Miles v Police
[2009] SASC 181
•29 June 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILES v POLICE
[2009] SASC 181
Judgment of The Honourable Justice Kourakis
29 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Appeal against sentence - appellant pled guilty to assault arising out of a "road rage" incident - Magistrate declined to record a conviction against the appellant upon the appellant entering into a bond to be of good behaviour for 18 months in the amount of $100, but proceeded to impose a period of driver's licence disqualification pursuant to s 168 of the Road Traffic Act 1961 - s 168 allows "a court that convicts a person" of an offence to impose a licence disqualification period - whether Magistrate erred in failing to provide adequate reasons - whether Magistrate erred in deciding not to record a conviction but to impose a licence disqualification penalty under s 168 - whether sentence manifestly excessive.
Held: Appeal allowed - ss 16 and 39 of the Criminal Law Sentencing Act 1988 which allow for the decision not to record a conviction against a person do not allow the sentencing Judge to then impose a penalty of licence disqualification pursuant to s 168 of the Road Traffic Act 1961 - the period of licence disqualification imposed by the Magistrate was manifestly excessive in the circumstances of the case - unnecessary to decide on the question of inadequate reasons.
Road Traffic Act 1961 (SA) s 168; Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 9, s 15(1)(b), s 16, s 17, s 39, s 70E (5), s 70G (8); Offenders Probation Act 1913 (SA) s 4; Acts Interpretation Act 1915 (SA) s 30; Summary Procedure Act 1921 (SA) s 67, s 69, s 75; Magistrates Court Act 1991 (SA) s 5; District Court Act 1991 (SA) s 5, s 17, s 49; Supreme Court Act 1935 (SA) s 6, referred to.
House v The King (1936) 55 CLR 499, applied.
Hanley v Steel (1973) 5 SASR 242, distinguished.
Burgess v Boetefeur (1844) 7 Man & G 481; 135 ER 193; Cobiac v Liddy (1969) 119 CLR 257, discussed.
Papps v Police (2000) 77 SASR 210; Maxwell v The Queen (1996) 184 CLR 501; Vreeker v Police (2004) 144 A Crim R 544; Price v Police [2008] SASC 119; Coleman v Mayne [1966] SASR 404; S v Recorder of Manchester [1971] AC 481; R v Nam [1968] SASR 107; R v Brain (1999) 74 SASR 92; McNicholl v Tothill (1988) 47 SASR 134; McNair v McEvoy [1966] SASR 342; Hodgins v Police [2008] SASC 176; Hatton v Harris [1892] AC 547; R v Hodgkinson [1954] VLR 140; Griffiths v The Queen (1977) 137 CLR 293; Gray v Jones [1948] SASR 201; In re Suffield and Watts; ex parte Brown (1888) 20 QBD 693; Cameron v Cole (1944) 68 CLR 571; R v Dempster [1924] SASR 299; Oaten v Auty [1919] 2 KB 278; Porter v Prestwood (1983) 33 SASR 75; Philp v Bonney (1989) 50 SASR 531; Janz v Woolven (1990) 55 SASR 239; Hemming v Mundy [2001] SASC 105; Hyde v Police [2006] SASC 362; Reeves v Police (1997) 70 SASR 451; Police v Kennedy [2005] SASC 173, considered.
MILES v POLICE
[2009] SASC 181
KOURAKIS J: This is an appeal against the sentence imposed by a Magistrate on the appellant following his plea of guilty to the offence of assault. The Magistrate did not record a conviction upon the appellant entering into a bond to be of good behaviour for 18 months in the amount of $100. The Magistrate also made an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 18 months, pursuant to s 168 (1)(c) of the Road Traffic Act 1961 (the RTA), and ordered that the appellant pay costs including a victim of crimes levy.
The appellant appeals that sentence on the grounds that the Magistrate failed to provide adequate reasons, that she did not have the power to impose a licence disqualification once she had decided to not record a conviction, and in the alternative that the sentence is manifestly excessive. For the reasons that follow I would allow the appeal on the grounds that the Magistrate did not have the power to disqualify the appellant from holding a licence pursuant to s 168 of the RTA because she had proceeded by not recording a conviction, and on the further ground that, even if I am wrong on the first ground, the disqualification was, in any event, manifestly excessive.
Facts and background
The appellant was charged that on 26 May 2008, he committed assault by accosting the victim, Steev’n Andrew Jones, in a threatening manner contrary to s 20(3) of the Criminal Law Consolidation Act 1935. On 16 March 2009, in the Magistrates Court hearing, the appellant pled guilty to that charge. The Police Prosecutor then read a summary of the facts surrounding the incident, which had been agreed with the appellant’s counsel, Ms Nguyen. The relevant facts stated in that summary are as follows:
At about 8:00am on Monday 26 May 2008, the accused was involved in a ‘road rage’ incident. He is alleged to have followed the victim’s vehicle for a distance, twice approaching the driver’s side door while stationary at traffic signals. The accused attempted to open the door and punched at the driver’s window causing the victim to fear that a physical assault would be carried out.
Counsel for the appellant then made submissions as to penalty. She addressed the appellant’s personal circumstances, including the fact that he had no prior convictions and that he was involved in a motorbike accident five years earlier which had left him with serious injuries. Counsel informed the Court that the appellant had expressed remorse, and had written a letter of apology to the witness and the victim. As to the injuries sustained in the motorbike accident, counsel for the appellant tendered a report prepared by Dr Tony Davis, a psychiatrist who had been treating the appellant on a monthly basis since his accident, and who had prepared the report in the context of the appellant’s ongoing personal injury claim arising out of that accident. Dr Davis’ report of 2 February 2009 stated that:
He has experienced recurrent anxiety and depression of mood, as well as a propensity for irritability, frustration and aggression.
