Police v Cavendish

[2013] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Cavendish [2013] QMC 25

PARTIES:

POLICE

(prosecution)

v

SHAUN DAVID MARK CAVENDISH

(defendant)

FILE NO/S:

MAG93553/13(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Complaint

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

4 October 2013

DELIVERED AT:

Toowoomba

HEARING DATE:

27 September 2013

MAGISTRATE:

Ryan K

ORDER:

Guilty. Defendant discharged absolutely pursuant to Section 19(1)(a) of the Penalties and Sentences Act 1992 (Qld)

CATCHWORDS:

TRAFFIC LAW – OFFENCES – Power of State Penalties Enforcement Register to suspend driver licence – where defendant making payments to reduce debt – criminality of conduct

STATUTORY INTERPRETATION – meaning of “must” and “may” – weight given to explanatory notes – purpose and objects of State Penalties Enforcement Act 1999 (Qld)

Legislation –

Acts Interpretation Act 1954 (Qld)

Penalties and Sentences Act 1992 (Qld)

State Penalties Enforcement Act 1999 (Qld)

Transport Operations (Road Use Management) Act 1994 (Qld)

Cases –

Commissioner of Police v Kirby [2010] QDC 110

Drivas v Bobbermen [2011] QDC 36

Olver and Manz v Commissioner of Police [2013] QDC 9

Soames v Hogan [2012] QDC 160

Strickland v Klupfel [2013] QDC 210

Van Kuik v Zuanetti [2012] QDC 116

COUNSEL:

Kiesecker (Constable) for prosecution

D Haberman for defendant

SOLICITORS:

Prosecution on own behalf

Aboriginal and Torres Strait Islander Legal Service for defendant

1. Mr Cavendish has been charged that pursuant to Section 7(1) and (3)(F) of the Transport Operations (Road Use Management) Act 1995, he drove a motor vehicle on Baker Street, Toowoomba whilst his licence was SPER suspended.

1. Mr Cavendish has entered a plea of not guilty on the basis that Mr Cavendish has been making regular payments to reduce his SPER debt for a number of years, with the payments since 11 December 2012 being made without Mr Cavendish having entered into an instalment payment plan “in the approved form”.  This then raises the question as to the power of SPER to suspend his licence when he has continued to make payments to reduce his SPER debt.

1. The hearing consisted of submissions and the tendering of a Certificate of Registrar and a summary of contacts from SPER and the defendant’s SPER fine history report by the prosecution and submissions by Mr Haberman who appeared for the defendant Mr Cavendish.  No verbal evidence was called.

The Legislation

1. The State Penalties Enforcement Act 1999 came into force on 20 November 2000.  The objects of the Act are set out in Section 4.  They are –

“(a) maintaining the integrity of fines as a viable sentencing or punitive option for offenders; and

(b) maintaining confidence in the justice system by enhancing the way fines and oth        er money penalties may be enforced; and

(c) reducing the cost to the State of enforcing fines and other money penalties.”

1. In order to achieve these objects, the Act established the State Penalties Enforcement Register, commonly known as SPER.  SPER’s functions are set out in Section 8 as –

“(2) ……..

(a) collecting amounts payable to SPER under this or another Act;

(b) administering the making of enforcement orders;

(c) taking enforcement action under this Act.

(3) The functions must be performed in accordance with the SPER charter.”

1. The SPER charter is set out in Section 9 and includes the following—

“(a) maximising the collection, for victims of offences, of amounts ordered to be paid under the Penalties and Sentences Act 1992 by way of restitution or compensation;

(b) maximising the amount of fines and other money penalties paid before enforcement action is taken;

(c) promoting a philosophy that community service work is for the needy in the community and not an alternative to payment of a fine for those who can afford to pay the fine;

(d) reducing the use of imprisonment for fine default by encouraging the use of other enforcement mechanisms;

(e) promoting public education about the obligations of offenders and the consequences of not satisfying obligations.”

Infringement Notices

1. The Act is quite detailed with respect to the powers given to SPER to collect and enforce debts owed as a result of the issuing of infringement notices and the making of court orders.  Section 22 sets out the obligations of and options available to an offender who has been issued with an infringement notice.  The section sets out the options to pay the fine, submit a statutory declaration as to a “known or unknown user” or elect to have the matter dealt with by a court.  A further option available is that “the alleged offender may, within 28 days after the date of the infringement notice, apply to the administering authority to pay the fine by instalments.” (my emphasis)

1. Section 23 deals with applications to pay fines by instalments and provides that “within 28 days after the date of the infringement notice, the alleged offender may apply to the administering authority for approval to pay the fine by instalments….” (my emphasis).  The remaining subsections of Section 23 relate to the way such an application must be made.  Applications “must be made in the approved form or another way acceptable to the administering authority.”

1. The meaning of the words “may” and “must” contained in legislation is contained in Section 32CA of the Acts Interpretation Act 1954 (Qld) as follows –

“(1)     ……the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

(2) In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.”

1. Therefore, I find that the entering into an instalment agreement as provided for by the Act when paying outstanding infringement notices is not mandatory and that any payments made by any means to reduce a debt incurred by way of infringement notices should be accepted by SPER even though such payments may not be made in accordance with an instalment plan approved by SPER.

