Police v Berzins - [2011] SASCFC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v BERZINS
[2011] SASCFC 146
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
1 December 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal by the police against sentence – defendant pleaded guilty to the offence of driving a motor vehicle when not authorised to do so contrary to section 74(2) of the Motor Vehicles Act 1959 (SA) and to the offence of aggravated driving without due care contrary to section 45(2) of the Road Traffic Act 1961 (SA) – the latter offence was aggravated due to the presence of 0.155 grams of alcohol in 100 millilitres of the defendant’s blood – a Magistrate utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty in respect of both counts – a fine of $500.00 was imposed and the defendant was disqualified from holding or obtaining a driver’s licence for a period of three months and 19 days – as the defendant had already been disqualified for 6 months and 19 days prior to sentencing, the total period of driver's licence disqualification was 10 months – whether the Magistrate had power to impose a fine in lieu of a term of imprisonment in respect of the aggravated offence of driving without due care – whether the penalty imposed by the Magistrate was manifestly inadequate – whether it was appropriate for the Magistrate to utilise section 18A of the Sentencing Act.
Consideration of section 18(a) of the Sentencing Act.
Held: Appeal allowed – the Magistrate had the power under section 18(a) of the Sentencing Act to impose a fine in lieu of a term of imprisonment in respect of the aggravated offence of driving without due care – however, the penalty imposed was manifestly inadequate – the imposition of a fine was inadequate – the appropriate course was to proceed pursuant to section 39 of the Sentencing Act to record a conviction and to release the defendant on a three year supervised good behaviour bond – the defendant was disqualified from holding or obtaining a driver’s licence for a further period of 20 months – as the breach of section 74(2) only attracts a fine for a first offence, it was not appropriate for the Magistrate to utilise section 18A of the Sentencing Act to deal with that offence at the same time as the offence against section 45(2) of the Road Traffic Act as the latter offence involved imprisonment as part of the relevant sentencing regime.
Criminal Law (Sentencing) Act 1988 (SA) s 18, s 18A and s 39; Magistrates Court Act 1991 (SA) s 42(2)(b); Supreme Court Civil Rules 2006 (SA) r 280(2); Motor Vehicles Act 1959 (SA) s 74(2); Road Traffic Act 1961 (SA) s 45, s 47A and s 47B ; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 19; Criminal Law Consolidation Act 1935 (SA) s 86A; Harbours and Navigation Act 1993 (SA) s 69, referred to.
Nattrass v Police [2008] SASC 267, not followed.
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; Hyman v Rose [1912] AC 623; FAI General Insurance Co Ltd v Southern Cross Exploration N/L (1988) 165 CLR 268; Knight v FP Special Assets Ltd (1992) 174 CLR 178 (1992) 174 CLR 178; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14; Harris v Police [2009] SASC 163; Johnson v Police [2011] SASC 63; Police v Wait [2008] SASC 153; Hemming v Mundy (2001) A Crim R 329; Harding v Police (2011) 110 SASR 197; Police v Golding [1999] SASC 534; Hermel v Police (2000) 76 SASR 336; Sideridis v Police [2001] SASC 90; Coombs v Police [2001] SASC 87; Fitzgerald v Police [2000] SASC 37; Ellis v Police [2008] SASC 297; Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579; McGraw-Hinds (Aust) Pty Ltd v Smith (1978-1979) 144 CLR 633; R v Selleck (2000) 78 SASR 194; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"only"

POLICE v BERZINS
[2011] SASCFC 146
Full Court Gray, David and Stanley JJ
GRAY J:

This is an appeal against sentence.[1]
[1] The appeal has been referred to the Full Court on the basis that the substance of the appeal raises matters of importance. See Magistrates Court Act 1991 (SA) section 42(2)(b) and Supreme Court Civil Rules 2006 (SA) rule 280(2).
Introduction
The defendant and respondent, Suzanne Natasha Berzins, was charged on complaint with three offences arising from an incident which occurred on 5 December 2010. It was alleged that at Aldinga Beach the defendant drove a motor vehicle on a road when not authorised to do so contrary to section 74(2) of the Motor Vehicles Act 1959 (SA). The defendant was further charged with, on the same occasion, driving a motor vehicle while there was present in her blood the prescribed concentration of alcohol as defined in section 47A of the Road Traffic Act 1961 (SA) contrary to section 47B(1)(a) of the Road Traffic Act. It was alleged that the concentration of alcohol was 0.155 grams in 100 millilitres of blood. The final charge was that on the same occasion, she drove without due care contrary to section 45 of the Road Traffic Act. It was alleged that the offence was aggravated because of the presence of more than 0.08 grams of alcohol in 100 millilitres of the defendant’s blood.
Following the defendant’s plea of guilty to the charges of driving unauthorised and driving without due care, the prosecution withdrew the count of driving with the prescribed concentration of alcohol in her blood. The Magistrate convicted the defendant on both of the remaining counts. It is convenient to turn immediately to the circumstances of the offending.
