Price v Police - [2008] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PRICE v POLICE
[2008] SASC 119
Reasons for Decision of The Honourable Justice Kelly
14 April 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant convicted of driving a motor vehicle without a licence contrary to section 74(2) of the Motor Vehicles Act 1959 - appellant sentenced to mandatory 3 year licence disqualification under section 74(5) of the Motor Vehicles Act 1959 - prior offence of driving whilst unlicensed dealt with, without conviction in the Youth Court in 2005 - whether this offence is a "prior conviction" in the context of the Motor Vehicles Act 1959.
Held: Appeal dismissed - the prior offence amounted to a conviction as there had been a finding of guilt and a penalty imposed - this finding is consistent with the policy and objects of the Motor Vehicles Act 1959.
Motor Vehicles Act 1959 s 74(2), s 74(5), s 74(6); Magistrates Court Act 1991 s 42; Firearms Act 1977 s 34A; Road Traffic Act 1961 s 44, referred to.
Ramsay v Samuels (1975) 14 SASR 77; Cobiac v Liddy (1969) 119 CLR 257; Pring v Woolacott [1966] SASR 6, applied.
Vreeker v Police (2004) 144 ACrimR 544; Attorney-General v Smith [2002] TASSC 10; Doecke v Police [2006] SASC 210, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"conviction"

PRICE v POLICE
[2008] SASC 119
Kelly J
Introduction

This appeal raises the issue of whether an offence contrary to Section 74(2) of the Motor Vehicles Act 1959 (“MVA”) in respect of which no conviction was recorded, should be taken into account in determining whether a later offence is a “subsequent offence” for the purposes of s 74(6) of the MVA. The answer to that question depends on the meaning to be attributed to the word “convicted” in s 74(6) of the MVA.
Background
On 2 April 2006 the appellant rode a motorcycle on a road at Marino. He was stopped by the police for the purposes of a mobile random breath test. Police checks on the appellant subsequently revealed that he did not have, nor had he ever held, a motorcycle or car licence. He was charged with driving a motor vehicle without a licence under the provisions of s 74(2) of the MVA. It was further alleged that he had never held a licence to drive a motor vehicle.
The appellant pleaded guilty in the Adelaide Magistrates Court on 1 June 2006. The learned magistrate convicted the appellant, fined him the sum of $250 and ordered him to pay court fees. He was also disqualified from holding or obtaining a licence for a mandatory minimum period of three years under the provisions of s 74(5) of the MVA. His Honour found that because the appellant had been dealt with in the Adelaide Youth Court on 22 September 2005 for a previous offence of driving whilst unlicensed, that this offence was a subsequent offence for the purpose of s 74(6) of the MVA.
It is apparent from the records tendered on the appeal, that the appellant was dealt with in the Adelaide Youth Court for an offence committed on 13 May 2005. In the Youth Court, the order of the court was that no conviction be recorded and the appellant was ordered to serve 16 hours community service within a period of four months.
On 20 February 2008 the appellant filed a notice of appeal against the order disqualifying him from holding or obtaining a licence for a period of three years. The stated grounds in the application are that the appellant has now obtained a traineeship as a builders labourer and he needs a driver’s licence to travel to various building sites and to get to work. The appellant has already served two years of the licence disqualification.
The appellant is unrepresented and appeared unrepresented in the Magistrates Court on 1 June 2006.
A preliminary point arises as the appellant has not sought an extension of time within which to appeal when an extension of time is clearly needed.
As the appellant was unrepresented in the Magistrates Court and again in this court, and in the light of the respondent’s concession that this appeal does raise an important issue, namely the meaning of the word “conviction”, in the context of the MVA, I am prepared to extend the time within which the appeal notice is to be filed to 20 February 2008.
In his remarks on penalty, the magistrate stated that he was compelled to disqualify the appellant from holding or obtaining a licence for three years under the provisions of s 74(5) of the MVA as this was a subsequent offence under the same section.
S 74(5) of the MVA provides:
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.
If the magistrate was correct to treat this offence as a subsequent offence for the purpose of that section, then the mandatory three year disqualification cannot be reduced or mitigated in any way.
However, s 74(6) of the MVA states:
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.
An argument arises that while the appellant’s prior offence of driving whilst unlicensed was committed less than three years before the second offence, because it was dealt with “without conviction” in the Adelaide Youth Court, it does not fall within the definition of a subsequent offence for the purpose of s 74(6).
