Police v Campbell - [2015] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CAMPBELL
[2015] SASC 27
Judgment of The Honourable Justice Sulan
25 February 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
The respondent pleaded not guilty to two counts of driving whilst his licence was suspended. The Magistrate dismissed both counts as the charges were incorrectly laid pursuant to s 91 of the Motor Vehicles Act 1959 (SA). The suspension was made under s 70E of the Criminal Law (Sentencing) Act 1988 which was later repealed. Transitionary provisions in the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA) were in operation in relation to instances of suspension of licence before s 70E was repealed, and breach of that suspension after s 70E was repealed. The issue which arose is whether the penalty provisions under the repealed Act applied or whether the breach was an offence pursuant to s 91 of the Motor Vehicles Act.
Held: That the transitionary provisions maintained the s 70E penalties for the period of transition, after which time s 91 became the penalty provision. As this breach occurred within the transition period, the Magistrate was correct in dismissing the charges.
Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 91; Statute Amendment (Fines Enforcement and Recovery) Act 2013 (SA) s 16(4), s 16(5), s 16(8); Criminal Law (Sentencing) Act 1988 (SA) s 70E(1) (repealed, s 70E(5) (repealed), s 70E(5)(a) (repealed), s 70E(5)(b) (repealed), s 70E(5)(c) (repealed), s 70M, Part 9 Division 3, Part 9 Division 3 (repealed), referred to.
M, PA v Police [2014] SASCFC 24, discussed.

POLICE v CAMPBELL
[2015] SASC 27
Magistrates Appeal: Criminal

SULAN J: The respondent, James Read Campbell, was charged on two separate complaints relating to offending on two different days.
The first complaint concerned events which occurred on 11 February 2014 of driving an unregistered vehicle, driving an uninsured vehicle and driving during a period of licence suspension, contrary to s 91 of the Motor Vehicles Act 1951 (SA) (‘the MVA’). The second complaint related to events which occurred on 22 February 2014 of driving during a period of licence suspension, contrary to s 91 of the MVA, and of breaching a bail agreement. The bail conditions included not driving or being seated in the driver’s seat of a motor vehicle unless licensed.
The respondent pleaded guilty to all counts, other than the offences of driving whilst disqualified. The respondent submitted that s 91 of the MVA did not apply and he had, therefore, been charged under the incorrect statute.
The Magistrate upheld the respondent’s submission and dismissed the charge on each complaint of a breach of s 91 of the MVA.
Background
11 February 2014
On 11 February 2014 the respondent was driving a white Ford panel van UVG 067 on Diagonal Road, East Glenelg. The respondent entered a BP petrol station at Glenelg East. A mobile uniformed police patrol was also in the petrol station. A registration check was conducted on the respondent’s vehicle, revealing it to be unregistered and uninsured. The police spoke to the respondent. Further checks revealed that the respondent’s licence had been suspended for non-payment of fines (“fines suspension”) from 8 January to 9 March 2014. The respondent was arrested.
The respondent told police that he had been notified of the suspension of his licence. However, he had forgotten about the notice. The respondent stated he had driven to the service station in order to purchase petrol and check the tyres. He was aware that driving whilst suspended was an offence.
22 February 2014
On 22 February 2014, at about 11.09 pm, police were travelling south along Bright Road, Hove. A vehicle check was conducted on a white Nissan Pulsar, VCA 455, which revealed an expired registration. The respondent was driving the car whilst the suspension referred to earlier was still in force. The respondent told police that he was aware of the suspended licence condition. The respondent said he was driving to visit his ex-girlfriend and children. He was aware that driving whilst suspended was an offence, and that he was also breaching his bail conditions.
The appeal
The appellant seeks orders that the dismissal of the charge in each complaint of driving whilst disqualified be set aside and be remitted to the Magistrates Court.
The respondent’s licence was suspended pursuant to the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’), which provides:
70E—Suspension of driver's licence
(1)An authorised officer may make an order suspending a debtor's driver's licence for a period of 60 days (and such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence).
(3)     The authorised officer will—
(a)     cause a copy of an order under this section to be served on the debtor personally or by post; and
(b)     notify the Registrar of Motor Vehicles of the order.
