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…

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.

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Details

Case: [2008] SASC 119
Decision Date: 14 April 2008

CaseChat Overview and Summary

In Price v Police, the appellant appealed against a sentence imposed by the Adelaide Magistrates Court, where he had been convicted of driving a motor vehicle without a licence and sentenced to a mandatory three-year licence disqualification. The appellant's appeal was based on whether a prior offence, for which no conviction was recorded in the Youth Court in 2005, should be considered a "prior conviction" under the Motor Vehicles Act 1959 (MVA). The central legal issue was whether the term "convicted" in section 74(6) of the MVA encompasses situations where a finding of guilt and a penalty were imposed, even if a conviction was not formally recorded.

The Supreme Court of South Australia held that the prior offence did indeed amount to a conviction because a finding of guilt and a penalty were imposed, which aligns with the policy and objects of the MVA. The court reasoned that despite the absence of a formal conviction, the Youth Court's decision to impose a penalty constituted a conviction for the purposes of the MVA. Therefore, the appellant's 2006 offence was properly classified as a subsequent offence under section 74(6), warranting the mandatory three-year licence disqualification. The appeal was dismissed, affirming the magistrate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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