Prudham v Ryan
[2001] NTSC 77
•24 August 2001
Prudham v Ryan [2001] NTSC 77
PARTIES:MICHELLE PRUDHAM
v
CRAIG VICTOR RYAN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No. 20101967 (ALICE SPRINGS)
DELIVERED: 24 August 2001
HEARING DATES: 1 August 2001
JUDGMENT OF: ANGEL J
REPRESENTATION:
Counsel:
Appellant:R Goldflam
Respondent: G McMaster
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: ang200108
Number of pages: 10
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSNo. 20101967
Prudham v Ryan [2001] NTSC 77
BETWEEN:
MICHELLE PRUDHAM
Appellant
AND:
CRAIG VICTOR YOUNG
Respondent
CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 24 August 2001)
This is a Justices Appeal.
On 27 March 2001 at the Alice Springs Court of Summary Jurisdiction before her Worship Ms Deland, Deputy Chief Magistrate, the appellant pleaded guilty to an offence of stealing contrary to s 210 Criminal Code. The offence involved stealing three blank drug prescription forms, the property of the Alice Springs Hospital, on 6 February 2001.
The appellant was found guilty of the offence. No conviction was recorded. Counsel for the appellant successfully argued that the matter was one in which the exceptional circumstances in s 78A(6C) Sentencing Act were made out. It was for this reason the learned Magistrate did not impose the otherwise mandatory sentence of 14 days imprisonment.
On 30 March 2001 the appellant made an application to the Court of Summary Jurisdiction “to correct an error in sentencing” pursuant to s 112 Justices Act. This was opposed by the summary prosecutor. The learned Magistrate declined to deal with the matter pursuant to that section.
On 19 April 2001 the appellant filed a Notice of Appeal. The sole ground of appeal is:
(i)The sentencing order was imposed on an erroneous basis that the appellant had been found guilty of a “property offence”.
The appellant does not challenge the finding of guilt of an offence against s 210 Criminal Code. Nor does she challenge the penalty imposed, namely, that without entering a conviction she had been required to enter into a good behaviour bond for 18 months in the sum of $200.00.
Whilst the appellant does not challenge the ultimate disposition ordered by the learned Magistrate, the appellant challenges the characterisation of the offence as a “property offence” as defined in Schedule 1 of the Sentencing Act. It is this aspect of the sentencing order which is alone the subject of the appeal. The learned Magistrate, accepting defence counsel’s submissions before her, treated the mandatory sentencing provisions of the Sentencing Act as applicable. Indeed counsel for the appellant in the court below, as I have said, successfully argued that the exceptional circumstances in s 78A (6C) Sentencing Act were established and thus no mandatory sentence of 14 days imprisonment was imposed.
The sole question on this appeal is whether the appellant’s admitted offending constituted a “property offence” as defined in Schedule 1 of the Sentencing Act. S 210 Criminal Code establishes the single offence of stealing. Schedule 1 of the Sentencing Act effectively divides this offence into two categories for the purpose of sentencing, namely those to which Division 6 of Part 3 of the Sentencing Act (“Minimum Mandatory Imprisonment for Property Offenders’) apply (“property offences”), and those to which Division 6 does not apply (“non-property offences”).
The erroneous characterisation of a s 210 offence in a particular case as a “property offence” would constitute a substantial miscarriage of justice. It would result in an offender being made subject to mandatory sentencing provisions which would not otherwise apply.
In the instant case, the effect of the characterisation of the present offence as a property offence is that in the event the appellant is ever found guilty again of a property offence, she would be automatically precluded from submitting pursuant to s 78A(6B) that exceptional circumstances apply and a minimum term of 14 days imprisonment would inevitably follow.
Conversely, if the offence for which the appellant has been found guilty is characterised as a non-property offence, she could make submissions under s 78A(6B) in the event that she were found guilty of a future property offence. If such submissions were successful, mandatory sentencing would not apply.
Accordingly, this is not a case to which the proviso contained in s 177(2)(f) of the Justices Act applies.
Counsel below conceded the appellant had committed a property offence. However counsel can not concede a matter of law to the disadvantage of the appellant: Stokes v Difford (1990) 51 A Crim R 25 at 32 per Hunt J; Pemble (1971) 124 CLR 107 at 133 per Menzies J. So the matter now arises on appeal.
Schedule 1 of the Sentencing Act relevantly defines “property offence” as follows:
“1.An offence against s 210 of the Criminal Code except where –
(a) an offence occurred at premises, or a place, where goods
are sold.”.
Before turning to the conflicting arguments as to what these words mean it is appropriate to relate the circumstances of the appellant’s offending. The admitted facts before her Worship were as follows:
“At 7 am on Tuesday 6 February 2001 the defendant entered the Alice Springs Hospital for treatment and was placed in an Eye Clinic room to wait for the doctor. While she was alone in the room she took three blank doctor’s prescriptions from a booklet which was left on the desk. At the completion of her treatment the defendant left the hospital.
The defendant completed a prescription made to herself in a false doctor’s name for the drug Methadone. She then went to the Alice Springs Mall. She handed over the forged prescription to the pharmacist in an attempt to obtain the Methadone. The pharmacist told the defendant that she would have to confirm the prescription with the hospital.
Upon hearing this the defendant left the pharmacy and did not return. At 9.20 the defendant completed a second prescription form and went to the Townhouse Pharmacy in Todd Mall, again with a prescription made to herself for the drug Methadone in a false doctor’s name. The pharmacist told the defendant that the prescription was incorrect and sent her away to have it rectified.
Twenty minutes later the defendant returned with the altered prescription and then returned to her home. At 8.30 on Wednesday 7 February the defendant went to the pharmacy in the Yeperenye Centre. She produced a genuine prescription for the drug Valium. The pharmacist contacted the police upon the arrival of the defendant. They arrived and they arrested the defendant.
