could not be sustained. It was appropriate that those counts be dismissed. The remaining counts were remitted to the Youth Court so that the defendant could be resentenced. My reasons for joining in the making of these orders follow.
Prosecution Under Section 70E(5) of the Sentencing Act Rather Than Section 91 of the Motor Vehicles Act
The defendant contended that in circumstances where a person’s licence to drive has been suspended under section 70E(1) of the Sentencing Act for failure to pay an expiation notice, charges for driving while suspended must be laid under section 70E(5) of that Act and not under section 91 of the Motor Vehicles Act. In support of this contention the defendant relied on the legislative history of fines enforcement, the expressed intention of Parliament, the construction of the relevant legislation, a maxim of statutory interpretation and section 50 of the Acts Interpretation Act 1915 (SA). Before turning to discuss these matters, it is convenient to set out the relevant provisions.
Section 91 of the Motor Vehicles Act, is headed “[e]ffect of suspension and disqualification” and provides:
(1)This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act.
(2) While a licence or learner's permit is suspended it has no force or effect.
(3)Subject to section 81B(4), while a person is disqualified from holding and obtaining a licence or learner's permit, any licence or learner's permit held or obtained by that person has no force or effect.
(4)The Registrar must not issue a licence or learner's permit to any person who is so disqualified.
(5)A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.
Maximum penalty:
For a first offence—imprisonment for 6 months.
For a subsequent offence—imprisonment for 2 years.
(6)Subsection (5) does not apply to a person driving a motor vehicle on a road in accordance with an unconditional licence to which the disqualification does not apply in accordance with section 81B(4).
Part 9 of the Sentencing Act is concerned with enforcement of sentences. Division 3 of Part 9 deals with enforcement of pecuniary sums, and Subdivision 3 concerns penalty enforcement orders. Section 70E falls under Subdivision 3, is headed “[s]uspension of driver’s licence”, and provides:
(1)An authorised officer may make an order suspending a debtor's driver's licence for a period of 60 days (and such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence).
(3) The authorised officer will—
(a) cause a copy of an order under this section to be served on the debtor personally or by post; and
(b) notify the Registrar of Motor Vehicles of the order.
(4)An order under this section takes effect 21 days from (and including) the day on which the order was made.
(5)A person must not drive a motor vehicle on a road while his or her licence is suspended under this section.
Maximum penalty:
(a) $2 500; or
(b)disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months; or
(c)cancellation of the person's driver's licence and disqualification from obtaining such a licence for a period not exceeding 6 months.
Prior to the commencement of section 70E, penalty enforcement orders of the Court were dealt with pursuant to Part 9, Division 3 of the Sentencing Act. Section 61 of the Sentencing Act provided that an order for payment of a pecuniary sum was enforceable by imprisonment in default of payment. Section 61A of the Sentencing Act provided for the disqualification of a person from holding or obtaining a driver’s licence in default of payment of a pecuniary sum imposed in relation to an offence committed by him or her. Significantly, the Sentencing Act made no provision for penalty where a person, who had been disqualified from holding or obtaining a driver’s licence under section 61A, was found guilty of driving in contravention of such an order. At the time, only section 91 of the Motor Vehicles Act provided a penalty regime for a person found guilty of driving while disqualified or suspended.[1]
[1] It is to be recalled that section 91(1) of the Motor Vehicles Act 1959 (SA) states that the section applies “to suspensions or disqualifications imposed under this or any other Act”.
Division 3 of Part 9 of the Sentencing Act was substantially amended by the Statutes Amendment (Fines Enforcement) Act 1998 (SA), which specifically deleted all provision for enforcement of a pecuniary sum by imprisonment in default of payment and introduced a new regime for dealing with fine defaulters. The amendments came into force on 6 March 2000. Section 70E formed part of the amending provisions in Division 3 and specifically provided for penalties, other than imprisonment, for driving while suspended under that section. When introducing the bill which became the amending Act, the then Attorney-General noted:[2]
[2] South Australia, Parliamentary Debates, Legislative Council, 9 July 1998, 994-996 (The Hon KT Griffin, Attorney-General).
Custodial and supervisory sentences are both costly to the State and, more importantly, intrusive on the individual. They form a continuum of criminal punishment, and imprisonment is the punishment of last resort.
…
Imprisonment is the primary sanction for default. This is an outdated and inappropriate sanction. For many defaulters it is not seen as a deterrent and they are prepared to erase the debt of unpaid fines by going to prison rather than paying. The consequences are that fines are not collected, people are imprisoned, not for a serious crime but rather for what is essentially a debt and the State is required to maintain expensive custodial services.