On 5 December 2010, the defendant and her partner attended a party at which the defendant consumed alcohol. When they left the party and returned home, an argument ensued. In response, the defendant decided to drive a motor vehicle, as it would seem, to vent her frustration. Her partner followed on foot and found that the defendant had crashed the vehicle into a lamp post.
The defendant told the police who later attended the scene that she had come around the corner too fast and lost control of the vehicle. She explained that she decided to drive partly because she felt that she had nothing to lose as she did not hold a driver’s licence. The police subsequently discovered that the defendant had never held a driver’s licence.
An alcotest returned a positive reading. A subsequent breath analysis performed by the defendant indicated that she had 0.155 grams of alcohol in 100 millilitres of blood. The police imposed an instant licence disqualification effective from 5 December 2010.
The Magistrate, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed the one penalty in respect of both counts. A fine of $500.00 was imposed and the defendant was disqualified from holding or obtaining a driver’s licence for a period of three months and 19 days. In fixing the length of disqualification, the Magistrate had regard to the fact that the defendant had been served with an instant loss of licence and that that disqualification had, by the time of sentence, extended for a period of six months and 11 days.
In the Magistrate’s sentencing remarks, a concern was identified in conflicting lines of authority from single judges of this Court dealing with the sentencing options available to the Magistrate:
…There are two lines of authority; one Supreme Court Judge has said that you have to order a term of imprisonment, that is the case of Nattrass [v Police [2008] SASC 267]. There is another case that is called Johnson [v Police [2011] SASC 63] where another single judge in the Supreme Court has said, no you can invoke a section under the Criminal Law Sentencing Act and order for community service or a fine, as an alternate penalty to imprisonment. At the moment we do not have the Full Court of the Supreme Court which are three justices to decide which way we should go. I have preferred to take the more lenient approach which is the case of Johnson and not order for imprisonment where there is good reason and the factors under s 18 exist. …
The Magistrate continued:
… I do consider as I said before that the decision of Johnson does allow for me to consider invoking s 18 of the Criminal Law Sentencing Act where I find that there is good reason to do so and not follow the decision of Nattrass. Until the Full Court decides this issue, I have indicated that … this is my attitude.
Before coming to address the issues on the appeal, it is convenient to first set out the terms of the statutory provisions to be discussed. Section 45 of the Road Traffic Act relevantly provides:
Careless driving
(1)A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
(2)If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply:
(a)     the maximum penalty for the offence is 12 months imprisonment; and
(b)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and
(c)     the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(3)     For the purposes of this section, an aggravated offence is—
(a)     an offence that caused the death of, or serious harm to, a person; or
(b)     an offence committed in any of the following circumstances:
(i)the offender committed the offence in the course of attempting to escape pursuit by a police officer;
(ii)the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that his or her licence was suspended by notice given under this Act;
(iii)the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;
(iv)the offender was, at the time of the offence, driving a vehicle in contravention of section 45A or 47.
…
Section 45(2) in the circumstances of the present proceeding attracts a penalty of a maximum sentence of 12 months imprisonment and a driver’s licence disqualification of not less than 6 months.
Section 18 of the Sentencing Act confers a discretion on a sentencing judge to substitute an appropriate penalty for one that is prescribed in a “special Act”. A special Act is defined as meaning “an Act, regulation, rule or by-law or other legislative instrument that creates an offence or prescribes a penalty for an offence”.[2] Accordingly, as section 45(2) of the Road Traffic Act prescribes a penalty for the offence of aggravated driving without due care, it is a ‘special Act’ for the purposes of the Sentencing Act.
[2] Criminal Law (Sentencing) Act 1988 (SA) section 3(1) ‘special Act’.
Section 18 of the Sentencing Act is in the following terms:
Court may add or substitute certain penalties
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)     where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i)    a fine; or
(ii)    a sentence of community service; or
(iii)     both a fine and a sentence of community service; or
(b)     where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
(i)    a sentence of imprisonment only; or
(ii)    a fine only; or
(iii)     a sentence of community service; or
(iv)     both a fine and a sentence of community service; or
(c)     where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
(i)    a sentence of community service; or
(ii)    both a fine and a sentence of community service; or
(d)     where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
The Approach to Statutory Interpretation
It is well settled that a statutory provision conferring power on the judiciary that is capable of being exercised beneficially to a party to proceedings is to be construed as liberally as possible within the confines of the purpose and context of the statutory scheme in which the power sits. As Kirby J explained in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council:[3]
This beneficial or remedial reading principle is by no means new. It simply re-expresses, in the current age of enlarged legislation, a very old canon of interpretation that enjoins decision-makers to address the "mischief" perceived in the legislation. This is in contrast to upholding an interpretation that results in the legislation misfiring and missing its obviously intended mark.
[Footnotes omitted.]
[3] Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285, [4].
