Police v Collins

[2013] QMC 26

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Collins [2013] QMC 26

PARTIES:

POLICE

(prosecution)

v

MICHAEL ROBERT COLLINS

(defendant)

FILE NO/S:

MAG141291/13(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Complaint

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

11 October 2013

DELIVERED AT:

Toowoomba

HEARING DATE:

27 September 2013

MAGISTRATE:

Ryan K

ORDER:

Not guilty

CATCHWORDS:

VEHICLES AND TRAFFIC – 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)

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)

Commissioner of Police v Kirby [2010] QDC 110
Drivas v Bobbermen [2011] QDC 36
Olver and Manz v Commissioner of Police [2013] QDC 9
Queensland Police Service v Cavendish [2013] QMC
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 Collins 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 Tor Street, Toowoomba whilst his licence was SPER suspended.

1. Mr Collins has entered a plea of not guilty on the basis that he has been making regular payments to reduce his SPER debt, with payments being made without Mr Collins 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 reference to the defendant’s SPER fine history report. No verbal evidence was called. This matter came on for hearing immediately following the delivery of my decision in QPS v Cavendish.[1]

   [1] [2013] QMC

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) ……..

collecting amounts payable to SPER under this or another Act;

administering the making of enforcement orders;

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 Mr Collins’ SPER Fine History Report, reveals that Mr Collins has had a SPER debt since September 2009.  He accumulated a debt of $1,430.80 since that time, but has paid (by instalments) an amount of $1,187.00, leaving a debt outstanding of $243.80 as at 4 October 2013.

1. The debts listed on the history comprise four infringement notices and one court order.

1. I have had recourse to 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 Mr Collins made payments to clear the court ordered fine by 6 February 2012 and that the amount which remains outstanding is made up of outstanding infringement notices.

1. Applying the provisions of Section 23, I find that Mr Collins was not required to enter into an instalment plan “in the approved form”.

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. None of these sub-sections apply to Mr Collins and I therefore find that SPER did not have the requisite power to suspend his driver licence and I find Mr Collins not guilty of the charge.