R v Selleck
[2000] SASC 190
•17 October 2000
R v SELLECK
[2000] SASC 190Court of Criminal Appeal: Olsson, Wicks & Gray JJ
1 OLSSON J This is an appeal, by leave, against a sentence imposed upon the appellant by a District Court Judge, consequent upon his conviction, by verdict of a jury, of the offence of causing death by dangerous driving. The appellant was sentenced to imprisonment for two years and three months, with a non-parole period of one year and three months. This sentence was suspended upon entry by the appellant into a bond of $200 to be a good behaviour for a period of two years and six months. The learned District Court Judge also imposed, as portion of the sentence, a monetary fine of $20,000 and allowed six months within which to pay that amount. She further disqualified the appellant from holding or obtaining a driver’s licence for a period of seven years.
2 The notice of appeal raised several issues.
3 First, it was contended that the learned sentencing judge had no power to impose a fine, in addition to imposing the custodial sentence above referred to. Second, it was argued that the sentence imposed was manifestly excessive with respect to the quantum of fine and licence disqualification. Third, the appellant asserted that, even if she had power to impose both a custodial sentence and a fine, the learned sentencing judge fell into error in imposing a substantial fine without first indicating that she had it in contemplation to do so; and affording the appellant an opportunity of adducing evidence and advancing submissions concerning his ability to pay. This was, it is said, particularly so in view of the fact that the effect of the overall sentence was to take away portion of the appellant's livelihood -- he being a heavy vehicle transport driver. Finally, it was complained that, in any event, a licence disqualification of seven years was manifestly excessive, given the inevitable impact of such a disqualification on the appellant in particular.
4 At about 5.50 p.m. on 12 December 1997 a Volvo truck, driven by the appellant, came into collision with a Holden Statesman sedan, driven by Phillip John Jones, at the intersection of Redbanks Road and Barabba Road, Mallala. At the time the truck was towing a tandem trailer equipped with laden grain bins. The appellant was engaged in contract grain carting, in a geographic area with which he was well familiar. The learned sentencing judge noted that he had been working long hours in his trucking business during the grain season.
5 At the time of the accident, the appellant was travelling south on Barabba Road, which had a dirt surface. His entry into the intersection with Redbanks Road was governed by a “Give Way” sign. The evidence indicated that, despite such sign, the Volvo entered the intersection at a speed which was found by the learned sentencing judge to be at least 60 km per hour. That was a speed at which the appellant had little hope of stopping his vehicle suddenly.
6 At the same time as the Volvo was approaching the intersection, Mr Jones was driving his Statesman in a westerly direction along the Redbanks Road. That is to say, he was approaching from the appellant’s left.
7 The Volvo did not give way to the traffic on Redbanks Road in accordance with the sign requiring it to do so. It simply proceeded across the course of the Statesman, which drove in under its tray and became wedged there. As a consequence of the impact, Mr Jones was killed.
8 An examination of the appellant’s vehicle after the accident revealed that, not only was it 1.2 tonnes in excess of its allowable gross weight, but, also, its braking system was defective. On the other hand, neither of those situations appear to have contributed to the occurrence of the accident. The learned sentencing judge apparently saw them as being indicative of an overall lack of care on the part of the appellant.
9 As the learned sentencing judge pointed out, it is obvious that the appellant's lookout was grossly defective. He simply did not ever see either the Statesman or a Hilux utility behind it - although he did see a white vehicle travelling between the two of them. He seems merely to have proceeded up to and into the intersection at a fairly constant speed. The evidence reveals that, at the time of the accident, Mr Jones had a blood alcohol concentration of 0.12 per cent.
10 The appellant’s failure was, prima facie, inexplicable, although, as the learned sentencing judge surmised, it may well have been the product of fatigue dulling the senses, due to long hours of work by the appellant. The fact that the witness evidence suggests that there was no perceptible change of speed on the part of the Volvo, as it approached and entered the intersection, tends to lend some support to such a theory.
11 The learned sentencing judge correctly characterised the appellant's driving as a heedless, rather than reckless, although, appropriately, she drew attention to the particular responsibilities of drivers of heavy vehicles, bearing in mind the devastation which can be caused by such vehicles in the event of an accident.
12 The evidence indicated that the appellant had prior convictions for speeding, driving an overweight vehicle and overtaking other than on the left of a vehicle signalling a right turn.
13 The appellant is 43 years of age, married, with three teenage children. As the learned trial judge put it, he had a long and productive work history. He had build up a small, but successful, trucking business, which he ran in conjunction with farming activities.
14 There was a substantial body of evidence to the effect that all who had dealings with him spoke well of the appellant. He had a reputation for honesty, reliability and generous contribution to the community. He had debts of about $800,000 and stood to lose his trucking business and some of his farm if he went to gaol. Any substantial licence disqualification would cause very considerable hardship to him.
15 It was the combination of the strong personal mitigating circumstances which prompted the learned sentencing judge to suspend the custodial sentence which she imposed.
16 Whilst she recognised the “drastic impact” which the period of licence suspension would have on the appellant, the learned sentencing judge felt impelled to impose it, because of what she perceived to be the demands of the factor of general deterrence.
17 Against that background, it is convenient, first, to address that ground of appeal which asserts that the learned sentencing judge had no power to impose a fine in addition to a sentence of imprisonment.
18 On the initial hearing of the appeal Mr Millsteed QC, of senior counsel for the respondent, conceded that no such power was vested in the learned sentencing judge, although his concession was founded on a fairly narrow basis. It is, I think, important that this court express unequivocal conclusions as to this aspect of the appeal.
19 The offence of which the appellant was convicted is that erected by s 19A(1)(b) of the Criminal Law Consolidation Act 1935. Section 19A(2) of that Act stipulates that the penalty for a first offence of that type is to be imprisonment for a term not exceeding 10 years and disqualification from holding or obtaining a driver's licence for five years, or such longer period as the court orders. Section 19A does not specifically authorise the imposition of a monetary fine in addition to the prescribed penalty above referred to.
20 It is to be noted that, until 1 January 1989, s 313 (1) (a) of that statute contained a general provision to the effect that, where any person was convicted, in the Supreme Court, of any felony or misdemeanour, the court might, in addition to, or in lieu of, imposing any other punishment which might lawfully been imposed, fine the offender such amount as the court deemed just. Until 1952, the section was limited, in its application, to persons convicted of misdemeanours. However, it was amended at that time, so that, thereafter, its operation was extended to persons convicted, in the Supreme Court, of felonies.
