Miller v Tighe
[2017] ACTSC 185
•24 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Miller v Tighe |
Citation: | [2017] ACTSC 185 |
Hearing Date: | 24 July 2017 |
DecisionDate: | 24 July 2017 |
Before: | Mossop J |
Decision: | In each case the order of the Court is: 1. Appeal allowed. 2. The order purported to have been made on 20 February 2017 under s 18 of the Crimes (Sentencing) Act 2005 is quashed. |
Catchwords: | CRIMINAL LAW – APPEAL – Powers of Courts and Judges – jurisdiction to impose driver-licence conditions – whether a Magistrate has the power to make an order partially suspending an offender's licence for a conviction under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – whether s 18(5) of the Crimes(Sentencing) Act 2005 (ACT) allows for the making of ancillary orders imposing driver licence conditions |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 13(3)(g), 17(2)(b), 18, 103 Magistrates Court Act 1930 (ACT), s 219F(2)(c) Road Transport (Driver Licensing) Regulation 2000 (ACT), ss 45, 48(4), 48(5)(b), 48(5)(c) |
Parties: | Daniel Graham Miller (Appellant) Maddison Tighe (Respondent in SCA 15 of 2017) Damian Rubino-Fuchs (Respondent in SCA 16 of 2017) |
Representation: | Counsel J R White SC (Appellant) No appearance (Respondent in SCA 15 of 2017) Self-represented (Respondent in SCA 16 of 2017) |
| Solicitors ACT Director of Public Prosecutions (Appellant) No appearance (Respondent in SCA 15 of 2017) Self-represented (Respondent in SCA 16 of 2017) | |
File Numbers: | SCA 15 of 2017 SCA 16 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 20 February 2017 Case Title: Daniel Graham Miller v Maddison Tighe Daniel Graham Miller v Damian Rubino-Fuchs Court File Numbers: CC2017/334 CC2017/327 |
MOSSOP J:
Introduction
In these two appeals, which are brought pursuant to s 219B of the Magistrates Court Act 1930 (ACT), the appellant has submitted that a magistrate has made an order which she had no power to make. Both appeals relate to orders made on 20 February 2017. In each case the magistrate was dealing with a drug driving offence (s 20(1) Road Transport (Alcohol and Drugs) Act 1977 (ACT)) (‘RTAD Act’). In each case the magistrate found the offence proved but considered it appropriate not to record a conviction. Instead, under the provisions of s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (‘Sentencing Act’), she imposed a good behaviour order. However her Honour also purported to impose, under s 18 of the Sentencing Act, a restriction on the respondent’s licence, qualifying the circumstances in which each respondent could drive. The appellant in each matter contends that the order made was not authorised by the terms of s 18 of the Sentencing Act. The appellant submits that this part of her Honour’s order should be quashed. For the reasons that follow, I agree that the order was not authorised by s 18 and that the order should be quashed.
Orders made
In the matter of Miller v Tighe her Honour required the respondent to enter a good behaviour order for a period of 12 months. She also made an order which is recorded as:
Section 18 - partial suspension on licence;
1. Not to drive other than to or from work by the most direct route for a period of 3 months.
In the matter of Miller v Rubino-Fuchs her Honour imposed a 12-month good behaviour order. She also made an order which is recorded as:
Section 18 partial suspension on licence;
1. Not to drive except to and from work by the most direct route - and in course of employment for a period of 3 months.
Statutory provisions
Sections 17 and 18 of the Sentencing Act provide, relevantly:
17 Non-conviction orders—general
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
...
(b) a good behaviour order under section 13.
...
18 Non-conviction orders—ancillary orders
(1) This section applies if the court makes a non-conviction order for an offender for an offence.
(2) The court may make any ancillary order that it could have made if it had convicted the offender of the offence.
...
(5) In this section:
ancillary order means an order or direction in relation to any of the following:
(a) restitution;
(b) compensation;
(c) costs;
(d) forfeiture;
(e) destruction;
(f) disqualification or loss or suspension of a licence or privilege.
