SA Police v L No. SCGRG 94/2033 Judgment No. 4968 Number of Pages 5 Criminal Law and Procedure

[1995] SASC 4968

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Criminal law and procedure - particular offences - driving offences - Driving at a speed dangerous to the public (5.46 Road Traffic Act): Youth Court: juvenile offender: power of Youth Court to permit offender to drive for purposes of employment whilst enduring disqualification from holding or obtaining a driver's licence imposed pursuant to s.46(3) of the Road TrafficAct. Road Traffic Acts.46 and Young Offenders Act 1993s.28. Jans v Woolven
(1990) 55 SASR 239, not followed.

HRNG ADELAIDE, 20 January 1995 #DATE 20:2:1995 #ADD 13:3:1995

Counsel for appellant:     Ms J Lee-Justine

Solicitors for appellant:    Crown Solicitor

Counsel for respondent:     Mr B Dixon

Solicitors for respondent: Dixon Gallasch

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J The respondent was born on the 5th of January 1978.

2. He was charged in the Youth Court sitting at Elizabeth with offences "under" the Road Traffic Act. We are now concerned with one offence only. The charge, to which the respondent pleaded "guilty", was that he rode a motor cycle at Elizabeth Vale on 22nd July 1994 at a speed which was dangerous to the public (s.46(1) of the Road Traffic Act). His plea of guilty lead to conviction.

3. This was a first offence of "speed dangerous". The prosecuting officer told the Magistrate that he had no objection to imposition of the minimum penalty.

4. Section 46 of the Road Traffic Act provides that for a first offence the penalty is fine of no less than $300. The Magistrate imposed a fine of $300. So far so good.

5. But the offence and the circumstances in which it was committed called for disqualification from holding or obtaining a driving licence for a time. In fact, s.46(3) demands it. That section is:
    "(3) Where a court convicts a person of an offence against
    subsection (1), the following provisions shall apply;
    (a) The court must order that the person be disqualified from
    holding or obtaining a driver's licence -
    (i) in the case of a first offence - for such period, being not less
    than six months, as the court thinks fit...
    (b) The disqualification prescribed by paragraph (a) shall not be
    reduced or mitigated in any way or be substituted by any other
    penalty or sentence unless, in the case of a first offence, the
    court is satisfied, by evidence given on oath, that the offence is
    trifling, in which case, it may order a period of disqualification
    than is less than the prescribed minimum period but not less than
    one month."

6. No attempt to have the offence declared trifling was made. Nor was it trifling. The Road Traffic Act, therefore, demanded an order of disqualification from holding or obtaining a driver's licence for not less than six months. I show my hand. Section 46 of the Road Traffic Act is a general provision. It creates offences which persons of all ages above 16 may commit. (I put aside unlawful driving under 16) It provides a penalty appropriate, as Parliament believes, for offences committed by persons of all ages. It says to the general motoring public "thou shalt not drive at a speed dangerous (and other things) to the public and if you do this is what will happen".

7. The Magistrate imposed a disqualification from holding or obtaining a driver's licence for 6 months. But he qualified or limited the effect of that order.

8. The respondent was present in court with his father. In short, the Magistrate heard the nature of the employment of the respondent by his father. He decided to permit the respondent to drive in the course of his work. The endorsement of the file above the signature of the Magistrate is:
    "Youth permitted to use licence during that period of time to
    drive to and from the premises known as the Cross Keys Hotel
    for employment and to purchase supplies for the business."

9. I should mention that the prosecuting officer objected to the qualification or limitation of the disqualification. Let me now set out the reasons of the Magistrate in full so far as this offence is concerned.

10. The Magistrate said:
    "John, I am prepared to give you the opportunity to drive to and
    from the van to continue your present employment. I think there
    might be a basis where I could squeeze you to pay the taxi but I am
    really dealing with a situation where you may or may not make enough
    money to maintain that. You have only been doing it for a week and
    I don't think I am in a position to rely on that one weeks trade
    that it will continue on that basis. It certainly sounds like there
    is enough there for you to make a living, with continued hard work
    and effort on your part.
    John, under the former legislation that covered people your age -
    the Childrens Protection and Young Offenders Act - quite clearly the
    court had a distinct power to be able to impose a disqualification
    and then fix the disqualification as it suited the particular
    circumstances of the offender. That clearly enabled the Court to
    disqualify someone your age and give them an opportunity to use
    their licence for a limited purpose and, principally, that was
    nearly always an employment situation. The provisions of the Young
    Offenders Act, the legislation that covers this Court now, are not
    so clear and precise. I take the view that the intention of the
    legislation is to continue the previous situation. I take the view
    that for a person of sixteen years of age, particularly in the area
    of this Court, employment is both difficult to obtain and difficult
    to hold on to.
    I accept, on what you have told me this morning, that your father
    has made a financial commitment to create a position for you, that
    you have passed over an opportunity by way of an apprenticeship, to
    work the van and I take the view that on the information you have
    presented this morning any imposition of the cost of taxis as a way
    home may be difficult and in simple terms may be more than your
    profits. I also take the view that it is your responsibility to
    work the van and that you can't rely upon family, and other persons,
    to get you to and from this work because of the extended night hours
    involved. On that basis what I am going to do is record
    convictions. I impose a fine on count one of $300.00, court fees of
    $87.00 and a Levy of $13.00. I disqualify you from holding or
    obtaining a driver's licence for a period of six months. I permit
    you to use your licence during that period of time to drive to and
    from the premises known as the Cross Keys Hotel to conduct your
    business of the steak van.
    That means you can drive to and from that location. You have to go
    directly there by the most direct means available and home by the
    most direct means. You can't deviate on that journey to do any
    other business or visit persons or whatever. (DEFENDANT INTERRUPTED
    TO SEEK PERMISSION TO PURCHASE STOCK) If I am going to allow the
    situation I will put it in the full terms. To permit you to use
    your licence to get to and from your place of employment and to
    purchase supplies for the business. Again that will be qualified by
    the fact that you must go there and back by the most direct means
    available to collect stock. I assume that you purchase some items
    from a warehouse or something of that sort so what I will suggest to
    you on the occasions when you are going to do that type of activity
    you should organise to do that on your way in. Go to the warehouse,
    collect the goods and go on to work. Any deviation and you are not
    driving in accordance to the order I have made. If you fail to
    comply with that order you will be driving whilst disqualified and
    would be facing the risk of a period of detention for that offence
    of up to six months."