In the early decision of Hyman v Rose,[4] Earl Loreburn LC explained that a statutory power which confers a discretionary power to the judiciary should not be read subject to implied limitations if those limitations have the potential to work injustice in a particular case:[5]
…when the Act is so express to provide a wide discretion … it is not advisable to lay down any rigid rules for guiding that discretion. … If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand.
[4] Hyman v Rose [1912] AC 623.
[5] Hyman v Rose [1912] AC 623, 631.
After referring to part of the above paragraph, Gaudron J in FAI General Insurance Co Ltd v Southern Cross Exploration N/L considered that only the clearest express words in a statute are capable of displacing fundamental legal principles, such as limiting an otherwise broad discretion:[6]
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration. …
[6] FAI General Insurance Co Ltd v Southern Cross Exploration N/L (1988) 165 CLR 268, 290.
In furtherance to the above principles, Gaudron J outlined the following in Knight v FP Special Assets Limited:[7]
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.
[Footnote omitted. Emphasis added.]
The above passage was cited with approval by Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service[8] in relation to a statutory provision that conferred a discretionary power on a court.
[7] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205.
[8] PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301, 313.
In Patton v Buchanan Borehole Collieries Pty Ltd Mason CJ, Deane and Dawson JJ considered section 79A of the District Court Act 1973 (NSW) and observed:[9]
The section should be construed liberally in conformity with its terms free from unexpressed limitations. The fact that the section is remedial and is designed to give the court procedural flexibility which, in appropriate situations, will produce beneficial consequences is an added reason for giving to it the full scope which the natural and ordinary meaning of its words supports.
[Footnote omitted.]
[9] Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14, 17.
In Patton, Gaudron J observed the following, which reflects her earlier comments in Knight v FP Special Assets Limited:[10]
… a power vested in a court should not be construed as subject to a limitation not revealed by the ordinary meaning of the words by which that power is conferred. A court must exercise its powers judicially and, in the case of discretionary powers, in accordance with those general principles which govern the exercise of judicial discretion. A general discretionary power which, if exercised one way rather than another, might, in certain circumstances, involve an injustice, should not be approached on the basis that Parliament intended that it not extend to any circumstance in which injustice might, conceivably, occur. Rather, it should be approached on the basis that it was intended that it be exercised for the ends of justice and in accordance with legal principle.
A broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise. …
[Footnotes omitted.]
[10] Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14, 23.
These principles of statutory interpretation guide this Court’s approach to the interpretation of the statutory provisions under consideration.
Prosecution Appeals Against Sentence
This is a prosecution appeal against sentence brought pursuant to section 42 of the Magistrates Court Act 1991 (SA) and referred by a single Judge of this Court to the Full Court pursuant to section 42(2)(b) of the Magistrates Court Act and pursuant to rule 280(2) of the Supreme Court Civil Rules 2006 (SA). Where such an appeal, if successful, involves the prospect of imprisonment, the principles set out in Everett[11] are applicable notwithstanding that appeals of this type lie as of right.[12] In those circumstances, prosecution appeals against sentence will only be justified in “rare and exceptional” circumstances.[13] However, the principles established in Everett are not applicable in relation to appeals against a non-custodial sentence.[14]
[11] Everett v The Queen (1994) 181 CLR 295.
[12] Police v Cadd (1997) 69 SASR 150.
[13] Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150.
[14] Police v Cadd (1997) 69 SASR 150, 159.

The police contended that the present appeal was brought within the constraint identified by the High Court in Dinsdale and that the Magistrate had adopted an incorrect principle.[15] In particular, the police contended that the Magistrate had not observed the constraints on her exercise of power by imposing a penalty for which she had no power to impose. Importantly, the present appeal will resolve conflict between judgments of different Judges of this Court.
[15] Dinsdale v The Queen (2000) 202 CLR 321.
The Appeal
The primary issue on the appeal is whether the Magistrate had power to impose a fine in lieu of a term of imprisonment in respect of the aggravated offence of driving without due care contrary to section 45 of the Road Traffic Act.
Section 45(2) of the Road Traffic Act
Section 45(2) was introduced into the Road Traffic Act by section 19 of the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA). Section 45(2) established the offence of aggravated driving without due care. Previously, the only offence under section 45 was the offence of careless driving. This offence is now contained in section 45(1). The amendment to the Road Traffic Act to establish an aggravated offence of careless driving gave effect to recommendations of the Kapunda Road Royal Commission that more severe penalties should be imposed where the circumstances are aggravated. The second reading speech accompanying the Statutes Amendment (Vehicle and Vessel Offences) Bill 2005 (SA) reflects such an intention.[16] In relation to the penalties under section 45, the Minister in the second reading speech said:[17]
The aggravated offence will attract a maximum penalty of 12 months imprisonment and mandatory licence disqualification of six months.
[16] For use of extrinsic materials when interpreting statutes, see the observations of French CJ in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [50]-[53].
[17] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3215 (Paul Holloway, Minister for Industry and Trade).
