Police v Hallett
[2010] SASC 256
•20 August 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HALLETT
[2010] SASC 256
Judgment of The Honourable Justice Gray
20 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
Police appeal against sentence – defendant pleaded guilty to offences of driving a motor vehicle while unauthorised and while that motor vehicle was unregistered and uninsured contrary to the Motor Vehicles Act 1959 (SA) – incident giving rise to charges was the defendant riding a mini-motorcycle on a public roadway – whether Magistrate’s failure to hear the prosecution constituted a denial of procedural fairness – whether Magistrate inappropriately took into account extraneous matters in finding that offence “trifling” – whether evidence on oath required when determining if offence trifling.
Held: appeal allowed – orders of the Magistrate set aside – matter remitted for rehearing – Police denied procedural fairness – Magistrate took into account extraneous matters when finding that the offence was trifling – evidence on oath not required when considering trifling pursuant to sections 15 and 16 of the Criminal Law (Sentencing) Act 1988 (SA) – meaning of conviction discussed – effect of proceeding without recording a conviction on obligation to impose mandatory licence disqualification discussed – reach and effect of sections 15 and 16 of the Sentencing Act discussed – nature of mini-motorcycle discussed.
Motor Vehicles Act 1959 (SA) s 5, s 9(1), s 24, s 74, s 98B and s 102; Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 17, s 18, s 20 and s 39; Motor Vehicles Regulations 2010 (SA) reg 5, reg 6, reg 7, reg 8, reg 9 and reg 10, referred to.
Przybytniak v Police (1998) 100 A Crim R 196; W v Marsh (1983) 35 SASR 333; Francis v Police (1997) 193 LSJS 443; Police v Bridges (1998) 100 A Crim R 20; Dean v Police (2008) 49 MVR 416; Maxwell v The Queen (1996) 184 CLR 501; Attorney-General v Smith [2002] TASSC 10; Miles v Police (2009) 104 SASR 127; Price v Police (2008) 254 LSJS 275; Ramsay v Samuels (1975) 14 SASR 77; Cobiac v Liddy (1969) 119 CLR 257; Police v Betts (2009) 104 SASR 442; McLean v Kowald (1979) 9 SASR 384; Goodwin v Phillips (1908) 7 CLR 1; Maybury v Plowman (1913) 16 CLR 468; Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Conviction"
POLICE v HALLETT
[2010] SASC 256Magistrates Appeal
GRAY J:
Introduction
This is an appeal by the Police against sentence.
Christopher Gary Hallett, the defendant and respondent, pleaded guilty to the offences of driving a motor vehicle while unauthorised,[1] and while that motor vehicle was unregistered[2] and uninsured,[3] contrary to the Motor Vehicles Act 1959 (SA).
[1] Contrary to section 74(2) of the Motor Vehicles Act 1959 (SA) which provides:
(2)Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b)is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
[2] Contrary to section 9(1) of the Motor Vehicles Act 1959 (SA) which provides:
(1)A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $2 500.
[3] Contrary to section 102 of the Motor Vehicles Act 1959 (SA) which provides:
(1)A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
Maximum penalty: $5 000.
(2)If an uninsured motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $5 000.
On 9 December 2006, the defendant was apprehended riding a mini-motorcycle, known as a “Pocket Rocket” while not holding a driver’s licence. It was apparent that the defendant had never held a driver’s licence. It is relevant to note that the defendant had a history of driving offences. Police checks revealed that the motorcycle ridden by the defendant was unregistered and uninsured. It transpired that on purchasing the motorcycle, the defendant had taken the vehicle to the Motor Registration Office to enquire about registration, but was apparently informed that the registration scheme did not enable registration of a vehicle with a motor smaller than 50 cubic centimetre capacity. The defendant pleaded guilty to the offences as charged.
The Magistrate sentencing the defendant proceeded without recording a conviction and without imposing further penalty:
HIS HONOUR: If I take your licence away for another three years that’s going to be setting you up for failure. I’m just going to proceed without recording a conviction.
PROSECUTOR: Your Honour the act states in relation to your without conviction if the defendant has prior convictions for the same offending that unfortunately your Honour cannot exercise that discretion to issue a without a conviction and because it’s a second conviction within the three years, there is a compulsory three years disqualification.
HIS HONOUR: I have noted your objection and I am proceeding without recording a conviction and without further penalty, I’m just going to impose the court fees, levies and costs. If the police want to appeal then it’s their discretion to do so. I think that I’ve done something, which is probably in the best interest of the community here because if I take your licence away for three years, such penalty far outweighs the seriousness of the offending. In addition you’ve done the right thing and have finally made an effort to get a licence and satisfied the spirit of the legislation, which I believe is to encourage people who wish to drive motor vehicles to obtain an appropriate licence. These mini bikes/scooters have caused a great deal of confusion because people buy them quite lawfully but then they find that they cannot be registered to be ridden on a road. There should be a bit more information put out to the community about this or otherwise they should not be sold if that is the case. Further as far as I’m concerned it’s a most trivial offence because you only rode it for a very, very short distance.
This appeal has raised issues of some complexity. The Police complained that they were denied procedural unfairness as a consequence of the Magistrate not allowing the prosecution to be heard on assertions of fact. It was also complained that the Magistrate had regard to irrelevant material in forming the view that the offences were trifling, and further, that given the defendant’s prior record, the Magistrate was obliged to impose a mandatory minimum licence disqualification of three years.
It transpired that the defendant wished to maintain that he had not committed any offences and foreshadowed an application to withdraw his pleas of guilty.
I have come to the conclusion that there was a material denial of procedural fairness and that the Magistrate had regard to irrelevant material in forming the view that the offences were trifling. For these reasons, I have reached the conclusion that the appeal should be allowed and the matter remitted for rehearing. At that time, if so advised, the defendant will be able to make any application with respect to the withdrawal of his pleas of guilty. I express no view as to the merit of any such application. My reasons follow.
The Appeal
On appeal, the Police contended that the Magistrate erred in finding that the offences for which the defendant pleaded guilty were trifling, erred in not imposing a conviction for the charge of driving while unauthorised and erred in not imposing the mandatory penalty of a three year licence disqualification for that offence. The Police sought remission to another Magistrate for hearing and determination.