21 However, that provision, which was never applicable to the District Court, was repealed at the time at which the Criminal Law (Sentencing) Act 1988 was brought into operation. Thereafter the general statutory power of any court to add or substitute certain penalties was that conferred by s 18 of the lastmentioned Act. This provided that where, on convicting a defendant or finding a defendant guilty of an offence, the court thought that good reason existed for departing from the penalty provided by the special Act creating the offence, it was empowered to substitute certain other penalties in very specific circumstances set out in the section.
22 It is to be observed that this provision constituted a departure from the pre-existing s 313(1)(a) of the Criminal Law Consolidation Act. Whereas, under that section, the Supreme Court was empowered to impose a fine, either in addition to or in lieu of imposing a custodial sentence, s 18 merely authorised the imposition of a fine as an alternative to a sentence of imprisonment, where a relevant Special Act prescribed a sentence of imprisonment only.
23 The sentencing strategy which was adopted by the learned sentencing judge appears to have been based upon the reasoning of Lunn DCJ in The Queen v Bawden (1991) 161 LSJS 175 (“Bawden”). In the course of his reasons in that case, Lunn DCJ recognised that there was no current statutory provision which permitted any variation of the type of sentence which might be imposed where the statute creating the offence provided penalties of both imprisonment and suspension of driving licence. He expressed the categoric view that he did not consider that s 18 of the Criminal Law (Sentencing) Act constituted a complete code on the powers of a sentencing judge.
24 It was his opinion that such statute worked “within the framework of the previous common law”; and “only addresses certain categories of matters where community service, which is an entirely statutory punishment, is made an alternative to other types of penalties”. He went on to examine the common law situation and concluded that, because the offence of causing death by dangerous driving was of the nature of a misdemeanour, the court possessed a common law power to impose a fine, as the whole or part of the sentence. He derived that conclusion from a consideration of the 36th edition of Archbold, “Criminal Pleading Evidence & Practice”.
25 With all due respect to Lunn DCJ, I am unable to accept the reasoning expressed by him in Bawden. The 36th edition of Archbold was published in 1966. Whatever may have been the original common law situation concerning sentencing for misdemeanours, the fact is that, in the United Kingdom, such a situation was later overtaken by the provisions of the Powers of Criminal Courts Act 1973 (UK), which was, in turn, superseded by later legislation. For example, s 30 of the lastmentioned Act contained provisions which, in substance, were similar to those contained in s 313(1)(a) of the Criminal Law Consolidation Act. It is significant that, in the later editions of Archbold, it is implicit that the old common law powers had no room to operate, given the statutory environment which had been created.
26 In my opinion, the same situation arose in South Australia, from the time at which the lastmentioned section was enacted. If any doubt existed as to that proposition, it was, in my view, laid to rest by the enactment, in 1988, of the Criminal Law (Sentencing) Act. But a glance at the provisions of that statute render it apparent that the legislature intended it (inter alia) to constitute an exclusive and comprehensive general legislative framework related to the powers of all courts in sentencing offenders. This is apparent both from the terms of the statute itself and from the title of it. It is expressed to be an Act to consolidate and amend the law relating to sentencing and the enforcement of sentences. That situation is subject only to the provisions of s 4 of the statute, which renders it clear that the powers conferred on a court by the Act are to be in addition to and not derogate from the powers conferred by any other, specific, Act or law.
27 In the course of his reasons, Lunn DCJ propounds the proposition that, because the lastmentioned statute works within the framework of the previous common law, any common law powers as to sentencing are preserved. He relies upon the authority of R v Adami (1988 - 1989) 51 SASR 229 (“Adami”) for such a general proposition.
28 I do not consider that the judgments in that case can properly be relied upon in that way. The point in issue in Adami was relatively narrow. The Court of Criminal Appeal there held that the statement of factors to be taken into account in the sentencing of an offender did not bring about a change in the pre-existing law in that regard. It did no more than consolidate and declare what had always been the law. The issue there under contemplation was the extent to which it was appropriate to take into account the probable effect of any sentence on the dependants of an offender. It was pointed out that the real question was as to the manner and extent to which such a factor was relevant in particular cases. The section did not purport to bring about any change in the previous case law related to that aspect.
29 I do not think that Adami can possibly found the broad proposition which Lunn DCJ seeks to extract from it. Leaving aside other specific provisions of special Acts, it is plain that Division 2 of Part 2 of the statute is intended, as the title to the enactment indicates, to constitute a consolidation of what is said to be the general law related to sentencing powers.
30 So it is that, when s 18 provides as under:-
"18 . Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose -
(i) a fine; or
(ii) ...... a sentence of community service; or
(iii) both a fine and a sentence of community service; or
(b) where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose --
(i) a sentence of imprisonment only;
(ii) ...... a fine only;
(iii) a sentence of community service; or
(iv) ...... both a fine and a sentence of community service;
(c) where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose -
(i) a sentence of community service; or
(ii) ...... both a fine and a sentence of community service;
(d) .. where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.”
such section is covering the field in a comprehensive and all embracing fashion. It is not merely a provision designed to facilitate the introduction of the concept of community service orders. There is simply nothing in the statute to indicate that, absent some enabling provision in some other special Act, courts are to have and be able to exercise other general powers to add or substitute penalties. Moreover, very real questions also arise as to whether any original common law power was ever vested in other than the Superior Courts of Record and as to the nature and extent of that power.
31 Whilst it is true that, in the course of his reasons in Australian Consolidated Press Limited v Morgan & Anor (1964-65) 112 CLR 483 (“Morgan”) at 497 Windeyer J, made a general comment to the effect that the power to fine in a case of criminal contempt “arises from the ancient rule of the common law that all crime is punishable by imprisonment or by fine”, that dictum cannot be taken to found the general proposition that a common law power to fine arose in relation to all criminal offences.
32 Morgan related to a situation in which the court of first instance had fined a publisher for contempt, by virtue of a breach of an undertaking given by it. The sole issue which arose before the High Court was as to whether, on the merits, a fine ought to have been imposed. It was common ground that the power to fine for contempt was undoubted, although there was discussion of the distinction between what were termed criminal contempts (such as a contempt in the face of the court, or a contempt by impeding the course of justice) on the one hand, and, on the other, civil contempts such as the breach of an undertaking.