(4)An order under this section takes effect 21 days from (and including) the day on which the order was made.
(5)A person must not drive a motor vehicle on a road while his or her licence is suspended under this section.
Maximum penalty:
(a)     $2 500; or
(b)     disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months; or
(c)     cancellation of the person's driver's licence and disqualification from obtaining such a licence for a period not exceeding 6 months.
The respondent was, therefore, subject to a 60-day “fines suspension” made under s 70E(1), beginning on 8 January 2014 and expiring on 9 March 2014.
Section 70E was amended by the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA) (“the amending Act”) to take effect from 3 February 2014. Section 70M of the amending Act replaced s 70E. Section 70M did not provide a penalty for driving whilst suspended, pursuant to that section. As a consequence, for administrative suspensions of licence which came into effect after 3 February 2014, the offence of driving under suspension is to be dealt with pursuant to s 91 of the MVA. Section 91 of the MVA provides:
91—Effect of suspension and disqualification
(1) This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act.
(2) While a licence or learner's permit is suspended it has no force or effect.
(3) Subject to section 81B(4), while a person is disqualified from holding and obtaining a licence or learner's permit, any licence or learner's permit held or obtained by that person has no force or effect.
(4) The Registrar must not issue a licence or learner's permit to any person who is so disqualified.
(5) A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.
Maximum penalty:
For a first offence—imprisonment for 6 months.
For a subsequent offence—imprisonment for 2 years.
(6) Subsection (5) does not apply to a person driving a motor vehicle on a road in accordance with an unconditional licence to which the disqualification does not apply in accordance with section 81B(4).
It follows that, prior to 3 February 2014, “fines suspension” fell under Part 9 Division 3 of the Sentencing Act. Orders for “fines suspension” were made administratively under s 70E(1), and penalties for driving during a period of “fines suspension” were governed under s 70E(5)(a)-(c).
Counsel for the appellant submits that s 70E of the Sentencing Act operated as a self-contained code. He submits that any breach of a fines suspension imposed prior to 3 February 2014, whenever committed, was to be dealt with under the relevant section in the Sentencing Act, not the general provision in the MVA. It follows that no offence had been committed under the MVA.
In M, PA v Police,[1] it was established that driving during a period of suspension ordered under s 70E(1), as a result of non-payment of fines, subjected the offender to a penalty under s 70E(5), and that subsection alone. The Court held that where a person is penalised for breach of a “fines suspension” with a lengthier disqualification pursuant to s 70E(5)(b) or (c), a subsequent breach of that lengthier disqualification is an offence pursuant to s 91 of the MVA.
[1] [2012] SASCFC 24.
After 3 February 2014, Part 9 Division 3 was replaced. Section 70M of the amending Act became the operative provision for “fines suspensions”. Significantly, the penalty provisions were not carried over in the new section:
70M—Suspension of driver's licence
(1)The Fines Enforcement and Recovery Officer may, by written determination, suspend a debtor's driver's licence (and such a determination may be issued despite the fact that the debtor is currently disqualified from holding or obtaining a licence).
(2)     The Fines Enforcement and Recovery Officer must —
(a)     cause a copy of the written determination under subsection (1) to be given to the debtor; and
(b)     notify the Registrar of Motor Vehicles of the determination.
(3)     A licence suspension under this section—
(a)     takes effect 14 days from (and including) the day on which the determination under subsection (1) was given to the debtor; and
(b)     may be cancelled by the Fines Enforcement and Recovery Officer by written determination (provided that the Fines Enforcement and Recovery Officer must make such a written determination if all pecuniary sums owed by the debtor are paid in full).
(4)If the Fines Enforcement and Recovery Officer makes a determination under subsection (3)(b)—
(a)     the Fines Enforcement and Recovery Officer must notify the Registrar of Motor Vehicles of the determination; and
(b)     the licence suspension continues in operation until the Registrar of Motor Vehicles is so notified.
A breach of a suspension order imposed pursuant to s 70M is now to be dealt with pursuant to s 91 of the MVA, as s 70M, unlike its predecessor s 70E, makes no penalty provision for driving whilst suspended pursuant to s 70M(1).