11. The van is a van selling steak, hamburgers and so on on the Main North Road.

12. The present legislation which the Magistrate had in mind is s.28(1) of the Young Offenders Act 1993. It is:
    "28. (1) If the court is of the opinion that a youth who has been
    found guilty of an offence is not a fit and proper person to hold or
    obtain a licence to drive a motor vehicle, or that disqualification
    from holding such a licence is an appropriate penalty for the
    offence committed, the court may make an order disqualifying the
    youth from holding or obtaining such a licence, except for such
    purposes (if any) as may be specified in the order, for a period of
    stated duration commencing from a specified time."

13. The Police appeal against the limitation on the order of disqualification. The Police say that the Magistrate had no power to grant permission to drive when disqualified.

14. The one ground of appeal is:
    "The learned Stipendiary Magistrate erred in that, after he had
    imposed a statutory minimum period of licence disqualification, he
    permitted the respondent to drive during the period of
    disqualification for purposes related to his employment."

15. This is not a very informative ground. How is it said that the Magistrate erred? But that does not matter. I have had the advantage of hearing excellent arguments from Ms Lee-Justine for the appellant and from Mr Dixon for the respondent. I set out the whole of the outline written by Ms e- Lee-Justine. Ms Lee-Justine spoke to and in expansion of this outline. The ground of appeal and its detail became clear immediately on reading the well-expressed outline.
    "1. The appellant submits that the learned Stipendiary Magistrate
    erred in imposing a sentence which allowed the respondent to drive
    during the minimum period of disqualification to and from his
    employment.
    2. A conditional licence mitigates the minimum penalty.
    3. Section 28 of the Young Offenders Act, 1993 provides the Youth
    Court with a power to disqualify a young offender from holding
    driver's licence:
    (a) it is discretionary;
    (b) it may be exercised in relation to any offence (which indicates
    to the Court that the person is not a fit and proper person to
    drive a vehicle);
    (c) the period of disqualification is left open;
    (d) the disqualification may include exceptions (allowing the youth
    to drive in certain circumstances).
    4. Section 46(3) of the Road Traffic Act, 1961 is not
    discretionary. It imposes a mandatory duty on the Court to order a
    minimum disqualification of six months.
5. The duty imposed by section 46 of the Road Traffic Act overrides
the discretion provided in section 28 of the Young Offenders Act.
    To say otherwise is to nullify the legislative intent and effect of
    a minimum prescribed period.
    6. The Road Traffic Act is a 'special' Act, dealing only with road
    traffic and the sentencing of road traffic offenders. The Criminal
    Law (Sentencing) Act, 1988 is a general Act dealing with the
    sentencing of persons for a variety of offences. The Young
    Offenders Act is also a general Act dealing with the sentencing of
    young offenders for a variety of offences.
7. The Full Court decided in Janz -v- Woolven (1990) 55 SASR 239
    that the provisions of the Road Traffic Act (specifically section
    47b(3)) overrode the provisions of sections 16 and 39(1) of the
    Criminal Law (Sentencing) Act by application of sections 37(b) and
    20(b), characterising the Road Traffic Act as a 'special' Act.
8. The appellant submits that the provisions of section 46 of the
    Road Traffic Act, similarly override the provisions of the Criminal
    Law (Sentencing) Act and section 28 of the Young Offenders Act."

16. It will be seen that Ms Lee-Justine sees the Road Traffic Act as a special Act and the Young Offenders Act as a general act "dealing with the sentencing of young offenders for a variety of offences". Thus it follows that she urges that there was no power to depart from the mandatory disqualification without limitation required by s.46 of the Road Traffic Act. But I think that it is the other way around. As I have said as to offences created by s.46 of the Road Traffic Act, that Act is a general act. The provisions for penalty in relation to those offences in it are general. The Young Offenders Act makes provision for disqualification of young offenders for offences which would include those created by s.46 of the Road TrafficAct. In the light of their youth Parliament grants the Court by s.28 the power to allow a young offender to drive during disqualification for such excepted purposes as the Court specifies in the order. I think that s.28 of the Young Offenders Act gave the Magistrate here the power to do what he did. I think that as to disqualification from holding or obtaining a driver's licence in the case of a young offender s.28 of the Young Offenders Act is a special provision prevailing "over" s.46 of the Road Traffic Act. Section 46 of the Road Traffic Act does not override the discretion provided by s.28 of the Young Offenders Act to the Court. Perhaps that does, in a sense, nullify the legislative intent and the effect of a minimum prescribed period (Clause 5 of the outline of Ms Lee-Justine). But her submission involves nullifying the effect of s.28 of the Young Offenders Act. I think that the legislative intention with regard to "speed dangerous" and other offences created by s.46 of the Road Traffic Act is that there should be a minimum period of disqualification which may be mitigated by exception in the case of young offenders.

17. I mention that I was referred to Janz v Woolven (1990) 55 SASR 239. I do not think that it helps here. I dismiss the appeal.