In the context of this appeal it is necessary to determine whether the appellant’s prior offence, for which he was dealt with in the Adelaide Youth Court by way of an order without conviction, does in fact mean a conviction for the purposes of s 74(6) of the MVA.
The appellant who was unrepresented on the hearing of this appeal, did not seek to argue this point, however, counsel for the respondent raised the point as a matter of fairness.
As the appellant said he would find it difficult to come to court again, after hearing argument on the day I dismissed the appeal and said I would publish my reasons later.
Analysis
The respondent’s submissions in a nutshell were that the word “convicted” in s 74(6) of the MVA must be interpreted to include a finding of guilt even where no formal conviction has been recorded.
It is trite to state that the word “conviction” must take its meaning from the context in which it appears. The term “conviction” is an ambiguous term, sometimes used in the narrow sense as indicating merely that a person has been made the subject of a finding of guilt and sometimes used in the wider sense of the finding of guilt combined with the sentence of the court. Without a determination of guilt, there can be no conviction, however the converse does not necessarily apply because a determination of guilt will not in all cases amount to a conviction: Attorney General v Smith (2002) TASSC 10 per Crawford J.
The MVA does not provide any definition of “conviction” for the purposes of s 74. However, as White J pointed out in Doecke v Police (2006) SASC 210 the legislative intention manifested in s 74 of the MVA is that it should, by the imposition of a severe sanction, be brought home to persons that they must not drive a vehicle on a road unless authorised to do so.
Although there is no recent authority in this court directly on point, a similar problem arose in Ramsay v Samuels (1975) 14 SASR 77. In that case the appellant was convicted of an offence contrary to s 44 of the Road Traffic Act 1961 (“RTA”). As a juvenile he committed similar offences in respect of which there had been findings of guilt without any convictions being recorded. In finding that a later offence under the same section amounted to a subsequent offence for the purpose of s 44 of the RTA, Walters J said at 79
Although no formal convictions were recorded on some of these charges, and there were orders for dismissal under the provisions of the Juvenile Courts Act, in each instance there was an adjudication that the appellant had committed the offence charged, and a finding of his guilt was therefore sufficient to establish the commission of an offence, irrespective of whether the record showed him to be an offender against whom a conviction had been entered (Pring v Woolacott², Cobiac v Liddy³, per Windeyer J at p. 274)
In agreeing with the reasoning of Walters J in the earlier case of Pring v Woolacott [1966] SASR 6, Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 274 said:
A condition precedent of an order under s 4 (1) of the Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the subsection came again before a court, charged with having again committed the same offence, it would be properly called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted. I am not disposed to disagree with the decision of Walters A.J. on this point: Pring v.Woolacott (1).
In the absence of any Full Court authority to the contrary, I consider it appropriate to follow the reasoning adopted in those two cases.
Moreover I consider that the legislative intent and policy behind s 74 of the MVA is promoted by adopting an interpretation of the word “conviction” which would include a finding of guilt even where no formal conviction has been recorded.
Although there does not appear to be any authority of this court which has considered the meaning of the term “conviction” in the particular context of s 74 of the MVA, the term has been considered in the context of the Firearms Act 1977.
In Vreeker v Police (SA) (2004) 144 ACrimR 544 Gray J concluded that having regard to the legislative scheme in the Firearms Act, the term “conviction” should properly extend to those persons found guilty of an offence even where no conviction was recorded. In that case, the court was concerned with the provisions of Section 34A of the Firearms Act which provides for forfeiture orders to be made “where a court convicts a person of an offence against this or any other act…”.
In Gray J’s opinion, it would be illogical and inconsistent with the purpose of the legislative scheme to restrict forfeiture orders to those cases where a conviction is recorded. He observed there is a real public interest in courts having the relevant powers to control firearm use by those found to be in breach of the legislation.
In my view it is consistent with both public policy and the objects of the MVA to determine that an offence for which a conviction has not been recorded, should be taken into account in determining whether there has been a “subsequent offence” within the meaning of s 74(6) of the MVA.
Conclusion
I concluded that the conviction recorded against the appellant in the Adelaide Magistrates Court on 1 June 2006, amounted to a subsequent offence for the purpose of s 74(6) of the MVA and the mandatory minimum disqualification of three years applied. For these reasons I dismissed the appeal.