Purnell v Timms
[2012] WASC 112
•30 MARCH 2012
PURNELL -v- TIMMS [2012] WASC 112
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 112 | |
| 30/03/2012 | |||
| Case No: | CIV:2540/2011 | 27 FEBRUARY 2012 | |
| Coram: | HALL J | 27/02/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Review order granted Decision of magistrate set aside Matter remitted to be decided according to law | ||
| A | |||
| PDF Version |
| Parties: | DAMIEN MATTHEW PURNELL PETER NICHOLAS TIMMS KELVIN T FISHER SM THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA |
Catchwords: | Criminal law Procedure 'either way' offences Stealing a motor vehicle Criminal Code (WA) s 378 Whether summary conviction penalty provided for Whether Criminal Code s 426(3) applies generally to offences involving stealing of a motor vehicle |
Legislation: | Criminal Code (WA), s 3, s 5, s 371, s 371A, s 378, s 426, s 473 Criminal Procedure Act 2004 (WA), s 3, s 40, s 41 Interpretation Act 1984 (WA), s 19 Magistrates Court Act 2004 (WA), s 36 |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Director of Public Prosecutions (WA) v Peters [2010] WASC 139 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
PETER NICHOLAS TIMMS
First Respondent
KELVIN T FISHER SM
Second Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Third Respondent
Catchwords:
Criminal law - Procedure - 'either way' offences - Stealing a motor vehicle - Criminal Code (WA) s 378 - Whether summary conviction penalty provided for - Whether Criminal Code s 426(3) applies generally to offences involving stealing of a motor vehicle
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Legislation:
Criminal Code (WA), s 3, s 5, s 371, s 371A, s 378, s 426, s 473
Criminal Procedure Act 2004 (WA), s 3, s 40, s 41
Interpretation Act 1984 (WA), s 19
Magistrates Court Act 2004 (WA), s 36
Result:
Review order granted
Decision of magistrate set aside
Matter remitted to be decided according to law
Category: A
Representation:
Counsel:
Applicant : Mr S F Rafferty
First Respondent : Ms G M Cleary
Second Respondent : No appearance
Third Respondent : Ms G M Cleary
Solicitors:
Applicant : Max Owens & Co
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : No appearance
Third Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Director of Public Prosecutions (WA) v Peters [2010] WASC 139
Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529
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- HALL J:
Introduction
1 On 27 February 2012 I granted the orders sought by the applicant and gave brief oral reasons. I stated that more detailed reasons would be published at a later date.
2 This matter involves a review order under s 36 of the Magistrates Court Act 2004 (WA). The order relates to a decision of a magistrate made in the Bunbury Magistrates Court on 31 January 2011. The decision in question was a ruling that a charge of stealing a car contrary to s 378 of the Criminal Code (WA) could not be dealt with summarily.
3 The applicant, Damien Purnell, is the person charged with the stealing offence. He sought the review order, which was granted by Heenan J on 8 November 2011. The matter was then set down for a hearing to determine whether the magistrate's decision should be set aside.
4 The Director of Public Prosecutions is the third respondent and represents the first respondent, the police officer who commenced the prosecution. The second respondent is the magistrate, who has filed a notice of intention to abide.
5 The Director of Public Prosecutions agreed that the magistrate was in error and accepts that the decision must be set aside. For the reasons that follow I am of the view that the concession by the Director was properly made, that the magistrate's decision should be set aside and the matter should be remitted to the Magistrates Court to be determined according to law.
Issue to be determined
6 The Criminal Code (WA) provides for certain indictable charges to be dealt with summarily in the Magistrates Court. These are referred to in the Criminal Procedure Act 2004 (WA) as 'either way charges': s 3, s 40. In general terms if a provision of the Code or another written law provides for a summary conviction penalty for an indictable offence then the charge is to be dealt with summarily unless a magistrate decides that the charge should be tried on indictment. The circumstances in which such a decision can be made are set out in s 5 of the Code.
