Police v Whitehouse - [2005] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v WHITEHOUSE
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 from appeal against decision of Magistrate - appellant convicted of driving without a licence contrary to s 74 of the Motor Vehicles Act 1959 which was repealed and substituted by the Statutes Amendment Act (Road Safety Reforms) Act 2003 - appellant prosecuted under s 74(2) of the amended Act - whether the conviction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 the s 74(6) in convicting the appellant for a subsequent offence which carries a heavier penalty.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES - AMBIGUITY AND GENERAL WORDS
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 - matter remitted to Magistrates Court with direction that the current offence be seen as a subsequent offence - appeal allowed.
Magistrates Court Act 1991 s 42; Motor Vehicles Act 1959 s 74(1), (2), (3), (5), (6); s 75; s 91(5); Statutes Amendment (Road Safety Reforms) Act 2003; Licensing Act 1967; Motor Vehicles Act 1921; Criminal Law Consolidation Act 1935; Road Traffic Act 1961; Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992, referred to.
Bartlett v D'Rozario [1971] SASR 88; Beckwith v The Queen (1976) 135 CLR 569; Hennig v Robertson (1937) SASR 400; Pisanelli v Samuels (1968) SASR 168; Bond v Alderson (1929) SASR 313; Pointon v Police (2004) 232 LSJS 127; R v Adams (1935) 53 CLR 563; R v Austin [1913] 1 KB 551; R v Hietanen (1989) 51 SASR 510; R v Palaga (2001) 80 SASR 19, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"subsequent offence
and
against this section"

POLICE v WHITEHOUSE
[2005] SASC 220
Full Court: Duggan, Besanko and Layton JJ

DUGGAN J : I agree with the view of Layton J that the appeal should be allowed and I am in substantial agreement with her reasons. I add these observations.
It is not uncommon for penal statutes to provide for higher penalties in those cases in which the current offence is a “subsequent offence” for the purposes of the legislation. In the present case, the respondent committed an offence against s 74 of the Motor Vehicles Act, 1959 (“the Act”) before the section was amended by the Statutes Amendment(Road Safety Reforms) Act 2003 (the 2003 amendment) so as to prescribe a higher penalty for a subsequent offence. No retrospectivity is involved in the legislation as it does not punish an act which was not previously an offence; it simply takes into account the fact of the previous conviction as a circumstance relevant to sentencing for a subsequent offence: R v Austin [1913] 1 KB 551 at 556; Bond v Alderson [1929] SASR 313 at 315.
In its amended form s 74 provides that a first offence for the purpose of imposing penalty is “any previous offence against this section or s 91(5) for which the defendant has been convicted”. The issue in the present case is whether these words have any application to an offence committed against s 74 prior to the 2003 amendment. The argument that they do not refer to such an offence is based on changes which were made to the definition of an offence or offences against s 74 pursuant to the 2003 amendment.
In its present form s 74 creates two offences which punish the driving of a motor vehicle of a particular class on a road whilst unauthorised to do so. The effective difference between these two offences is that an offender who has never been authorised to drive a motor vehicle of that class on the road is liable to a higher maximum fine than in the case of an offender who has previously been so authorised.
Prior to the 2003 amendment, s 74 provided for a single offence of driving a motor vehicle of a particular class without being authorised to do so. The section did not make any distinction dependent upon whether the offender had been authorised previously to drive a motor vehicle of the particular class.
In my view it is appropriate to consider the re-definition of the conduct proscribed by s 74 against the background of the procedural considerations which arise when the relevant legislation specifies circumstances of aggravation relevant to penalty. In R v Hietanen (1989) 51 SASR 510 King CJ said at 514:
The above citations show that it has been authoritatively laid down by the High Court that where a statute fixes different penalties for an offence by reference to the existence or non-existence of circumstances of aggravation, there is a rule of practice that the circumstances which would expose the accused to the higher penalties must be pleaded in the charge and, if issue is joined, must be adjudicated upon by the jury or other tribunal of fact. This situation is not to be confused with the ordinary case in which facts relevant to the exercise of the sentencing discretion within the prescribed range of penalties are decided by the sentencing judge and need not be pleaded.