… Mr Miles has continued to experience symptoms of a chronic adjustment disorder with mixed emotional features. He also has ongoing problems related to personality function particularly in relation to impulse control and modulation of affect, which is indicative of some subtle form of organic mental disorder …
I noted in particular the most recent neuropsychological assessment of Dr Michael Wood, in the report of 20 December 2007. I agree with his conclusion that Mr Miles suffered a mild to moderate closed head injury, that has been associated with significant psychological sequelae.
Also referred to in that report, and by Ms Nguyen in her sentencing submissions, were the significant and distressing life events that the appellant had confronted in the month prior to the assault. Those events were the loss of his employment in May 2008, an assault committed on him by two men whilst he was walking through Victoria Square, and the sudden death of his brother in law at a relatively young age.
Ms Nguyen deposed, in an affidavit received on the appeal, that after she had made those submissions, the Magistrate indicated that she accepted that the offence was at the lower end of the criminal scale and that she was inclined to not record a conviction, but that she would impose a licence disqualification pursuant to s 168 of the RTA. Ms Nguyen then made submissions as to that penalty.
The Magistrate ordered, without recording a conviction, that the appellant enter into a bond in the amount of $100.00 and for a period of 18 months with the following conditions:
1. To be of good behaviour and comply with all the conditions of this bond.
2. To come up for conviction and sentence if called upon.
The Magistrate also ordered that the appellant be disqualified from holding a driver’s licence for a period of 18 months commencing at 4:00pm on 16 March 2009, and that the appellant pay costs of $297.
Grounds of appeal
The appellant appeals against the decision of the Magistrate to impose the 18 month licence disqualification period on the following grounds:
1.The Magistrate failed to provide adequate reasons with regard to the penalty imposed.
2.Given that the Magistrate did not record a conviction against the appellant, it was not open to her to order a licence disqualification period pursuant to s 168 of the RTA, which only applies where a court “convicts a person” of an offence.
3.That in the alternative, if it was open to the Magistrate to order a licence disqualification period, the period imposed of 18 months was manifestly excessive in the circumstances of this case.
For the reasons that follow, I would allow the appeal on grounds 2 and 3.
Ground 1 – Failure to provide reasons
No remarks on penalty were located on the Magistrates Court file for this matter. In a report to this Court the Magistrate advised:
I have been informed by the Manager, Magistrates Clerks Branch that the penalty remarks relating to this matter have not been located.
It is my usual practice to give remarks on penalty.
My recollection of this matter is now insufficient to give precise details of what went through my mind at the time I heard this matter, however my notes indicate that the defendant’s behaviour was described as ‘road rage’.
I determined that licence disqualification pursuant to s 168(1)(c) of the Road Traffic Act was necessary in order to protect the public.
Section 9 of the Criminal Law (Sentencing) Act 1988 (the Act) provides that a court must state its reasons for imposing a sentence upon a defendant. Failure to give adequate reasons for a judicial decision is an error of law.[1] One would expect, therefore, that it would be the invariable practice of all judicial officers to give at least some reasons for the judicial decisions they make. The reasons given must be sufficient to allow the appellate court to perform its function, and to ensure that “justice is seen to be done”.[2]
[1] Papps v Police (2000) SASR 210 at 218.
[2] Papps v Police (2000) SASR 210 at 219.
In this case, it is unclear whether or not the Magistrate did comply with her duty to state the reasons for sentence to the defendant under s 9 of the Act. While no remarks on penalty were located on the file, it is not clear from the Magistrate’s report whether she did not make any remarks, or whether she did but they cannot now be located. However, it is unnecessary for me to decide in this instance whether an error of law has occurred on the basis of inadequate reasons, given my finding that the appeal is allowed on alternative grounds of the appeal.
Ground 2 – Meaning of “convicts” for the purposes of s 168 of the Road Traffic Act 1961
Section 168 of the RTA provides that:
(1) A court that convicts a person of—
(a) an offence against this Act relating to motor vehicles; or
(b) an offence (under this Act or any other Act or law) in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle,
may do one or more of the following:
(c) order that the person be disqualified from holding or obtaining a driver's licence for a period fixed by the court or until further order.
There is no definition of “convicts” in the RTA.
The appellant argues that the Magistrate erred in imposing a licence disqualification period pursuant to s 168, because in deciding not to record a conviction, she had not convicted the appellant for the purposes of that section and the section could not operate against the appellant.
The respondent sought to have the matter, and in particular the question of what “convicts” means for the purposes of s 168 of the RTA, referred to the Full Court for determination. It submitted that an observation made by Bray CJ in Hanley v Steel,[3] a Full Court decision, that the power to order a licence disqualification pursuant to s 168 of the RTA is contingent upon a conviction being recorded,[4] should be reconsidered by the Full Court in light of more recent authority on the meaning of “conviction” in other statutes.[5]
[3] (1973) 5 SASR 242.
[4] Hanley v Steel (1973) 5 SASR 242 at 243.
[5] Maxwell v The Queen (1996) 184 CLR 501; Vreeker v Police (2004) 144 A Crim R 544; Price v Police [2008] SASC 119.
I declined that application because, while I think the question is of importance, and there were good reasons put forward by the respondent for referring it to the Full Court, I was concerned about the financial consequences of that course on the appellant. In doing so, I took into consideration the fact that the respondent made an undertaking not to seek costs should it be successful in the Full Court appeal, but did not make an undertaking to cover the costs of the appellant in arguing that appeal. I also considered the possibility that should the appellant succeed on this appeal, the respondent may well still appeal to the Full Court against my judgment.