It is convenient to first address the question of whether section 45(2) mandates a sentence of imprisonment. Both parties accepted that section 45(2) did not require the court to impose a sentence of imprisonment. It was further accepted that it was open to a court to utilise the powers under section 39 of the Sentencing Act and to release a defendant with or without conviction on a bond. Section 39 provides:
Discharge without sentence on defendant entering into bond
(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.
Section 45(2)(c) specifically provides that the period of licence disqualification under section 45(2)(b) “cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence”. The absence of the same or even similar words in relation to the sentence of imprisonment referred to in section 45(2)(a) illustrates that Parliament could not have intended for a sentence of imprisonment to be mandatory.
Section 45(2)(a), on a literal approach, provides that the maximum penalty for the offence of aggravated driving without due care is 12 months imprisonment. The provision does not state that a sentence of imprisonment must be imposed for an offence. This literal construction reinforces the conclusion that section 45(2)(a) does not impose a mandatory sentence of imprisonment but merely prescribes the maximum penalty under the provision.
The circumstances that may give rise to a breach of section 45(2) are wide ranging. Offences at the lower end of the range of objective seriousness may not warrant the imposition of a sentence of imprisonment. The drawing of the inference that the sentence of imprisonment contained in section 45(2)(a) can be reduced, mitigated or be substituted by another penalty or sentence is not inconsistent with other provisions of the Act.
Both counsel accepted the interpretation of section 39 as set out in my reasons in the decision of Harding.[18] The section 39 powers are available to a court when sentencing for an offence of aggravated due care.
[18] Harding v Police (2011) 110 SASR 197.
Counsel for the police on the appeal submitted that it is open on the facts of this case for this Court to impose a bond pursuant to section 39 of the Sentencing Act in relation to the aggravated driving without due care offence.
Section 18(a)
As the Magistrate correctly identified, there is conflicting authority on the issue of whether section 18(a) of the Sentencing Act is available when a statutory provision prescribes a sentence of imprisonment and a mandatory licence disqualification. The provision contains ambiguous language and its application has resulted in conflicting outcomes.[19]
[19] Harris v Police [2009] SASC 163; Johnson v Police [2011] SASC 63; cf, Nattrass v Police [2008] SASC 267. See also, Police v Wait [2008] SASC 153.
Counsel for the police submitted that the Magistrate erred in sentencing the defendant for the aggravated offence of driving a motor vehicle without due care under section 45(2) of the Road Traffic Act by using section 18(a) of the Sentencing Act to impose a fine in lieu of a sentence of imprisonment. It was further submitted that section 18(a) was not available to the Magistrate in substitution of a sentence of imprisonment because section 45(2) of the Road Traffic Act also imposed a mandatory period of driver’s licence disqualification.
Counsel for the defendant contended that the Magistrate’s use of section 18(a) of the Sentencing Act to substitute a fine in lieu of a sentence of imprisonment was appropriate as the Magistrate correctly considered that the circumstances of offending did not warrant the imposition of a sentence of imprisonment.
These contentions raise the issue of whether section 18(a) of the Sentencing Act is available where a provision in a special Act requires the imposition of a mandatory penalty in addition to a period of imprisonment.
The Sentencing Act provides the court with general sentencing powers. The provisions are intended to be beneficial and to provide the court with sentencing discretions sufficient to provide the appropriate punishment for the criminal conduct in question. Division 2 of Part 2 of the Act, inter alia, through section 18(a) provides ameliorating powers to enable the court in appropriate circumstances to determine and impose an appropriate penalty for the crime under consideration.[20] These observations are supported by the second reading speech of the Criminal Law (Sentencing) Bill 1987 (SA):[21]
[20] Hemming v Mundy (2001) A Crim R 329, [24].
[21] South Australia, Parliamentary Debates, Legislative Council, 2 December 1987, 2365 (Chris Sumner, Attorney-General).
The broad aims of this very important Bill are three-fold. It seeks to consolidate nearly all the existing statutory measures, dealing with the sentencing options available to the courts of this State, into one item of legislation. …
Secondly, it seeks to ensure, as far as practicable, that all available sentencing options can be utilised by all the courts of this State that exercise criminal jurisdiction with the exception of the Children’s Court, which is not to be covered by the provisions of this Bill. Thirdly, the Bill seeks to introduce a number of reforms, with particular reference to the powers of the courts of the State in relation to imprisonment, fines and community service orders.
…
In addition, there is the overriding interest of this Government to ensure that the prisons of the State are reserved for real malefactors and the perpetrators of the more serious crimes. The Government and in particular the Department of Correctional Services is (and has been for a not inconsiderable period of time) confronted by the burgeoning problem of overcrowding in correctional institutions occasioned and exacerbated by the presence of offenders who ought not to have been there in the first instance. Therefore, many of the reformative measures in this Bill are directed specifically towards redressing such injustices and imbalances.
[Emphasis added.]
