Police v Whitehouse - [2004] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WHITEHOUSE
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.
Magistrates Court Act 1991, s 42; Motor Vehicles Act 1959, s 74, s 75; Statutes Amendment (Road Safety Reforms) Act 2003; Criminal Law Consolidation Act 1935, s 19a, s 86A; Harbours and Navigation Act 1993, s 70, s 74; Road Traffic Act 1961, s 44, s 47, referred to.
Bartlett v D'Rozario [1971] SASR 88, applied.
Pointon v Police (2004) 232 LSJS 127, discussed.
Bond v Alderson [1929] SASR 313; Pisanelli v Samuels [1986] SASR 168; Hoppo v Samuels (1978) 18 SASR 277; Lindsay v Samuels (1979) 20 SASR 285; Hennig v Robertson [1937] SASR 400; Hawkett v Demichelis (1975) 12 SASR 274; Lansdell v Reed (1981) 28 SASR 253, considered.

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

POLICE v WHITEHOUSE
[2004] SASC 371
Magistrates Appeal
WHITE J:
Introduction

This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 by the prosecution against a sentence imposed by a Magistrate.
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
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 respondent had never been authorised under the above Act or under the law of any other State or Territory to drive a motor vehicle of the class which he was driving.
The Magistrate fined the respondent $300 and, in addition, ordered him to pay court fees, Victims of Crime Levy and prosecution costs totalling $155.
The respondent has previously been convicted of offences pursuant to s 74 of the Motor Vehicles Act. On 3 November 2001 the appellant committed the offence of driving without a licence contrary to s 74 of the Act. He was convicted of this offence in the Berri Magistrates Court on 3 April 2002. The appellant was fined $300.00 and a disqualification from holding or obtaining a driver’s licence for a period of 28 days was imposed.
On 25 August 2003 the appellant again committed an offence of driving without a driver’s licence contrary to s 74 of the Motor Vehicles Act. The respondent was convicted in the Whyalla Magistrates Court on 10 November 2003 in respect of this offence. A disqualification of seven days was imposed for this offence. It is not clear whether any pecuniary penalty was imposed.
Section 74
By Act No 8 of 2003, the Statutes Amendment (Road Safety Reforms) Act 2003, the former s 74 of the Motor Vehicles Act was repealed and substituted with a new section. The new section came into operation on 15 December 2003. Since that date, s 74 has provided as follows:
“(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.”
Section 74(5) requires the Court to impose a disqualification from holding or obtaining a driver’s licence for a minimum period of three years where the offence for which the offender is being sentenced is a s 74(2) offence and is a “subsequent offence”. There is no definition of “subsequent offence” but sub-s (6) indicates that any previous offence “against this section or s 91(5)” for which the defendant has been convicted and which was committed within the period of three years immediately preceding the offence for which the defendant is being sentenced should be taken into account.
Before the amendment effected by Act No. 8 of 2003, 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.”
Although the content of s 74 of the Motor Vehicles Act has varied from time to time since the Act was first enacted in 1959, its subject matter has always been a prohibition on driving a motor vehicle on a road without an appropriate licence.
The Magistrate’s Decision
As noted above, in this case, the Magistrate did not impose any period of disqualification. It seems that the Magistrate took the view that it was only offences against s 74 which had been committed since the new section came into operation (15 December 2003) which could be regarded as an “offence against this section” so as to attract the mandatory disqualification required by s 74(5).
If the Magistrate is wrong in that conclusion, it is plain that the sentence which he imposed was in error. It would be in error for two reasons. First because the Magistrate did not impose any licence disqualification at all, let alone disqualification for a minimum period of three years. Secondly, because the fine imposed by the Magistrate must have been fixed by reference to the maximum of $2,500.00 for a first offence rather than the maximum of $5,000.00 which is the applicable maximum fine for a subsequent offence.