33 The court was content to proceed on the footing that, in either case, the power to fine existed.
34 On a careful reading of the decision of Windeyer J it is clear that, in making the statement above referred to, he was doing no more than make the primary point, in passing, that criminal contempt constituted a common law misdemeanour; and that, historically, it was punishable by either imprisonment or fine.
35 Whilst it is true that he made passing reference to the possibility of fines being imposed for felony, nevertheless, his comment was clearly obiter and not specifically subscribed to by the other members of the court.
36 It is further to be noted that, on a subsequent occasion, when sitting as a member of the Privy Council in Samsoondar Ramcharan v The Queen (1973) AC 414 at 423, Windeyer J was, then, by no means dogmatically asserting that there had ever been a common law power to fine in respect of felonies as well as misdemeanours ie in respect of “all crimes”. He left that question open.
37 It seems to me that the undoubted true situation is that adverted to by Lord Goddard CJ in Treasury v Harris and Another (1957) 2 QB 516 at 523. He there, unequivocally, made the point that, save for certain limited statutory provisions enacted in the middle of Queen Victoria’s reign, it was not until the Criminal Justice Act 1948 came into operation that a court of indictment had power to impose a sentence other than imprisonment for a felony. (See also Rex v Morris (1951) 1 KB 394 at 395-396, Fox and Frieberg, Sentencing, State and Federal Law in Victoria (1985) at pp 131-133.)
38 It is therefore no coincidence that, in 1952, only several years later, s 313 of the Criminal Law Consolidation Act was amended to provide that the Supreme Court was to have power to impose a fine in respect of the commission of felonies. This was plainly borne of an acceptance that the common law did not confer such a power.
39 The provisions of s 313 were, of course, restricted to the Supreme Court because the District Court and its statutory predecessor did not exist at the time. By the time that those courts were brought into existence any original common law power had long since been supplanted by s 313 of the Criminal Law Consolidation Act.
40 So it was that when, in 1969, s 328 of the Local and District Criminal Courts Act (1926-1975) vested in the then new District Criminal Courts “all the jurisdiction and powers that the Supreme Court had, under any Act or the common law” at that time, the old common law power to fine was no longer applicable.
41 The foregoing history is extremely important because it serves to illustrate that such common law power as existed historically was restricted to convictions for misdemeanours and was that possessed and exercised by Superior Courts of Record. Moreover, the enactment of s 313 of the Criminal Law Consolidation Act and the amendment of it in 1952 can only be taken to evince a firm intention on the part of the Parliament to displace such earlier common law powers as existed and replace them with a new statutory regime. The very scope and mode of expression of that section covered the field and left no scope for the former common law power to operate.
42 As I have already pointed out, the simultaneous rescission of s 313 and the enactment of the Criminal Law (Sentencing) Act in 1988, logically, can only be taken to indicate that, at that time, the legislature intended, inter alia, to replace s 313 with yet another statutory regime covering the field - but in a different fashion. It deliberately superseded the scheme of s 313.
43 Be that as it may and if my above conclusion be incorrect, I agree with Mr Millsteed QC that, in any event, any potentially relevant residual common law power was effectively laid to rest by the enactment, in 1994, of s 5D of the Criminal Law Consolidation Act. This specifically abolished the classifications of offences as being either felonies or misdemeanours. Thereafter, it was not possible to identify any offences which were misdemeanours, to which the asserted common law power could attach.
44 It follows that, on any view, Bawden was wrongly decided. The learned sentencing judge had no power to impose a fine in addition to the custodial sentence in this matter. The sentencing discretion therefore miscarried. It therefore becomes necessary for this court to consider the appropriate sentence afresh.
45 In reviewing the facts, I agree with the learned sentencing judge that this offence is neither the worst nor the least serious of its type. Moreover, as she recognised, there was much to be said for the appellant by way of mitigation. There was no evidence of sheer recklessness on his part. The worst that can be said against him was that he was probably driving in an unduly fatigued condition. Whilst the condition of his vehicle left something to be desired, it is plain that this had nothing to do with the occurrence of the accident. That resulted entirely from a failure to maintain an effective lookout, whilst driving a heavy, laden vehicle at a significant speed, through an intersection likely to carry traffic; and against the mandate of a “Give Way” sign. Furthermore, the intoxicated condition of the victim cannot be ignored. It may well be that this, in some degree, contributed to the occurrence of the accident.
46 It was beyond question that the appellant was highly regarded in his local community and had a long history of hard work. True it is that he had some antecedent record involving previous driving offences, but, as the learned sentencing judge pointed out, this had to be viewed in the context that the appellant was a professional driver, constantly on the road. The previous record was scarcely an appalling one.
47 The appellant will plainly have to live with the dreadful memory of having caused the untimely death of an innocent person by reason of his manner of driving. That, in itself, will constitute a not insubstantial punishment in its own right.
48 I consider that the suspended custodial sentence imposed by the learned sentencing judge, taken alone, was appropriate, having regard to the nature of the appellant’s offence. Counsel do not seek to argue to the contrary.
49 Having regard to the foregoing situation, and as it falls to this Court to consider the overall sentence afresh, I consider that the period of licence disqualification ought to be revisited.
50 I repeat, this was not the case of a person with a prior bad record deliberately driving in a wanton manner. The offence committed was not deliberate. It was, in terms of relative criminality, towards the low end of the scale.
51 The imposition of the minimum prescribed period of disqualification will work very great hardship on the appellant, bearing in mind his business and financial commitments. It will, in his case (when coupled with the custodial sentence) be condign punishment for the offence committed. The deterrent effect on the appellant will be considerable.
52 In the circumstances I would allow the appeal and set aside the order for payment of a monetary fine. I would confirm the custodial sentence imposed and its suspension, but reduce the order for disqualification to five years.
53 WICKS J The facts of this case are set out in the judgment of Olsson J.
54 The issue in this matter is whether the learned sentencing judge was entitled to impose a fine on the appellant in addition to a custodial sentence.
55 There was a view that in earlier times a court had the power to impose a fine for the commission of a misdemeanour but not for the commission of a felony, other forms of punishment being reserved for the latter. Whether a fine could be imposed on the commission of a felony has never been entirely free from doubt: Australian Consolidated Press v Morgan (1964-1965) 112 CLR 483 per Windeyer J at p 497; Samsoondar Ramcharan v The Queen (1973) AC 414 per Windeyer J at p 423. To the contrary see Treasury v Harris (1957) 2 QB 516.
56 In 1876, by s 411 of the Criminal Law Consolidation Act of that year, the power to fine for the commission of a misdemeanour became a statutory power.
