M, PA v Police

Case [2012] SASCFC 24

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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M, PA v Police [2012] SASCFC 24
Case
[2012] SASCFC 24
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia by M, a youth, against a decision of a Youth Court Judge. The appeal arose from the defendant's guilty pleas to charges of driving an unregistered motor vehicle and driving while his licence was suspended. The licence suspension followed his failure to pay an expiation notice for stopping his vehicle on a yellow line. The defendant was sentenced to seven days detention pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

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

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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