The appellant submits that the Magistrate erred in not treating the offence committed by the respondent on 5 April 2004 as a subsequent offence, as each of the offences for which he had been convicted on 3 April 2002 and 10 November 2003 had been committed within the period of three years immediately prior to 5 April 2004.
The Construction of s 74(6)
The language of s 74(6) is, in my opinion, ambiguous. The expression “any previous offence against this section” is capable of being construed as referring to s 74 as presently enacted ie, to this s 74. It is also capable of being construed as referring to any prior offence against s 74 whether in its present form, or in some previous form.
There are two features of s 74 which point in favour of the former construction. The first is that whilst the subject matter of s 74 is still the obligation of a driver of a vehicle on a road to be appropriately licensed, it does, in its present form, create new offences. Previously, s 74 prohibited a person from driving a vehicle on the road unless the person was appropriately licensed and experienced. The same maximum penalty applied whether or not the person had, at the time of driving, ever previously been licensed.
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). Proof of the offences now requires more than proof of the conduct establishing the previous s 74(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 had never previously been authorised to drive a vehicle of the class which he or she was driving.
In some respects, s 74 creates both an offence and an aggravated form of the offence. Parliament could have created one offence but with differing penalties depending upon whether or not the driver had ever previously been licensed. Instead it has created different offences with the aggravated form carrying a more severe penalty. This consideration is not decisive but it does seem to me more appropriate that where a section creates new offences, the expression in that section “any previous offence against this section” should be construed as referring to any of the offences so created.
The second feature suggesting that that is the appropriate meaning is the use of the expression “this section” in both s 74(3) and s 74(6). In s 74(3) the expression is clearly used to indicate s 74 in its present form. The principle that an expression used more than once in a statute is used with a consistent meaning suggests that the expression “this section” when used in s 74(6) should be read as referring to s 74 as presently enacted. Again, however, I do not regard this consideration as decisive. It is a slight indication only.
In some cases, Parliament makes it plain that it intends account to be taken not only of an offence against the section itself, but also against any corresponding previous enactment. For example, s 19A(5) of the Criminal Law Consolidation Act 1935 provides that in determining whether an offence of causing death by driving in a culpably negligent or reckless matter is a first or subsequent offence, regard is to be had to all previous offences against sub-s (1) and sub-s (3) and to offences against “a corresponding previous enactment”. However, I do not consider that any significance should be attached to the failure of Parliament to use an expression of that kind in s 74(6) in the present case.
There are indicia which point in favour of the alternate construction. There is the fact that s 74(6) refers not only to a previous offence against “this section” but also to an offence against s 91(5) of the Motor Vehicles Act. Section 91 makes it an offence for a person to drive whilst disqualified from doing so, or whilst a licence is suspended. It was not amended at all by the Statutes Amendment (Road Safety Reforms) Act 2003. Any offence against s 91 committed within three years of the s 74 offence is to be taken into account. It seems somewhat incongruous that any offence committed against s 91 within the prescribed period should be taken into account but not those committed against s 74 as it existed during the same period.
Next there is the consideration that the Statutes Amendment (Road Safety Reforms) Act 2003 inserted into the offence provisions of three different Acts a provision very similar to s 74(6). In the case of ss 70 and 74 of the Harbours and Navigation Act 1993, and ss 47, 47B, 47E and 47I of the Road Traffic Act 1961, an analogue of s 74(6) of the Motor Vehicles Act was inserted without there being, at the same time, any alteration of the offences established by those provisions. That suggests that Parliament’s focus was on the imposition of more severe penalties for second or subsequent offences and 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 “offence against this section”.