In relation to Clause 17 of the Bill, which is now section 18 of the Sentencing Act, the Attorney-General said the following during the Bill’s second reading:[22]
… Clause 17 is the provision that gives a court the very necessary flexibility in sentencing an offender. Fines or community service may be substituted for imprisonment, and community service may be substituted for fines. Community service can be added to a fine, but not to imprisonment. These powers may be exercised notwithstanding the penalties provided by any particular Act, but of course imprisonment can only be imposed if the special Act so provides.
[Emphasis added.]
[22] South Australia, Parliamentary Debates, Legislative Council, 2 December 1987, 2368 (Chris Sumner, Attorney-General).
Section 18 provides the court with a range of sentencing options. Subsections (a) to (d) each contemplate a special Act providing for a particular penalty or penalty range. In the case of a special Act that prescribes a fine only, it is intended that the court may impose a sentence of community service instead. In the case of a special Act that prescribes a sentence of imprisonment only, Parliament intended that three further options would be open to the Court – a fine, a sentence of community service or both a fine and a sentence of community service. Equally, subsections (b) and (c) address the situations of both imprisonment and a fine, and a sentence of imprisonment or a fine. In each case, alternatives are provided. No reference is to be found in section 18 to driver’s licence disqualifications. Parliament was not addressing a driver’s licence disqualification as a material part of a sentence for the purposes of providing to the court the powers in subsections (a) to (d).
It is clear from the second reading speech that the word “only” in section 18 does not restrict its operation to special Acts which prescribe sentences of imprisonment only. Indeed, section 18 seeks to ensure that all available sentencing options can be used by a court exercising criminal jurisdiction.
Section 18 is a provision which confers jurisdiction on a court to have available various sentencing options. Furthermore, section 18 is a provision intended to arm the court with a mechanism to afford leniency in appropriate cases.
An offence against section 45(2) of the Road Traffic Act may be occasioned by wide ranging circumstances. As is evident from a number of authorities, cases arise where a sentence of imprisonment is not the appropriate penalty for an offence against section 45(2). As discussed above, section 39 is available to proceed with or without conviction by way of a bond. The fact that the court may proceed without conviction is an indication of those wide ranging circumstances.
It is self evident that cases will arise when neither orders for imprisonment nor release on a bond are appropriate. An appropriate penalty may well be a fine together with a driver’s licence disqualification. The contention that section 18(a) is to be construed to deny to the court what may be a most suitable and appropriate power when sentencing should be rejected. Common sense would suggest that such a result was not intended. Once it is accepted that it may be appropriate to proceed without an order for imprisonment, it might be suggested that there would be an air of absurdity about restricting the court to a bond and to exclude the power to fine.
Single Judge Decisions on Section 18(a)
In Johnson,[23] Sulan J was faced with the issue of whether section 18(a) of the Sentencing Act was available to impose a fine in lieu of a sentence of imprisonment. However, Johnson concerned the offence of driving a motor vehicle without the consent of the owner, pursuant to section 86A of the Criminal Law Consolidation Act 1935 (SA). Section 86A(1) prescribes a penalty of “imprisonment for 2 years” for a first offence. That is the only penalty prescribed for that offence. Sulan J considered that section 18(a) of the Sentencing Act was applicable so as to enable a fine to be imposed in lieu of the sentence of imprisonment.[24] His Honour observed:[25]
[23] Johnson v Police [2011] SASC 63.
[24] Johnson v Police [2011] SASC 63, [30], [33].
[25] Johnson v Police [2011] SASC 63, [26]-[28], [30].
The scope of section 18 is ambiguous insofar as it purports to operate only where a penalty of imprisonment is the only sentence prescribed by the special Act. If a narrow interpretation of the section is correct, as submitted by counsel for the Police, then anomalous outcomes could result. On the one hand, a serious offence against a person, such as an assault, may have a penalty reduced from imprisonment to a fine, in accordance with section 18. However, a less serious offence, such as the present case, where it might have already been determined that a custodial sentence would be inappropriate, pursuant to section 11, could not be reduced by reason of the mandatory licence disqualification. In my view, it could not be said that Parliament would have intended this result.
In the second reading speech for the Statutes Amendment (Illegal Use of Motor Vehicles) Bill (SA), the effect of the imposition of the mandatory disqualification period, pursuant to section 86A, was discussed. The Minister said:
It will bring about consistency in the courts, in that anyone who embarks on an illegal use offence, apart from the penalties that are already prescribed by way of fines or imprisonment, in addition, faces a fixed period of disqualification for 12 months, which means consistency and certainty. (Emphasis is mine)
It may be inferred, therefore, that it was the Minister’s intention that a sentencing judge be permitted to impose a fine where appropriate for a contravention of the section, at least for a first offence.
…
Section 18 is one of a number of sentencing provisions which enable the Court to extend leniency in an appropriate case. It should be construed beneficially. In my view, a commonsense reading of section 18 effectively divorces the sentence in respect of the licence disqualification from the words of subsection (a) in which the section speaks of “imprisonment only”. Therefore, where a court finds good reason to substitute a fine for a sentence of imprisonment, it may do so in addition to imposing the mandatory licence disqualification.