57 The Criminal Law Consolidation Act 1876 was repealed by the Criminal Law Consolidation Act 1935. A new s 313 was enacted in the same terms as s 411 of the repealed Act.
58 In 1952, s 313 of the Criminal Law Consolidation Act 1935 was amended to provide that where a person is convicted in the Supreme Court of a felony or of a misdemeanour, the Court is entitled to impose a fine, in addition to or in lieu of imposing any other penalty: Criminal Law Consolidation Act 1935-1940 as amended by s 12 of the Criminal Law Consolidation Amendment Act 1952.
59 Section 18 of the Criminal Law (Sentencing) Act 1988 as it presently stands, and as it stood at the time of the commission of the two offences the subject of this appeal is and was as follows:
"18. Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a).... where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose -
(i) a fine; or
(ii) a sentence of community service; or
(iii) both a fine and a sentence of community service; or
(b).... where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose -
(i) a sentence of imprisonment only; or
(ii) a fine only; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(c).... where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose -
(i) a sentence of community service; or
(ii) both a fine and a sentence of community service; or(d)where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service."
60 In this matter I am of opinion that the question to be decided is one depending upon the proper interpretation of s 18. In my view, it is not concerned with the more complex question of whether the Criminal Law (Sentencing) Act is or is not a code. The wider question, it seems to me, does not require to be answered in the present case.
61 This matter is concerned with an offence against s 19A of the Criminal Law Consolidation Act of causing death by dangerous driving. The sentence or penalty for infringement of that section depends on the circumstances. A first offence attracts a term of imprisonment for a period not exceeding ten years and disqualification from holding or obtaining a driver’s licence for a term of five years or longer if the Court so orders. A second or subsequent offence attracts a term of imprisonment for a period not exceeding fifteen years and disqualification from holding or obtaining a driver’s licence for a period of ten years or longer if the Court so orders. There is nothing in s 19A of the Criminal Law Consolidation Act which gives the Court an additional or alternative option to impose a fine. In the present case, we are dealing with a first offence.
62 The Criminal Law (Sentencing) Act defines a special Act as “an Act ... that creates an offence or prescribes a penalty for an offence”. In my opinion s 18 of the Criminal Law (Sentencing) Act is concerned with a combination of penalties comprising a sentence of imprisonment, a fine and a sentence of community service. No mention is made in s 18 of a disqualification from holding or obtaining a driver’s licence. In my view, that penalty is outside the scope of s 18 altogether and should be dealt with quite separately. The disqualification referred to must be imposed as a penalty in the case of every breach of subs 19A(1) of the Criminal Law Consolidation Act. There is no alternative punishment for that particular penalty.
63 It seems to me that the draftsman of the Criminal Law (Sentencing) Act went to a great deal of trouble in the drafting of s 18. He was concerned to ensure that particular combinations set out in the section were the only ones permitted in particular circumstances. On a reading of the section, one is drawn to the conclusion that the combinations permitted were quite deliberately made the only ones.
64 Paragraph (a) of s 18 of the Criminal Law (Sentencing) Act is concerned with the situation where a penalty of imprisonment is prescribed by the special Act (s19A of the Criminal Law Consolidation Act) and where such a penalty of imprisonment (as is the case here) is not in combination with a fine or a sentence of community service or both. Also, par (a) enables a fine and a sentence of community service or either of them to be imposed where “the Court thinks that good reason exists for departing from the penalty provided by the special Act”. There must be a departure. To include a sentence of imprisonment along with a fine or a sentence of community service or both of them would not be a departure because the penalty of imprisonment would still be there. If a sentence of imprisonment were imposed along with a fine or sentence of community service or both, the word “instead” appearing in par 18(a) would have to be ignored. In my view, par (a) does not authorise both a sentence of imprisonment and a fine. Paragraph (b) of s 18 has no application in the present case because s 19A of the Criminal Law Consolidation Act (“the special Act”) does not prescribe both a sentence of imprisonment and a fine. Similarly, par (c) of s 18 has no application because the special Act does not prescribe a sentence of imprisonment or a fine in the alternative. Similarly, par (d) has no application because the special Act does not prescribe a fine.
65 In my opinion, as a matter of statutory construction, s 18 of the Criminal Law (Sentencing) Act cannot be used to impose penalties consisting of both a term of imprisonment and a fine.
66 It may well be that the enactment of s 411 of the Criminal Law Consolidation Act 1876, s 313 of the Criminal Law Consolidation Act 1935 and s 12 of the Criminal Law Consolidation Amendment Act 1952 and their subsequent repeal did not disturb the power at common law to impose a fine for a breach of s 19A of the Criminal Law Consolidation Act 1935 in addition to any penalty imposed by that section. Although the power at common law may continue to exist, it is my contention that any such common law power has no application to s 18 of the Criminal Law (Sentencing) Act 1988. For reasons which I have already given, s 18 is expressed in such a manner that there is no room as a matter of statutory construction for the co-existence of the common law power in relation to that section.
67 It follows that the learned sentencing judge had no power to impose a fine in addition to a sentence of imprisonment and that the fine purporting to have been imposed should be set aside.
68 I agree with Olsson J that the suspended custodial sentence imposed by the learned sentencing judge when taken alone was appropriate having regard to the nature of the appellant’s offence. I also agree that in the circumstances of this matter the total sentence will have to be considered afresh by this Court. That being so, I agree that the period of licence disqualification should be reduced to five years. In the circumstances, I would agree with the orders which Olsson J proposes.
69 GRAY J Introduction: The appellant was found guilty by jury of causing death by dangerous driving contrary to s 19A of the Criminal Law Consolidation Act 1935(SA) (the Act).
70 The learned sentencing judge imposed a sentence of imprisonment for two years and three months with a non-parole period of one year and three months. The sentence was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two and a half years. Her Honour disqualified the appellant from holding or obtaining a driver's licence for a period of seven years and imposed a fine of $20,000. The appellant has appealed with leave against the sentence imposed.
71 Section 19A relevantly provides:
"(1) A person who -
(a).. drives a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b).. by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
(2) The penalty for an offence against subsection (1) is as follows:
(a).. for a first offence - imprisonment for a term not exceeding 10 years and disqualification from holding or obtaining a driver's licence for 5 years or such longer period as the court orders; ..."
72 The offence created by s 19A is a misdemeanour at common law. The term misdemeanour incudes a new statutory offence that is not specifically classified as a felony - Reynolds v Stacy[1]and R v Romeo[2].