A number of complaints supporting these grounds of appeal were raised by the Police. It was said that before finding that the offence was trifling, the Magistrate was required to hear evidence on oath, and neither the Court nor the parties could have waived this requirement. It was said further that the finding of “triviality” could not stand as the Magistrate refused to hear the prosecutor in relation to the distance travelled by the defendant, or in the alternative, despite the distance travelled, there was no proper basis upon which the Magistrate could have found that any of the offences were trifling.
The Police drew attention to a previous offence of driving whilst unlicensed committed within the three years preceding the commission of the offence the subject of the within proceeding. It was said that as a consequence of this prior offence, the three year licence disqualification mandated by section 74(5) of the Motor Vehicles Act could not be reduced or mitigated and that accordingly the Magistrate’s approach was in error.
Finally it was contended that there was no authority to proceed without recording a conviction in circumstances where the Court by law was required to impose a mandatory licence disqualification.
In respect of the complaints raised by the Police, counsel for the defendant contended that the Magistrate’s approach was correct. It was said that evidence on oath was not required for a finding that the offence was trifling pursuant to sections 15 or 16 of the Criminal Law (Sentencing) Act 1988 (SA). It was said further that the circumstances of the offending supported the finding of trifling. Finally, it was said that the decision of the Magistrate not to record a conviction and not to impose a three year licence disqualification was not in error.
Before embarking on a consideration of the issues arising it is to be understood that in finding that the offence was trifling and proceeding without recording a conviction, the Magistrate must have proceeded under section 15 rather than section 16 of the Sentencing Act. This may be inferred, as the Magistrate made no findings concerning the conditions precedent set out in section 16 and did not impose any penalty.
Failure to Hear the Prosecution
As earlier mentioned, the Police complained on appeal that the finding of triviality could not stand as the Magistrate declined to hear the prosecutor in relation to the distance travelled by the defendant on the mini-motorcycle. It was said that the Magistrate’s finding that the defendant had travelled only a “very, very short distance”, was unsubstantiated by any evidence, and that before any finding as to triviality could be arrived at, this disputed fact needed to be resolved.
The affidavit of the prosecutor appearing before the Magistrate disclosed that at the time of sentencing the defendant made no submissions in relation to the actual distance travelled by him on the mini-motorcycle. The prosecutor deposed that when she attempted to make submissions, based on a map, in relation to the distance travelled by the defendant, the Magistrate indicated that he did not want to hear anymore from her. The prosecutor deposed further that the Magistrate had remarked that the offending was trifling on the basis that the defendant had travelled only about 100 metres down the road. The affidavit evidence was not challenged on the appeal.
The failure of the Magistrate to hear the prosecutor’s submissions is significant. It is axiomatic that a finding of triviality cannot be made without a full understanding of the circumstances of an offence. In fact, as “trifling” qualifies the word “offence”, the court will only consider the circumstances of the commission of the offence, and will not consider the defendant’s antecedents or other matters.[4] Those circumstances could not be ascertained when the circumstances were in dispute and the prosecutor’s submissions were not heard. The failure to hear the prosecutor constituted a material denial of procedural fairness.
[4] See Przybytniak v Police (1998) 100 A Crim R 196 at 200 (Bleby J). Although those observations were made in a different statutory context, I consider them equally applicable to section 15 of the Criminal Law (Sentencing) Act 1988 (SA).
The denial of procedural fairness is sufficient to disturb the Magistrate’s decision. However it is appropriate to comment on the further matters arising on the appeal.
Consideration of Extraneous Matters in Finding Offence “Trifling”
The Magistrate’s sentencing remarks disclose that in proceeding without imposing any penalty, the Magistrate took into account what he described as the community interest in not disqualifying the defendant from driving in addition to the confusion about the need for registration of mini-motorcycles. On the hearing of the appeal, the Police contended that these matters were extraneous to a consideration of trifling.[5] It was said that the relevant penalty to be applied had been identified by Parliament and that the Magistrate was in error in taking into account a suggested community interest in overriding that penalty. It was submitted further that despite any confusion occasioned by the fact that mini-motorcycles are able to be purchased lawfully but unable to be registered, it was not appropriate for the Magistrate to take into account such considerations when assessing triviality.
[5] For the purposes of this judgment I use the words “trivial” and “trifling” as interchangeable expressions; see discussion in W v Marsh (1983) 35 SASR 333 at 337-339 (Johnston J) regarding the interrelation of those terms.
In Francis,[6] King AJ made the following apposite remarks in relation to the role of social policy in sentencing:
[6] Francis v Police (1997) 193 LSJS 443 at 444-445 (King AJ).
…It is not the role of the courts to tailor penalties to fit some social theory held by some sections of the public. The social policy which is binding on the courts is that which is embodied by parliament in legislation. …
In Bridges[7] Bleby J referred to the remarks of King AJ and continued:
[7] Police v Bridges (1998) 100 A Crim R 20 at 22-24.
Likewise it is not the role of the magistrate to tailor a penalty or lack of it to suit some social theory of the magistrate concerned. The only relevant social policy is that reflected by Parliament in the Acts which it passes…
In relation to the relevance of social policy when undertaking a consideration of trifling pursuant to section 15 of the Sentencing Act, Bleby J continued:
…Nor will it be a relevant consideration that the magistrate, as a matter of policy or for some other reason, considers that the offender should not have been charged or that the magistrate holds some view about the policy of the law or of its administration, and whether it is or is not appropriate to charge the offender with the offence in question.
So much was made clear in Phillips v Evans [1896] 1 QB 305 where the court had dismissed a charge against a dog owner for not having paid a licence fee when the owner had applied to commissioners for, but had not obtained, a certificate of exemption. Section16 of the Summary Jurisdiction Act at that time was in similar terms to s 15(1)(a) of the Criminal Law (Sentencing) Act. Kay LJ said (at 308):
"It comes to this - that as the commissioners have not granted a certificate of exemption to the respondent, although he refuses to pay for a dog licence, we (the magistrates) think his offence so trifling that we shall not convict. How can it be said that a man refusing to pay the dog tax commits a trifling offence? Of course if all the facts were not before us we could not interfere with the discretion of the justices; but here we have not only a full account of them, but also what amounts to an explanation of the reason why the magistrates think the offence a trifling one. They think so because in their opinion the commissioners ought to have granted the respondent a certificate of exemption. They have no right to entertain that question, and therefore they have no ground for saying that the offence is trifling."
…
Other judges have made it quite clear that a magistrate's view of the appropriateness of the offence, or of the policy of the law, cannot be taken into account in determining whether an offence is trifling: Mancini v Vallelonga per Mitchell J at 239; Hughes and Hodge (1996) 89 A Crim R 297 per Debelle J at 291.