7 When an indictable charge comes before a magistrate and there is a question as to whether it can be dealt with summarily the usual starting point will be to look at the provision creating the offence to see if a
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- summary conviction penalty is provided for. This will often be a straightforward exercise. However, in respect of some offences a summary penalty is provided for only if certain conditions are met. Stealing is an example of this.
8 A summary conviction penalty is provided for stealing offences where the offence is of the types referred to in s 426(1) and the value of the property in question does not exceed $10,000. A summary conviction penalty is also provided for stealing where the property in question is a motor vehicle. A lower summary penalty is also provided where the value of the property does not exceed $1,000. Whilst the property here was alleged to be worth more than $10,000, it was a motor vehicle. Accordingly, on the face of it, a summary penalty was provided for and the stealing charge could be dealt with summarily.
9 The issue in this case was whether the summary penalty applied to all charges involving stealing of a car or only those where the special provision extending the definition of stealing in respect of cars was relied on. Stealing is defined in s 371 as meaning to fraudulently take or convert property of another. A person is deemed to take something fraudulently if he or she does so with any of the intentions referred to in s 371(2), including an intention to permanently deprive the owner of the property or to deal with it in a manner that makes it impossible for it to be returned in the same condition. However, these provisions do not cover the circumstance where a person takes a car for a 'joy ride', without intending to permanently deprive the owner of or cause damage to, the car. For this reason s 371A of the Code was introduced in 1991 to extend the definition of stealing in respect of cars. That section provides that a person who unlawfully uses, takes or drives a motor vehicle without the consent of the owner or person in charge of the vehicle is said to steal it.
10 Section 371A does not prevent the general provisions of s 371 from applying to motor vehicles. Accordingly, a car may be stolen by being fraudulently taken or converted contrary to s 371 or by being unlawfully used, taken or driven without consent contrary to s 371A. The issue raised by the magistrate in this case was whether the summary conviction penalty for stealing a motor vehicle applied only where the stealing arises under s 371A. If so, then in any other case involving the theft of a car a summary conviction penalty was provided for only where the value of the car did not exceed $10,000.
11 If, however, the summary conviction penalty referring to motor vehicles applies to all stealing charges which involve cars, then the value
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- of the car would be immaterial. In that case, a summary conviction penalty is provided for and the charge here could be dealt with summarily, subject to any decision of the magistrate that the charge should be tried on indictment under s 5(3) of the Code.
12 The issue is simply one of statutory interpretation, and the question before the court is whether the summary conviction penalty for stealing a motor vehicle provided for in s 426(3) is limited to charges that rely on s 371A?
Factual background
13 On 31 January 2011, the applicant appeared in the Magistrates Court at Bunbury on two charges, one of forgery, contrary to s 473(1) of the Criminal Code; and one of stealing a car, contrary to s 378 of the Criminal Code. Both charges arose out of the same events.
14 The stealing charge relates to a Holden sedan, which is alleged to have a value of $11,500. When the value was drawn to the attention of the magistrate on 31 January 2011, he stated that this put the charge outside the jurisdiction of the Magistrates Court.
15 There was then an application by the prosecution to also deal with the forgery charge on indictment, because the charge and the charge of stealing formed part of a single course of conduct: s 5(3)(b) of the Criminal Code. That application was granted, and both charges were adjourned to a committal date.
16 The magistrate then addressed the applicant in the following terms:
These matters are not capable of being dealt with summarily, and they must be dealt with on indictment. To that extent, I have granted the section 5 application to have the forgery dealt with at one and the same time by reason of its connection. You will need to speak with your lawyer again, I would suggest, and you can do so and then appear by video on 11 February.
17 It would seem that the applicant did speak to his lawyer because on 5 July 2011 an application was made to rectify the decision. It was submitted on behalf of the applicant that the magistrate was in error in his conclusion that the stealing charge could only be dealt with on indictment. In particular it was submitted that the magistrate had not taken into account s 426(3) of the Criminal Code. That is the sub-section that provides a summary penalty for stealing where the property in question is a motor vehicle.