…
In general terms, the essence of the [new] scheme is to discard what has been described as the criminal enforcement method of fine enforcement and instead to align the fine enforcement process more closely – indeed very closely – with that used in the collection of civil debts.
…
The current standard imprisonment for default will be abolished entirely in favour of alternative orders, being driver disqualification by licence suspension (even for non-vehicular offences), cessation of the ability to do business with the Registrar of Motor Vehicles, warrants authorising the seizure and sale of property and garnishee orders.
And in respect of the application of the new provisions to the suspension of a debtor’s driver’s licence, the following was stated:[3]
The new section contains a special penalty regime for the offence of driving while a licence is suspended by a penalty enforcement order. Under the Motor Vehicles Act 1959 the maximum penalty for driving while disqualified is 2 years imprisonment. Under the new scheme the penalty is a maximum fine of $2,500 or disqualification from holding or obtaining a driver’s licence for a period not exceeding 6 months or cancellation of a driver’s licence and such a disqualification.
[3] South Australia, Parliamentary Debates, Legislative Council, 9 July 1998, 999 (The Hon KT Griffin, Attorney-General).
It is clear from the relevant legislative history, that it was Parliament’s intention that persons who drive contrary to an order for licence suspension for non-payment of fines are no longer to be exposed to a sentencing regime which includes imprisonment. The two provisions expose a person relevantly charged to dramatically different sentencing regimes; on the one hand a fine of $2, 500.00 or disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months, and on the other, imprisonment for six months for a first offence and two years for a second offence. The results of there being a choice under which to prosecute are obvious: different offenders whose conduct was identical could in one case face imprisonment and not in the other. In this respect it is notable that a charge pursuant to section 91 of the Motor Vehicles Act is treated seriously by the courts and not uncommonly, a sentence of imprisonment is imposed.[4]
[4] See Police v Cadd (1997) 69 SASR 150.
Such as outcome as that alluded to immediately above is undesirable and an interpretation leading to such an outcome should be avoided. Such an outcome is in fact inconsistent with Parliament’s clear intention in introducing a legislative scheme to deal with fine defaulters by removing the possibility of imprisonment for driving while a debtor’s licence is suspended.
The expiation notice issued to the defendant was enforceable against him pursuant to section 13 of the Expiation of Offences Act 1996 (SA). The Registrar’s enforcement order had the effect of the defendant being convicted by the Court of the offence the subject of the expiation notice.[5] It became a pecuniary sum as defined in section 3 of the Sentencing Act and thereafter fell to be enforced as a penalty imposed by the Court, under Division 3 of Part 9 of the Sentencing Act.
[5] Section 13(6) of the Expiation Offences Act 1996 (SA).
Part 9 of the Sentencing Act provides the statutory regime for the enforcement of sentences. Section 56 states that: “Proceedings for enforcement of a sentence may not be commenced except under and in accordance with this Act.” Subdivision 3 of Division 3 of Part 9 of the Sentencing Act provides the statutory regime for dealing with penalty enforcement orders under the Act.
In the present proceeding, following non-payment of the expiation notice the defendant was served with such a penalty enforcement order.
In my view, section 70E of the Sentencing Act provides a complete statutory regime to deal with a person who drives a motor vehicle on a road while his or her licence is suspended under Part 9. As earlier extracted, section 70E(5) provides the penalty for driving while a licence is suspended, “under this section” as:
Maximum penalty:
(a) $2 500; or
(b) disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months; or
(c) cancellation of the person's driver's licence and disqualification from obtaining such a licence for a period not exceeding 6 months.
The language specifically refers to a particular type of offence of driving while suspended; that is, driving while a “licence is suspended under this section.”[6] The section must therefore be read to exclude other offences of driving while suspended or disqualified not under the section. Where a court deals with a defendant, charged pursuant to section 70E(5) and imposes a penalty under either sub-paragraph (b) or (c); namely a disqualification of the defendant or a suspension of driver’s licence, any subsequent breach of such an order would fall to be prosecuted under section 91 of the Motor Vehicles Act.
[6] Emphasis added.
The above construction, which was contended for by the defendant, is supported by the maxim of statutory interpretation: generalia specialibus non derogant, meaning that where there is a conflict between a general and a specific provision, the specific is to prevail. Section 91 of the Motor Vehicles Act is a provision of general application and cannot derogate from the specific provisions of section 70E of the Sentencing Act. Section 70E creates a very specific statutory regime for dealing with fine defaulters and persons who drive contrary to an order for suspension arising from the non-payment of a fine. In these circumstances, in accordance with this maxim, section 70E (5) of the Sentencing Act prevails over section 91 of the Motor Vehicles Act.