The issue in this case
The suspension in each case came into effect pursuant to s 70E of the amended provision. The act of driving whilst under that suspension occurred after the section was repealed and s 70M came into force. The question for resolution is whether the repealed provision or the amended provision applies.
The transitional provisions
As earlier indicated, the amending Act was operative from 3 February 2014.   Section 16 of that Act provides:
16—Transitional provisions
(1)Subject to this section and to any regulations made under section 75(4) of the principal Act (as inserted by this Act)—
(a) Part 9 Division 3 of the principal Act as in force immediately after the commencement day applies in relation to enforcement of a pecuniary sum regardless of whether the liability to pay the pecuniary sum arose before or after the commencement day; and
(b)     section 61 of the principal Act (as inserted by this Act) applies to an expiation amount regardless of whether the liability to pay the expiation amount arose before or after the commencement day.
(2)If, immediately before the commencement day, a debtor is subject to an arrangement with an authorised officer under section 64 of the principal Act, or is subject, or apparently subject, to any requirement as to the manner and time of payment of a pecuniary sum pursuant to an order made, or purportedly made, under Part 9 Division 3 of the principal Act, that arrangement or requirement continues as if it were an arrangement with the Fines Enforcement and Recovery Officer under section 70 of the principal Act as in force after the commencement day (but such an arrangement or requirement is, despite the provisions of section 70, to have effect according to its terms).
(3)A charge on land imposed under section 68 of the principal Act as in force before the commencement day continues as if it were a charge on land imposed under section 70G of the principal Act after the commencement day.
(4)Without derogating from any powers or functions that may be exercised in accordance with subsection (1), a relevant order continues in operation after the commencement day (whether or not the order had taken effect before the commencement day).
(5)Part 9 Division 3 of the principal Act as in force before the commencement day (other than Subdivision 7) continues to apply in relation to a relevant order continued in operation under subsection (4) as if references in that Division to the Manager, the Registrar or an authorised officer were references to the Fines Enforcement and Recovery Officer.
(6)However, the Fines Enforcement and Recovery Officer may, with the consent of the relevant debtor, revoke a relevant order continued in operation under subsection (4).
(7)Despite section 69 of the principal Act (as inserted by this Act) no amount is payable under that section in relation to an amount that is taken to be a pecuniary sum imposed by order of a court by virtue of the making of an enforcement order under section 13 of the Expiation of Offences Act 1996 before the commencement of section 26 of this Act.
(8)     In this section—
commencement day means the day on which section 11 of this Act comes into operation;
principal Act means the Criminal Law (Sentencing) Act 1988;
relevant order means a penalty enforcement order (and any warrant or order issued in relation to the penalty enforcement order) made under Part 9 Division 3 of the principal Act as in force before the commencement day.
The Magistrate’s decision
Counsel for the respondent submitted before the Magistrate that, pursuant to s 16(4), the repealed Act applies to a suspension ordered prior to 3 February 2014 and, given that s 70E is a code, the penalty provisions therefore apply.
The Magistrate summarised the submissions of both defence counsel and the police prosecutor. He observed:
The real issue, then, is the reading of Section 16(5) of the Statutes Amendment (Fines Enforcement and Recovery) Act, 2013. The prosecution has put that the reference “as if” means that that sub-section only applies in limited circumstances that involve what was a Manager, the Registrar or an authorised officer of the old Fines Enforcement Department. The transitionary provision, it argued, only applies to the extent that it changes a Manager, the Registrar or an authorised officer to a Fines Enforcement and Recovery Officer (FERO). That, in effect, this is an administrative, practical but limited transitional provision aimed to overcome any problems that may arise by the changing of the titles of the people in the relevant department with regard to fines.
The prosecution put to me that I must read sub-section 16(5) of the Statutes Amendment (Fines Enforcement and Recovery) Act, 2013 as an entire sentence and not one which is broken down and unduly picked over portions of. It was put that the sentence beginning “as if” is not a qualifier to the overall sentence. The prosecutor has also put to me that, in effect, Parliament could not have intended that somebody in the defendant’s position would only face a fine whilst the transitional period was in force, but then suddenly be faced with imprisonment after that point.