Examples
1 a reparation order
2 a driver licence disqualification order
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(emphasis added)
Reasons given by the magistrate
Her Honour’s reasons disclose some consideration of the issue of whether the driver’s licence was a “privilege” within the meaning of that term in s 18(5) and whether an order suspending that privilege would be appropriate. Her Honour’s reasons do not disclose any consideration of s 18(2). In particular they disclose no consideration of whether an order such as her Honour made was an order that the Court “could have made if it had convicted the offender of the offence”. It is apparent that the issue was one in relation to which the Director of Public Prosecutions had previously made submissions to her Honour which had not been accepted and hence the reasons may be shorter than if the matter was being argued for the first time.
Were the orders authorised by s 18?
The orders made were not orders that could have been made if the Court had convicted the respondents of the offence under s 20(1) of the RTAD Act. A period of disqualification of three years would have followed had the respondents been convicted although this could have been reduced to as little as six months by an order of the Court: RTAD Act s 34. However, the order in the present case was not a period of disqualification. Rather it was a restriction on the purpose for which the respondents could drive and hence involved a partial suspension of the operation of the person’s licence. That was not an order that the Court could have made upon a conviction. There is no statutory provision that permits the Magistrates Court to partially suspend the operation of the licence of a driver who has been convicted of an offence against s 20(1) of the RTAD Act.
The effect of the orders made in the present case was similar to that which might have arisen had the respondents been disqualified from driving and then made an application to the Magistrates Court for an order permitting the grant of a restricted licence. That is a course permitted by s 45 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) (RTDL Regulation). There are restrictions on the category of person who is entitled to so apply: Road Transport (General) Act 1999 (ACT) ss 66A, 67, 67A(2), 67B, 67C, 88(4). If an application is made and the threshold of “exceptional circumstances” is met then it is open to the Court to include in the order the conditions to which the restricted licence is to be subject: RTDL Regulation s 48(4). Those conditions include “the journeys that the person may undertake”: RTDL Regulation s 48(5)(b) and “the purposes for which the person may drive”: RTDL Regulation s 48(5)(c). It is not unusual for magistrates to include, in an order permitting the grant of a restricted licence, conditions that the licence holder drive only for the purposes of the person’s employment or to and from their place of employment by the most direct route. However, the fact that such conditions may be imposed as a result of a separate statutory process that only becomes available after a person is disqualified from holding a licence, does not mean that equivalent conditions may be imposed under s 18 of the Sentencing Act. That is because the imposition of conditions upon a licence is not a power which the court could have exercised had the person been convicted. Rather it was a separate statutory power which only existed in circumstances where there had been a disqualification, where there was a separate application made by the person to the Magistrates Court and where the various preconditions to and qualifications upon the power to make an order had been met.
It is therefore appropriate to allow the appeal in each case. The powers of the Supreme Court upon a review appeal are set out in s 219F(2)(c) of the Magistrates Court Act. In each case the appellant submitted that it was appropriate to quash the s 18 order leaving in place the s 17 good behaviour order without any ancillary order. I agree.
Issue not decided
Finally it is necessary to comment upon the perfected orders which were entered by a deputy registrar on 20 February 2017 in each matter. Those orders, while imperfectly drafted are sufficiently clear to indicate that a good behaviour order was imposed as well as an order under s 18. However the document headed “Official Notice of good behaviour order” (being a notice required by s 103 of the Sentencing Act) is drafted in a manner which would indicate that the s 18 order was in fact a condition upon the good behaviour order. That does not reflect her Honour’s orders. It is not clear why the deputy registrar drafted the document in that way.
However these matters do draw attention to the question of whether a restriction on the purpose for which a person may drive could have been imposed as a condition upon each respondent’s good behaviour order. Section 13(3)(g) of the Sentencing Act permits, as a condition upon a good behaviour order, “(g) any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate”. The examples to s 13(3)(g) include “4 that the offender not drive a motor vehicle ...” It is not necessary in the present case to determine whether her Honour could have achieved the outcome that she intended to achieve by imposing a condition similar to that which she purported to make under s 18 by means of a condition upon the good behaviour order.
Orders
Therefore in each case the order of the Court is:
1. Appeal allowed.
2. The order purported to have been made on 20 February 2017 under s 18 of the Crimes (Sentencing) Act 2005 is quashed.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 31 July 2017 |
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