[1] (1956-57) 96 CLR 454 at 461- 462
[2] (1982) 30 SASR 243 at 274
73 On 12 December 1997, the appellant was driving a loaded grain truck and tandem trailer along a secondary dirt road near Mallala. He approached a sealed highway at about 60 kph. He was obliged to give way at the intersection. A give-way sign gave priority to traffic on the sealed highway. Vehicles were approaching at 110 kph from his left, including the vehicle that collided with his truck. The appellant's lookout was grossly defective. He failed to see the deceased's vehicle. The learned sentencing judge considered that this may have been due to fatigue, which could be contributed to long working hours. His truck and trailer were partly across the intersection when the vehicles collided. The vehicle driven by the deceased ran into the side of the truck and trailer. The deceased had a blood alcohol concentration of 0.12 per centum.
74 The defendant was aged 43 years. He was married with three teenage children. He had a long and productive work history. Through his own efforts, he had built a small but successful trucking business which he conducted alongside his farming concerns. He employed full-time and casual workers in his trucking business. He also made substantial contributions to the local community. He was honest, reliable, hard-working and generous. The licence disqualification will have a drastic impact on his trucking business.
The Issues
75 The defendant raised four matters of complaint:
"1..... The sentence imposed by the Learned Sentencing Judge was manifestly excessive with respect to the fine of $20,000 and the licence disqualification of 7 years.
2.The Learned Sentencing Judge erred in imposing any fine when no enquiry or submission was made concerning the appellant's ability to pay a fine, particularly in view of the fact that portion of his livelihood was taken away with the licence disqualification.
3...... The Learned Sentencing Judge erred in imposing a licence disqualification of 7 years in view of the hardship created by the mandatory minimum licence disqualification of 5 years.
4.The Learned Sentencing Judge was in error in imposing a fine in that there is no power to fine in addition to a sentence of imprisonment when sentencing for the offence of causing death by dangerous driving."
Common Law
76 It is convenient to first discuss the Court's power to impose a fine.
77 Much debate amongst learned commentators and the judiciary has centred around the common law power to fine. Windeyer J in Australian Consolidated Press Ltd v Morgan[3] summarised the matter in the following terms:
"The power to fine in such cases thus arises from the ancient rule of the common law that all crime is punishable by imprisonment or by fine. Until modern times a fine was rarely imposed for treason or felony, but a fine was always a common penalty for a misdemeanour. A court having power to fine or imprison for a crime may do either at its discretion; and, unless limited by statute, the amount of a fine is in the court's discretion, provided it is not so inordinately heavy as to conflict with the Bill of Rights: See R. v. Morris per Lord Goddard C.J."
[3] (1964-65) 112 CLR 483 at 497
78 The Privy Council in Samsoondar Ramcharan v R[4] discussed the position at common law. Sir Victor Windeyer sat as a member of the Council and delivered the reasons of the court. He said at page (423):
"This argument was based upon a proposition that a fine was at common law an available penalty for felony: and that this common law rule still prevailed in Trinidad as an alternative behind, or alongside, any punishment prescribed by statute.
Their Lordships do not find it necessary to make any definitive pronouncement upon the historical aspects of this argument. There are statements in leading textbooks on criminal law and noteworthy dicta in the case law which can be invoked on either side of the question. Some of these were cited by counsel. A passage in Halsbury's Laws of England, 3rd ed., vol 10 (1995), p 494, is typical. Two sentences from it run:
'A fine, either with or without imprisonment is, and always was, a punishment at common law at the discretion of the court. It was rarely if ever imposed on conviction of treason or felony, probably because the punishment for such was almost invariably death till the reign of George IV, but it could always be imposed for misdemeanour.'
These statements may well be too abbreviated to stand as general propositions unconfined in point of time. To ask: Was a fine a penalty for a felony at common law? - is to pose a question the beguiling simplicity of which disguises its lack of precision. At what point of time in the centuries of the common law is one to take one's stand? In early mediaeval times a fine was a known penalty for trespasses vi et armis, not then called misdemeanours, that were not within the list of felonies. In this - beginning probably with amercements for those found guilty of such acts - we may see the origin of the later rule by which fines were imposed for misdemeanours; but not for felonies, because for centuries a conviction of felony was ordinarily followed by death, forfeiture of lands and goods, corruption of blood and attainder. As time went on the list of felonies was increased, but the severity of their consequences was diminished by an expansion of the list of those that were clergyable; by the development thereby of the leniency for first offenders which continued to be miscalled benefit of clergy; by transportation as an alternative to capital punishment; and in the 18th century by statutory mitigation of the rules about forfeiture and attainder and their final abolition in England in 1870 by the Forfeiture Act 1870 (33 & 34 Vict. C. 23), s. 1."
[4] [1973] AC 414 at 423
79 In Morgan's Case Windeyer J made reference to the remarks of Lord Goddard CJ in R v Morris[5]. At page (396) His Lordship said:
"But there is no doubt, and it was recognised in Reg. v Castro that a court had a right to impose imprisonment and a fine at its discretion."
[5] [1951] 1 KB 394
80 It is to be observed that Lord Goddard in a later case of Treasury v Harris & Anor [6]said at (523):
"It is important to remember that the conviction here was for a felony, and that, but for the Criminal Justice Act, 1948, a fine could not have been imposed at all, because at common law it is extremely doubtful whether a fine ever could be imposed for a felony. In fact, it was not until the middle of Queen Victoria's reign that provision was made by statute for the penalty of a fine to be imposed in certain cases of felony, but only in those cases which could be dealt with summarily. So it can be stated quite definitely that a court of indictment had no power until the Criminal Justice Act, 1948, came into operation to impose a sentence other than imprisonment for a felony."
[6] [1957] 2 QB 516
81 The answer to this historical conundrum about the power to fine for a felony is unclear. As will be seen later in these reasons, the resolution of this debate is not critical.
82 No doubt part of the confusion arises from the development of the common law. However, by the time Morgan's Case was decided, it would appear to be accepted for the purposes of Australian common law, that the power to fine in regard to felony and misdemeanour existed. In any event, regardless of any uncertainty concerning felonies, it has always been accepted that the power to fine existed at common law, with respect to misdemeanours.
Legislative History
83 Both counsel agreed that this court could have regard to second reading speeches where it thought appropriate, with respect to the legislation in issue.