Section 50 of the Acts Interpretation Act 1915 (SA) allows, in certain circumstances, for a choice to be made by prosecuting authorities as to how an act or omission constituting an offence under different Acts is to be prosecuted. Section 50 provides:
Where any act or omission constitutes an offence under two or more Acts, or both under an Act or Acts and at common law, the offender will, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but is not liable to be punished twice for the same offence.
[Emphasis added.]
Section 50 of the Acts Interpretation Act is, however, not applicable to this case because of the reasons given above. The defendant’s conduct constituted an offence against section 70E alone.
The Availability of Section 18A of the Sentencing Act
It was submitted by the defendant that the single sentence of seven days detention imposed was beyond the power of the Judge. It was said the section 18A of the Sentencing Act could not be utilised when a defendant was being sentenced for several counts, only one of which carried a penalty of imprisonment. The Court had addressed this issue on a number of occasions. It is settled that section 18A cannot be utilised in the above circumstances. Counsel for the respondent accepted that the Youth Court Judge had acted beyond power.
The issue was first address by Duggan J In Hermel in the following terms:[7]
It is my view that, in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify the contribution which each of them has made to the total.
[7] Hermel v Police (2000) 76 SASR 336, [7].
These observations were applied by this Court in Al-Zhuain, where the Chief Justice remarked:[8]
The second of the Magistrates Court charges was an offence against the Firearms Regulations. The offence was not punishable by imprisonment. Counsel for the Director conceded that in sentencing Mr Al-Zuain to a single sentence of imprisonment in respect of all of the charges against him, the judge erred. The power conferred by s 18A can be exercised to impose a single sentence of imprisonment in respect of multiple offences only if each of the offences attracts a maximum penalty which includes imprisonment: see Hermel v Police (SA) (2000) 76 SASR 336; [2000] SASC 34 at [7] Duggan J.
It was not open for the judge to impose a sentence of imprisonment in respect of the second count. The appeal must be allowed and the sentence of imprisonment imposed by the District Court set aside. It is appropriate for this Court to resentence Mr Al-Zuain.
[8] R v Al-Zuain (2009) 103 SASR 567, [19]-[20].
These considerations provide a further reason for setting aside the orders made by the Youth Court Judge.
Manifestly Excessive
It is unnecessary to address this ground other than to observe that no penalty of imprisonment can be imposed pursuant to section 70E(5) of the Sentencing Act.
Final Matters
There are two other matters which should be mentioned. It was contended that the failure to provide reasons in this case masks error in the sentencing process and itself is an error of law.[9] The failure of the Judge to provide reasons, it was said, for his sentence does not allow this Court to properly review the exercise of the sentencing discretion. Further, the defendant was unrepresented before the Judge. Section 30 of the Young Offenders Act 1993 (SA) imposes a duty upon the Youth Court to satisfy itself that the youth understands the nature of the proceedings. In this sense the statutory requirement is not dissimilar to the position at common law as set out in Cooling v Steel,[10] an authority consistently applied in this State.[11]
[9] Papps v Police (2000) 77 SASR 210; KBS v Police (2001) 122 A Crim R 477; Hill v Police [2002] SASC 28; P v Police [2003] SASC 198; Corak v Police [2006] SASC 172; Lawson v Lee (1978) 19 SASR 442; Frank v Police (2007) 98 SASR 547; Szewczuk v Police [2001] SASC 223; Germain v Police [2006] SASC 340; Jones v Police [2009] SASC 137.
[10] Cooling v Steel (1971) 2 SASR 249.
[11] See P v Police [2003] SASC 198, [22].
Section 30(2) of the Young offenders Act provides:
(2) If the youth is not represented by counsel or a solicitor, the court –
(a) must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and
(b) must provide the youth with a written statement in the prescribed form of the youth’s rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation and assistance.
The Judge did not appear to comply with these requirements. Whilst non-compliance does not invalidate the sentence,[12] it is nevertheless another consideration in determining whether the sentencing process has miscarried.[13] Indeed, had there been compliance with section 30(2)(a), the charging error complained of in Ground 1 may have been identified and addressed.
[12] See section 30(4) of the Young Offenders Act 1993 (SA).
[13] BJY v Police (2002) 136 A Crim R 77; P v Police (2003) 228 LSJS 99.
ANDERSON J. I agree with the reasons of Gray J for the decision of this Court to set aside the orders in the Youth Court.
KOURAKIS J: I agree with the reasons of Gray J for the decision of this Court to set aide the orders in the Youth Court.
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