Sanderson v TC
[2018] NTSC 82
•30 November 2018
CITATION:Sanderson v TC [2018] NTSC 82
PARTIES:SANDERSON, Melissa Deborah
v
TC (A Youth)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SPECIAL CASE stated from YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:138 of 2018 (21755740)
DELIVERED ON: 30 November 2018
HEARING DATE: 31 July 2018
JUDGMENT OF: Grant CJ
CATCHWORDS:
CRIMINAL LAW – DRIVING OFFENCES – JUDGMENT AND PUNISHMENT
Special case stated by the Youth Justice Court – whether Youth Justice Court must impose at least the mandatory driver’s licence disqualification as set out in s 22(3)(a) of Traffic Act – s 22(3) of Traffic Act operates so that if court finds person guilty of relevant offence person's licence to drive automatically cancelled and person disqualified from obtaining a licence for the minimum period – term “person” not limited to adult offenders – Traffic Act comprehends the application of mandatory minimum disqualification periods to youth offenders – disqualification of a youth’s licence not a matter of discretion which may be dealt with under s 88 of the Youth Justice Act – nothing express in Part 6 of the Youth Justice Act which would militate against the application of a mandatory disqualification period – Part 6 of the Youth Justice Act has no qualifying, limiting or displacing operation in those circumstances.
Fines and Penalties (Recovery) Act (NT), s 6
Traffic Act (NT) s 22, s 34, s 38
Youth Justice Act (NT) s 6, s 18, s 60, s 71, s 83, s 88Abbott v Wilson [2017] NTSC 50, Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156, H, RJ v Police [2005] SASC 347, Palling v Corfield (1970) 123 CLR 52, R v Bazley (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997), R v Franklin [2009] VSCA 77, R v George (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Brian and Gray JJ, 21 September 1989), R v Tantrum (1989) 11 Cr App Rep (S) 348, R v Tran (2002) 4 VR 457, Wynbyne v Marshall (1997) 7 NTLR 97, referred to.
REPRESENTATION:
Counsel:
Complainant: I Rowbottam
Defendant:M Aust
Solicitors:
Complainant: Office of the Director of Public Prosecutions
Defendant:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: GRA1822
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSanderson v TC [2018] NTSC 82
138 of 2018 (21755740)
BETWEEN:
MELISSA DEBORAH SANDERSON
Complainant
AND:
TC
Defendant
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 30 November 2018)
[1]This is a special case stated by the Youth Justice Court for the opinion of the Supreme Court pursuant to s 60 of the Youth Justice Act (NT). The question of law reserved is:
When imposing sentence on a youth for an offence against s 22 of the Traffic Act (NT) must the Youth Justice Court impose at least the mandatory driver’s licence disqualification as set out in s 22(3)(a) of the Traffic Act or does the court have a discretion to impose a lesser or no period of driver’s licence disqualification?
The facts
[2]The facts recorded in the special case may be summarised as follows.
[3]On 24 November 2017, the defendant was apprehended by police for the purposes of a roadside breath test while driving a motor vehicle along Robinson Road, Borroloola. That breath analysis returned a reading of 0.120 grams of alcohol per 210 litres of exhaled breath.
[4]The defendant was charged with driving a motor vehicle with a medium breath alcohol content contrary to s 22(1) of the Traffic Act.
[5]The defendant was aged 17 years at the time of the offending and had no criminal history.
[6]On 9 March 2018, the defendant pleaded guilty to that charge and the sentencing process was completed subject only to the question of the disqualification of his driver’s licence.
The statutory provision and the question for determination
[7]Section 22 of the Traffic Act provides relevantly:
Medium range breath or blood alcohol content
(1) A person who drives a motor vehicle with a medium range breath or blood alcohol content commits an offence.
Maximum penalty: For a first offence – 7.5 penalty units or imprisonment for 6 months.
For a second or subsequent offence –20 penalty units or imprisonment for 12 months.
(2) An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:
…
(3) If a court finds a person guilty of a relevant offence, the person's licence to drive is automatically cancelled and the person is disqualified from:
(a) for a first offence – obtaining a licence for a period that is at least 6 months; and
(b) for a second or subsequent offence:
(i) obtaining a licence for a period (mandatory period) that is at least 12 months; and
(ii) if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 12 months and not more than 3 years.