At 0950 hours the police attended at the premises at number 3 Kennett Court. They conducted a search of the premises and they found the empty Methadone bottle which was obtained from the Townhouse Pharmacy. They also found the two other prescription forms. She later participated in a record of interview. She fully admitted the offences. She was asked why she took the blank prescriptions. She said: ‘I was desperate’. She was then charged with those offences.”
The question is whether “the offence occurred at premises … where goods are sold”. This in turn raises the question whether the place of the offending, the Eye Clinic, within the Alice Springs Hospital, formed part of “premises … where goods are sold”.
The appellant submitted that the terms of Schedule 1 Sentencing Act should be given their natural and ordinary meaning. It was submitted they are not ambiguous, that they are not obscure and that to give them their ordinary meaning does not give rise to a result that is manifestly absurd or unreasonable. Reference was made to Trenerry v Bradley (1997). 93 A Crim R 433 at 442, 443 and the authorities cited therein. In other words, the appellant submitted that the literal rule should be applied. In support of this submission emphasis was placed on the fact that the statutory provision in question was a penal provision and that any doubt should be resolved in favour of the subject. Gibbs CJ’s statement in Sillery (1981) 180 CLR 353 at 357, viz: “If it is intended to provide a mandatory penalty, clear words can and should be used” was relied upon. It was submitted that Schedule 1 does not use words to the effect that the offending occurred at a place where goods were sold or that the offending occurred where goods are sold at a place or at premises, that is, the wording does not require a necessary connection between the place of the offending and the place where the goods are sold. It was submitted that if such was the intention of Parliament it could easily have said so. It was submitted that the words “premises or” might easily have been omitted, were this Parliament’s intention.
The respondent on the other hand submitted that it is beyond the scope of the definition to construe the Alice Springs Hospital complex as a whole as a place where goods are sold. There is only one very distinct area within the Hospital where goods are sold, namely the cafeteria. There food and drinks are sold to employees and visitors to the hospital.
Counsel for the respondent readily conceded that the grounds and various buildings constituting the Alice Springs Hospital were “premises” and that the blank prescriptions stolen by the appellant constituted “goods”. However it was submitted that the one and only distinct area within the Hospital premises where goods were sold was the cafeteria, an area quite discrete from the location of the offending in the Eye Clinic. No sales of goods took place at the Eye Clinic nor does the Hospital sell prescriptions to patients.
Counsel for the respondent relied on s 62A and s 62B Interpretation Act (NT) 1994 which provide:
“62A. Regard to be had to purpose or object of Act
In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.
62B. Use of extrinsic material in interpreting Act
(1)In interpreting a provision of an Act, if material not forming part of the Act is capable of assisting in ascertaining the meaning of the provision, the material may be considered –
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when –
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting subsection (1), the material that may be considered in interpreting a provision of an Act includes –
(a)all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before the Legislative Assembly before the time when the provision was enacted;
(c)any relevant report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the time when the provision was enacted;
(d)any treaty or other international agreement that is referred to in the Act;
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the to the members of the Legislative Assembly by a Minister before the time when the provision was enacted;
(f)the speech made to the Legislative Assembly by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in the Legislative Assembly; and
(g)any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section.
The respondent did not invite the Court to look at any extrinsic material for the purposes of interpreting Schedule 1 of the Sentencing Act.
The respondent submitted that the words in question in Schedule 1 excepted thieves from retail shops, market stalls and the like from the mandatory sentencing provisions and was limited to such circumstances. It was submitted it was not intended to ameliorate the effect of the mandatory sentencing regime in circumstances such as a pick-pocket at a football ground where pies or hotdogs were sold at a kiosk at the ground. It was submitted that the clear intention of Parliament was to excuse shop-lifters from the rigorous regime of mandatory sentencing and that the words “premises or a place where goods are sold” were properly to be construed as signifying retail and like premises. It was submitted that Parliament’s intention was to limit the scope of the exception to shoplifters lawfully on retail premises during ordinary shopping hours. Support for this submission is to be found in the obiter remarks of Mildren J in Dureau v Trenerry (1998) 147 FLR 397 at 400. The respondent submitted that the words in question should be read as if the word “normally” appeared after the word “goods”.
I am of the opinion that the appellant’s submissions should be rejected. To adopt the familiar language of Lord Selborne in Caledonian Railway Company v North British Railway Co (1881) 6 App Cas 114 at 122:
“The more literal construction ought not to prevail, if … it is opposed to the intentions of the Legislature, as apparent by the statute; and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated.”
It is unnecessary, for the purposes of the present case, to decide the full scope of the Schedule 1 exception to the mandatory sentencing regime or whether it is limited to shop-lifters lawfully at retail premises or whether it is confined, for example, to the stealing of goods offered for sale. However to interpret the Schedule literally, it seems to me, would result in an anomaly. Actual incarceration would simply depend upon whether or not the offence occurred in the locality of goods of any description being sold. In my view it could not have been the legislature’s intention to exclude from the mandatory sentencing regime stealing on premises which, in locality and subject matter, is quite unrelated to the sale of goods on the premises. I accept the submission that it could not have been the legislature’s intention to excuse from the sentencing provisions a pick-pocket at a football field where there is a kiosk selling drinks but to gaol a pick-pocket at a football field with no kiosk. In my opinion there necessarily must be some connection or relationship between the offending and the selling of goods.
In the present case it is unnecessary to decide the precise scope of that connection or relationship. That can be worked out on a case by case basis. It is sufficient to say that in the case at bar the stealing of hospital prescription forms from the Eye Clinic is quite unrelated to the retail sale of food and drinks in the quite separate and discrete locality of the cafeteria.
For these reasons I would dismiss the appeal.
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