The respondent therefore argued the ground before me. It conceded that if I were to follow the decision in Hanley, the appeal should be allowed. However, it invited the Court not to follow that decision, on the grounds that:
1It is not clear from the decision in Hanley whether the Court heard submissions in relation to the meaning of “convicts” for the purposes of s 168, given that the primary focus was the application of s 170 of the RTA.
2More recent authority, including High Court authority, provides that the meaning of conviction should be taken from its statutory context, and this interpretation has been applied to other legislative schemes where courts have found that “conviction” includes a finding of guilt without recording a conviction.
3Such a construction of “convicts” for s 168 of the RTA would promote the purposes and objects of that Act and section in particular, which include the following factors stated by Travers J in Coleman v Mayne:[6]
a.To protect the public from unusual risks presented by a dangerous driver who does not observe the traffic laws;
b.To prevent people from using motor vehicles to facilitate the commission of crimes; and
c.Punitive;
while still promoting the merciful purpose of s 39 of the Act.
[6] [1966] SASR 404 at 406.
For the reasons that follow, I find that the Magistrate did not have the power to not record a conviction against the appellant, but at the same time to impose a penalty of licence disqualification upon him pursuant to s 168 of the RTA.
Not recording a conviction
To come to grips with the respondent’s submission, and in particular its contention that the observation of Bray CJ in Hanley is no longer applicable, it is necessary to consider some difficult questions about the meaning of the term “conviction”, and the terms “without recording a conviction” and “discharge without penalty” used in ss 16 and 39 of the Act. Those questions in turn require some investigation of the historical practice of criminal courts, courts of summary jurisdiction and the statutory contexts in which they have operated.
Judges over the centuries faced with the difficult task of giving meaning to the word “conviction” have found some comfort in the words of Tindall CJ in Burgess v Boetefeur[7] that conviction is “undoubtedly verbum aequivocum”. Burgess was a claim in debt brought by persons who had prosecuted the keepers of a disorderly house at a general session of justices. The defendants to that prosecution had pleaded guilty in October 1842, but were not fined until June 1843 after they had been given an opportunity to abate the nuisances they had caused. The relevant statute provided that the prosecutors were entitled, “on conviction”, to a payment of £10 from the overseers of the poor of the said parish. The defendant was appointed an overseer in Easter 1843. The question, therefore, was whether, for the purposes of the relevant statute, the conviction occurred on the plea of guilty, or on the imposition of the penalty. Tindall CJ said that the term was sometimes used to refer to the verdict of a jury, and at other times “in its more strictly legal sense”, for the sentence of the Court. The Court in Burgess held that the word “conviction” was used in the latter sense in the statute on which the plaintiff had sued.
[7] (1844) 7 Man. & G. 481 at 504, (1844) 135 ER 193 at 202.
In S v Recorder of Manchester[8] Lord Upjohn said:
The primary meaning of the word ‘conviction’ denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times: see Hale’s Pleas of the Crown (1778), vol 2, ch. 32, p 251, and it is equally applicable in a court of summary jurisdiction (see Rex v Harris (1797) 7 Durn. and E. 238).[9]
[8] [1971] AC 481.
[9] S v Recorder of Manchester [1971] AC 481 at 506.
In Cobiac v Liddy[10] Windeyer J persuasively shows that the view expressed both by Tindall CJ in Burgess and Lord Upjohn in S v Recorder of Manchester is historically inaccurate. Windeyer J sets out cases, statutes and the works of classical text writers from the 17th and 18th centuries which show that the word “conviction” historically referred to the verdict of a jury, and not to the sentence imposed by the Court. An accused who pleaded guilty, or who was found guilty, was properly called a convict.[11] Those authorities do not, however, cast any doubt on the distinction between the verdict of a jury or guilty plea on the one hand and the judgment of the Court on the other. Whatever meaning is given to the word “conviction”, the authorities to which I am about to refer show that there is a clear distinction between the finding of guilt or a plea of guilty, and the order of the Court itself adjudging guilt.[12]
[10] (1969) 119 CLR 257.
[11] Cobiac v Liddy (1969) 119 CLR 257 at 271-72.
[12] See also the references to Hale, Hawkins and Chitty in the judgment of Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 272.
In trials by jury the verdict of the jury is not the judgment of the Court. As Tindall CJ observed in Burgess, even though it is often said that an accused is acquitted by the jury, in fact the acquittal is by the judgment of the Court discharging the defendant. After a guilty verdict is returned the allocutus is read. In its original form, the defendant who had been found guilty by jury verdict was asked why the Court should not proceed to judgment against him.[13] The allocutus now states: “You have pleaded guilty/been found guilty of the offence of …, the Court will now hear any evidence and submissions about sentence.”[14] A conviction and sentence which did not record the reading of the allocutus was bad and liable to be set aside.[15]
[13] Halsbury’s Laws of England (1909, 1st ed) vol 9 p 375, [732]-[733].
[14] R M Lunn, Criminal Law South Australia (2005) vol 1, [10,030.15] provides: “The usual practice is to give an allocatus after conviction and before embarking on matters relating to sentence”.
[15] Archbold’s Criminal Pleadings (1867, 16th ed) p 159.
In the Kings Bench, a guilty verdict passed into judgment if a motion was not brought within four days of its return.[16] In other courts and commissions a defendant was entitled to move in arrest of judgment at any time between verdict and sentence, but not afterwards.[17] However, in the 19th century, in the absence of a motion to arrest judgment, criminal courts moved promptly to judgment and sentence.[18]
[16] J Chitty, A practical treatise on criminal law (1816) vol 2, p 648.