…
(4) …
(Underlining emphasis added)
[8]The Traffic Act makes no express provision in relation to the application of those mandatory minima to a “youth” as defined in s 6 of the Youth Justice Act. A plain and natural reading of the term “person” would extend to any person found guilty of a relevant offence, including a youth.[1] Similarly, the term “court” would on a plain and natural reading extend to the Youth Justice Court. The question presenting for determination in the special case is whether the provision for automatic cancellation and disqualification from obtaining a licence for the mandatory period is displaced by the sentencing regime in the Youth Justice Act.
[9]The Youth Justice Act contains no express provision dealing with that question. Section 88 of the Act empowers the Youth Justice Court to make an order disqualifying a youth from holding a licence to drive a motor vehicle, and provides that such an order has the same force and effect as an order under the Traffic Act.[2] That power is expressed to be in addition to “any powers of a court under the Traffic Act or any other Act to make an order disqualifying a person from holding a licence to drive a motor vehicle”. This is a general facultative power not limited in its exercise to offences involving driving a motor vehicle with a proscribed breath or blood alcohol content. It does not import the provisions of the Traffic Act for automatic cancellation and disqualification from obtaining a licence for the mandatory periods. Equally, however, it does not operate to displace the specific provisions of the Traffic Act in relation to such offending if on their proper construction they have application to a youth’s circumstances.[3]
The purpose and nature of cancellation and disqualification
[10]In the ordinary course, orders for the cancellation of driver’s licences and disqualification from holding driver’s licences constitute part of the sentence imposed by the court for the offence in question. The period of disqualification is not only part of the punishment which a person guilty of the offence has to suffer, but it is also part of the course which the sentencing court is entitled to take to protect the public from a repetition of that type of offending.[4] The principles and considerations surrounding licence disqualification are similar to those for other sentences.[5] As the Victorian Court of Appeal observed in R v George[6], in determining the question of cancellation:
… the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.[7]
[11]In the exercise of that discretion, the length of the disqualification should not be such as to inhibit the offender’s rehabilitation too greatly[8], particularly where it is determined that there is no need to protect the public.[9]
[12]As with all sentencing dispositions, the court’s discretion may be subject to statutory provisions imposing mandatory minima (or maxima).[10] It is not uncommon for legislation to provide that if specified matters are established a particular order must be made. However, s 22(3) of the Traffic Act does not operate to place a duty on the sentencing court to exercise a power of cancellation and disqualification. Rather, the section provides that if a court finds a person guilty of a relevant offence, the person's licence to drive is automatically cancelled and the person is disqualified from obtaining a licence for (at least) the stipulated period.
[13]The application of the mandatory minimum disqualification periods stands apart from the mandatory minimum penalties. While the Traffic Act provides in some places for mandatory minimum pecuniary penalties, those sections do not have automatic operation and a fine may only be imposed by order of the court.[11] The impost is not applied by operation of the legislation alone. Under the scheme for mandatory minimum disqualification periods, however, the only time the court is required to make an order or exercise a discretion is if it determines that something more than the mandatory period of disqualification is called for in the circumstances.
[14]The operation of the provision is similar to that of s 54(8) of the Road Transport Act 2013 (NSW), as discussed by the New South Wales Court of Appeal in Director of Public Prosecutions (NSW) v Kmetyk[12]. Cancellation and disqualification of that type is not effected by any order or sentence imposed by the court, but by the finding of guilt of the relevant offence; although it would appear that the lower courts customarily make orders reflecting that operation, presumably to avoid any doubt as to the length of the disqualification. This automatic cancellation and disqualification is obviously intended to serve the punitive and protective purposes which would ordinarily inform the exercise of the sentencing discretion, but the legislature has determined to implement those purposes directly.
Interaction between youth justice and general sentencing legislation
[15]In Abbott v Wilson[13] this Court considered the interaction between the Youth Justice Act and the provisions of the Traffic Act requiring the imposition of mandatory minimum fines. Section 34(1) of the Traffic Act requires the imposition of a minimum pecuniary penalty for driving an uninsured vehicle. On the other hand, s 71(2) of the Youth Justice Act requires a court considering a sentence that involves a fine to “satisfy itself … that the sentence is appropriate having regard to the financial circumstances of the youth”. That provision qualifies the power in s 83(1)(g) of the Youth Justice Act to “fine the youth not more than the maximum penalty that may be imposed under the relevant law in relation to the offence”.