In some situations reference to circumstances of aggravation can lead to confusion as to whether more than one offence is created: R v Palaga (2001) 80 SASR 19. This difficulty can be addressed by including the circumstance of aggravation in the definition of the offence. In the present case, the legislation took the matter one step further and created two offences, one of which included as an element of the offence the circumstance of aggravation.
However, the present and former legislation, looked at as a whole, punish the same conduct. What was an offence before the amendment remains an offence under the present legislation. In other words, the present legislation does not expand the extent of offending dealt with under the former legislation. The only relevant distinction between the two sets of provisions in this respect is that the legislation now provides for two offences so as to reflect a circumstance of aggravation and, presumably, to ensure that it is properly pleaded. In my view, the conduct which is proscribed under the present s 74 is substantially the same as that which was proscribed by the former section: Pointon v Police (2004) 232 LSJS 127 and the cases referred to therein.
The wording of the current legislation is capable of referring to an offence against s 74 as the section stood prior to amendment. I am unable to agree that Parliament intended otherwise. It was conceded on the hearing of the appeal that offences against s 91(5) of the Act committed prior to the 2003 amendment could be taken into account as a first offence for the purposes of the amended section. It would be a curious result if Parliament intended this to occur whilst, at the same time, excluding pre-amendment offences against s 74 from consideration.
Furthermore, I do not think there is any ambiguity in the wording of the amendment which would give rise to the application of the principle of construction referred to by Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 when he said:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at pp 567-568; Craies on Statute Law, 7^th ed. (1971), pp 529-534. The rule is perhaps one of the last resort.
I would allow the appeal, set aside the orders of the judge appealed from and direct that the matter be remitted to the magistrate to be dealt with in accordance with these reasons.
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. I agree with the additional observations of Duggan J.
LAYTON J: The Police appeal to the Full Court against the judgment of White J, a single Judge of the Supreme Court dated 25 November. The appeal is brought by leave granted 16 December 2004. Both Police v Whitehouse[1] and Police v Mayman[2] have been heard concurrently.
[1] Police v Whitehouse [2005] SASC 220.
[2] Police v Mayman [2005] SASC 219.
This appeal concerns the decision of White J to dismiss an appeal pursuant to s 42 of the Magistrates Court Act1991 by the appellant against a sentence imposed by a magistrate.
White J at paragraph 2 of his reasons of decision summarises the issue on appeal as:
2.The appeal raises a question of statutory interpretation. It is a question of whether an offence against s 74 of the Motor Vehicles Act 1959 in its former form is to be regarded as a prior offence for the purposes of sentencing for an offence against s 74 in its present form.
Background Circumstances
On 5 August 2004, the respondent appeared before a magistrate in the Magistrates Court at Elizabeth. The respondent pleaded guilty to one count of driving a motor vehicle of a particular class on a road when not authorised to drive such a motor vehicle, contrary to s 74 (2) of the Motor Vehicles Act 1959 (“the Act”). The respondent had two prior convictions for driving a vehicle without a licence under the former s 74 of the Act. The offences dated 3 November 2001 and 25 August 2003 were prior to the amendments made by Act No 8 of 2003, the Statutes Amendment (Road Safety Reforms) Act 2003 which repealed and substituted the former s 74 with a new s 74.
On 5 August 2004, the respondent was fined $300 by the Magistrate and ordered to pay court fees, Victims of Crime Levy and prosecution costs. No drivers licence disqualification was imposed.
The appellant appealed to White J on the ground that the Magistrate did not take into account the previous offences as “subsequent offences(s)” when sentencing the respondent as required by s 74(5) of the Act. His Honour found that the Magistrate was correct in his approach to s 74 and dismissed the appeal.
The issue on appeal before this Court is whether previous convictions under s 74 of the Act as it stood prior to the Statutes Amendment (Road Safety Reforms) Act 2003, can be taken into account in convicting the respondent for committing a “subsequent offence” under s 74 (5) of the Act. The appeal rests on the statutory interpretation of s 74 in its former and present form.