[17] See Archbold’s Criminal Pleadings (1867, 16th ed) p 162.
[18] J Chitty, A practical treatise on criminal law (1816) vol 5, p 364.
Stephen described the relationship between verdict and judgment in this way:
The verdict of the jury is followed by the judgment of the Court, which may be either that the prisoner be discharged or that he suffer punishment.[19]
The verdict of the jury is followed by the judgment of the Court, which is either acquittal or condemnation. … If the prisoner is convicted he is sentenced usually at once.[20]
[19] Stephen, History of the Criminal Law of England (1883) ch 9, p 307.
[20] Stephen, History of the Criminal Law of England, (1883) ch 13, p 457. See also the references to Hale, Hawkins and Chitty in the judgment of Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 272.
The point at which a conviction occurs where a defendant is charged on an indictment was considered by the High Court in Maxwell v The Queen.[21] Dawson and McHugh JJ followed the approach of the House of Lords in S v Recorder of Manchester, and held that a conviction means the final disposal of the prosecution by the Court, and includes both the adjudication of guilt and sentence of the Court. They said:
In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court, a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. …
It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. …
A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. …
… Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter. With respect, that seems to us to be a better way of viewing the process than that suggested by Aickin J in Griffiths v The Queen, namely, that although a remand for sentence might amount to a conviction, a change of plea operates to set aside the conviction.[22]
[21] (1996) 184 CLR 501.
[22] Mawell v The Queen (1996) 184 CLR 501 at 509-10. On this approach there is potentially a significant period in which an accused can withdraw his plea and in which he is unable to rely on the plea of autrefois convict. In R v Nam [1968] SASR 107 this Court held that a sentence imposed by the Supreme Court could be altered or amended until the end of the monthly session. The extent to which the District and Supreme Court can alter sentence following the reorganisation of criminal sittings and the removal of monthly sessions in about 1992 has not been determined. The practice currently followed for the recording of sentences is described by Doyle CJ in R v Brain (1999) 74 SASR 92 at 100..
On the other hand, Gaudron and Gummow JJ held that on the hearing of an indictment, a conviction only occurs “when the Court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question”.[23]
[23] Mawell v The Queen (1995-1996) 184 CLR 501 at 531 per Gaudron and Gummow JJ. The test proposed by Gaudron and Gummow JJ raises for consideration the grounds upon which a judgment of the Court, which in the ordinary course should be final and conclusive, can be set aside. Without some modification the test allows for a plea to be set aside after the defendant has pleaded autrefois.
Toohey J took the view that a defendant may be considered for some purposes to be convicted before sentence, but that the Court had the power to allow the defendant to withdraw his plea whether or not he had been convicted.
The practice on proceedings brought by way of indictment is not necessarily applicable to summary proceedings. In Cobiac it was held that where the power in s 4 of the Offenders Probation Act 1913 was used to dismiss a complaint, no occasion arose for the imposition of a penalty, and therefore the statutory prohibition against the reduction of the penalty prescribed for the relevant offence was inapplicable. The defendant in Cobiac pleaded guilty to a second offence of driving whilst under the influence of alcohol contrary to s 47(1) of the RTA. At the foot of s 47(1) of the RTA, the legislature prescribed punishments by way of fine, imprisonment and a minimum period of disqualification under the heading “Penalty”. A mandatory term of imprisonment was prescribed for a second offence. Section 47(4) of the RTA provided:
Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows:
In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days.
Barwick CJ, Kitto and Owen JJ said:
It appears to us to be clear that the penalty provisions of s 47(1) cannot operate unless there has first been a conviction of the person charged. That this is so becomes even more obvious when reference is made to s 30 of the Acts Interpretation Act which states that:
The penalty or punishment … set out … in, or at the foot of, any part of any section of any Act, shall indicate that any contravention of such … part … shall be an offence against such Act, punishable upon conviction by a penalty or punishment not exceeding that so set out.
We think it is equally clear that s 47(4) only takes effect if and when the person charged has been convicted.[24]
[24] Cobiac v Liddy (1969) 119 CLR 257at 263-64. Section 30 of the Acts Interpretation Act 1915 remains in a similar form. It provides that a penalty set out at the foot of the section or sub-section that contains words creating an offence indicates that the offence is punishable on conviction by such a penalty.
Windeyer J said:
One thing is I think quite certain: that is that, if a man be not convicted, he is not to be punished. Sentence follows only upon conviction. General principle and the provisions of s 30 of the Acts Interpretation Act, 1915-1936 (SA) ensure this: see R v Spratling [1911] 1 KB 77 at p 82.[25]
[25] Cobiac v Liddy (1969) 119 CLR 257 at 275.
The decision of the High Court in Cobiac must be understood in the context of the summary procedure prescribed by the provisions of the Summary Procedure Act 1921.[26] Section 67 of the Summary Procedure Act 1921 requires the complaint to be stated to a defendant and that the defendant be asked “if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be)”. Section 67(2) provides that if the truth of the complaint is admitted, and the defendant shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the Court shall convict him or make an order against him accordingly. If a defendant does not admit the truth of the complaint the Magistrate is required to proceed to a hearing.[27] Section 69 of the Summary Procedure Act 1921 provides that at the completion of that hearing “the Court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint as the case may require”.
[26] At the time cited as the Justices Act 1921.
[27] Summary Procedure Act 1921 s 68.