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18 His Honour did not accept the submissions. His view was that s 426(3) applied only to those cases of stealing a motor vehicle where the prosecution relied upon the special extended definition of stealing in s 371A of the Criminal Code. As this was not such a case and was alleged to be a stealing which fell within the general provisions of s 371, his Honour's view was that the only relevant provision dealing with a summary penalty was s 426(2).
19 Pursuant to s 426(2), a stealing charge can be dealt with summarily if the value of the property in question does not exceed $10,000. As the car did exceed that value here, his Honour concluded that the Magistrates Court had no jurisdiction to deal with the charge and that it must proceed on indictment.
Relevant statutory provisions
20 The following are extracts of the relevant statutory provision:
(a) Criminal Code (WA):
3. Indictable offences, general provisions as to
(1) This section applies to offences in this Code and in any other written law.
(2) An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise.
...
5. Summary conviction penalty, meaning and effect of
(1) This section applies if -
(a) a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b) a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
- (2) Despite section 3(2), the court is to try the charge summarily unless -
(a) on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
(b) this Code or another written law expressly provides to the contrary.
- (3) The court may decide the charge is to be tried on indictment if and only if it considers -
(a) that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; or
(b) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences; or
(c) that a co-accused of the accused is to be tried on indictment; or
(d) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or
(e) that the interests of justice require that the charge be dealt with on indictment.
- ...
371. Term used: steal
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
- (2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say -
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
(b) An intent to permanently deprive any person who has any special property in the thing or property of such special property;
(c) An intent to use the thing or property as a pledge or security;
(d) An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
The term special property includes any charge or lien upon the thing or property in question, and any right arising from or dependent upon holding possession of the thing or property in question, whether by the person entitled to such right or by some other person for his benefit.
- ...
(6) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
...
- 371A. Special case: motor vehicles
(1) A person who unlawfully -
(a) uses a motor vehicle; or
(b) takes a motor vehicle for the purposes of using it; or
- (c) drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
- (2) This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.
- ...
378. Penalty for stealing
Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
Alternative offence: s. 382, 383, 388, 390A, 409, 414, 428 or 429.
- ...
(2) If the thing stolen is a motor vehicle and the offender -
(a) wilfully drives the motor vehicle in a manner that constitutes an offence under section 60 of the Road Traffic Act 1974 (i.e. the offence known as reckless driving); or
(b) drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving),
the offender is liable to imprisonment for 8 years.
426. Summary conviction penalty for certain stealing and like offences
(1) Subsection (2) applies to the following indictable offences -
(a) an offence under section 378, 382, 383 or 388 in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;
- (b) an offence under section 378 to which Item (5)(a), (6), or (7) of that section applies;
[(c) deleted]
(d) attempting to commit, or inciting another person to commit any of the offences mentioned in paragraph (a) or (b);
(e) receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.
- (2) Summary conviction penalty: for an offence to which this subsection applies where the value of the property in question does not exceed $10 000, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.
(3) Summary conviction penalty: for an offence -
(a) under section 378 or 414; or
(b) of attempting to commit, or inciting another person to commit, an offence under section 378 or 414,
where the property in question is a motor vehicle, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.
(4) Summary conviction penalty: for an offence -
(a) under section 378, 382, 383, 388 or 414; or
(b) of attempting to commit, or inciting another person to commit, an offence under section 378, 382, 383, 388 or 414,
where the value of the property in question does not exceed $1 000 — a fine of $6,000.
- (b) Criminal Procedure Act 2004 (WA):
40. Either way charges
(1) This section applies if the charge is an either way charge.
(2) If The Criminal Code section 5 applies to the charge, the court must give the prosecutor and the accused an
- opportunity to apply under that section for the charge to be tried on indictment.
- (3) If the court decides that the charge is to be tried on indictment, the court must proceed in accordance with section 41.