Before the amendment effected by Act No. 8 of 2003, s 74 (“the previous s 74”) read as follows:
(1)Subject to this Act, a person must not drive a motor vehicle on a road unless –
(a)     the person holds a licence under this Act that authorises the holder to drive a motor vehicle of the class to which the vehicle belongs; or
(b)     the person –
(i)     holds a licence under this Act; and
(ii)has the minimum driving experience required by the regulations for the grant of a licence that would authorise the driving of a motor vehicle of the class to which the vehicle belongs; or
(c)     the person holds a learner’s permit.
Maximum penalty: $1 250.
(2)When the holder of a licence under this Act drives a motor vehicle on a road as authorised under subsection (1)(b), the obligations imposed by section 75A on the holders of learner’s permits and qualified passengers for learner drivers apply to the holder of the licence and any accompanying passenger with such modifications and exclusions as are prescribed by the regulations.
After the amendment effected by Act No. 8 of 2003, which repealed and substituted s 74 and came into operation on 15 December 2003, the new section 74 reads as follows (“the present s74”):
(1)     Subject to this Act, a person who –
(a)     drives a motor vehicle of a particular class on a road; and
(b)    is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
Maximum penalty: $1 250.
(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.
(3)     For the purposes of this section, a person is authorised to drive a motor vehicle of a particular class on a road if –
(a)    the person holds a licence under this Act that authorises the holder to drive a motor vehicle of that class; or
(b)    the person –
(i)    holds a licence under this Act; and
(ii)    has the minimum driving experience required by the regulations for the grant of a licence that would authorise the driving of a motor vehicle of that class; or
(c)     the person holds a learner’s permit.
(4)     When the holder of a licence under this Act drives a motor vehicle on a road as authorised under subsection (3)(b), the obligations imposed by section 75A on the holders of learner’s permits and qualified passengers for learner drivers apply to the holder of the licence and any accompanying passenger with such modifications and exclusions as are prescribed by the regulations.
(5)     Where a court convicts a person of an offence against subsection (2) that is a subsequent offence, 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.
His Honour in dismissing the appeal, concluded in paragraph 27:
Accordingly, I hold that in determining whether an offence against s74 is a subsequent offence for the purposes of s75(5) of the Motor Vehicles Act, regard is not to be had, pursuant to s74(6) to offences committed against s74 prior to be Statutes Amendment (Road Safety Reforms) Act 2003 coming into operation on 15 December 2003.
Reasons of Appeal Judge
In reaching his conclusions, His Honour carefully considered a number of factors.
First, he noted that the language in the section was ambiguous and that there were two possible interpretations.
Second, His Honour considered that the previous s 74 created one offence of driving without being appropriately licensed and experienced, in contrast with the present form of s 74 which His Honour regarded as having created two separate offences.
Under s. 74 in its present form, two separate offences are created. The first is the offence of driving on a road whilst not authorised to do so but where the offender has previously, whether in this State or elsewhere in Australia, held a licence: s 74(1). The second is the offence of driving a vehicle on a road where the offender is not only not authorised to do so but has never been so authorised, whether in South Australia or elsewhere: s 74(2).[3]
[3] Police v Whitehouse (2004) 90 SASR 457 at [16].
Third, His Honour identified a difference in proof required between the two separate offences under the present ss 74(1) and 74(2):
… proof of the offences now requires more than proof of the conduct establishing the previous s74(1) offence. In relation to the present s 74(1) offence, the prosecution must prove additionally that the defendant had previously been licensed, whether in South Australia or elsewhere. Proof of the s 74 (2) offence requires, additionally, proof that the defendant has never previously been authorised to drive a vehicle of the class which he or she was driving.[4]
[4] Ibid at [16].
Fourth, His Honour notes that in some respects the present s74 created both an offence and an aggravated form of the offence when Parliament could have created one offence but with differing penalties depending on whether or not the driver had never previously been licensed. Instead it had created different offences, with the aggravated form carrying a more severe penalty.