In Pointon v Police (2004) 232 LSJS 127, Gray J considered s 86A of the Criminal Law Consolidation Act. Section 86A creates the offence of driving, using or interfering with a motor vehicle without the owner’s consent. It provides for a more severe penalty for a “subsequent offence” but does not contain any equivalent to s 74(6) of the Motor Vehicles Act. Before s 86A was inserted into the Criminal Law Consolidation Act in 1992, s 44 of the Road Traffic Act had proscribed the same conduct. Gray J held that account should be taken of a prior conviction for an offence contravening s 44. After reviewing a number of relevant authorities, he held that the offence created by s 86A was “the same in substantive effect” as the offence created by s 44 as both offences were “described in all but identical language”: 134 at [36]. A further indicator relied upon by Gray J was that both ss 44 and 86A contained provisions for more severe penalties for a subsequent offence. If a s 44 offence was not a prior offence for the purposes of s 86A, this would mean that the relocation of the offence of illegal use of a motor vehicle from the Road Traffic Act to the Criminal Law Consolidation Act in 1992 had provided a benefit “ín the nature of an immunity” to offenders. Gray J held that it was unlikely that Parliament intended the relocation to have that effect.
The authorities reviewed by Gray J show that where there has been a repeal of one Act followed by a re-enactment of the same, or substantially the same provision in a new Act, regard should be had to a conviction under the former Act in considering whether a conviction under the later Act is a “subsequent offence”. It is sufficient if the two offences are “of the same kind”[1]; or the second a repetition of the conduct forbidden by the former legislation.[2] It is immaterial that the later enactment, or an amendment, establishes more severe penalties in respect of an offence, the elements of which remain unaltered.[3]
[1]Bond v Alderson [1929] SASR 313 at 315; Pisanelli v Samuels [1968] SASR 168 at 169-170; Hoppo v Samuels (1978) 18 SASR 277 at 279; Lindsay v Samuels (1979) 20 SASR 285.
[2] Hennig v Robertson [1937] SASR 400 at 403.
[3] Hennig v Robertson [1937] SASR 400; Hoppo v Samuels (1978) 18 SASR 277.
A strong indication that an offence is to be regarded as a subsequent offence for the purposes of the later legislation is that the repealed provision also provided for more severe penalties for a subsequent offence. Parliament is not, by the repeal and re-enactment, readily to be supposed to be granting “anything in the nature of an immunity upon persons who have already offended in the same way”.[4] But account should not be taken of a prior conviction for an offence against the corresponding provision in an Act of another State.[5]
[4]Hennig v Robertson [1937] SASR 400 at 403; Pisanelli v Samuels [1968] SASR 168 at 169; Hoppo v Samuels (1978) 18 SASR 277 at 280.
[5] Hawkett v Demichelis (1975) 12 SASR 274; Lansdell v Reed (1981) 28 SASR 253.
The legislation considered in each of the cases referred to above did not contain any counterpart of s 74(6) of the Motor Vehicles Act. Nor did any of those cases consider the position where, as in this case, the replacement provision enacted offences with different elements from those contained in the repealed legislation. As already noted, although dealing with the same subject matter, the present s 74 creates new offences: it is not just re-enactment of the provisions establishing the previous offence. Nor can it be said that the offences are exactly the same in substance or that s 74 simply establishes more severe penalties for existing offences. Furthermore, s 74 did not previously provide for more severe penalties for a second or subsequent offence. The approach taken by the Magistrate in this case does not thereby provide some “immunity” to repeat offenders which they would not otherwise have enjoyed. This distinguishes the present case from the previous decisions of this Court. The authorities referred to are therefore not decisive of the present case.
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 s 74(6) is ambiguous and that in those circumstances, like Bray CJ in Bartlett v D’Rozario [1971] SASR 88 at 94, I should give effect to the principle that where the canons of interpretation fail to resolve a reasonable doubt as to the meaning of a 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.

Accordingly, I hold that in determining whether an offence against s 74 is a subsequent offence for the purposes of s 75(5) of the Motor Vehicles Act, regard is not to be had, pursuant to s 74(6) to offences committed against s 74 prior to the Statutes Amendment (Road Safety Reforms) Act 2003 coming into operation on 15 December 2003.
Conclusion
For the reasons given above, I consider that this appeal should be dismissed.