In the circumstances of the within proceeding, in accordance with the above observations, the Magistrate in considering whether the offence was trifling was not entitled to have regard to his personal views as to whether mini-motorcycles caused undue confusion, nor whether the interests of the community were best served by the approach he proposed to take. The Magistrate ought to have had regard to the terms of the legislation without account being taken of those extraneous matters.
As the Magistrate took into account extraneous material in assessing whether the offence was trifling, the Magistrate’s decision warrants reconsideration.
Finding of “Trifling” – Requirement of Evidence on Oath
In contending that the Magistrate could only have determined that the offence was trifling on the basis of evidence on oath, the Police relied on the following passage from the judgment of Kelly J in Dean:[8]
It is well established that a magistrates court can only determine whether an offence is trifling or that any other proper cause exists by hearing evidence given on oath. It is not open to either counsel or the court to waive the requirement that evidence be given on oath Zanker v Hyndman (1990) 11 MVR 224 at 226 and Anderson v Gerhardy (1991) 13 MVR 573 at 574.
In that decision, Kelly J continued:[9]
The difficulty which arises on this appeal is that it is not clear from the affidavit material or from the court record whether the magistrate proceeded to determine an application as the respondent suggests under s 16 of the Criminal Law (Sentencing) Act 1988 or whether he was determining an application under s 98B(4) of the Motor Vehicles Act 1959. The affidavit of the prosecutor is silent as to the chronology of events which occurred on the morning of the 10 December 2007.
[8] Dean v Police (2008) 49 MVR 416 at [14].
[9] Dean v Police (2008) 49 MVR 416 at [15].
The above observations were made in the context of an application for a reduction in the number of demerit points recorded following a plea of guilty to having failed to wear a seatbelt. In this respect, section 98B of the Motor Vehicles Act relevantly provides:
(1)Where a person is convicted of, or expiates, an offence of a kind prescribed by the regulations, the number of demerit points prescribed by the regulations in relation to that offence is, subject to this section, incurred by that person.
…
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
[Emphasis added]
It is to be observed that the two authorities relied on by Kelly J in Dean also involved consideration of section 98B of the Motor Vehicles Act.
In the within proceeding, as the offence did not involve the incursion of demerit points pursuant to the above legislative provision, a consideration of trifling would occur in the context of sections 15 or 16 of the Sentencing Act. For the reasons outlined earlier, the Magistrate must have proceeded under section 15. That section relevantly provides:
(1) Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a) without recording a conviction, dismiss the charge; or
(b) upon recording a conviction, discharge the defendant without penalty.
(2) A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
[Emphasis added]
It is immediately apparent that section 15 does not require on its terms evidence on oath for a finding that the offence was trifling.
Counsel for the Police contended that although the consideration of trifling in the within proceeding did not take place in the context of section 98B of the Motor Vehicles Act, Kelly J’s observations were equally applicable to a consideration of trifling, whether pursuant to sections 15 or 16 of the Sentencing Act. It was said that the comments of Kelly J indicated that a consideration of trifling in relation to the commission of a vehicular offence, whether pursuant to section 98B or sections 15 or 16, would always require evidence on oath.
This contention should be rejected. As previously observed, section 15 does not explicitly require evidence on oath.[10] Nor does section 16.
[10] It is to be observed that other authorities which have suggested that evidence on oath is required for a finding of triviality have considered provisions with a similar stipulation to section 98B of the Motor Vehicles Act1959 (SA). See eg Przybytniak v Police (1998) 100 A Crim R 196 (Bleby J) which considered section 47b of the Road Traffic Act 1961 (SA).
The comments of Kelly J relied upon arose in the context of section 98B. It is apparent that when observing that it was unclear whether the magistrate proceeded to determine an application under section 16 of the Sentencing Act or section 98B(4) of the Motor Vehicle Act, Kelly J was not suggesting that either application would require evidence on oath for a finding of trifling to be arrived at. Rather, the difficulty faced by Kelly J in that case, was identifying which provision had been proceeded under, in order to assess whether there had been an error in that case in failing to hear evidence on oath. A conclusion later in the judgment of Kelly J supports this interpretation:[11]
In the light of the magistrate’s remarks and the affidavit material filed I cannot agree with the submission from counsel for the respondent that the position is clear. It is far from clear and it seems to me that the only appropriate course for this court to take is to resolve the ambiguity about what occurred in favour of the appellant. At the very least it seems to me there may well have been a misunderstanding on the part of the magistrate as to what application he was being invited to hear. I accept the submission from counsel for the appellant the only application that he sought to make at the hearing was an application under s 98B(4). In all of the circumstances I have concluded that the fact that the solicitor for the appellant … did not persist with his application that the appellant give evidence on oath is perfectly understandable in the light of the magistrate’s intimation that he would not have time to hear such an application.
[11] Dean v Police (2008) 49 MVR 416 at [18].
There is nothing in the terms of section 15 or the observations of Kelly J, to read into section 15 a requirement that a Court when dealing with a motor vehicle matter can only proceed to make a finding of trifling on sworn evidence.[12] I consider that this conclusion would apply equally to section 16, for the same reasons.
[12] It is to be noted that the commentary in respect of section 15 in LexisNexis, Lunn’s Criminal Law, vol 1, [10,075.2(4)] records that “a court can only determine whether an offence is trifling on the basis of evidence on oath and neither the court nor the parties can waive this requirement for evidence on oath” citing Dean.
Further Matters Arising on the Appeal
Three further matters arose on the appeal. The first related to the meaning of “conviction” and whether the determination of guilt without recording a conviction amounted to a “conviction” for the purposes of section 74 of the Motor Vehicles Act. The second related to the reach of sections 15 and 16 of the Sentencing Act, and finally, the third related to the nature of the mini-motorcycle and the relevant registration requirements.
Failure to Impose Mandatory Licence Disqualification – Meaning of “Conviction”
The Police contended that proceeding without recording a conviction and a finding of triviality did not avoid the obligation on the Magistrate to impose a mandatory licence disqualification pursuant to section 74 of the Motor Vehicles Act.