Court Orders

1. Section 34 of the Act deals with the situation where a court orders an offender to pay (inter alia) a fine, a forfeiture amount, compensation or restitution.  The system as I understand it and as is provided for under the Act, is for the court order to be referred to SPER for collection through the issuing of an enforcement order.  Section 41 then details the way an offender may respond to an enforcement order.

1. It provides –

“If an enforcement order is served on an enforcement debtor for an amount, the enforcement debtor must, within 28 days after the date of the enforcement order—

(a) pay the amount stated in the order in full to SPER; or

(b) apply to SPER, in the approved form or in another way acceptable to SPER, to pay the amount by instalments of not less than the minimum instalment; or

(c) if no fine option order has been made for the amount—apply to SPER for conversion of the amount to hours of unpaid community service under a fine option order; or

(d) if the order relates to an infringement notice offence—make to SPER an election to have the matter of the offence decided in a Magistrates Court.”

1. This section dealing with court orders differs from Section 23 which deals with infringement notices, in that the requirement to apply “in the approved form” to pay instalments is mandatory.

Interpretation

1. A perusal of Exhibit 2, being the SPER Fine History Report, reveals that Mr Cavendish has had a SPER debt since August 2004.  It would appear that he accumulated a not insignificant debt of $5,862.00 since that time, but has paid (by instalments) an amount of $4,944.00, leaving a debt outstanding of $918 as at 5 September 2013.

1. The last debt entered on the history is an infringement notice for a speeding fine of $255.00 registered with SPER on 4 November 2011.  Mr Cavendish has made a total of 16 payments of amounts ranging from $50 to $130 from 2 December 2011 to 16 April 2013, being approximately one week prior to the SPER suspension being applied. 

1. It would appear on first perusal that it was not mandatory for Mr Cavendish to apply “in the approved form” to pay his debt by instalments (See Section 23 which applies to infringement notices).  However, I must take into account Part 5, Division 9 of the Act which governs the order of satisfaction of debts.  The effect of this division is that where an offender has a SPER debt made up of both infringement notices and court ordered fines (or other orders), there is a set order of priority for payment.  Section 113 provides that where there are two or more orders or notices to which the amount of the payment could apply, the payment must be made to satisfy any court order first. There is a hierarchy for payment of compensation, restitution, damages, offender levy, court fees and the like, including fines set out in Section 112.

1. It is only after the court orders are satisfied that the payments made are attributed to infringement notices. I have examined the SPER Fine History Report carefully and have ascertained that three court ordered fines remained outstanding (that is they had not been reduced by instalments) as at 16 April 2013.  Pursuant to the Act, these amounts would have to be satisfied before instalments would then be allocated to satisfying the remaining two infringement notices.  Further, it follows that as Mr Cavendish would have received an enforcement notice regarding payment of those court ordered fines, he was required by the legislation to apply “in the approved form” to enter into an instalment plan (if that was the course he wished to take).

1. Mr Cavendish has provided to the court a number of receipts he received from Australia Post when making payments to SPER since January 2013.  These are marked Exhibit 3. There appears to be no doubt that during the period since the last infringement notice (and indeed over a significant period) Mr Cavendish has been making fairly regular payments to SPER to reduce his debt.

Suspension

1. SPER’s power to suspend a driver licence is contained in Part 5 Division 7 of the Act.  The criteria is contained in Section 104 –

“(3)     The first reason is that the registrar is satisfied the enforcement debtor has –

(a) defaulted in paying instalments under an instalment payment notice; or

(b) failed to start or complete community service under a fine option order made under this Act; or

(c) taken no action to have the matter of the offence decided in a court.

(4)       The second reason is that the registrar is satisfied an enforcement officer has attempted unsuccessfully to enforce an enforcement warrant, including under section 69.

(5)       The third reason is that the registrar has issued an enforcement order in relation to the offence under section 34(4) and the enforcement debtor has not paid the amount stated in the enforcement order within 28 days after the date of the order.”

1. I accept that neither subsection (3) or (4) applies to the circumstances before me.  The outstanding debt for which Mr Cavendish has been suspended was for non-payment of his accumulated SPER debt in the absence of an instalment plan applied for “in the approved form”.  As there are three court ordered fines outstanding on the SPER Fine History Report, an enforcement order was issued pursuant to Section 34(4), the amount stated was not paid within 28 days and a notice of intention to suspend the licence was issued pursuant to Section 105(1), I find that SPER did have the power to suspend Mr Cavendish’s driver’s licence.

1. It therefore follows that by driving his car on Baker Street, Toowoomba on 17 May 2013, he drove whilst his licence was SPER suspended.  I therefore find him guilty of the offence.

Sentence

1. In deciding the appropriate sentence, I have considered the decisions of Botting DCJ in Commissioner of Police v Kirby [2010] QDC 110, McGill DCJ in Van Kuik v Zuanetti [2012] QDC 116, Koppenol DCJ in Olver and Manz v Commissioner of Police [2013] QDC 9 and Robertson DCJ in Strickland v Klupfel [2013] QDC 210 in which His Honour referred with favour to decisions of Samios DCJ in Drivas v Bobbermen [2011] QDC 36 and Farr SC DCJ in Soames v Hogan [2012] QDC 160.