84 In 1861, Parliament in England passed the Statute 24 & 25 Victoriae. That Act was entitled "An Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar Offences”. Section 117 provided:
"Whenever any Person shall be convicted of any indictable Misdemeanour punishable under this Act, the Court may, if it shall think fit, in addition to or in lieu of any of the Punishments by this Act authorized, fine the Offender, and require him to enter into his own Recognizances and to find Sureties, both or either, for keeping the Peace and being of good Behaviour; and in case of any Felony punishable under this Act the Court may, if it shall think fit, require the Offender to enter into his own Recognizances, and to find Sureties, both or either, for keeping the Peace, in addition to any Punishment by this Act authorized: Provided that no Person shall be imprisoned under this Clause for not finding Sureties for any Period exceeding One Year."
85 When the Solicitor-General moved for leave to introduce the bills to consolidate and amend the Statute Law of England and Ireland, he said:
"The Bills in question were seven in number, and their general object was to consolidate and assimilate the Statute Law of England and Ireland bearing upon crimes. One of the seven, however, was simply a repealing Bill, abolishing the enactments for which the other six, if passed, would become the substitutes; while another, referring to accessories and abbettors, fell rather under the category of criminal procedure than of crime and punishment. These measures would not interfere with that portion of our criminal law, now small in extent compared with the rest, which was common or unwritten. As to the propriety of consolidating the statute law, but one opinion was entertained among all who had applied their minds to a consideration of the subject. It might be expected, indeed, that with respect to the various Bills which from time to time were proposed as means for carrying out consolidation, those Bills or those means might meet with more or less of disapprobation; but he repeated that as to the propriety of consolidation of the criminal statute law no second opinion was entertained. Any attempt, on the other hand, to collect and put into a compact form that other part of the criminal law which was called common or unwritten would amount not to consolidation merely; but [to] codification; and would stir up controversial matters."
86 In South Australia, in 1876 the legislature enacted “An Act for consolidating and amending the Statute Law of the Province of South Australia relating to Criminal Offences and other matters”. Section 411, with minor modifications, adopted section 117 as cited above. Section 411 was as follows:
"Whenever any person shall be convicted of any misdemeanour punishable under this Act, the Court may, in addition to or in lieu of any punishment by this Act authorized, fine the offender, and require him to enter into his own recognizances and to find sureties both or either for keeping the peace and being of good behaviour, and in case of any felony punishable under this Act, the Court may require the offender to enter into his own recognizances and to find sureties, both or either for keeping the peace, in addition to any punishment by this Act authorized: Provided that no person shall be imprisoned for not finding sureties under this clause for more than one year."
87 The second reading speech describes the proposed legislation as a consolidating measure.
88 Section 411 was replaced in 1935 by section 313 of the Criminal Law Consolidation Act. That section provided:
"(1) When any person is convicted of any misdemeanour punishable under this Act, the court may, in addition to or in lieu of any punishment by this Act authorised, fine the offender, and require him to enter into his own recognizance and to find sureties for keeping the peace and being of good behaviour, or for either of those purposes.
(2) When any person is convicted of any felony punishable under this Act, the court may require the offender to enter into his own recognizance and to find sureties, both or either for keeping the peace and being of good behaviour, in addition to any punishment by this Act authorised. ..."
In 1952, section 313 was repealed and in lieu, the following was enacted:
"313. (1) Where any person is convicted in the Supreme Court of any felony (other than treason or murder) or of any misdemeanour the court may, in addition to or in lieu of imposing any other punishment which may lawfully be imposed, exercise all or any of the following powers, namely -
(a) fine the offender such amount as the court deems just;
...
(3) Notwithstanding any other enactment any power conferred by subsection (1) of this section may be exercised in relation to any offence punishable in the Supreme Court, other than -
(a) treason and murder; and
......... (b) any offence in respect of which it is expressly provided by any enactment that the said power shall not be used.
89 This enactment introduced the statutory power to fine for felony.
90 Section 313 was repealed by the Statutes Amendment and Repeat (Sentencing) Act 1988 (SA). Section 35 of that Act provided:
"Sections 301 to 314 (inclusive) of the principal Act and the heading preceding those sections are repealed."
91 This enactment formed part of a package of enactments, the principal Act of which was the Criminal Law (Sentencing) Act of 1988. In the second reading speech it was said:
"This Bill runs in tandem with the Criminal Law (Sentencing) Bill on which I have just spoken.
This Bill, by and large seeks to amend and repeal a number of Statutes and provisions in Statutes in consequence of the enactment of the Criminal Law (Sentencing) Bill 1987."
92 Having examined the history of these provisions, I now turn to the canons of statutory interpretation.
93 As was said by Lord Lowry in Harrison v Tew[7] (with the assent of the other Law Lords).
"One must distinguish between affirmative and negative provisions: the common law can co-exist with a statutory provision with which it is not inconsistent. Mr Newman, for the respondent, as well as introducing the quotation from Wade & Bradley, referred your Lordships to Coke, Institutes of the Laws of England (1817), cap 20, p 200 (Co 2 Inst 200):
'it is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law: ...'
Dillon L J [1989] QB 307, 323 referred to Lord Wilberforce's statement in Shiloh Spinners Ltd v Harding [1973] AC 691, 724-725 and that case was applied in Official Custodian for Charities v Parway Estates Developments Ltd [1985] Ch 151, 165."
[7] (1990) 2 AC 523
94 And as was said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G.[8] at (650):
"The first is that clear and unmistakable words will be required for the abrogation of a long-standing rule of law: see Maxwell on Interpretation of Statutes, 12th ed (1969), p 116.
......... 'It is a well established principle of construction that a statute is not to be taken as affecting fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion' (Devlin J in National Assistance Board v Wilkinson [1952] 2 QB 648, 661).'"
[8] [1975] AC 591
95 These provisions contain no clear indication that they were intended to abrogate the common law. They are affirmative provisions. The common law continued to co-exist and was not taken away. In my view, the common law power to fine for both misdemeanours and felonies remained part of the law of South Australia after the enactment of the statutory provisions. The repeal of section 313 had no effect on the common law power to fine for misdemeanours and felonies.
Counsel's Submissions
96 The appellant contended:
1...... That the offence was contrary to section 19(A)(1) of the Criminal Law Consolidation Act 1935 SA. The penalty provided was a maximum term of imprisonment of 10 years and a licence disqualification of at least five years.
2...... Nothing in the Criminal Law Consolidation Act allowed the Court to impose a fine.
3...... The Criminal Law Consolidation Act had, by now repealed section 313(1)(a), empowered the Supreme Court, when sentencing, to impose a fine in addition to or in lieu of any other punishment. That section was repealed in 1988.