[Footnote omitted.]
Kelly J in Harris[26] considered that section 18 of the Sentencing Act was available to impose a fine in lieu of the sentence of imprisonment for the offence of aggravated careless operation of a vessel contrary to section 69 of the Harbours and Navigation Act 1993 (SA). Section 69 mirrors section 45A of the Road Traffic Act. In Harris, the appellant hit a beacon at sea in his speed boat which resulted in the death of a seven-month-old baby. After considering the decision in Nattrass which I will come to shortly, Kelly J observed:[27]
Whilst it might be accepted that generally the penalty of imprisonment should apply where the aggravating circumstances are as severe as they were in this case, I cannot accept that Parliament has evinced an intention that in all cases persons convicted of the offence of aggravated driving without due care or, as in this case, aggravated operation of a vessel, must always be sentenced to a term of imprisonment.
Even though the offence itself contains the element of aggravation, namely the fact that the careless operation of the vessel has caused the death of a person, there are a wide variety of circumstances in which the offence can be committed. If Parliament had chosen to prescribe an absolute penalty in the sense that it prescribed only one penalty which the court is empowered to impose, then it could easily have done so. The fact is that in other sections of the Road Traffic Act the Parliament has required courts to impose specific punishments which cannot be departed from; see s 47B, s 47E, s 47EAA and others. This is not the case with respect to the amendments to s 69 of the Harbours and Navigation Act. The court retains a discretion in an appropriate case if it thinks that good reason exists to impose a fine and/or a sentence of community service; see s 18 Criminal Law (Sentencing) Act.
…
In all of the circumstances, I consider that I can utilise the provisions of s 18 of the Criminal Law (Sentencing) Act and impose a penalty by way of a fine. In recognition of the intrinsic seriousness of this offence the fine must be substantial.
[26] Harris v Police [2009] SASC 163.
[27] Harris v Police [2009] SASC 163, [34]-[35], [40]; see also Ellis v Police [2008] SASC 297; Police v Wait [2008] SASC 153.
In Nattrass,[28] Bleby J considered whether a Magistrate had power to impose a fine in lieu of imprisonment with respect to an offence of aggravated driving without due care under section 45(2) of the Road Traffic Act. Bleby J rejected the proposition that section 18(a) of the Sentencing Act was available to substitute a fine for the sentence of imprisonment referred to in section 45(2)(a):[29]
The word “penalty” is not defined. However, this Court has held that “sentence” as presently defined includes disqualification from holding or obtaining a driver’s licence. It follows that s 45(2) of the Road Traffic Act does not prescribe a sentence of imprisonment only for an aggravated offence, and that s 18(a) cannot be invoked to enable the imposition of a fine instead of a sentence of imprisonment.
[28] Nattrass v Police [2008] SASC 267.
[29] Nattrass v Police [2008] SASC 267, [16].
The correct interpretation of section 18(a) is one that is consistent with the objects and purposes of the Sentencing Act.[30] The section is intended to be beneficial in its operation. The enactment of section 18(a) provides a court with sentencing options. The purpose of the section is to provide a court with sentencing options that can be imposed to substitute more suitable penalties for those prescribed in a special Act, when the circumstances of the case warrant such substitution.
[30] Acts Interpretation Act 1915 (SA) section 22(1).
As a general statement, section 18(a) of the Sentencing Act is available to a sentencing judge to impose an appropriate penalty in a particular case. The sentencing options open to a sentencing judge remain. It is important to the administration of justice that sentencing judges have an appropriate range of sentencing options available so as to impose the most suitable penalty for an offence in its peculiar circumstances. I consider that section 18(a) of the Sentencing Act is available to enable a court to impose a fine in lieu of a sentence of imprisonment for the offence of aggravated driving without due care.
Manifestly Inadequate
Counsel for the police submitted that in the event that the Court had power to fine in lieu of imprisonment, the penalty imposed was manifestly inadequate. It was said that in the circumstances of this matter, the fine imposed was inadequate when regard was had to the defendant’s explanation as given to the police. It was contended that the appropriate approach when sentencing was for the Magistrate to have proceeded pursuant to section 39 to convict the defendant of the offence of aggravated due care and to order her release upon entry into a good behaviour bond. It was further contended that the defendant should be disqualified from holding or obtaining a driver’s licence for at least the minimum period of 12 months. It was argued that notwithstanding the withdrawal of the second count, the mandatory minimum disqualification applicable to an offence against section 47B(1)(a) of the Road Traffic Act should represent the minimum disqualification for an offence of aggravated due care when the matter of aggravation was an excess blood alcohol reading. Counsel for the police submitted that a fine should be imposed for the offence of driving unauthorised contrary to section 74(2) of the Motor Vehicles Act.