It can be seen, therefore, that a finding of the truth of the complaint, either after formal admission pursuant to s 67, or by a determination of the Magistrate after hearing the evidence pursuant to s 69, is a distinct identifiable step in the summary determination of a complaint. Convicting or making another order against a defendant is a subsequent step which may be taken after the determination of the truth of the complaint.
It follows, I think, that the finding of the truth of the complaint is the adjudication of liability and the judgment of a court of summary jurisdiction which would support a plea of autrefois convict. There is no difficulty in identifying that step when there has been a trial; it is when the Court pronounces its conclusion on the truth of the complaint by finding the defendant guilty or not guilty. When a defendant admits the truth of the complaint, the Court’s finding or determination of the truth occurs when the Court acts on that plea by embarking on a consideration of the orders that should be made against the defendant. That conclusion corresponds with the approach taken by Gaudron, Gummow and Toohey JJ in the case of proceedings on an indictment in Maxwell v The Queen.[28]
[28] (1996) 184 CLR 501.
In McNicholl v Tothill[29] Prior J took the view that “conviction” in ss 67 and 69 of the Summary Procedure Act 1921 is used in the narrow sense of a determination of guilt.[30] If “conviction” is narrowly confined in those sections, then there would not appear to be any express statutory mandate to proceed to sentence after the determination of guilt. In my respectful opinion, the word “conviction” in those sections is more likely to mean the final disposition of the case, including the imposition, if appropriate, of a penalty. The word “conviction” is used in s 70 of the Summary Procedure Act 1921 in that wider sense. Indeed, as the then Solicitor-General submitted in McNicholl, it is hard to accept that the word “conviction” in s 70 is used solely in the narrow sense, because if that were so there would be no statutory direction to record the final disposition of the case, including the sentence.[31] This Court held in McNicholl that a court of summary jurisdiction can set aside a conviction (in the narrow sense of an adjudication of guilt) at any time until sentence is pronounced, because until then the Court had not finally disposed of the matter before it. I think that that conclusion supports the view that the word “conviction” in ss 67 and 69 includes the sentencing of the defendant.
[29] (1988) 47 SASR 134.
[30] McNicholl v Tothill (1988) 47 SASR 134 at 150.
[31] However, see the view expressed obiter by Chamberlain J in McNair v McEvoy [1966] SASR 342 that the word “conviction” in ss 70 and 72 was used in the narrow sense of a finding of guilt.
It is necessary to further consider the operation of s 4 of the Offenders Probation Act 1913 and s 75 of the Summary Procedure Act 1921 before turning to the dictum of Bray CJ in Hanley challenged by the respondent. Both statutory provisions were designed to fit within the procedure prescribed by ss 67 and 69 of the Summary Procedure Act 1921, and authorised a court of summary jurisdiction to hold back from convicting, in the narrow sense of adjudication of guilt, a defendant even where “it thinks that the charge is proved”. The terminology “thinks that the charge is proved” is used in contradistinction to the concept of a formal adjudication of the truth of the charge by the Court.
Section 75(2)(a) of the Summary Procedure Act 1921 allowed the Court a discretion in the case of trifling offences, which it thought were proved, to dismiss the complaint “without proceeding to conviction”. By s 75(2)(b) of the Summary Procedure Act 1921 a court could proceed to convict a defendant of a trifling offence where it thought the charge was proved, but discharge him unconditionally or on a recognisance to be of good behaviour and to appear for sentence when called upon.
A similar approach was taken by the Offenders Probation Act 1913. The circumstances which enlivened the discretions were wider, and extended to the personal and other extenuating circumstances of the defendant and the offence. The power could be exercised where a summary court “thinks that the charge is proved”. Courts of summary jurisdiction were empowered to dismiss the complaint or discharge the defendant on a recognisance to be of good behaviour and to appear for sentence when called upon, “without proceeding to conviction”. The expression “without proceeding to conviction” in turn was taken from the Probation of Offenders Act 1907 (UK). By the time Cobiac was decided, the phrase “without proceeding to conviction” had been shortened to “without convicting”. In addition, the Offenders Probation Act 1913 authorised summary courts and all other courts to discharge a convicted person without penalty.
It appears that the provisions intended to distinguish between thinking that a charge was proved and proceeding to make a finding to that effect so that the punishment ordinarily consequent upon an adjudication of guilt could be avoided or mitigated. The effect of s 75 of the Summary Procedure Act 1921 and s 4 of the Offenders Probation Act 1913 was to confer on courts of summary jurisdiction a power that could be exercised before the judicial finding of guilt and the disposition of the case otherwise required by ss 67 and 69. It follows that the dismissal of a complaint pursuant to a statutory provision like s 4 of the Offenders Probation Act 1913 is the very antithesis of an adjudication of guilt and therefore in no sense was there a conviction in such a case. That conclusion lies at the heart of the decision in Cobiac that the obligation to impose the minimum penalty under the RTA was not enlivened when a complaint was dismissed pursuant to the Offenders Probation Act 1913.
