Police v Mayman

[2005] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v MAYMAN

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Layton)

16 June 2005

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES

Appeal against decision of single Judge of the Supreme Court - appellant convicted of driving without a licence contrary to s 74 of the Motor Vehicles Act which was repealed and substituted by the Statutes Amendment Act (Road Safety Reforms) Act 2003 No. 8 on 15 December 2003 - appellant prosecuted under s 74(2) of the amended Act - whether the conviction under the earlier s 74 is a prior offence for the purpose of s 74(6) in convicting the appellant for a subsequent offence which carries a heavier penalty.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION

Statutory interpretation of the Motor Vehicles Act in its former and present form - whether s 74 in its amended form created two distinct offences - whether ambiguity construed in favour of the subject - offence in amended section substantively the same - not two distinct offences - no ambiguity in the intention of Parliament to regulate the conduct of driving whilst unlicensed - appeal allowed - matter remitted to Magistrates Court with direction that the current offence be seen as a subsequent offence.

Motor Vehicles Act 1959 s 74; s 75; Statutes Amendment (Road Safety Reforms) Act 2003 ., referred to.
Police v Whitehouse [2005] SASC 220, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"Subsequent Offence - and -
against the section"

POLICE v MAYMAN
[2005] SASC 219

Full Court:  Duggan, Besanko and Layton JJ

1. DUGGAN J:         I would allow the appeal and set aside the orders of the judge appealed from and the orders of the magistrate.

2. I would remit the matter to the magistrate to be dealt with in accordance with the reasons given by Layton J and the further reasons given by me in Police v Whitehouse [2005] SASC 220.

3. BESANKO J:  In my opinion this appeal should be allowed and the order of the Judge below dismissing the appeal to him should be set aside.  The sentence imposed by the Magistrate must be set aside and the matter remitted to him for sentencing in accordance with the reasons of this Court.  I am in substantial agreement with the reasons of Layton J in Police v Whitehouse [2005] SASC 220. I agree with the additional observations of Duggan J in that appeal.

4. LAYTON J:  This is an appeal by the Police to the Full Court against the judgment of White J, a single Judge of the Supreme Court dated 25 November 2004.  The appeal is brought by leave granted 16 December 2004.

5. This appeal was heard concurrently with the hearing of the appeal in Police v Whitehouse [2005] SASC 220. Counsel for the appellant made the same submissions on the issue of statutory interpretation of s 74 of the Motor Vehicles Act 1959 (“the Act”) as in Police v Whitehouse.  Counsel for the respondent made similar submissions for the respondent, Mayman as in the appeal in Police v Whitehouse and these submissions are treated as the same for both appeals.

6. The respondent, was sentenced for the offence of driving a vehicle when not authorised to do so contrary to s 74 (2) of the Act and ordered to pay $500 in fines plus court fees, Victims of Crime Levy and prosecution costs. The respondent had previously been convicted of one offence of driving without a licence on 9 November 2002 under the earlier s 74. The magistrate in convicting the respondent did not take into account the respondent’s prior conviction for the purposes of the mandatory penalties prescribed by the Statutes Amendment (Road Safety Reforms) Act 2003 as he found this conviction was before the 15 December 2003 amendments to s 74.

7. The appellant, appealed to White J on the point that the magistrate did not take into account the previous offences as “subsequent offences” when sentencing the respondent, as required by s 75(5) of the Act.

8. His Honour found that the magistrate was correct in the approach to s 74 adopted in both Police v Whitehouse and Police v Mayman and dismissed both appeals.

9. On this appeal to the Full Court, for the same reasons I gave in Police v Whitehouse [2005] SASC 220. I would allow the appeal and I would remit it to the Learned Magistrate with a direction that the offence committed by the respondent against s 74 prior to the Statutes Amendment (Road Safety Reforms) Act 2003 coming into operation on 15 December 2003, amounts to a subsequent offence within the meaning of s 74 (6) Motor Vehicles Act 1959. The Magistrate should reconsider the sentence to be imposed in light of this direction.