4...... The Criminal Law (Sentencing)Act 1988 (SA) ('The Sentencing Act') makes limited provision for fines. Section 3 defines pecuniary sum to include a fine. Section 18 makes general provision for a court to depart from a penalty provided by a Special Act by adding or substituting certain pecuniary penalties. However none of the subsections of section 18 have application to section 19(A) of the Criminal Law Consolidation Act.
5...... The Sentencing Act is a codification of sentencing law in this State thereby excluding the common law and in particular the power to fine for a misdemeanour. R v Bawden[9] to the contrary was wrongly decided.
[9] (1991) 161 LSJS 175
97 It was accepted by the respondent that there was no statutory power to impose a fine. It was submitted that at common law, there was power to impose a fine in addition to a term of imprisonment in regard to misdemeanours. It was then said that the power was not available to the learned sentencing Judge as there had been an abolition of the distinction between felonies and misdemeanours effected by section 5D of the Criminal Law Consolidation Act. It was submitted that R v Bawden was distinguishable as it was decided prior to the enactment of section 5D. The Crown contended that the Sentencing Act was not a code.
The Sentencing Act
98 Section 4 of the Sentencing Act provides:
" Subject to this Act, the powers conferred on a court by this Act are in addition to, and do not derogate from, the powers conferred by any other Act or law to impose a penalty upon, or make any order or give any direction in relation to, a person found guilty of an offence."
99 It will be observed that the powers are said to be in addition to powers conferred by any other act or law. "Act" is defined by the Acts Interpretation Act 1915 (SA) to mean:
"4 (1) In this Act and in every other Act or statutory instrument, unless the contrary intention appears -
"Act" means -
(a).... an Act of the Parliament of South Australia or an Act or ordinance of some earlier legislative authority in South Australia; ... "
100 This would appear to be a clear indication that the Sentencing Act was intended to complement other Acts and the common law. The use of the word "law" in contradistinction to the word "Act" suggests that reference was being made to the common law, as distinct from statutory law.
101 A number of aspects of the Sentencing Act confirm that the Act is not a code. It is not expressed to be a code. I refer to my earlier observations concerning Section 4. Section 10 specifically requires the Court to have regard to other relevant matters. This leaves the Court to ascertain those matters by reference to general principles. When dealing with the fixing of non-parole periods, section 10 gives no guidance to the Court and leaves the common law to fill the gap.
102 In R v Adami[10] this Court considered the legislative scheme created by the Sentencing Act, and in particular section 10. Legoe J said at (231):
"Clearly the section [section 10] is not designed to be exhaustive in sentencing considerations, by virtue of the fact that the last subparagraph of the section, (o), requires the court to have regard to 'any other relevant matter'. It is obvious from a fair and proper reading of the section in the context of this particular Act, that the discretionary powers of the sentencing court are left to the general law as laid down in the cases enunciating numerous principles of sentencing."
[10] (1988-89) 51 SASR 229; 42 A Crim R 88
103 Bollen J (which whom King CJ agreed) said:
"In effect, Mr Borick submitted that s 10(n) produced a change in the law. In my opinion, it does not. For one thing s 10 directs the court that it 'should have regard to such of the following matters as are relevant'. 'Relevant' must mean 'relevant to the case at Bar'. The probable effect of a sentence on dependants is still relevant only in exceptional cases. The section does not change the law on this point. Moreover, s 10 is no more than a section which declares what has always been the law. The Supreme Court of South Australia has always taken into account and had 'regard to' the matters mentioned in s 10 insofar as they or any of them was relevant in a particular case. I cannot think that any part of s 10 changes the law."
104 The High Court in Inge v R[11] gave consideration to the legislative scheme invoked by the Sentencing Act. The Court addressed issues concerning the fixing of a non-parole period. Kirby J at [35] said:
"Where (as here) parliament has not spelt out all of the considerations which are to inform the decision of the judge in fixing a non-parole period, the common law fills the gap. It does so by implication from the subject matter, scope and purposes of the legislation."
[11] (1999) 166 ALR 312
105 The Crimes Act 1914 (Cth) contains similar, although not identical, provisions to the Sentencing Act. The Crimes Act has been held not to be a code.
106 In R v Sinclair[12] the Western Australian Court of Criminal Appeal dealt with section 16A of the Crimes Act. Section 16A closely parallels section 10 of the Sentencing Act. The Court adopted and applied R v Adami. Malcolm CJ said at (430):
"In my view s.16A of the Crimes Act was not intended to change the common law."
[12] (1990) 51 A Crim R 418
107 In R v Paull[13] Hunt J observed at (434):
"The matters which a court must take into account in determining the sentence to be passed in the particular case are set out in s 16A of the Crimes Act (Cth).Just what the purpose of this section was is not clear, unless it was intended to act merely as some type of check list. As with any attempt to codify an area of the law such as this, which could hardly be less suitable for codification, that check list happens to omit any reference to the one factor which is generally accepted as being the main purpose of punishment, to which all of the usual subjective considerations are necessarily subsidiary - namely, general deterrence: R v Radich [1954] NZLR 86 at 87 and R v Rushby [1977] 1 NSWLR 594 at 597-598. The draftsman has, however, made the checklist subject to the 'addition of other matters' - a phrase which, it is to be hoped, will be interpreted as a reference to any other relevant matters, despite the apparent contrast between that phrase and the phrase 'such of the following matters as are relevant' which follows it in s 16(2). General deterrence must obviously still be taken into account in determining the sentence to be passed."
[13] (1991) 20 NSWLR 427
108 The New South Wales Court of Criminal Appeal in DPP (Cth) v El Karhani[14] approved R v Paull and said at (380):
"The list of particular considerations in s 16A(2) must be read as subject to the primary obligation of the court stated in s 16A(1). All that s 16(A)(2) requires is that the court should 'take into account' the listed matters. They provide a catalogue of matters to be considered in determining the 'severity appropriate in all the circumstances of the offence'. However, the opening words of s 16A(2) must be noticed. They state that the matters there listed are to be taken into account 'in addition to any other matters'. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters. One other such relevant matter is clearly the general deterrent effect of the sentence. As in this case, that may be equally important as the effect on the offender."