[16]The Court concluded that in sentencing youths the courts may apply the penalties applicable to adults for offences under the Traffic Act, but were not required to do so “insofar as fines are concerned”.[14] That conclusion was based on a number of considerations.
[17]First, s 18(4) of the Youth Justice Act provides:
This section does not affect the operation of Part V or VI of the Traffic Act and, subject to Part 6, a youth may be dealt with under those Parts of that Act as if he or she were an adult.
[18]That provision appears in a section which otherwise imposes a requirement that a police officer may not interview a youth in connection with the investigation of an offence, or cause the youth to do anything in connection with the investigation of an offence, unless a support person is present. It appears unusual for a section concerned principally with police powers to incorporate a provision which operates generally to apply to youths the penalties prescribed by Parts V and VI of the Traffic Act. However, the specific reference in that provision to “Part 6” of the Youth Justice Act leads necessarily to the conclusion that it does have general application to sentencing and penalty. The Court took the use of the word “may” in s 18(4) of the Youth Justice Act to confer a discretion on the sentencing court whether to treat a youth as an adult when sentencing for offences against Parts V and VI of the Traffic Act, at least so far as the imposition of fines was concerned.[15]
[19]Secondly, the Court considered that the Youth Justice Act was specifically designed to apply to particular offenders and should therefore prevail over the Traffic Act, which was general in its operation.[16] That conclusion was no doubt informed by those provisions of the Youth Justice Act extracted above which require a sentencing court to give due consideration to the financial circumstances of a youth before imposing a fine. Those provisions manifest a legislative intention that a sentencing court should impose fines only in accordance with the Youth Justice Act, and then only in accordance with a particular procedure and criteria which may require it to order a report as to the suitability of that form of penalty.
[20]Both in its terms and for those reasons the operation of the decision in Abbott v Wilson is limited to the imposition of fines. It does not answer the question which presents on the special case. Different approaches are taken in the other Australian jurisdictions to the interaction between youth sentencing regimes and mandatory licence disqualification. In some, the legislation makes it plain that if a youth is found guilty of an offence for which an adult would be liable to mandatory licence disqualification, the youth is liable to be disqualified “to the same extent”.[17]
[21]In Victoria, s 360(5) of the Children, Youth and Families Act 2005 (Vic) provides that if under any other Act a court is authorised on conviction for an offence to impose any disqualification or like disability on the person convicted, then the Court may, if it finds a child guilty of that offence, impose any such disqualification or disability. That provision is not unlike s 18(4) of the Youth Justice Act in its use of the word “may”.
[22]The approach taken in the Children’s Court of Victoria is that the mandatory disqualification provisions in the Road Safety Act 1986 (Vic) apply to children found guilty of offences against that Act in the same way as they apply to every other offender and in every other sentencing court.[18] Section 360(5) of the Children, Youth and Families Act 2005 is read as authorizing the Children’s Court to impose a disqualification said to be predicated on conviction even if a conviction is not imposed, rather than vesting the sentencing court with a general and overriding discretion to impose something other than what is required by the mandatory disqualification provisions. That is so even in circumstances where the Children, Youth and Families Act 2005 contains a specific sentencing regime for youths similar to that found in Part 6 of the Youth Justice Act. The issue was at one time the subject of an appeal to the Supreme Court, but that appeal was subsequently abandoned.
[23]In H, RJ v Police[19] the Supreme Court of South Australia considered the operation of s 86A of the Criminal Law Consolidation Act 1935 (SA), which provided relevantly:
(1) A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence—imprisonment for 2 years;
For a subsequent offence—imprisonment for not less than 3 months and not more than 4 years.
(2) Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver's licence for a period of 12 months.
(3) Notwithstanding the Children's Protection and Young Offenders Act 1979 where the Children's Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver's licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver's licence, not earlier than when the child attains that age).
