Police v MAYMAN

[2004] SASC 372

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v MAYMAN

Judgment of The Honourable Justice White

25 November 2004

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES - AMBIGUITY AND GENERAL WORDS

Respondent convicted of driving a vehicle when not authorised to do so - Respondent had previously been convicted of an offence against an earlier version of the same section - Magistrate sentenced respondent on the basis that present offending did not constitute a "subsequent offence" - Construction of s 74(6) of Motor Vehicles Act 1959 as amended by Statute Amendment (Road Safety Reforms) Act 2003 - Meaning of "against this section" - Words ambiguous - Issue of construction resolved in favour of respondent - Appeal dismissed for the reasons given in R v Whitehouse [2004] SASC 371.

Magistrates Court Act 1991, s 42; Motor Vehicles Act 1959, s 74; Statutes Amendment (Road Safety Reforms) Act 2003, referred to.
Police v Whitehouse [2004] SASC 371, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"subsequent offence", "against this section"

POLICE v MAYMAN
[2004] SASC 372

Magistrates Appeal

1. WHITE J               This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 by the prosecution against a sentence imposed by a Magistrate.

2. This appeal raises the same question of statutory interpretation as that involved in the appeal in Police v Whitehouse [2004] SASC 371 in which I have delivered judgment this day.

3. The hearing of this appeal followed immediately after the hearing of the appeal in Police v Whitehouse.  Mr Powell, who appeared for the appellant, asked that the submissions on the issue of statutory construction which he had made in support of the appeal in Police v Whitehouse be regarded as having been made in this matter also.  The respondent, for his part, asked that I treat the submissions made by the respondent to the appeal in Police v Whitehouse as having been made on his part on this appeal.

4. The respondent was sentenced for the offence of driving a motor vehicle on a road when not authorised to do so in contravention of s 74(2) of the Motor Vehicles Act 1959. The offence occurred on 6 February 2004 at Salisbury North. It was further alleged against the respondent that he had not, as at that date, ever been authorised either in South Australia or under the law of any other State or territory to drive a motor vehicle of the class which he was then driving.

5. The Magistrate entered a conviction and imposed a fine of $500 in addition to court fees, Victims of Crime Levy and prosecution costs.

6. The respondent had previously been convicted for the offence of driving without a licence, contrary to s 74 of the Motor Vehicles Act.  The previous offence had occurred on 9 November 2002.  A conviction had been entered against the respondent for that offence on 14 April 2003. 

7. The Magistrate said that he would not regard the events committed on 6 February 2004 as a subsequent offence. He said that he was not required pursuant to s 74(6) to take account of the prior conviction because it had been entered before the Statutes Amendment (Road Safety Reforms) Act 2003 came into operation on 15 December 2003.

8. On this appeal, it was argued that the Magistrate was in error in taking that approach.

9. For the reasons which I gave in Police v Whitehouse, I consider that the Magistrate was correct in the approach which he adopted.  For those same reasons, I dismiss the appeal.