Maher v Hamilton
[1990] TASSC 56
•2 October 1990
Serial No 54/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Maher v Hamilton [1990] TASSC 56; A54/1990
PARTIES: MAHER
v
HAMILTON
FILE NO/S: LCA 9/1990
DELIVERED ON: 2 October 1990
JUDGMENT OF: Cox J
Judgment Number: A54/1990
Number of paragraphs: 11
Serial No 54/1990
File No LCA 9/1990
MAHER v HAMILTON
REASONS FOR JUDGMENT COX J
2 October 1990
Notice to Review the dismissal by a magistrate pursuant to the Probation of Offenders Act 1973, s7, of complaints of six offences against the Sea Fisheries Regulations 1962 to which offences the respondent had pleaded guilty. The offences are all offences which attract, in addition to a general penalty, a mandatory penalty under the Regulations made by virtue of s9(1)(y)(iii) of the Fisheries Act 1959. On conviction on the six counts a mandatory special penalty of $740.00 was required to be imposed.
The offences took place on 1 December 1989. A complaint in respect of them was made on 11 January 1990 and the learned magistrate took the respondent‘s plea and dismissed the charges on 22 February 1990. On 21 December 1989 Royal Assent was given to Act No. 52 of 1989 which amended s9 of the Fisheries Act 1959 by inserting therein after subsection 1(AAA) the following subsection:
"(1AAB) Section 74C (1) of the Justices Act 1959 and section 7 of the Probation of Offenders Act 1973 shall not apply to an offence in respect of which a special penalty referred to in subsection (1) (y) (iii) may be imposed by a court."
Ground 1 of the notice of appeal asserts that the learned magistrate erred in law in directing himself that he had a discretion to dismiss the complaint under the Probation of Offenders Act 1973. Ground 2 asserts that he erred in fact and in law in dismissing the complaint in all the circumstances.
The appellant submits that upon the amending Act coming into force the learned magistrate lost the power of dismissing the complaint under the Probation of Offenders Act 1973 notwithstanding that the offence had occurred three weeks earlier. The respondent submits that there is a common law presumption against retrospectivity and that the amending Act does not affect offences committed before it came into effect. It is common ground that the provisions of the Acts Interpretation Act 1931, s16, have no application as the Act does not operate as a repeal.
The provisions as to penalty pertaining at the time of the offence have not changed by virtue of the amending Act. All that has changed is that a court dealing with any such offences no longer has power to impose a suspended sentence or to dismiss the complaint or make a probation order postponing on terms the step of proceeding to conviction and/or sentence. It was submitted on behalf of the respondent that the effect of the amending Act was to increase penalty and reliance was placed on the case of Samuels v Songaila (1977) 16 SASR 397 where the Full Court of South Australia held that amendments increasing penalty did not apply to offences committed before the date of amendment in the absence of clear terms or necessary and distinct implication. That case is, in my view, clearly distinguishable because it dealt with an amendment directly increasing penalty.
A better analogy, in my view, is to be found in the Tasmanian Full Court decision of Robertson v Smith ([1974] Tas SR 50) which held that an amendment depriving the court of power to grant a restricted licence in the event of conviction for certain drink/driving offences in the circumstance that the applicant had a prior conviction applied in the case of a defendant whose offence had been committed prior to the date of the amending Act. Neasey J said that he was unable to agree that the power to grant a special licence formed a part of the penalty incurred by the respondent when he committed the offence:
"The penalty provisions, properly so called," [he said at p57], "were contained in ss 17 and 18 of the Road Safety (Alcohol and Drugs) Act 1970, the relevant parts of which remained unrepealed in the same form at the time the offence was committed, as they were when the appellant was convicted, fined and disqualified. The relevant question was whether the court had power to grant the application for a special licence at the time he was disqualified, and unfortunately for him it did not."
The ameliorating provisions of s7 of the Probation of Offenders Act 1973 can only come into play where a person is charged and the court thinks that the charge is proved, but is of opinion that for the reasons nominated in the section, or one of them, it is inexpedient to inflict any punishment. Here the respondent was charged and the court formed the opinion upon which it relied after the amending Act had come into effect. The mandatory penalty had not been increased and the question was whether the court had power to ameliorate those penalties at the time it formed the requisite opinion. In my opinion, unfortunately for him, it did not.