1. In Kirby’s case, the defendant was charged with driving whilst SPER suspended, that suspension being due to be lifted on the day he was found driving. His Honour Judge Botting found that where a defendant had been discharged absolutely pursuant to Section 19(1) of the Penalties and Sentences Act 1992 with no penalty being imposed, the operation of Section 78(3) of the Transport Operations (Road Use Management) Act 1995 did not apply and it was not mandatory for the magistrate to impose a licence disqualification.

1. This approach was followed by His Honour Judge McGill in Van Kuik’s case, where His Honour was considering an appeal of conviction and sentence brought by a defendant who had been charged with driving whilst demerit point suspended.  Then in Olver and Manz v Commissioner of Police[1] His Honour Judge Koppenol stated in dismissing the appeal –

For the future, however, it would be appropriate in my opinion if magistrates apply Judge Botting’s and Judge McGill’s (and not Judge Farr’s) approach—namely that if no penalty is imposed upon a person, a licence disqualification should not be imposed under section 78(3) of the TORUM Act.[2]

[1] [2013] QDC 9

[2] Ibid at [12]

1. It is my view that Judge Farr’s approach in Soames v Hogan[3] can be distinguished from that of Judges Botting and McGill in Kirby and Van Kuik respectively, as the defendant in Soames had been given a “penalty” by the sentencing magistrate, whereas the defendants in the former cases had been discharged absolutely pursuant to Section 19(1) of the Penalties and Sentences Act 1992 and no penalty imposed.

   [3] [2012] QDC 160

1. On the other hand, in Strickland v Klupfel[4], His Honour Judge Robertson did not follow Kirby and Van Kuik, but cited Soames and the decision of Judge Samios in Drivas v Bobbermen[5] in which His Honour stated that “where the word ‘must’ is used in this legislation (Transport Operations (Road Use Management) Act 1995) ….it is mandatory that a period of …. disqualification be imposed.”  His Honour Judge Robertson also stated –

“In my opinion this case is a clear example of the individual injustice that inevitably follows when mandatory sentencing regimes are introduced.”

[4] [2013] QDC 210

[5] [2011] QDC 36

1. He then recommended that a copy of his judgment be forward to the Attorney General to “enable him to consider in an appropriate case…whether or not to exercise his right to appeal against an allegedly inadequate sentence imposed under s78…”[6]

   [6]Queensland Police Service v Klupfel [2013] QDC 218 at [40]

1. All these cases were appeals against severity of sentence after a plea of guilty in the Magistrates Court. The offences represented include driving whilst SPER suspended, driving whilst demerit point suspended, driving whilst disqualified by court order and driving whilst suspended under s 79B of Transport Operations (Road Use Management) Act 1995 (suspension after charge of high range drink drive).

1. In the instant case, Mr Cavendish has pleaded not guilty and the matter went to a hearing, albeit a hearing more or less on tendered documents and submissions.  I have found him guilty of the offence of driving whilst SPER suspended, having found that because the way the legislation is drafted, the registrar of SPER had the power to suspend his driver licence even though he was paying his SPER debt off by instalments.

1. I refer to the purpose and objects of the relevant legislation which I have quoted at the beginning of this judgment.  I also refer to the Explanatory Notes to the Bill when it was first introduced to Parliament which explains –

“The Bill, when passed, will put in place a more efficient model.  The model is designed to achieve three major efficiencies:

·   Reduce the cost of fine enforcement,

·   Increase the rate of payment prior to enforcement action, and

·   Minimise the number of fine defaulters being imprisoned.”

1. The Explanatory Notes also detail the expected additional revenue to be collected from fine defaulters and costs to be saved through the introduction of the SPER system of collecting outstanding debts.

1. Here, Mr Cavendish has been paying off his SPER debt, albeit more latterly without an instalment plan “in the approved form”.  He is meeting his debt to society and has not added to his SPER debt since the infringement notice issued on 4 November 2011.

1. As succinctly put by Judge McGill when referring to the SPER legislation in Van Kuik[7] -

“…this legislation is not carefully adapted to preventing injustice to those to whom it comes to be applied.”

[7]Van Kuik v Zuanetti [2012] QDC 116 at [21]

1. I am satisfied that it is appropriate that no punishment should be imposed[8] and having had regard to the defendant’s character, age, health, mental condition, the nature of the offence, the circumstances under which the offence was committed and the fact that Mr Cavendish is indeed paying his debt to society[9], pursuant to Section 19(1)(a)[10] I order that the defendant Mr Cavendish be released absolutely.

   [8] Section 17(1) Penalties and Sentences Act 1992

   [9] Section 18 Penalties and Sentences Act 1992

   [10]Penalties and Sentences Act 1992

1. Further, in accordance with the decisions of the District Court in Kirby, Van Kuik and Olver and Manz I am not making an order that he be disqualified from holding or obtaining a driver licence for any period.