Counsel for the defendant submitted that the penalty imposed by the Magistrate was within her sentencing discretion and that no basis had been shown to justify this Court interfering with that sentence.
The Defendant’s Antecedents
The defendant, immediately following the incident, was frank with the police about what had occurred. She has exhibited both contrition and remorse for her conduct. The defendant pleaded guilty to counts 1 and 3 at an early stage in proceedings.
The defendant had no relevant antecedents. At the time of sentencing, the defendant was 25 years of age and in a stable relationship. She had a difficult childhood. Both parents were affected by alcoholism. Her mother also suffered from mental health issues. The extent of the defendant’s troubled childhood is underscored by the fact that she was adopted by an aunt when two years of age.
The defendant was, understandably, a troubled student at school. She was expelled in year eight. She commenced employment as a carpet cleaner and worked in that industry for two years. When aged 15, the defendant worked as a car detailer and then in a snack bar until she was about 21 years of age. The defendant was subsequently diagnosed with bipolar disorder and an irregular heart beat. Since these diagnoses, the defendant has not been successful in remaining employed for a substantial period.
The defendant’s offending was serious, although not at the higher end of the range of objective seriousness. The defendant was fortunate that only property damage ensued. In no sense could the offence be described as trifling. The defendant reacted to an emotional disturbance when under the influence of alcohol.
I consider that it was appropriate for the Magistrate not to impose a sentence of imprisonment. This was a first offence by a young offender. It was unlikely that the circumstances giving rise to the offending will occur again.
In my view, however, the penalty imposed by the Magistrate was manifestly inadequate. The imposition of a fine was a wholly inadequate penalty having regard to the seriousness of the defendant’s offending. The appropriate course was to proceed pursuant to section 39 to record a conviction and to release the defendant on a three year supervised good behaviour bond. A term of the bond should require the defendant, in the event of breach, to attend court to be sentenced. Further, the bond should require the defendant to undergo counselling and treatment to address the issue of alcohol and drug abuse.
I consider that the submission of counsel for the police of the need for a lengthier driver’s licence disqualification should be accepted. The offending was serious and the defendant’s want of care was accompanied by a high blood alcohol reading. Her reading was more than three times the legal limit. The defendant was exposed to a minimum licence disqualification of 12 months for a breach of section 47B(1)(a). Her blood alcohol concentration of 0.155 placed her in the most serious category for such an offence. As the high blood alcohol concentration was the very matter of aggravation in relation to the offence of aggravated due care, a driver’s licence disqualification of at least 12 months should have been imposed for that offence. To my mind, the offence of aggravated due care called for a lengthy driver’s licence disqualification. I would impose a disqualification for a period of 20 months, having made due allowance for the period of driver’s licence disqualification before and following sentence. To be clear, I consider that the defendant’s offending called for a disqualification in the order of 30 months and in the circumstances of her having been disqualified for a period of ten months, I would order her further disqualification for a period of 20 months from the date of delivery of these reasons.
A Final Matter
As noted above, the Magistrate proceeded pursuant to section 18A to impose the one sentence in respect of both offences. Authorities from this Court suggest that there is a difficulty in the use of section 18A in this way when the two sections attract different sentencing regimes. As the breach of section 74(2) only attracts a fine for a first offence, it was not appropriate to utilise section 18A to deal with that offence at the same time as the offence against section 45(2) as this latter offence involved imprisonment as part of the relevant sentencing regime.[31] In these circumstances, I consider it appropriate to deal with each offence separately.
[31] See Police v Golding [1999] SASC 534; Hermel v Police (2000) 76 SASR 336; Sideridis v Police [2001] SASC 90; Coombs v Police [2001] SASC 87; Fitzgerald v Police [2000] SASC 37.
Conclusion
I would allow the appeal and set aside the sentence imposed by the Magistrate.
I would convict the defendant of the offence of driving a motor vehicle on a road when not authorised to do so. I would impose a fine of $500.00.
I would convict the defendant of the offence of aggravated due care. I would release the defendant on her entry into a three year good behaviour bond requiring her, if in breach, to attend court for sentencing in respect of the offence. The bond should be supervised for the first 12 months of the three year period. The defendant should undertake such counselling and treatment as are recommended with respect to drug and alcohol abuse.
I would order that the defendant be disqualified from holding or obtaining a driver’s licence for a period of 20 months commencing from 1 December 2011.
DAVID J: For the reasons given by Gray J I would allow the appeal. I also agree with the orders he proposes.
STANLEY J: I have had the advantage of reading the draft reasons for judgment of Gray J. I agree with the reasons and orders proposed by his Honour. I merely add the following observations because of the importance of the issue of construction to which this appeal gives rise. In my view, the Court should not follow the construction of s 18(a) of the Criminal Law (Sentencing) Act 1988 (SA) adopted in Nattrass.[32]
[32] Nattrass v Police [2008] SASC 267.
The terms of s 18 of the Sentencing Act are set out in the reasons for judgment of Gray J.