When the detail of summary procedure and its interaction with the provisions of the Offenders Probation Act 1913 are fully understood, it appears to me that, with respect, the dictum of Bray CJ in Hanley remains true in its statutory context. In Hanley, a Special Magistrate released a defendant on a recognisance without proceeding to a conviction, but also disqualified his licence pursuant to s 170 of the RTA. Bray CJ referred in passing to s 168 of the RTA, only to make the point that it was inapplicable because there had been no conviction. The power of the Offenders Probation Act 1913 invoked by the Magistrate in Hanley was exercisable when the Court “thought” that the charge was proved, but before it formally adjudicated on the guilt of the defendant. As the High Court explained in Cobiac, there can be no punishment unless a defendant is first adjudged to be guilty. Provisions like s 30 of the Acts Interpretation Act 1915 and s 168 of the RTA impose a liability to penalty on conviction. The word “conviction” in those provisions is necessarily used in the narrow sense of an adjudication of guilt. It would make no sense for a statutory provision to provide that a defendant, who had already been sentenced, was liable to a further penalty. However, a dismissal of a complaint is not an adjudication of guilt, and therefore the power to impose a penalty pursuant to s 168 of the RTA did not arise in Hanley.
It remains to be seen whether the applicable provisions of the Act operate in the same way as the provisions of the now repealed Offenders Probation Act 1913 and s 75 of the Summary Procedure Act 1921.
Criminal Law (Sentencing) Act 1988
The Magistrate did not record the statutory basis upon which she made the order to not record a conviction against the appellant. The appellant argued before me that the Magistrate imposed a penalty without recording a conviction pursuant to s 16 of the Act, which provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
The respondent, however, submitted that the Magistrate must have made the order not to record a conviction pursuant to s 39 of the Act, which provides:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(ab) to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2) Where a defendant is discharged under this section—
(a) no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
It seems to me that the two sections of the Act that give the Court a power to not record a conviction must be read as alternatives. That is, a court can rely on either one of the sections, but not both. That I think is clear from the fact that s 16 applies where the Court proposes to impose a penalty of a fine, a sentence of community service or both, whereas s 39 applies where the Court proposes to have the defendant enter into a bond, without imposing a penalty. I would adopt the following remarks upon those two sections made by Gray J in Hodgins v Police:[32]
There are important differences in the wording of sections 16 and 39. The preconditions to enliven the respective discretions differ. Under section 39 there is no need for the Court to be intending to impose a fine or to make a community service order. There is no requirement for the Court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction. No doubt, as observed in Yousef, the factors to be considered by the Court in exercising the section 39 discretion may be similar to the factors that arise under section 16. However, it is important to recognise that the sections have different work to do and operate in different circumstances.[33] (footnote omitted).
[32] [2008] SASC 176.
[33] Hodgins v Police [2008] SASC 176 at [15].
It is clear to me therefore, that in this case the Magistrate must have proceeded pursuant to her power in s 39 of the Act. Firstly, she did not impose a penalty of a fine, a period of community service or both. Secondly, she had the appellant enter into a bond to be of good behaviour.
However, even if I am wrong in that conclusion, for the reasons that I will shortly give it would be an error to impose a licence disqualification penalty whether the Magistrate decided not to record a conviction pursuant to s 16 or s 39 of the Act.
A contradiction is apparent on the face of both ss 16 and 39 of the Act if those provisions were meant to empower courts to proceed to make the orders for which they provide without proceeding to a conviction. The contradiction is two fold. First, the exercise of the powers is premised on a “finding of guilt”, which must mean an adjudication of guilt, and a conviction at least in the narrow sense. The terminology “thinks that the charge is proved” is no longer used. It is to be observed in this respect that s 39(2)(a) of the Act expressly provides that no further proceedings can be brought after a finding of guilt and disposition pursuant to that section. Secondly, at least with respect to s 16 of the Act, a fine or community service is a penalty, and therefore the disposition of an offence pursuant to that provision necessarily entails a conviction in the wider sense. It is perhaps for that reason that it was thought unnecessary to expressly prohibit a further prosecution after a disposition pursuant to s 16 of the Act.
Because both provisions are premised on an adjudication of guilt, and therefore a conviction, at least in the narrow sense, it is necessary to turn to what may have been meant by the context of not recording a conviction. It is difficult to give a sensible meaning to it. That is especially so when the courts with criminal jurisdiction in this State have been created as Courts of Record.[34]
[34] The Magistrates Court is established as a Court of Record pursuant to s 5 of the Magistrates Court Act 1991; the Rules of Court made pursuant to s 49 of that Act provide that the Registrar is responsible for the records of the Magistrates Court. The District Court is established as a Court of Record pursuant to s 5 of the District Court Act 1991; the records of the District Court in its criminal jurisdiction are committed to the custody of the Registrar (see District Court Act 1991 ss 17 and 18) (District Court (Criminal and Miscellaneous) Rules 1992 Part 4, r 14.01); the Supreme Court of South Australia was established as a Superior Court of Record and continues as such pursuant to s 6 of the Supreme Court Act 1935, (see also r 14 of the Supreme Court Criminal Rules 1992).
The proceedings of a Court of Record, which are preserved in its archives, are called records. They are conclusive evidence of that which is recorded therein.[35] The records of a Court of Record, and the record of the order disposing of a matter in particular, can be amended at any time by the Court to properly reflect the order that was in fact made.[36] A judge of a Court of Record controls the entry of a clerk and may correct his or her errors.[37] A Court of Record is entitled to reconsider its decision until its decision is drawn up and recorded.[38]
[35] Halsbury’s Laws of England (1909, 1st ed), vol 9 pp 10-11.
[36] Mawell v The Queen (1996) 184 CLR 501 at 531; Hatton v Harris [1892] AC 547 at 560-1; R v Hodgkinson [1954] VLR 140 at 145.3.
[37] Sir M Hale, The History of the pleas of the Crown (1736) vol 2, p 647 (“If a clerk had made a mis-entry of the record, the Judge before whom it was, might ore tenus rectify the mis-entry though a considerable time after … for that a Judge of Record is as it were a living record, and controls the entry of the clerk”) cited in part in Griffiths v The Queen (1977) 137 CLR 293 at 313 per Jacobs J.