In contrast, Mr Clarke has asked me to read down Sub-section (5) of Statutes Amendment (Fines Enforcement and Recovery) Act, 2013 and find that the words “as if” at the end of that sentence are qualifiers simply with respect to the manner in which Part 9, Division 3 of the Sentencing Act continues to apply. In other words Part 9, Division 3 of the principal Act still remained in force.
As a matter of statutory interpretation where there has been a change in legislation which potentially affects a defendant’s position in respect to criminal matters, to the extent that there is any ambiguity in the legislation, I should resolve that ambiguity in the defendant’s favour.
...
The reading of Sub-section (5) of the Statutes Amendment (Fines Enforcement and Recovery) Act, 2013 is clear. The transitional provisions must have been put in for a reason, and in my view it accords with fairness to the accused to read them as not imperilling a defendant to the risk of imprisonment unless it clearly stated that he or she would be. I add that to the extent that there is any ambiguity, I would, for the reasons earlier stated regarding the statutory principles applicable, have resolved that ambiguity in favour of the defendant.
The Magistrate determined that the offence was an offence against s 70E of the Sentencing Act, and that the MVA did not apply. The respondent had been charged under the wrong Act. He dismissed the complaints.
Arguments on appeal
The relevant offences were committed at the time of the driving, being 11 and 22 February 2014, after the expiration of s 70E of the Sentencing Act. Counsel for the appellant submits that the order made under s 70E of the Sentencing Act is deemed, by virtue of s 16(5), to be an order pursuant to s 70M of the amending Act of driving whilst under suspension. It is therefore an offence against s 70M and, subject to the general penalty provision pursuant to s 91 of the MVA. The offences were, therefore, committed under the only relevant section that was then in force, namely s 91 of the MVA.
Counsel for the respondent submits that s 16 of the amending Act is clear in that it provides that the enforcement of pecuniary provisions made under the amending Act continue to apply to relevant orders. A relevant order means a penalty enforcement order made under Part 9 Division 3 of the amending Act. The penalty enforcement order in respect of each count is the order suspending the respondent from driving. It is submitted that a breach of that order is, therefore, to be dealt with under s 70E, as it was committed prior to the amending Act coming into force. I agree with this interpretation.
The respondent further submits that express provision is required if the amending Act is to operate retrospectively. If there be any ambiguity, it must be resolved in favour of the respondent.
Decision
There is no issue that breaches of suspension orders made pursuant to s 70M of the amending Act constitute an offence under s 91 of the MVA. The section is applicable to driving while suspended offences, where the “fines suspension” was made after s 70M came into operation, that is, on or after 3 February 2014.
Section 16(4) of the amending Act operates so that “relevant orders” made before 3 February 2014 under Part 9 Division 3 of the Sentencing Act remain in force. A “relevant order” is defined as a penalty enforcement order made under Part 9 Division 3 before 3 February 2014. A “fines suspension” is a relevant order.
Section 16(5) provides that Part 9 Division 3, as in force before 3 February 2014, continues to apply to relevant orders continued under sub‑s (4), including a fines suspension imposed pursuant to s 70E(1) of the Sentencing Act. Sub‑division 7 of the amended Act, containing the rights of review and appeal, is expressly excluded from continued operation. Sub-section (5) provides that all references to the various officers under different titles in the Sentencing Act are to be read as referring to the one officer, namely, the Fines Enforcement Recovery Officer.

Pursuant to s 16(4) and (5), orders made under the Sentencing Act continue in force. It follows that any penalty for breaching an order is also preserved by the amended Act.
I note that the maximum suspension that could be ordered under s 70E(1) is 60 days, and the final day on which such a suspension could be made is 2 February 2014. Therefore, all breaches of a “fines suspension” committed after 3 April 2014 would necessarily be under s 91 of the MVA.
The transitional provisions operate so that suspensions imposed pursuant to s 70E(1) of the Sentencing Act are to be penalised under that Act; that is, penalties for a “fines suspension” under s 70E(5) are, therefore, applicable if a person breaches the suspension order.
I find that the offence was created upon the “fines suspension” being ordered on 8 January 2014. As the offence was created at that time, the relevant penalties attaching to the offence were those in force at that relevant time, namely s 70E(5).
For these reasons, I conclude that the Magistrate was correct in dismissing the charges.
I dismiss the appeal.