Fifth, His Honour notes that the expression “this section” appears in both s 74 (3) and s 74(6) and that the expression in s 74(3) is clearly used to indicate the section in its present form. His Honour however also records that “[i]t is a slight indication only” that s 74(6) should be interpreted in the same way.
Sixth, His Honour has regard to the fact that Parliament can make it plain and unequivocal that it intends to take account not only of an offence against the section itself but also against any corresponding previous enactment and His Honour provides an example of this from other legislation.[5]
[5] Police v Whitehouse (2004) 90 SASR 457 at [21].
Seventh, His Honour notes that s 74 (6) refers not only to a previous offence under “the section” but also to an offence under s 91(5) of the Act[6] which was not amended and therefore any offence under s 91(5) committed within three years of the s 74 offence, is required to be taken into account: which seems somewhat incongruous if previous offences under s 74 could not likewise be taken into account.
[6] S 91 (5) A person must not drive a motor vehicle on a road while his or her licence or learner's permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner's permit.
Eighth, His Honour refers to the fact that the Statutes Amendment (Road Safety Reforms) Act2003 inserted a provision very similar to s 74 (6) in three different Acts. His Honour then concluded that this suggested the focus of Parliament was on the imposition of more severe penalties for second or subsequent offences; therefore to construe s 74(6) as referring only to offences against s 74 as now enacted, may be placing undue emphasis on the words “offence against this section”.
Finally, after referring to and then distinguishing a number of South Australian authorities which are discussed hereafter, His Honour concludes in paragraph 26 of his reasons:
26 In my opinion, the various matters to which I have adverted do not point strongly in either direction. I do however consider that the fact that s 74 creates two new offences should be taken to indicate that the expression “any offence against this section” should be construed as a reference to either one of the new offences. If I am wrong in that view, I hold that section 74 (6) is ambiguous and that in those circumstances like Bray CJ in Bartlett v D’Rozario…I should give effect to the principle that where the canons of interpretation fail to resolve a reasonable doubt as to the meaning of the statutory provision, the benefit of that doubt should be given to the subject. That means that the former of the two alternative constructions should be adopted. [footnote omitted]
Interpretation of s 74

With due respect to His Honour’s careful reasoning, I consider that the approach reflects too narrow an interpretation of the effect of the amending Act and in particular of the application of the construction principles which have been adopted in earlier cases.
Commencing with the earliest of the relevant decisions, in Bond v Alderson[7], the Supreme Court of South Australia considered whether the term “subsequent offence” in s 159 of the Licensing Act 1928 included offences committed before the amendments to that Act. The magistrate as in the case at bar held that the section as amended did not apply when the previous conviction was before the amending Act came into force. In allowing the appeal against the decision of the magistrate not to take into account prior convictions, the court considered that as the description of the offence stayed the same but the penalty changed, an offence of the same kind committed thereafter was seen as a subsequent offence within the meaning of the amended section. Richards J considered the deterrent effect of the amended Act and concluded that it:
… does not follow that an offence of the same kind thereafter committed was not intended to be a subsequent offence within the meaning of the amended section.[8]
[7] (1929) SASR 313.
[8] Bond v Alderson (1929) SASR 313 at 315.
Whilst recognising that this was an example in which only the penalties changed, the principle emerging from the case namely to consider whether an offence was “of the same kind”, has been applied in later cases, not restricted to penalty change.
In Hennig v Robertson[9], by amendment, the scope of the offence under s 26 of the Motor Vehicles Act 1921 of driving under the influence of liquor, was enlarged to include also driving “under the influence of a drug”. This amendment as well as amendments increasing the penalties were the only changes to the statute. Napier J (as he was then) viewed the intention of Parliament as imposing higher penalties in respect of any repetition of the offence and in this respect to increase the deterrent effect of the section. His Honour concluded that:
… the natural reading of this section is that the higher penalties are imposed upon any person who, having previously offended in this way, is again guilty of the same offence.[10]
[9] (1937) SASR 400.