Section 74 of the Motor Vehicles Act creates a duty to hold a licence or learner’s permit and relevantly provides:
…
(2) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b)is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
(2a) Subject to this Act, if a person—
(a) drives a motor vehicle on a road; and
(b)the person has, as a consequence of being convicted of a serious drink driving offence, been disqualified from holding or obtaining a licence; and
(c)the person has not, since the end of the period of that disqualification, been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
…
(5) Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c)if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(6) In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
[Emphasis added]
As earlier observed, the defendant was not and had never been authorised to drive and was consequently guilty of an offence pursuant to section 74(2). The defendant’s antecedent report discloses that the offending the subject of the within proceeding was a subsequent offence within the meaning of the above provisions, the defendant having been convicted in 2006 for driving whilst disqualified. As a consequence, the defendant was liable to a maximum penalty of a fine of $5,000.00 or imprisonment for one year. According to the Police, this liability invoked the mandatory licence disqualification outlined in section 74(5) of not less than three years. This subsection provides that the mandatory disqualification “cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence”. It was the submission of the Police that the Magistrate was in error in proceeding without imposing further penalty and failing to impose the mandatory minimum licence disqualification prescribed by section 74(5).
In pursuing this submission, counsel for the Police also relied on section 20 of the Sentencing Act, which provides:
Nothing in this Division—
(a) affects the sentence to be imposed by a court for murder or treason; or
(b) derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
[Emphasis added]
Counsel for the defendant submitted that the Magistrate was empowered pursuant to section 15 of the Sentencing Act, to proceed without recording a conviction and on doing so, there was no relevant “conviction” that triggered the operation of section 74(5). It was said that as a consequence the Magistrate was not in error in not imposing the three year licence disqualification mandated by that section.
The terms of section 15 of the Sentencing Act as excerpted earlier, provide a discretion to the Court to either dismiss a charge without recording a conviction, or to record a conviction but discharge a defendant without penalty. It was said by the Police that that discretion was enlivened by a finding of guilt and a finding that the offence was trifling. It was contended that the finding of guilt required by the section constituted a relevant “conviction” for the purposes of section 74(5).
The meaning of “conviction” has been discussed in numerous authorities.[13] It has been established that the meaning of “conviction” depends on the statutory context in which it is used. In its more narrow sense, “conviction” means that there has been a finding of guilt, despite no conviction having been recorded. As Dawson and McHugh JJ observed in Maxwell:[14]
The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. ...
[Footnote omitted]
[13] See for example Attorney-General v Smith [2002] TASSC 10; Maxwell v The Queen (1996) 184 CLR 501; Miles v Police (2009) 104 SASR 127.
[14] Maxwell v The Queen (1996) 184 CLR 501 at 507.
Similar observations were made by Crawford J in Attorney-General v Smith:[15]
The meaning of "conviction" is ambiguous and in each case depends on the context in which it is used. "It is sometimes used in the narrow sense as indicating merely that an accused has been made the subject of a finding of guilt. Sometimes it is used in the wider sense of the finding of guilt combined with the sentence of the court." R v Hannan; Ex parte Abbott (1986) 41 NTR 37 at 40. See also Re Stubbs (1947) 47 SR (NSW) 329 at 339; Griffiths v R (1976 - 1977) 137 CLR 293 at 334 - 336; Maxwell v R (1996) 135 ALR 1 at 4 - 7, 14 - 16; Cobiac v Liddy (1969) 119 CLR 257 at 266, 267; Dreezer v Duvnjak (1996) 6 Tas R 294 at 304. It was pointed out by the Full Court in R v Tonks and Goss [1963] VR 121 at 127 that without a determination of guilt, there cannot be a conviction, but a determination of guilt will not in all cases amount to a conviction.
[15] Attorney-General v Smith [2002] TASSC 10 at [23].
In Miles,[16] Kourakis J examined the history of the meaning of the phrase “without recording a conviction” in the context of sections 16 and 39 of the Sentencing Act. Section 16 deals with the imposition of a penalty without a conviction being recorded and section 39 deals with the discharge of a defendant without penalty where the defendant enters into a bond. In the course of this examination, Kourakis J analysed statutory provisions, which conferred upon courts a power to either dismiss the complaint or discharge the defendant on a recognisance to be of good behaviour and to appear for sentence when called upon, “without proceeding to conviction”. That power could be exercised where the court “thinks that the charge is proved”, but before any adjudication of guilt. As a consequence, according to the analysis of Kourakis J, those provisions did not involve a conviction even in the most narrow sense. Kourakis J compared the power conferred pursuant to those provisions with that conferred by sections 16 and 39 of the Sentencing Act. His Honour reasoned that the powers conferred by sections 16 and 39 to proceed “without recording a conviction” followed on from an adjudication of guilt. As a consequence, he held that in criminal proceedings where there is a finding of guilt or an acceptance of a plea of guilty, there is necessarily a conviction in the narrow sense, which is sufficient to require the imposition of any statutory penalty. In the course of his reasons, Kourakis J observed:[17]
Doing the best I can with the language employed in ss 16 and 39 of the Act, I can only conclude that the phrase “without recording a conviction” is a peculiar form of court order in the nature of a declaration which signifies that the offence was committed in special and extenuating circumstances. It is not open, I think, to give the phrase the meaning “without proceeding to a conviction” for the reasons to which I have already adverted.
There is no longer, therefore, any statutory authority which allows a court of this State to decline to adjudicate on the guilt of a defendant who it “thinks” is guilty and thereafter dismiss the proceedings.
Accordingly, in criminal proceedings where there is a finding of guilt or an acceptance of a plea of guilty, there is necessarily a conviction in the narrow sense, which is, subject to any special statutory provision which otherwise provides, sufficient to require the imposition of any statutory penalty. The result of that is that although Bray CJ was, in my respectful opinion, correct to say that there was no conviction, even in the narrow sense, when a complaint was dismissed pursuant to the Offenders Probation Act 1913, ss 16 and 39 of the Act assume and operate on an adjudication of guilt, or conviction in the narrow sense. In the ordinary course, penalty provisions like s 168 of the RTA would therefore apply on their own terms. However, ss 16 and 39 of the Act otherwise provide. Both provisions expressly limit the penalties which can be imposed where the power to not record a conviction is exercised.
[Footnote omitted - emphasis added]
[16] Miles v Police (2009) 104 SASR 127 at [46]-[64].
[17] Miles v Police (2009) 104 SASR 127 at [54]-[56].