A different view has been taken by Lush J in the Supreme Court of Victoria. In Bakker v Stewart; Wilson v Kerr [1980] VR 17, his Honour had a similar situation to the present to resolve. Between the offence and the determination by the court of first instance of a drink/driving offence against the Motor Car Act 1958 (Victoria), an amendment thereto was passed which made the power of adjournment without proceeding to conviction under the Magistrates (Summary Proceedings) Act 1975 (Victoria) no longer applicable to certain offences against the Motor Car Act and which furthermore increased the penalties therefor. Lush J said at p22:
"While it is true that s80 of the Magistrates (Summary Proceedings) Act 1975 refers to adjournment, in my opinion the substance of the new s89A must be looked at. It was inserted into the Motor Car Act 1958 which already contained s81A(2) which made cancellation of licence and disqualification mandatory in some cases. This cancellation or disqualification was, and I shall have to return to this point, expressed to be part of the penalty upon conviction, and it was, I think, a greatly feared part of the consequences of conviction. It may be noted that in the present South Australian legislation set out in Samuels v Songaila, supra, cancellation and disqualification appear as the first part of the consequences of conviction.
Magistrates and judges are, it would seem, always resistant to the concept of mandatory penalties regardless of circumstances, a matter which law reformers might consider, as it possibly indicates the result of experience.
In the case of the Motor Car Act, the course open under s80 of the Magistrates (Summary Proceedings) Act offered a way of avoiding the imposition of the mandatory penalties in cases where its use was considered appropriate. Section 89A reflects the view of Parliament that such a course was undesirable in the cases to which the section refers, and ended it. The intention of the amending Act, therefore, was to ensure that the cancellation and disqualification penalty was automatic in all second and subsequent offence cases, and in first offence cases where the blood alcohol reading exceeds 0.1 per cent. It is, in addition, to be observed that Act No 9243 introducing s89A also amended, by increasing, the penalties provided in s81A for offences against that section."
At p23 he went on:
"In my opinion cancellation and disqualification are part of the direct penalties for offences under s81A; and s89A cannot be classed as a procedural section, nor can it be classed as merely operating in futuro upon situations originating in the past. In effect, it increases the penalties for the relevant offences by terminating the only known method of avoiding an imposition of the mandatory penalties and, accordingly, in my opinion, it deals with both liability and penalty. It is, therefore, not to be applied to offences committed before it came into operation."
With great respect, it is my view that, the penalties laid down under the Sea Fisheries Regulations being fixed at the time of the commission of the offences, the abolition of the court's power to avoid their imposition in no way increases them. The justification relied upon by Bray CJ in Samuels v Songaila (supra) for holding that increased penalties did not apply to offences committed before the Act effecting them came into operation was stated by him in these terms at pp399–400:
"Penalties are imposed in order to deter the forbidden conduct and we have to assume that they have some deterrent effect. A man cannot be deterred from committing a forbidden act by fear of a sanction which is not in existence at the time he commits the act."
Such considerations do not apply if the mandatory penalty remains the same. The sanction is known at the time of the offence and furthermore known to be mandatory.
In my view, the legislature has unequivocally declared that penalties which by subordinate legislation are made mandatory in every case are no longer to be avoided by the use of a suspended sentence or dismissal of the complaint without proceeding to conviction. The amendment speaks from the date of its coming into operation in respect of all proceedings thereafter determined by the court.
In my opinion, the learned magistrate had no power to adopt the course he did, and it is, accordingly, unnecessary to examine ground 2. The Notice to Review is upheld. The learned magistrate‘s order is quashed and a conviction recorded on each charge to which the respondent pleaded guilty. Special penalties are imposed as follows:
On Count 1 $220.00;
On Count 2 120.00;
On Count 3 180.00;
On Count 4 180.00;
On Count 5 20.00;
On Count 6 20.00.
In addition, I impose the minimum permissible general penalty of $40.00 on each count.
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