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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Whitehouse

Details

AGLC: Police v Whitehouse [2004] SASC 371
Case: [2004] SASC 371
Decision Date: 25 November 2004

CaseChat Overview and Summary

The case of Police v Whitehouse dealt with a statutory interpretation issue concerning the Motor Vehicles Act 1959, as amended, and the application of previous convictions under the Act for sentencing purposes. The respondent was convicted of driving without a licence and faced sentencing for this offence. The central issue was whether prior convictions under the former version of s 74 of the Act should be considered when determining if the current offence constituted a "subsequent offence," thereby attracting a higher penalty. The court was tasked with interpreting the phrase "against this section" in s 74(6) of the Motor Vehicles Act 1959 as amended by the Statute Amendment (Road Safety Reforms) Act 2003.

The court found that s 74(6) was ambiguous, as it could be interpreted to refer to either the current section or any previous version of it. The ambiguity stemmed from the fact that s 74 had been amended to create new offences with different maximum penalties. The court resolved this ambiguity in favour of the respondent, holding that the previous convictions should not be considered when determining if the current offence was a "subsequent offence." This interpretation was based on the principle that the subject matter of the Act remained the prohibition on driving without an appropriate licence, despite changes in the specific provisions. Consequently, the court found that the Magistrate had erred in not treating the offence as a subsequent one, and thus the sentence imposed was incorrect. The appeal was dismissed, and the case was remitted to the Magistrates Court for re-sentencing.

The court ordered that the case be returned to the Magistrates Court for the respondent to be re-sentenced, taking into account that the current offence was a subsequent offence. The Magistrates Court was directed to impose a sentence that included a disqualification from holding or obtaining a driver's licence for a minimum period of three years, along with a fine of up to $5,000, as appropriate for a subsequent offence under the amended s 74.

Orders

Orders of the court

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Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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