[38] Gray v Jones [1948] SASR 201 at 204; In re Suffield and Watts ex parte Brown (1888) 20 QBD 693 at 697; Griffiths v The Queen (1977) 137 CLR 293 at 313-4 and 317 per Jacobs J. Cf Cameron v Cole (1944) 68 CLR 571. The power of the Supreme Court of South Australia to amend its records was considered by Napier J in R v Dempster [1924] SASR 299 at 300-1.
Given the nature of a Court of Record, it can hardly be the case that the provisions of the Act that speak of a court not recording a conviction should be understood as a direction to a Court of Record not to record those parts of its proceedings which result in the conviction of a defendant, whether the word “conviction” is understood as a finding or admission of guilt, the adjudication of guilt by the Court, or the imposition of sentence. Equally obviously, orders made pursuant to those provisions of the Act are not directions to the police force or other authorities in this State, let alone to authorities in other jurisdictions, not to keep a record that the guilt of the defendant was proved in a court of this State. Nor do the sections provide any lawful justification for persons who have been convicted, in the sense of being found guilty, to withhold or conceal that fact from an authority enquiring as to the existence of any convictions. Any such enquiry must be answered in accordance with the meaning of the word “conviction” intended by the enquirer.
However, “matters of legal linguistics”[39] must be put aside when statutes use common law terms in a way that is inconsistent with their common law meaning. In Cobiac, Windeyer J referred to the complaint made by Darling J in Oaten v Auty[40] that the language of the Probation of Offenders Act 1907 (UK) was but then “unscientific, thoroughly illogical”.[41] Windeyer J said of equivalent language used in the Offenders Probation Act 1913:
These each employ words which have been part of the vocabulary of English law for centuries. But their meanings and effects in the Act must depend on the context in which they there appear, and on the policy and purpose of the Act as made manifest by its language. I say this because it seems to me to be of little moment to say that Parliament has misused words, has called things what they are not. If it has, this may be regrettable to purists in the use of traditional legal terms. But Parliaments can make the words they use bear whatever meaning they wish. Context and the policy of an enactment may point the meaning to be given to words and phrases in it, as surely as express statutory definitions would do.[42]
[39] Cobiac v Liddy (1969) 119 CLR 257at 271.
[40] [1919] 2 KB 278.
[41] In Oaten v Auty (1919) 2 KB 278 at 282 Darling J said:
The words … are unscientific, thoroughly illogical, and are merely a concession to the modern passion for calling things what they are not; for finding people guilty and at the same time trying to declare them not guilty.
[42] Cobiac v Liddy (1969) 119 CLR 257 at 270.
Doing the best I can with the language employed in ss 16 and 39 of the Act, I can only conclude that the phrase “without recording a conviction” is a peculiar form of court order in the nature of a declaration which signifies that the offence was committed in special and extenuating circumstances. It is not open, I think, to give the phrase the meaning “without proceeding to a conviction” for the reasons to which I have already adverted.
There is no longer, therefore, any statutory authority which allows a court of this State to decline to adjudicate on the guilt of a defendant who it “thinks” is guilty and thereafter dismiss the proceedings.[43]
[43] Cf s 15(1)(b) of the Criminal Law (Sentencing) Act 1988.
Accordingly, in criminal proceedings where there is a finding of guilt or an acceptance of a plea of guilty, there is necessarily a conviction in the narrow sense, which is, subject to any special statutory provision which otherwise provides, sufficient to require the imposition of any statutory penalty. The result of that is that although Bray CJ was, in my respectful opinion, correct to say that there was no conviction, even in the narrow sense, when a complaint was dismissed pursuant to the Offenders Probation Act 1913, ss 16 and 39 of the Act assume and operate on an adjudication of guilt, or conviction in the narrow sense. In the ordinary course, penalty provisions like s 168 of the RTA would therefore apply on their own terms. However, ss 16 and 39 of the Act otherwise provide. Both provisions expressly limit the penalties which can be imposed where the power to not record a conviction is exercised.
To avoid the plain terms of ss 16 and 39 of the Act, the respondent argued before me that a licence disqualification period is not a “penalty” for the purposes of the Act. It submitted that the only penalties referred to throughout the Act were those of imprisonment, fines or community service. That submission should be rejected. A licence disqualification is often set out as a penalty at the foot of an offence. “Penalty” is not defined by the Act. Sections 70E (5) and 70G (8) of the Act, however, provide for a licence disqualification to be imposed as a “penalty” for contraventions of those subsections. Section 17 of the Act provides that the Court may reduce a minimum penalty prescribed by an Act if it thinks that there is good reason to do so. It would be a strange result if the Court could not, under that section, reduce a period of licence disqualification. Finally, this Court has consistently held that a licence disqualification period is part of the sentence or penalty.[44]
[44] Porter v Prestwood (1983) 33 SASR 75; Philp v Bonney (1989) 50 SASR 531; Janz v Woolven (1990) 55 SASR 239.
It is necessary to deal with the submission that even if a licence disqualification is a penalty, ss 16 and 39 allow for the imposition of a penalty provided for by a provision other than the provision creating the offence. In its original form, s 16 provided that where a court proposed to impose a fine and no other penalty, the Court could proceed to impose that fine without recording a conviction. Section 16 now provides that “where a court proposes to impose a fine, a sentence of community service or both” the Court may impose those penalties without recording a conviction. It was suggested by Martin J in Hemming v Mundy[45] that the omission of the words “and no other penalty” is significant. Martin J held that a Court could both not record a conviction pursuant to s 16 of the Act, and exercise its powers to impose penalties in addition to a fine or community service, pursuant to statutory provisions other than the provision creating the offence of which the defendant was found guilty.