[10] Hennig v Robertson (1937) SASR 400 at 403.
It is to be noted in Hennig[11], that the inclusion of the reference to “driving whilst under the influence of drug” was in fact adding another form by which the offence could be committed which did not exist under the earlier legislation. In that respect the Hennig[12] case is similar to the fact situation at bar. Nonetheless the court expressed the same principle that as it was the same kind of offence, then a previous conviction could be taken into account.
[11] Hennig v Robertson (1937) SASR 400.
[12] Ibid.
The principle in Hennig[13] was subsequently followed in Pisanelli v Samuels[14], where Chamberlain J found that the new section of the Licensing Act 1967 was:
… aimed at exactly the same mischief as the old [section] and penalises exactly the same conduct [even if the penalties may be different].[15]
[13] Ibid.
[14] (1968) SASR 168.
[15] Pisanelli v Samuels (1968) SASR 168 at 171.
In Pisanelli[16] the defendant was convicted of selling liquor without a licence contrary to s 148 of the Licensing Act 1967 and of permitting liquor to be drunk on unlicensed premises contrary to s 136 of the same Act. The defendant had previously been convicted of selling liquor without a licence and of permitting consumption of liquor on unlicensed premises contrary to s 161 and s 150 of the repealed Licensing Act 1932-1966. Like in Bond v Alderson[17] the amendment to s 148 was limited to increased penalty.
[16] Ibid.
[17] (1929) SASR 313.
Submissions for the appellant in Pisanelli[18] included that the previous conviction was for an offence which was substantially different to the present one. This was based on an argument that the term “unlicensed person” has a different meaning because the licences which could be granted under the present Act were different to those under the repealed Act. Although this argument considers the section within the context of the whole Act, it is somewhat similar to the arguments of the respondent in the case at bar that the present s 74 of the Act creates two separate offences, with an additional element to be proved namely that the offender had not previously been authorised to drive. However the court in Pisanelli[19] found that the fact that there may have been other forms of licence for which the appellant could apply, did not change the fact that he was an “unlicensed person” for the purposes of the Licensing Act 1967. The court in Pisanelli[20] held that the essence of the offence was still the permission required for drinking on unlicensed premises and this meant subsequent offences under the repealed section could be taken into account.
[18] Pisanelli v Samuels (1968) SASR 168.
[19] Ibid.
[20] Ibid.
In applying the reasoning of the court in Pisanelli[21], parallels to the case at bar can be drawn. The deciding factor is not whether the appellant had ever previously been authorised to drive a motor vehicle of that class on a road under the Act or any other law of another State or Territory of the Commonwealth as referred to in s 74 (1) (b) and (2) (b), but the fact that the appellant was unlicensed and unauthorised to drive. This interpretation favours the conclusion that the amended s 74 and the presently enacted s 74 regulate the same conduct even if the penalties may be different.
[21] Ibid.
The final and most recent case to be considered is Pointon v Police[22]. In that case the legislation under consideration on appeal against sentence was an offence under s 86A of the Criminal Law Consolidation Act1935 and an offence under s 44 of the Road Traffic Act1961. The appellant in Pointon[23] was previously convicted of the illegal use of a motor vehicle contrary to s 44 of the Road Traffic Act1961 which was repealed by the Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 and replaced by s 86A (1) of the Criminal Law Consolidation Act. Gray J after discussing the above authorities and others, concluded that s 86A:
… was the same in substantive effect as the offence created by section 44. Both offences are described in all but identical language.[24]
[22] Pointon v Police (2004) 232 LSJS 127.
[23] Ibid.
[24] Ibid.
This was notwithstanding that the offences committed were under different legislation. Gray J applied the same reasoning as Napier J in Hennig[25] and concluded that:
the intention to confer anything in the nature of an immunity upon persons who had already offended in the same way would be purely capricious.[26]
His Honour also concluded that the effect of any changes or amendments to the legislation by the alteration of the penalties was to increase the deterrent effect of this section.
[25] Hennig v Robertson (1937) SASR 400.
[26] Ibid.