In Price,[18] Kelly J considered the meaning of the word “convicted” in section 74(6) of the Motor Vehicles Act. That case involved the effect of a previous offence committed when the appellant was a youth, for which the Youth Court had not recorded a conviction. The Magistrate imposing penalty in that case regarded the second offence as a subsequent offence for the purposes of section 74(6) despite no previous “conviction” appearing on the appellant’s record. On appeal from that decision, Kelly J concluded that the legislative intent of section 74 of the Motor Vehicles Act was that “conviction” would include a finding of guilt despite the fact that no formal conviction had been recorded. As a consequence, the offence under consideration constituted a subsequent offence within the meaning of section 74(6). In the course of her reasons, Kelly J commented on the legislative intention of section 74 in the following terms:[19]
The MVA does not provide any definition of “conviction” for the purposes of s 74. However, as White J pointed out in Doecke v Police (2006) SASC 210 the legislative intention manifested in s 74 of the MVA is that it should, by the imposition of a severe sanction, be brought home to persons that they must not drive a vehicle on a road unless authorised to do so.
[18] Price v Police (2008) 254 LSJS 275.
[19] Price v Police (2008) 254 LSJS 275 at [19].
Kelly J referred to the earlier case of Ramsay v Samuels[20] in which an appellant was convicted of an offence contrary to section 44 of the Road Traffic Act 1961 (SA). In that case, the appellant had committed similar offences when he was a juvenile in respect of which there had been findings of guilt without any convictions being recorded. Walters J found that the later offence under the same section amounted to a subsequent offence for the purposes of section 44 of the Road Traffic Act, and observed:[21]
Although no formal convictions were recorded on some of these charges, and there were orders for dismissal under the provisions of the Juvenile Courts Act, in each instance there was an adjudication that the appellant had committed the offence charged, and a finding of his guilt was therefore sufficient to establish the commission of an offence, irrespective of whether the record showed him to be an offender against whom a conviction had been entered (Pring v Woolacott2, Cobiac v Liddy3, per Windeyer J at p. 274)
Similar observations were made by Windeyer J in Cobiac v Liddy:[22]
A condition precedent of an order under s 4 (1) of the Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the subsection came again before a court, charged with having again committed the same offence, it would be properly called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted. I am not disposed to disagree with the decision of Walters A.J. on this point: Pring v.Woolacott (1).
In adopting the reasoning of Windeyer J and Walters J, Kelly J concluded:[23]
Moreover I consider that the legislative intent and policy behind s 74 of the MVA is promoted by adopting an interpretation of the word “conviction” which would include a finding of guilt even where no formal conviction has been recorded.
[20] Ramsay v Samuels (1975) 14 SASR 77.
[21] Ramsay v Samuels (1975) 14 SASR 77 at 79.
[22] Cobiac v Liddy (1969) 119 CLR 257 at 274.
[23] Price v Police (2008) 254 LSJS 275 at [23].
The approach of Kourakis J and Kelly J was adopted by Anderson J in Betts,[24] when commenting on whether the mandatory licence disqualification contained in section 74(5) would operate when the Magistrate refrained from recording a conviction pursuant to section 15 of the Sentencing Act. His Honour held that an adjudication of guilt constituted a “conviction” for the purposes of section 74(5) and as a consequence, the Magistrate’s application of section 15 of the Sentencing Act was in error.[25]
… Section 15 must be read in conjunction with s 20 of the CLSA. I have set out s 20 earlier in these reasons. Section 20 operates to prevent s 15 from overriding provisions in Special Acts that prohibit the reduction or mitigation of minimum sentences. As I have found that s 74(5)(a) was applicable in this case, the magistrate was required to impose a minimum licence disqualification of three years. Section 74(5)(b) then provides that the minimum licence disqualification cannot be reduced or mitigated. Therefore s 20 of the CLSA would operate to prevent s 15 of the CLSA from overriding s 74(5)(b).
Therefore, in brief, if it had been necessary, I would have upheld Mr McDonald’s arguments in the alternative. Section 74(5) did apply in this matter, despite the fact that the magistrate declined to record a conviction after the respondent’s guilty plea. In my view, the magistrate was wrong in using s 15(1) of the CLSA in the way that he did because of the clear intention of s 20 of that Act.
[24] Police v Betts (2009) 104 SASR 442.
[25] Police v Betts (2009) 104 SASR 442 at [52]-[53].
The above authorities make clear that in the context of a number of different provisions, an adjudication of guilt has constituted a conviction for the purpose of attracting a penalty dependant on previous convictions.
It is to be understood that the Motor Vehicles Act provides a comprehensive scheme which governs road users. It provides for the registration of motor vehicles, the licensing of drivers and the scheme of third party motor insurance. The Act provides relevant sanctions for the failure to comply with the requirements as outlined. In this context, the penalties outlined in section 74 were intended to provide a deterrent by disqualifying those persons who drive without being properly authorised to do so. It is to be observed that there is a public interest in the court having the relevant powers to implement the penalties intended by Parliament to control repeated flouting of the requirements of the motor vehicles scheme.
It would be illogical and inconsistent with the purpose of the legislative scheme to restrict the operation of section 74(5) to those cases where a conviction is recorded. In the circumstances of this case, and in the context of the legislative scheme, the correct approach to the construction of the term “conviction” includes those cases where a finding of guilt has been arrived at, despite a conviction not being recorded. The process of proceeding without recording a conviction in section 15 of the Sentencing Act is a step subsequent to the adjudication of guilt. Such construction accords with the approach taken in the authorities earlier discussed. The word “convicts” in section 74 should be construed in such a way so that the mandatory disqualification is enlivened to apply to all offenders who commit offences more than once within the three year period stipulated. The fact of the previous offence having been committed is what is relevant for the purposes of the mandatory penalty, not the formality of guilt being recorded by way of conviction. As a consequence the provisions of section 74(5) of the Motor Vehicles Act are enlivened whether or not an individual has been formally convicted of the relevant previous offence and whether or not that individual has been formally convicted of the subsequent offence.
Reach of Sections 15 and 16 of the Sentencing Act
Following on the determination of the meaning of “conviction”, a further question remains for consideration: does the enlivening of section 74(5) have the correlative effect that section 15 cannot be validly utilised to avoid the imposition of the mandatory licence disqualification contained in section 74(5). The determination of this question raises for consideration the interpretation of section 15 of the Sentencing Act and whether that section has a different reach and effect than section 16 of the Act. In undertaking this consideration, the terms of section 20 of the Sentencing Act must be examined to ascertain whether that section operates to prevent section 15 from overriding section 74(5) in light of the terms of section 74(5)(b) which expressly prohibits the reduction, mitigation or substitution of the penalty mandated. Anderson J in Betts held that section 15 could not be utilised in this way, but these observations were made without detailed reasons and by way of obiter.