[24]The Court found that s 86A(1) did not compel a youth to be sentenced to imprisonment for a minimum period of three months on a finding of guilt of a subsequent offence. That conclusion was based on the particular provisions of the sentencing regime contained in the Young Offenders Act 1993 (SA), the fact that the Youth Court was expressly prohibited from sentencing a youth to imprisonment, and the fact that the Youth Court could not impose a sentence of detention without having regard to specified matters. No issue was taken by the appellant in relation to the mandatory disqualification period. That was no doubt due to the express provision made in s 86A(3) of the Criminal Law Consolidation Act 1935, and because there was no material inconsistency between mandatory disqualification and the youth sentencing regime.[20]
[25]Apart from the general provision in s 18(4) of the Youth Justice Act, the Northern Territory legislation does not contain any provision authorizing or compelling the application of the mandatory minimum disqualification period to a youth offender where the matters specified for its application are established. It is clear, however, that the Traffic Act comprehends the application of mandatory minimum disqualification periods to youth offenders. Section 24 of the Traffic Act provides relevantly:
Some drivers to be zero alcohol
(1) This section applies to the following persons:
(a) a person who has not reached the age of 18 years;
(b) the holder of a learner licence when driving a vehicle of the class to which the learner licence relates;
(c) the holder of a licence that is provisional under section 42 or section 10A of the Motor Vehicles Act;
(d) a person who is not licensed to drive a motor vehicle (other than through failure to renew a licence);
(e) a person who is not a resident of the Territory who does not have a right under section 32(1) to drive in the Territory.
(2) The person must not drive a motor vehicle if the person's breath or blood contains alcohol.
Maximum penalty: For a first offence – 5 penalty units or imprisonment for 3 months.
For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.
(3) An offence against subsection (2) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:
….
(4) ….
(5) If a court finds a person guilty of a relevant offence, the person's licence to drive is automatically cancelled and the person is disqualified from:
(a) for a first offence – obtaining a licence for a period that is at least 3 months; and
(b) for a second or subsequent offence:
(i) obtaining a licence for a period (mandatory period) that is at least 6 months; and
(ii) if the mandatory period is less than 5 years – obtaining a licence other than an AIL licence for an additional period (AIL period) immediately after the mandatory period that is at least 6 months and not more than 3 years.
(6) ….
(Underlining emphasis added)
[26]Two matters are apparent from that provision. The first is that the term “person” as it is used in the Traffic Act is not limited to adult offenders. The second is that the mandatory disqualification periods imposed under the Traffic Act are not as a matter of legislative policy or intention limited in their operation to adult offenders. Nor do I consider that on a proper construction of the legislation s 24 of the Traffic Act is the only provision under which a person who has not reached the age of 18 years may be charged with an offence involving driving a motor vehicle with a proscribed breath or blood alcohol content.
[27]Those matters close off the arguments that by its terms s 22(3) of the Traffic Act can have no application to youth offenders, or that the disqualification of a youth’s licence for a relevant infringement against the Traffic Act must necessarily be a matter of discretion which may be dealt with under s 88 of the Youth Justice Act. Those matters provide compelling support for a construction which would afford s 22(3) of the Traffic Act mandatory application to both adult and youth offenders. That construction also receives support from two other textual matters.
[28]First, the better reading of s 18(4) of the Youth Justice Act is that it does not confer a general discretion on the sentencing court either to apply the penalties prescribed under Parts V and VI of the Traffic Act or to impose some other disposition in accordance with Part 6 of the Youth Justice Act. Rather, it authorizes the sentencing court to impose the penalties prescribed by Parts V and VI of the Traffic Act, including mandatory penalties, subject only to a consideration, where relevant, of the operation of Part 6 of the Youth Justice Act. Unlike the position with fines, there is nothing express in Part 6 of the Youth Justice Act which would militate against the application of a mandatory disqualification period. The implications which counsel for the youth sought to draw from the general principles expressed in the Youth Justice Act do not have that same effect.
[29]Secondly, even if there was some inconsistency of that type, Part 6 of the Youth Justice Act is concerned with the exercise of sentencing powers and discretions. For the reasons which have already been described, s 22(3) of the Traffic Act does not oblige a court to impose a mandatory minimum period of disqualification, or any period of disqualification. That mandatory minimum is imposed automatically by operation of the legislation. Part 6 of the Youth Justice Act can have no qualifying, limiting or displacing operation in those circumstances. The sentencing court will only be exercising sentencing power or discretion in the event that it determines to impose a period of disqualification beyond the mandatory minimum.