[45] [2001] SASC 105.
In my respectful opinion, the decision in Hemming is open to doubt. It was distinguished by Bleby J in Hyde v Police.[46] In that case the additional penalties were mandatory. Bleby J, however, after distinguishing the decision in Hemming, went on to say:
Section 16 is clearly intended to operate in limited circumstances. Apart from compliance with the provisions of paragraphs (a) and (b), it can only apply in respect of “an offence for which (the court) proposes to impose a fine, a sentence of community service, or both”. That category of offence will usually be at the lower end of the scale of seriousness. There is nothing to suggest that, where the court proposes to impose a sentence of imprisonment or some other penalty for the offence, the provisions of the section can be invoked. The necessary criteria of proposed fine, community service or both are, in my opinion, exclusive of any other proposed penalty for the offence, whether required to be imposed or merely proposed in the exercise of the court’s discretion. The penalty proposed for the offence in this case, albeit that it was a mandatory requirement, included a period of licence disqualification of not less than one month. In those circumstances, s 16, by its own terms, had no application.[47]
[46] [2006] SASC 362.
[47] Hyde v Police [2006] SASC 362 at [32].
It is difficult to see why the circumstance that the additional penalty is mandatory or discretionary should make any difference. Furthermore, there is no reason why Parliament must prescribe the penalties to which a defendant is liable on conviction by the same statutory provision that creates the offence. The way in which Parliament organises its statutes is purely a matter of form; the extent of the Court’s powers and the liability of a defendant on conviction are matters of substance.
Moreover, in my respectful opinion Martin J overstated the significance of the omission of the words “and no other penalty”. Those words were necessary when s 16 of the Act referred to the imposition of a fine only; the phrase “and no other penalty” made it clear that the power conferred by s 16 of the Act could not be exercised if any penalty in addition to a fine was imposed. To put it in another way, the imposition of a fine was not then a sufficient condition to enliven the power in s 16; it was also a necessary condition for its exercise that no other penalty in addition to the fine be imposed. However, when the scope of s 16 of the Act was extended to include community service orders, the purpose of the phrase “and no other penalty” was served by the use of the words “or both”. If Parliament had intended that the imposition of either a fine or a community service order be sufficient to enliven s 16 of the Act, whatever other penalty might also be imposed, it would not have been necessary to add the words “or both”; a fine would have enlivened the power whether or not a community service penalty was also imposed. It is therefore a necessary implication of the inclusion of the words “or both” that even though s 16 of the Act might still be enlivened if both a fine and a community service order are imposed, it is not enlivened if a penalty other than a fine or a community service order is also imposed.
It follows, in my view, that a court cannot proceed by not recording a conviction pursuant to s 16 of the Act and yet proceed to impose a license disqualification pursuant to s 168 of the RTA.
A court is similarly constrained from both not recording a conviction but imposing a licence disqualification penalty pursuant to s 39 of the Act. However, in the case of s 39 the result follows even more obviously from the phrase “discharge … without imposing a penalty”.
For these reasons, the appeal is allowed on the ground that the Magistrate erred in not recording a conviction against the appellant but imposing a licence disqualification penalty pursuant to s 168 of the RTA.
Ground 3 – Manifestly excessive
A court of appeal will not interfere with a Magistrate’s sentencing discretion unless the test set out in House v The King[48] is met, in that the Court finds that the Magistrate acted upon a wrong principle, had regard to extraneous or irrelevant matters, or failed to take into account a material consideration, or that the sentence imposed is unreasonable or clearly unjust.
[48] (1936) 55 CLR 499 at 505.
In this matter, I consider that the sentence imposed by the Magistrate of a licence disqualification period of 18 months, without conviction and upon the appellant entering into a bond to be of good behaviour for 18 months, was unreasonable and clearly unjust in all the circumstances. In my view, that sentence is so disproportionate to the culpability of the defendant and the need for public protection that it demonstrates error in the sentencing process.
In coming to this conclusion, I have had regard to the need for both personal and general deterrence in relation to crimes of “road rage”, given that they are of serious public concern.[49] However, in my view, this case is unusual and requires leniency due to the personal circumstances of the appellant and the series of misfortunes he suffered shortly before the commission of the offence. In my view, they both explain the offending and make it very unlikely that there will be any repetition of the behaviour. He has shown genuine remorse through his letter to the victims. I do not consider that an 18 month driver’s licence disqualification period is necessary to protect the public, because I do not think that the appellant, being in possession of a driver’s licence at an earlier time, will pose a threat to the public. On the other hand, a prolonged period of disqualification will cause disproportionate and unnecessary personal hardship. In my view, a licence disqualification period of 4 months is adequate and appropriate to send the appellant and others a clear message that this type of behaviour is not appropriate, and to protect the public.
[49] Reeves v Police (1997) 70 SASR 451 at 454; Police v Kennedy [2005] SASC 173.
I would therefore allow the appeal and re-sentence the appellant. The appellant is invited to enter into a bond in the amount of $100. The terms of that bond are as follows:
1To be of good behaviour and comply with all the conditions of this bond.
2To come up for conviction and sentence if called upon.
3To not drive a motor vehicle for a period of 4 months.
The bond will be taken to have commenced on the date of the appellant’s plea of guilty, which was 16 March 2009 and will be for a term of 18 months.
The Magistrate’s order as to the payment of costs by the appellant is not disturbed.
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