Counsel for the Police contended that the effect of the construction of the word “conviction” as including an adjudication of guilt, meant that section 74(5) of the Motor Vehicles Act applied and as a consequence, section 15 of the Sentencing Act was not available to be utilised to overcome the mandatory penalty stipulated by section 74.
It is convenient to again set out the relevant sections. Section 15 of the Sentencing Act provides:
(1) Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—
(a) without recording a conviction, dismiss the charge; or
(b) upon recording a conviction, discharge the defendant without penalty.
(2) A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.
Section 74 of the Motor Vehicles Act relevantly provides:
(2) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b)is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
…
(5) Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c)if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(6) In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
It is evident on the face of the provisions as excerpted that there is an apparent inconsistency between the provisions of the Motor Vehicles Act on the one hand and the Sentencing Act on the other. The terms of section 74(5)(b) suggest that in enacting the Motor Vehicles Act, Parliament sought to ensure that the penalty for particular offending conduct is to be imposed without any reduction, mitigation or substitution of penalty. However, this mandate is to be assessed in the context of the provisions of the Sentencing Act which, pursuant to section 15, provide the Court with the discretion to proceed without recording a conviction or imposing any penalty despite any minimum penalty otherwise applicable. In these circumstances, the question of the interaction between the general provisions of the Sentencing Act and the earlier provisions of the Motor Vehicles Act, arises for consideration.
The maxim generalia specialibus non derogant articulates the presumption that a general provision does not impliedly repeal specific provisions. As was stated by O’Connor J in Goodwin v Phillips:[26]
Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.
[26] Goodwin v Phillips (1908) 7 CLR 1 at 14.
The rationale underlying the approach and maxim was explained in Maybury v Plowman[27] where Barton ACJ observed:
The judgment under appeal turns upon the application of the principle involved in the maxim "generalia specialibus non derogant" to cases in which the Legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision. In the case of Re Smith's Estate, Clements v Ward, 35 Ch D 589, Stirling, J, stated the rule in terms which the learned Chief Justice has quoted in the Supreme Court, and which I need not repeat. But I wish to quote a passage from the judgment of Wood, VC., in Fitzgerald v Champneys, 2 J & H. 31 at p 54, quoted by Stirling, J, in the case cited — 35 Ch D 589 at p 595 — as follows: —
The reason in all these cases is clear. In passing the special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstance of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.
[27] Maybury v Plowman (1913) 16 CLR 468 at 473-474.
The relationship between two Acts and the question of whether one qualifies the operation of the other “must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims”.[28] As a consequence each case must be considered in accordance with the particular language utilised in the provisions in question.
[28] Cobiac v Liddy (1969) 119 CLR 257 at 268 (Windeyer J).
It is to be observed that the application of the maxim of generalia specialibus is subject to the overriding consideration that the general legislation may not have been intended to be subject to the special legislation. As was observed by the Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council:[29]
The principle [generalia specialibus non derogant] is, of course, unexceptionable, but cases are rarely so simple as this, for even where the earlier statute deals with a particular and limited subject-matter which is included within the general subject-matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact or is superseded, and the cases in which the latter has been held are almost as numerous as the former.
[29] Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353 at 359.
In the circumstances of the within proceeding, it is first necessary to consider whether section 15 and of the Sentencing Act and section 74 of the Motor Vehicles Act may stand together or whether there is an irreconcilable conflict between the provisions.[30] The particular question to be answered is whether the discretion conferred by section 15 of the Sentencing Act is qualified by the mandate contained in the earlier Motor Vehicles Act that the disqualification attracted cannot be mitigated of substituted in any way.
[30] Fonteio v Morando Bros Pty Ltd [1971] VR 658; Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353; Ombudsman v Laughton (2005) 64 NSWLR 114.
In order to assess whether sections 15 and 74 can stand together it is necessary to examine the surrounding legislative context.
The Sentencing Act contains a number of provisions in addition to section 15, which enable the court to proceed without recording a formal conviction on the offender’s record. For example section 16 provides for the imposition of penalty without conviction as follows:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Similarly, section 39 provides for the discharge without penalty on the defendant entering into a 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.
In addition, the Sentencing Act contains a number of provisions which authorise the court to reduce or substitute certain penalties. In this respect, section 17 provides for the reduction of a minimum penalty as follows:
Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to—
(a)the character, antecedents, age or physical or mental condition of the defendant; or
(b) the fact that the offence was trifling; or
(c) any other extenuating circumstances,
is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
Section 18 provides the Court with power to add or substitute certain penalties as follows:
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.
These powers are to be understood as being qualified by the terms of section 20 of the Sentencing Act, which provides:
Nothing in this Division—
(a) affects the sentence to be imposed by a court for murder or treason; or
(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
It is apparent that each of these provisions has different work to do, and the power contained in section 15 is distinct from those contained in sections 16, 17, 18 and 39. The powers in each of the latter provisions enable the court to exercise flexibility in sentencing by allowing the reduction, mitigation or substitution of penalties or sentences to be imposed. Sections 17 and 18 in particular involve the reduction and substitution of a penalty otherwise to be imposed. It is evident that the terms of section 20 would operate to prevent the exercise of the powers provided by these sections where a special Act, such as the Motor Vehicles Act, expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
A court is similarly constrained from proceeding without recording a conviction pursuant to section 39, but nevertheless imposing a licence disqualification penalty, whether mandatory or discretionary. This constraint was addressed in Miles[31] where Kourakis J noted that the wording of section 39 whereby the court may discharge a defendant “without imposing a penalty”, makes it clear that the court cannot proceed by not recording a conviction pursuant to section 39 of the Act, but yet proceed to impose a licence disqualification. It is to be noted that although the court may utilise section 39 to proceed without imposing a penalty, the bond itself may be characterised as a penalty, as the offender’s liability for sentence remains.
[31] Miles v Police (2009) 104 SASR 127 at [63].
Similarly, this Court has found that the power to proceed without recording a conviction under section 16 is not available where the penalty involves the imposition of a mandatory licence disqualification, due to the criteria contained in that section whereby it is only enlivened where the court proposes to impose a fine, a sentence of community service, or both. In Hyde[32] Bleby J held that that criterion was exclusive of any other proposed penalty for the offence, whether required to be imposed or merely proposed in the exercise of the court’s discretion, and as a consequence, section 16 was not available where a mandatory period of licence disqualification was to be imposed.[33]
[32] Hyde v Police (2006) 246 LSJS 275 at [32]; applied in Police v McDiarmid [2010] SASC 178 at [15], [18] (Kelly J).