White J in his reasons for decision as outlined above in arguments six and eight, referred to the intention of Parliament in amending legislation to impose stricter penalties for second and subsequent offences. Whilst regarding the fact that Parliament can make it plain that it intends to take into account prior convictions in previous enactments, His Honour at para 21 recognises that,
…to construe s 74 (6) as referring only to offences against s 74 as now enacted may be placing undue emphasis on the words “offences against this section.
In Pisanelli,[27] Chamberlain J also considered the legislative intention of the amendments increasing penalties for repeat offenders as being inherent in the regulation of the liquor licensing system. Similarly in Pointon[28], Gray J in finding the term “subsequent offence” in s 86A Criminal Law Consolidation Act to include earlier offences against s 44 of the Road Traffic Act referred at para 36 to the intention of the legislature to increase penalties for people who had previously been found guilty of the same offence. This was despite the fact that the offence in that case appeared in different legislation as it was held that it remained the same in substantive effect.
[27] Pisanelli v Samuels (1968) SASR 168.
[28] Pointon v Police (2004) 232 LSJS 127.
The common factor in all of these cases regardless of whether the amendment was limited to a change either of penalties; or the scope of the offence; or the ingredients of offence; or the use of different wording in describing the offence, the essential consideration was whether the amended offence is the same in that the offences are “exactly the same in substance” though clearly if they are, the argument is irrefutable.
Applying these principles to this case, it appears that the present s 74 has merely identified and articulated more specifically, conduct which had previously been included in an all-embracing offence. In other words, the conduct present in ss 74 (1) and 74 (2) would have amounted to an offence under the earlier s 74(1); the wording of the present s 74 (3) is in very similar terms to the previous s 74 (1) and the present s 74 (4) is in almost the same terms as s 74 (2) of the previous legislation. Therefore to adopt the wording of Gray J the previous s 74 was the same in substantive effect as the offence created by the current section[29].
[29] Ibid.
In addition it is also to be noted, as indeed the appeal judge did at argument seven of His Honour’s reasons for decision, that it would be anomalous if previous offences under s 91(5) could be taken into account as previous offences under s 74(6) but more closely related offences under the previous s 74, cannot.
For these reasons therefore, any potential ambiguity which exists in the interpretation of the section can be resolved by applying these principles, and results in an interpretation whereby offences committed against s 74 prior to the Statutes Amendment (Road Safety Reforms) Act2003 coming into operation, being able to be taken into account as subsequent offences within the meaning of s 74 (6) of the present Act. The alternative interpretation considered by White J in his first five reasons for decision as outlined above would produce anomalous results so that persons convicted of serious offences under the previous legislation could not have those offences taken into account under the subsection, when the purpose of the amendment was to increase the penalty to better reflect the seriousness of the offences. Further, as Gray J stated in Pointon[30], the
… legislature did not intend to offer an immunity to persons who had already committed the same offence.
Whilst White J considered that the Magistrate in this case did not in his approach provide some “immunity” to the respondent, there is an immunity arising from such offences not being taken into account as a “subsequent offence” under s 74(6), namely the respondent is not exposed to a mandatory minimum disqualification period of 3 years. In this case the respondent was able to avoid any disqualification period.
[30] Pointon v Police (2004) 232 LSJS 127.
Ambiguity
A final consideration is the argument with regard to ambiguity. His Honour reached a conclusion on this point in his reasons of decision in paragraph 26 when he said:
I should give effect to the principle that where the canons of interpretation fail to resolve a reasonable doubt as to the meaning of the statutory provision, the benefit of that doubt should be given to the subject. That means that the former of the two alternative constructions should be adopted.