(4) If the charge is to be tried summarily, the court must deal with the charge summarily under Division 6 and may do so -
(a) with the consent of the prosecutor and the accused, immediately; or
(b) otherwise, on a later date.
- 41. Charges that are to be tried on indictment
(1) This section applies if -
(a) the charge must be tried on indictment; or
(b) under The Criminal Code section 5 or any other written law, the court has decided that the charge, being an either way charge, is to be tried on indictment.
(2) The court must -
(a) tell the accused that he or she is not required to plead to the charge; and
(b) give the accused the opportunity to plead to the charge.
(3) If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge, and comply with section 47(1).
(4) If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42.
21 The effect of s 5 of the Criminal Code is that indictable offences such as stealing can be dealt with summarily if a written law provides for a summary penalty. In such a case, the charge is to be dealt with
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- summarily unless there is an application to try the matter on indictment or if the court otherwise considers it appropriate to do so.
22 Clearly, in this case, the magistrate did not consider whether the matter ought to be dealt with on indictment under s 5(3). His view was that there was no summary penalty provided for this particular offence due to the alleged value of the motor vehicle in question. On his Honour's view of the legislation, the question of s 5(3) did not fall to be considered.
23 Section 426(2) does provide a summary penalty for certain offences of stealing where the value of the property in question does not exceed $10,000. It is, however, not the only provision dealing with summary conviction penalties. Section 426(3) provides a summary conviction penalty for an offence under s 378 where the property in question is a motor vehicle. It is to be noted that s 426(3) makes no reference to either s 371 or s 371A; s 378 being that provision which sets out the penalties for stealing.
24 In this case, there is no question that the property in question is a motor vehicle. Whether or not the stealing is alleged to arise under s 371 or s 371A, it would nonetheless be an offence of stealing for which the penalty is provided for in s 378. On that basis, there are no grounds for distinguishing between an offence of stealing a motor vehicle which relies on the extended liability provision in s 371A and one that does not.
25 His Honour's conclusion that s 426(3) is limited in its application is not justified by a reading of the relevant statutory provisions. There is no basis for reading the reference to 'a motor vehicle' in that sub-section as meaning only a vehicle stolen in the manner provided for in s 371A. If that was the intention of the Parliament then the Parliament would have used words to that effect. It did not. The plain meaning of the phrase is not absurd, nor is it inconsistent with other provisions of the Code.
26 A similar question as to the application of s 426(3) arose in Director of Public Prosecutions (WA) v Peters [2010] WASC 139. In that case the respondent had been charged with stealing a motor vehicle and driving it dangerously contrary to s 378(2)(b) of the Code. An offence of that type attracted a higher maximum penalty, being 8 years. As such the summary penalty provided for in s 426(2) had no application: see s 426(1). However, E M Heenan J held that the summary conviction penalty in s 426(3) was applicable because the property in question was a motor vehicle. As his Honour noted, s 426(3) stands alone and does not rely on s 426(1)(a) to condition its application.
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27 If s 426(3) had application to all stealing of motor vehicle charges, then it might be suggested that a charge of stealing an extremely valuable car could be dealt with summarily while the theft of any other property valued over $10,000, could not. That view overlooks the power for an appropriately serious case to be dealt with on indictment pursuant to s 5(3) of the Code. In any event the distinction made for motor vehicles is the clear and apparent meaning of the provisions. Put simply, the statute makes a distinction between motor vehicles and other property. That distinction is not on the basis of whether the stealing of a car is alleged to arise from s 371 or s 371A.
28 In my view, it is plain that s 426(3) applies generally where the property in question is a motor vehicle. In such circumstances a summary conviction penalty is provided for and the offence can be dealt with summarily. That being the case, it was open for this matter to be dealt with summarily. Indeed, that was the presumed position unless an application was made and the court considered that the charge was too serious to be dealt with on indictment.