In Nattrass the Court considered that s 18(a) of the Sentencing Act did not empower the substitution of a fine for a sentence of imprisonment where a conviction had been entered to an offence of aggravated driving without due care pursuant to s 45(2) of the Road Traffic Act because the provision prescribed a penalty of imprisonment and licence disqualification.
In coming to this conclusion, the Court in Nattrass focused too narrowly upon the terms of s 18(a) only. The Court considered that, as the provision prescribed a penalty for an offence under s 45(2) of both imprisonment and licence disqualification, it followed that the provision did not prescribe a sentence of imprisonment only.
In my view, this conclusion followed from the Court’s focus on the terms of s 18(a) exclusively. When regard is had to the terms of s 18 as a whole, it is clear that the work to be performed by the word “only” in s 18(a) which refers to the circumstances where the special Act prescribes “a sentence of imprisonment only”, is to distinguish the situation where the special Act prescribes a sentence of imprisonment only in contradistinction to where the special Act might prescribe a sentence of imprisonment and a fine, or imprisonment or a fine, and the word “only” in the section has no more work to perform than that. This construction is reinforced by a consideration of the terms of s 18(d). Section 18(d) refers to the circumstances where the special Act “prescribes a fine only”. As in s 18(a), the use of the expression “only” in s 18(d), is to distinguish the situation where the special Act prescribes a sentence of a fine only in contradistinction to where the special Act might prescribe a sentence of imprisonment and a fine or imprisonment or a fine. In this context “only” is not an expression of exclusivity. On the contrary, I consider the Parliament has employed the expression merely to avoid the ambiguity that would have otherwise arisen as to the construction of s 18(a)[33] vis a vis s 18(b) or s 18(c) if the expression “only” had not been employed in s 18(a).[34]
[33] Or for that matter, s 18(d).
[34] Or for that matter, s 18(d).
In this regard, I have not overlooked the use of the word “only” in s 18(b)(i) and s 18(b)(ii). In those instances, however, the work to be performed by the expression occurs in a different context. There the provision is not referring to the offences with respect to which the Court’s power can be exercised, but to the penalties which can be imposed in substitution for the prescribed penalty. I accept that in s 18(b)(i) and s 18(b)(ii) the word “only” is used to mean “and nothing else”. It was submitted by Mr Jacobi, for the appellant, that the approach I adopt would result in the word “only” having inconsistent meanings within the same section. That is so, but the authorities make clear that the presumption that words in the same Act are used consistently is readily rebuttable. In Commissioner of Taxes (Vic) v Lennon[35] Higgins J said:[36]
There is sound sense in the statements contained in Maxwell's Interpretation of Statutes, 6th ed., pp. 557, 564, to the effect that, although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.
[35] (1921) 29 CLR 579.
[36] (1921) 29 CLR 579 at 590.
In McGraw-Hinds (Aust) Pty Ltd v Smith[37] Gibbs ACJ said to similar effect:[38]
The rule that the same words which occur in different parts of a statute have the same meaning is one which “must yield to the requirements of the context” (Madras Electric Supply Corporation Ltd. v. Boarland); it is “only a presumption” (Littlewoods Mail Order Stores Ltd. v. Inland Revenue Commissioners). It is well recognized that a word may be used in two different senses in the same section of the one Act: see the cases cited in Craies on Statute Law, 7th ed. (1971), p. 169.
[Citations omitted].
[37] (1978-1979) 144 CLR 633.
[38] (1978-1979) 144 CLR 633 at 643.
In my view, considerations of the purpose to be performed by the language of s 18 point clearly to different meanings being afforded the use of the expression “only” in s 18(a) and s 18(d) on the one hand, and s 18(b) on the other hand.
The construction I have given s 18(a) is also supported by the judgment of Wicks J in R v Selleck[39] where his Honour said:[40]
64. Paragraph (a) of s 18 of the Criminal Law (Sentencing) Act is concerned with the situation where a penalty of imprisonment is prescribed by the special Act (s 19A of the Criminal Law Consolidation Act) and where such a penalty of imprisonment (as is the case here) is not in combination with a fine or a sentence of community service or both. … Paragraph (b) of s 18 has no application in the present case because s 19A of the Criminal Law Consolidation Act (the special Act) does not prescribe both a sentence of imprisonment and a fine. Similarly, par (c) of s 18 has no application because the special Act does not prescribe a sentence of imprisonment or a fine in the alternative. Similarly, par (d) has no application because the special Act does not prescribe a fine.
[39] (2000) 78 SASR 194.
[40] (2000) 78 SASR 194 at 203 [64].
For these further reasons, I consider that s 18(a) of the Sentencing Act was available to the Magistrate in this case. It was open to the Magistrate in the exercise of her discretion in sentencing to impose a fine in lieu of a sentence of imprisonment notwithstanding that s 45(2) of the Road Traffic Act prescribes a penalty of both imprisonment and a licence disqualification.