[14] (1990) 97 ALR 373
109 The Full Federal Court dealt with the issue in Tapper v R[15] and concluded that the Crimes Act Part IB (which includes s 16A) was not a code. The Court said:
"Part IB, whilst not a code, lays down a fairly comprehensive sentencing regime for federal offenders. In particular, Div 2 of Pt 1B is concerned with general sentencing principles and s 16A specifies a number of matters to which a court must have regard in passing sentence."
[15] (1992) 111 ALR 347
110 It has been said that a consolidating statute gathers together and re-enacts all of the legislation on a particular topic. A codifying statute does that, but it also incorporates all of the relevant common law. The code then becomes a complete statement of all law on the particular issue. It supersedes the existing common law to the extent that the code and the common law conflict.
111 In my opinion, the Sentencing Act is not a codifying statute. It is not a complete statement of the law and it does not incorporate all relevant aspects of the common law. I reject the submission of the appellant that the Sentencing Act is a code.
112 As can be seen from the above remarks, it is my view that the common law power to fine for misdemeanours and felonies remained. As section 313 and its predecessors did not repeal the common law, it remained as a body of law together with the statute law. Section 4 of the Sentencing Act specifically acknowledged its continued operation. The Sentencing Act is not a code and as such, has not effected any repeal of the common law.
Further Legislation
113 Section 5D of the Criminal Law Consolidation Act was introduced on 1 January 1995 by section 4 of the Criminal Law Consolidation (Felonies & Misdemeanours) Amendment Act 1994 No. 59. Section 5D provides:
"5D (1) The classification of offences as felonies is abolished.
(2) The classification of offences as misdemeanours is abolished."
114 This section refers only to the classification of offences. There is no suggestion on the face of the amending statute that the common law powers and discretions of the Court in sentencing were to be taken away or altered.
115 The second reading speech would suggest that the object of the Bill was to abolish procedural distinctions, but otherwise maintain the status quo with respect to the substantive law.
116 The Minister said:-
"South Australia inherited the distinction between felonies and misdemeanours in 1836. It remains in South Australian criminal law. But in the last century, the key classification of offences, which is all-important from a procedural point of view, has moved from the felony/misdemeanour distinction to that between indictable and summary offences and, latterly, major indictable, minor indictable and summary offences. It is these classifications which determine, for example, mode of trial, procedural steps and, to a degree, penal consequences."
"The object of the Bill is to abolish the procedural distinction while retaining the status quo in terms of the substantive law so far as is possible."
117 As earlier observed it is a well established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless Parliament has enacted words that point unmistakably to that conclusion.[16] It is a further principle of statutory construction that a Court leans against an interpretation which produces unjust and arbitrary consequences.[17]
[16] National Assistance Board v Wilkinson [1952] 2 QB 648
[17] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591
118 There is no reason in logic or commonsense why there should not be power to impose a fine along with other punishments in regard to an offence against section 19A of the Act. Such a consequence would be arbitrary.
The Modern Approach to Sentencing
119 There is no indication in the second reading speech that the position of fines in lieu of other penalties or as part of a sentence was an evil to be remedied by the Bill.
120 In moving his second reading speech on the Criminal Law (Sentencing) Bill the Attorney-General spoke specifically of the role played by fines in regard to sentencing. He said:
"Fines: Clause 12 requires courts to have regard to a defendant's means to pay when determining whether or not to impose a fine, and, if it is imposed, the manner in which it is to be paid by the defendant. One writer has made several observations on the situation in New South Wales which are, on close reflection, particularly apposite to that which obtains in this State:
The fine is the most frequently used sentencing alternative. Historically, fines have become the 20th century substitute for imprisonment. The attractions are that fines are:
......... flexible, given they can be adjusted according to both the severity of the offence and the financial circumstances of the offender;
.economically attractive, given their low administrative costs and revenue producing functions;
......... considered to be no less 'penologically effective' than other sentencing options; and
.considered preferable to custodial sentences on both economic and humanitarian grounds."
121 It was not Parliament's intention to do away with the power to fine in regard to felonies and misdemeanours. To the contrary, it was Parliament's intention to offer to the Courts the widest range of sentencing options, including the power to fine.
Section 18 of the Criminal Law (Sentencing) Act 1988
122 Section 18 of the Sentencing Act deals with the addition or substitution of penalties other than those expressly provided by statute. I agree with the opinion of Lunn DCJ in R v Bawden[18] that the Sentencing Act, and in particular section 18, worked:
"... within the framework of the previous common law ..."
and
"... only addresses certain categories of matters where community service, which is an entirely statutory punishment, is made an alterative to other types of penalties."
[18] (1991) 161 LSJS 175
123 R v Bawden was correctly decided. If Parliament wished to extend community service orders as a sentencing option for an offence against section 19A, an amendment would be necessary.
124 For the above reasons it is my view that the Court did have power to fine in addition to imposing a term of imprisonment and suspending the defendant's licence.
Procedural Unfairness
125 In R v Belcher[19] King CJ at (50) said:
"... that before imposing a fine a judge should indicate that he is considering that possibility and should give the prisoner the opportunity of satisfying him that he is without the means to pay it."
[19] (1981) 27 SASR 46
126 I agree with the submission of the defendant that the learned sentencing judge was obliged to indicate that she was considering a fine. This would have allowed submissions to be made as to the appropriateness of such a course and particularly as to the defendant's ability to pay. This circumstance was particularly relevant as the earning capacity of the defendant was to be directly affected by the lengthy licence disqualification. This conclusion makes it necessary for this Court to reconsider the matter.
127 In my view, identifiable error in the sentencing process has occurred. Accordingly, this Court should re-sentence the defendant. I respectfully adopt the remarks of Olsson J as to the appropriate penalty. I agree with the orders he proposes.
JUDGMENT INDEX
Index to footnotes as they appear cited in the judgment
1 (1956-57) 96 CLR 454 at 461- 462
2 (1982) 30 SASR 243 at 274
3 (1964 -65) 112 CLR 483 at 497
4 [1973] AC 414 at 423
5 [1951] 1KB 394
6 [1957] 2 QB 516
7 (1990) 2 AC 523
8 [1975] AC 591
9 (1991) 161 LSJS 175
10 (1988-89) 51 SASR 229; 42 A Crim R 88
11 (1999) 166 ALR 312
12 (1990) 51 A Crim R 418
13 (1990-1991) 20 NSWLR 427
14 (1990) 97 ALR 373
15(1992) 111 ALR 347
16 National Assistance Board v Wilkinson [1952] 2 QB 648
17Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591.
18 (1991) 161 LSJS 175
19 (1981) 27 SASR 46
3
4
0