History of the relevant provisions
29 Because I consider that the interpretation of s 426 of the Criminal Code is clear it is strictly unnecessary to refer to extrinsic material or to the history of the relevant provisions. However, it seems that historical considerations had an influence on the magistrate's view of s 426. In these circumstances I will summarise the background. As will become apparent, it does not detract from the conclusion I have reached.
30 I am also mindful that reference can be had to extrinsic material not only to resolve ambiguity (which does not exist here) but also to confirm that the ordinary meaning of the text is correct: s 19 Interpretation Act 1984 (WA). This is also consistent with the 'modern approach to statutory interpretation' that requires that the context be considered: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. I note that any exercise in statutory interpretation must start with the text itself and that historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text: Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46 - 47 (Hayne, Heydon, Crennan and Kiefel JJ).
31 Prior to 1991 there were two offences for which a person could be charged when it was alleged that a motor vehicle had been used without
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- the permission of the owner. They were s 378 of the Criminal Code and s 89 of the Road Traffic Act 1974 (WA).
32 The offence of stealing pursuant to s 378 has remained materially the same. That section must be read with s 370 and s 371. A motor vehicle is a thing capable of being stolen as it is an inanimate thing which is moveable: s 370. However, as noted earlier, the offence of stealing requires proof of fraudulent intent: s 371. As I have already alluded to, this meant that in the past it was difficult to maintain a charge of stealing against a 'joy rider'; that is, a person who takes and then abandons a car without any intention of permanently depriving the owner of it or to damage the car.
33 The alternative offence of driving or using a vehicle without the consent of the owner or person in charge provided for in s 89 of the Road Traffic Act attracted a very much lower penalty. It was also a simple offence. It did, however, capture the 'joy rider' as there was no requirement to prove a fraudulent intention. This meant that 'joy riders' were subject to substantially lower penalties than those who set out to 'steal' a car, in the legal meaning of that term.
34 In 1991 s 89 of the Road Traffic Act was repealed and s 371A was inserted into the Criminal Code: Criminal Law Amendment Act 1991 (WA). The effect of s 371A was to extend the definition of stealing such that conduct which would previously have fallen under s 89 of the Road Traffic Act could thereafter be the subject of a stealing charge under s 378. However, it remained possible for such a stealing charge to be dealt with summarily. The terms of s 426 were initially different to how they now stand. Nevertheless, they made special provision for stealing charges involving motor vehicles. That provision was independent of value and made no reference to s 371A.
35 The present form of s 426 was introduced in 2004: Criminal Code Amendment Act 2004 (WA). It formed part of amendments designed to give the courts power to determine whether either way charges should proceed on indictment rather than such issues being determined by whether a prosecutor made a request or an accused person consented to a charge being dealt with in a particular way.
36 In none of the second reading speeches dealing with the amendments referred to above was there any indication that the summary conviction penalty referring to motor vehicles would apply only to charges that relied on s 371A. Indeed, the clear purpose of s 371A was not to create a new
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- offence but to broaden the ambit of the existing stealing offence. The fact that s 426 was amended at the same time that s 371A was introduced does not lead to a conclusion that the change to s 426 must be read in a way that is more limited than its plain words convey.
Conclusion
37 Given those conclusions, the magistrate's decision that the Magistrates Court had no jurisdiction to deal with the stealing charge was clearly in error and must be set aside. That erroneous decision has infected the decision in respect of the forgery charge, because his Honour granted a s 5(3)(b) application in respect of the forgery charge, which was an undisputed either way charge, on the basis that they were connected and the stealing charge had to proceed on indictment.
38 In those circumstances, the orders that I made at the hearing of this matter were:
(1) that the decision of the magistrate that the charge of stealing had to be dealt with on indictment be set aside;
(2) that the decision made in respect of the charge of forgery that it be dealt with on indictment pursuant to s 5(3) of the Criminal Code also be set aside; and
(3) that the matter otherwise be remitted to the Magistrates Court to be dealt with in accordance with law under s 40(4) of the Criminal Procedure Act 2004 (WA).
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