Disposition
[30]The question of law reserved for the opinion of the Supreme Court is answered as follows:
Question:When imposing sentence on a youth for an offence against s 22 of the Traffic Act (NT) must the Youth Justice Court impose at least the mandatory driver’s licence disqualification as set out in s 22(3)(a) of the Traffic Act or does the court have a discretion to impose a lesser or no period of driver’s licence disqualification?
Answer:Section 22(3) of the Traffic Act operates so that if the court finds a person guilty of a relevant offence the person's licence to drive is automatically cancelled and the person is disqualified from obtaining a licence for the mandatory minimum disqualification period specified by the section. The court is only required to make an order or exercise a sentencing discretion concerning disqualification in those circumstances if it determines that something more than the mandatory minimum period of disqualification is required. The Traffic Act comprehends the application of mandatory minimum disqualification periods to youth offenders. Automatic cancellation and disqualification of a youth’s licence for a relevant infringement against the Traffic Act is not a matter of discretion which may be dealt with under s 88 of the Youth Justice Act, or otherwise under Part 6 of the Youth Justice Act.
-------------------------------------
[1] The definitions of the term "person" in ss 17 and 24AA of the Interpretation Act (NT) do not bear on the issue.
[2] There are two other references to the Traffic Act in the Youth Justice Act. Section 18 of the Act imposes a requirement that a police officer may not interview a youth in connection with the investigation of an offence, or cause the youth to do anything in connection with the investigation of an offence, unless a support person is present. That requirement is said otherwise not to affect the operation of Parts V and VI of the Traffic Act, and that a youth may be dealt with under those Parts as if he or she were an adult. Section 38 of the Act excludes offences against Parts V and VI of the Traffic Act from the diversionary requirements. Section 38 of the Youth Justice Act does not bear directly on the determination of the special case. The operation of s 18(4) of the Youth Justice Act is discussed later in these Reasons.
[3] Section 98 of the Sentencing Act has similar operation.
[4] See, for example, R v Rae (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Brooking JJ, 7 November 1984).
[5] R v Franklin [2009] VSCA 77 at [34].
[6] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Brian and Gray JJ, 21 September 1989); R v Franklin [2009] VSCA 77 at [35].
[7] R v George (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Brian and Gray JJ, 21 September 1989).
[8] R v Tantrum (1989) 11 Cr App Rep (S) 348 at 349; R v Tran (2002) 4 VR 457.
[9] R v Bazley (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997).
[10] Palling v Corfield (1970) 123 CLR 52 at 58-59 per Barwick CJ, 62-63 per McTiernan J, 64-65 per Menzies J, 67 per Owen J and 68 per Walsh J (Windeyer and Gibbs JJ agreeing); Wynbyne v Marshall (1997) 7 NTLR 97 at 99 per Martin CJ, 111-112 per Mildren J (Bailey J agreeing).
[11] See, in the application of that principle, Fines and Penalties (Recovery) Act (NT), s 6(1).
[12] [2018] NSWCA 156. The legislation under consideration in that matter had an express provision to the effect that a person convicted was automatically disqualified by conviction for the relevant disqualification period "without any specific order".
[13] [2017] NTSC 50.
[14] Abbott v Wilson [2017] NTSC 50 at [34].
[15] Abbott v Wilson [2017] NTSC 50 at [31]. The extent to which the provision confers a general and overriding discretion in imposing penalty, and particularly in relation to minimum mandatory disqualification periods under the Traffic Act, is discussed later in these Reasons.
[16] Abbott v Wilson [2017] NTSC 50 at [34].
[17] See, for example, Youth Justice Act 1992 (Qld), s 254(3).
[18] Magistrate Peter Power, 11. Criminal Division – Sentencing (12 July 2012) Children’s Court of Victoria < [11.1.9].
[19] [2005] SASC 347.
[20] The decision of the Supreme Court of South Australia in SA Police v L [1995] SASC 4968 involved the question whether a Magistrate could impose a qualified disqualification to permit the respondent to drive in the course of his work. The legislation in that case provided an express exception for specified purposes.
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