His Honour considered the reasoning of Bray CJ in Bartlett v D’Rozario[31] in giving the benefit of the doubt to the accused in light of an ambiguity in s 74 of the Act. In Bartlett,[32] the benefit of the doubt was considered within the meaning of “subsequent offence” in the context of two offences under the same Road Traffic Act1961-1967. The previous conviction involved attempting to set a vehicle in motion whilst intoxicated and the offence in question was driving whilst intoxicated. The issue on appeal in Bartlett[33] was whether a conviction for a breach of s 47 (1) (a) of the Act should be treated as a conviction for a second or subsequent offence when there has been a previous conviction within the five years for a breach of s 47 (1) (b). Bray CJ[34] construed that as the offences were separate and distinct the phrase “second or subsequent offence” was ambiguous as Parliament had not made it clear whether it meant subsequent offences against s 47(1) (a) of driving a vehicle under the influence, or s 47 (1) (b) of attempting to put a vehicle in motion. There was therefore ambiguity as to whether a previous offence had been committed.
[31] [1971] SASR 88 at 94.
[32] Bartlett v D’Rozario [1971] SASR 88.
[33] Ibid.
[34] Ibid at 93.
In this case, whilst I consider that any ambiguity has been resolved, I do not consider that His Honour is correct in his application of the effect of any ambiguity on the circumstances of this case. There is a general rule of interpretation of penal statutes as discussed in Bartlett[35] above whereby ambiguity is to be construed in favour of the accused person. However, in the case of Beckwith v The Queen[36], the court relied on the statement pronounced in R v Adams[37] that the notion of construing an ambiguity in a penal statute in favour of the accused is seen as a “rule of last resort”.
[35] Bartlett v D’Rozario [1971] SASR 88.
[36] (1976) 135 CLR 569.
[37] (1935) 53 CLR 563.
Further, the rule in relation to the interpretation of penal statutes is predominantly concerned with those statutes where it is unclear because of the ambiguity, whether an offence is created or not. Gibbs J[38] stated the rule as relating to situations where the statute may extend the category of criminal offences.
[38] Beckwith v The Queen (1976) 135 CLR 569 at 577.
In Beckwith[39] the question on appeal was whether s 233B offences of importing and attempting to import prohibited imports under the Customs Act1901 was also to be read with s 237 of that Act which stated that any attempt to commit an offence was to be viewed as if the offence had been committed. In this sense the “category” of the criminal offence was to be extended to an offence to attempt to attempt to import (or export) prohibited imports (or exports). The High Court considered that if any benefit of the doubt was to be given to the accused, this was because it was a question of whether the ambiguity created an offence which was not known to the law.
[39] Ibid.
The case at bar does not refer to the extension of a criminal category as in Beckwith[40] and Bartlett[41], as the offences in s 74 (1) and s 74 (2) of the Act are not separate and distinct in the sense of “driving” and “attempting to drive”. Section 74 of the Act regulates conduct of “substantively the same kind”, namely, driving whilst unauthorised. There is no ambiguity in this case as to the commission of an offence which would give the appellant the benefit of any doubt in construing s 74 as being confined to offences committed only against the present s 74 and not the previous s 74.
[40] Ibid.
[41] Bartlett v D’Rozario [1971] SASR 88.
Further, the cases of Beckwith[42] and Bartlett[43] were concerned with the issue as to whether or not an offence had or had not been committed, therefore one can see why in such a case any ambiguity should be construed in favour of the accused. However in this situation the question is not whether an offence was committed but rather whether a previous conviction could be taken into account when convicting the respondent for committing the same offence. In that situation, resolving the ambiguity in favour of the accused would seem to defeat the very purpose underlying the creation of a specific penalty for a subsequent offence. Therefore that canon of interpretation does not seem to be applicable to the facts in this case and does not lend support to the interpretation found by His Honour.
[42] Beckwith v The Queen (1976) 135 CLR 569.
[43] Bartlett v D’Rozario [1971] SASR 88.
In conclusion, I would allow the appeal and remit the matter to the Learned Magistrate as within the powers of the Full Court on appeal with a direction that each of the two offences committed by the respondent against s 74 prior to the Statutes Amendment (Road Safety Reforms) Act2003 coming into operation on 15 December 2003 amount to a subsequent offence within the meaning of s 74 (6) Motor Vehicles Act 1959 and that the Magistrate should reconsider the sentence to be imposed in the light of this direction.