[33] See also the reasons in Janz v Woolven (1990) 55 SASR 239 at 242 (King CJ, with whom Duggan & Mullighan JJ agreed) finding that as a consequence of section 20, the power in section 16 cannot be exercised so as to avoid the mandatory licence disqualification.
The terms of sections 16, 17, 18 and 39 are to be compared and contrasted with those of section 15.
Section 15 provides the court with a power to discharge a defendant without recording a conviction and without any penalty, in the event that the offence is so trifling that it is inappropriate to impose any penalty. The drafting of section 15 explicitly recognises that some offences are of such a trivial nature that the imposition of any penalty at all would be inappropriate. The power to discharge without any penalty cannot be characterised as a “reduction, mitigation or substitution of penalty”. The meaning of “mitigation” was discussed by Bray CJ in McLean v Kowald in the context of considering whether the suspension of a sentence of imprisonment, mitigated the sentence that would otherwise be served. His Honour observed:[34]
…Mitigation in legal language is no doubt “the abatement of anything penal, harsh or painful” (Wharton’s Law Lexicon, 14th ed. (1938)). One of the definitions of the verb “mitigate” in the New English Dictionary is “to reduce the severity of a punishment”. …
Similarly, the Maquarie dictionary provides, inter alia, that to “mitigate” is “to lessen in force or intensity; …to moderate the severity of (anything distressing)”, whilst “mitigation” is defined as “the act or fact of mitigating; a reduction or attempt to secure a reduction in damages or punishment…”.
[34] McLean v Kowald (1979) 9 SASR 384 at 389.
The utilisation of section 15 does not reduce the severity of a punishment, as it applies only in those circumstances where the court considers that the trivial nature of the offence does not warrant any punishment at all. A discharge without penalty in those circumstances does not in ordinary parlance constitute a “reduction, mitigation or substitution” of penalty.
In this respect, section 15 stands apart from the other provisions outlined which provide the courts with flexibility in sentencing. Section 15 is not designed to ameliorate the rigours of the law, but rather to bypass them altogether in the appropriate case. Section 15 in that respect can be contrasted with the other two sections which enable the court to proceed without recording a conviction. Section 16 involves the fulfilment of particular pre-requisites in circumstances where the court is to impose a fine or bond or both. Similarly, section 39 involves the discharge of a defendant on entry into a bond. Both of these sections involve the imposition of a penalty. It is to be observed that if the court saw it appropriate to proceed under these sections and impose a penalty on a defendant without recording a conviction, the earlier discussed interpretation of “conviction” would result in the disqualification mandated by section 74(5) being enlivened. However, in contrast to section 15, those sections could not be utilised to override the mandatory minimum penalty as they operate to mitigate or reduce that penalty. Although the use of section 15 enlivens section 74(5), the section confers a power which is available to circumvent the operation of that section. It is relevant to note that of the sections outlined, section 15 is the only provision which specifically notes that a court may exercise the powers conferred by the section despite any minimum penalty fixed by a special Act.
It is to be observed that if the power in section 15 could not be utilised in the event of the commission of a subsequent offence within the meaning of section 74(5), manifest injustices could arise. Offending of a truly trivial nature may be contemplated which would otherwise attract the operation of section 74. Section 15 is a power capable of being exercised to avoid such eventualities.
Nature of Mini- Motorcycle and Registration Requirements
On the hearing of the appeal, the nature of the mini-motorcycle arose for consideration.
Counsel for the defendant foreshadowed the filing of a cross-appeal against the findings of guilt the subject of the appeal. Although not identified in the proposed notice, it was said that the defendant wished to withdraw his guilty pleas to the charges, as the defendant did not have the benefit of legal advice at the time of entering those pleas and did not understand that he had a viable defence. It was said that in relation to the charges of driving unregistered and uninsured, the mini-motorcycle was not a vehicle for the purposes of registration and insurance under the Motor Vehicles Act, did not require registration and insurance, and in fact was not capable of being registered or insured. In relation to the charge of driving while unauthorised, it was said that the mini-motorcycle did not require a licence to drive and was not a vehicle of a “particular class” within the meaning of section 74(2) of the Motor Vehicles Act.
Counsel for the defendant foreshadowed the seeking of an order setting aside the sentence of the Magistrate and a remittal of the matter, to allow the pleas to be withdrawn and for the matter to proceed as a contested hearing. At the appeal hearing, it became apparent that this course was potentially open to the defendant if the Police appeal was granted and the matter remitted. Counsel for the defendant indicated that the proposed notice of cross-appeal would not be pursued in this Court.
The defendant’s contention that the mini-motorcycle was not a motor vehicle within the meaning of the Motor Vehicles Act was fully addressed during submissions on appeal. Notwithstanding the abandonment of the proposed notice of cross-appeal, I consider it appropriate to express my view on this question.[35]
[35] I do not propose to address the submission that the mini-motorcycle was of a particular class for which a person cannot obtain a drivers licence. That submission can only sensibly arise on the proposed application to withdraw the plea.
It was accepted by both parties that the mini-motorcycle was not capable of being registered as it did not meet the design criteria to enable registration in South Australia.[36]
[36] It is to be noted that during the course of submissions, counsel for the defendant contended that the threshold for registration is an engine capacity of 50cc and as the mini-motorcycle was of a capacity of 49cc it could not be registered. Enquiries made with the transport department suggest that a mini-motorcycle of 49cc capacity may in some circumstances be registered. However, for the purposes of this decision, it was accepted by both parties that the defendant had made express inquiries about registration and the mini-motorcycle under consideration could not be registered and was not registered.
Counsel for the defendant submitted that the mini-motorcycle was not capable of being registered as a motor vehicle and was not capable of being insured, and that accordingly, the defendant could not be convicted of the offences of driving whilst unregistered and uninsured. A number of further submissions were put with respect to the engine capacity of the mini-motorcycle and the fact that the mini-motorcycle is of a particular class for which a person cannot obtain a driver’s licence. Ultimately it was said that the mini-motorcycle was not contemplated by the Motor Vehicles Act and as a consequence the registration and insurance requirements contained therein did not apply.
The Police contended that to be driven on public roads, all motorised vehicles must be registered, unless expressly exempted from the legislative scheme. It was submitted that as a consequence, the defendant’s actions constituted an offence notwithstanding the fact that the mini-motorcycle could not be registered.
The particular question for consideration is whether the mini-motorcycle is a motor vehicle for the purposes of the Motor Vehicles Act, thereby attracting the registration requirements, duties and associated offences.
The Motor Vehicles Act creates a scheme providing for the registration of motor vehicles, drivers licences and third party motor insurance. Section 24 of the Motor Vehicles Act outlines the duty to grant registration and relevantly provides for the Registrar’s power to refuse registration:
(1)On application duly made and payment of the prescribed fee, the appropriate insurance premium and the stamp duty (if any) payable on the application, the Registrar must, subject to this Act—
(a) register the motor vehicle in the register of motor vehicles—
(i) for a period of 12 months or one, two or three quarters; or
…
(2)The Registrar may refuse to register a motor vehicle pending investigations (which may include examination of the vehicle)—
(a) to verify any information disclosed in the application or any evidence provided by the applicant in response to any requirement of the Registrar under this Act; or
(b) to ascertain whether the vehicle—
(i)complies with an Act or law that regulates the design, construction or maintenance of such a vehicle; or
(ii)would, if driven on a road, put the safety of persons using the road at risk; or
(iii) is or may be stolen.
(3) The Registrar may refuse to register a vehicle if—
(a) the Registrar reasonably believes that information disclosed in the application or any evidence provided by the applicant in response to a requirement of the Registrar under this Act is or may be inaccurate, incomplete or misleading; or
(b) the vehicle—
(i)does not comply with an Act or law that regulates the design, construction or maintenance of such a vehicle; or
(ii)would, if driven on a road, put the safety of persons using the road at risk; or
(c) the Registrar reasonably believes that the vehicle is or may be stolen; or
(ca) the vehicle is of a class prescribed for the purposes of this section; or
(d) registration of the vehicle in another State or Territory of the Commonwealth has been cancelled or suspended for reasons that still exist; or
(e) there are unpaid fines or pecuniary penalties arising out of the use of the vehicle in another State or Territory of the Commonwealth.
The duty to register a motor vehicle and the offences created by failing to register a motor vehicle are outlined by section 9 of the Act, which provides:
(1)A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $2 500.
(2)It is a defence to a charge of an offence against subsection (1) to prove, in a case where the registration of the motor vehicle was not in force by reason of suspension and the defendant was not a registered owner or the registered operator of the vehicle, that—
(a) a registration label was affixed to the vehicle indicating that the vehicle was registered; and
(b) the defendant did not know, and could not reasonably be expected to have known, that the registration of the vehicle was suspended.
(3)If an unregistered motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $2 500.
(4)It is a defence to a charge of an offence against subsection (1) or (3) to prove that the motor vehicle was driven or left standing on a road in circumstances in which this Act permits a motor vehicle without registration to be driven on a road.
(5)It is a defence to a charge of an offence against subsection (3) to prove that, in consequence of some unlawful act, the vehicle was not in the possession or control of the defendant at the time it was left standing on the road.
(6)It is a defence to a charge of an offence against subsection (3) where the defendant is the last registered owner or last registered operator to prove that the defendant was not the owner or the operator of the motor vehicle, as the case may be, at the time of the alleged offence.
(7) In this section—
owner, in relation to a motor vehicle, includes the last registered owner and the last registered operator of the vehicle;
unregistered motor vehicle means a motor vehicle without registration in force under this Act.
It is to be noted that section 9(4) in effect provides that it is a defence to the charge of driving while unregistered if the vehicle or circumstance in which the vehicle was driven are exempted from registration under the Act. The Motor Vehicles Regulations 2010 (SA) sets out specific exemptions from the requirements of registration. These exemptions include exemption from registration and insurance for: certain vehicles used by disabled persons;[37] certain vehicles driven by or at direction of police officers or other authorised persons;[38] vehicles being towed by towtrucks;[39] golf carts and mopeds;[40] self-propelled elevating work platforms;[41] and, power-assisted pedal cycles.[42]
[37] Motor Vehicles Regulations 2010 (SA) section 5.
[38] Motor Vehicles Regulations 2010 (SA) section 6.
[39] Motor Vehicles Regulations 2010 (SA) section 7.
[40] Motor Vehicles Regulations 2010 (SA) section 8.
[41] Motor Vehicles Regulations 2010 (SA) section 9.
[42] Motor Vehicles Regulations 2010 (SA) section 10.
Section 5 of the Motor Vehicles Act defines a “motor bike” and a “motor vehicle” as follows:
motor bike means a motor vehicle (not being a trailer) with two wheels, and includes a two wheeled motor vehicle with a sidecar attached to it that is supported by a third wheel;
motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle;
It is apparent that the mini-motorcycle fits within the above definitions, being a two wheeled vehicle that is built to be propelled by a motor that forms part of the vehicle. It is further apparent that the mini-motorcycle is not captured by any of the specific exemptions from registration provided in the Motor Vehicles Regulations outlined above.
The purpose of the Motor Vehicles Act is to ensure that vehicles which are potentially dangerous to road users if driven on the road, are appropriately registered and insured. The Act provides a comprehensive scheme for the registration and insurance of all motor vehicles with the exception of specifically exempted vehicles. In these circumstances, a motor vehicle which is not exempted must be registered in order to be lawfully driven on public roads. The corollary of this analysis is that if the particular motor vehicle in question cannot be registered, it ought not be driven on the public road. It is to be observed that there are numerous reasons why a motor vehicle may not be registered, including those entitling the Registrar to refuse registration of a vehicle outlined in section 24 of the Act.
The mini-motorcycle, being a motor vehicle not exempted from registration, but not capable of being registered, is not a vehicle capable of being lawfully driven on a public road. It was an offence to drive the vehicle unregistered and uninsured on the public road. The submissions of counsel with respect to the size of the motor and the classification of licence are irrelevant to this analysis. The contention that the mini-motorcycle constitutes a category of vehicle not contemplated nor covered by the Motor Vehicles Act should also be rejected. As discussed, absent an exemption from registration, the Motor Vehicles Act requires all motor vehicles on the road to be registered and insured.
Conclusion
In the circumstances of the within proceeding the appeal should be allowed. The failure to accord procedural fairness to the Police and the consideration of extraneous matters when assessing whether the offence was trifling, warrant the setting aside of the orders of the Magistrate. It is appropriate to remit the matter for rehearing.
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