Smith v Bonde
[2016] TASSC 24
•17 May 2016
[2016] TASSC 24
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v Bonde [2016] TASSC 24
PARTIES: SMITH, Evan Stanley
v
BONDE, Mike
FILE NO: 424/2016
DELIVERED ON: 17 May 2016
DELIVERED AT: Launceston
HEARING DATE: 12 May 2016
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally – No discretion when mandatory fine.
Road Safety Alcohol and Drugs Act 1970 (Tas), s 17.
Sentencing Act 1997 (Tas), ss 7, 10.
Attorney General v Smith [2002] TASSC 10, referred to.
Aust Dig Criminal Law [3410]
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with prescribed illicit drug in blood and other offences – Sentence and penalty – No power to impose mandatory penalty without conviction.
Road Safety Alcohol and Drugs Act 1970 (Tas), s 17.
Sentencing Act 1997 (Tas), ss 7, 10.
Attorney General v Smith [2002] TASSC 10, referred to.
Aust Dig Traffic Law [1156]
REPRESENTATION:
Counsel:
Appellant: D Grey
Respondent: S Thompson
Solicitors:
Appellant: Darrell Grey
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 24
Number of paragraphs: 26
Serial No 24/2016
File No 424/2016
EVAN STANLEY SMITH v MIKE BONDE
REASONS FOR JUDGMENT PEARCE J
17 May 2016
This motion to review raises the issue of whether a magistrate imposing a penalty on a determination of guilt for an offence under the Road Safety (Alcohol and Drugs) Act 1970 ("the RSAD Act"), s 6A, has power to do so without conviction.
On 8 February 2016 the applicant appeared before Magistrate S Cure and pleaded guilty to driving whilst a prescribed illicit drug, MDMA, was present in his blood. It is his first offence under the RSAD Act. Her Honour convicted the applicant, imposed a fine of $306 and disqualified the applicant from driving for three months. No challenge is made to the order imposing a fine and disqualification. However counsel for the applicant submitted to the learned magistrate that she had power to make those orders without conviction. Her Honour found that she had no such power. The applicant now moves for review of that determination. The motion concerns whether a discretion to convict or not convict exists, not how such a discretion is to be exercised or whether it should have been exercised in the applicant's favour.
For the reasons which follow I have concluded that her Honour's decision was correct.
The Road Safety (Alcohol and Drugs) Act
By its long title, the RSAD Act is an Act to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs. In 1991, the RSAD Act was amended to include, in s 17, detailed provisions for penalties for certain specified offences, including driving under the influence of alcohol or a drug, s 4, or with an excessive concentration of breath or blood alcohol, s 6. A Table of Penalties is set out at the end of s 17. Section 17(3) governs the application of the Table. It reads as follows:
"(3) Subject to subsection (5), a court that convicts a person of an offence specified in column 1 of the Table —
(a) must —
(i)impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or
(ii)impose a term of imprisonment for a term not exceeding the term shown in the Table; or
(iii)impose both that fine and that term of imprisonment; and
(b) must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table."
In 2005, s 6A was inserted into the RSAD Act. It created the offence of driving with a prescribed illicit drug in blood. It its original form, s 6A provided:
"(1) Subject to subsection (2), a person who drives a motor vehicle while a prescribed illicit drug is present in his or her blood is guilty of an offence.
Penalty:
Fine not exceeding 2 penalty units.
(2) A person does not commit an offence against subsection (1) if the prescribed illicit drug was obtained and administered in accordance with the Poisons Act 1971.
(3) A court that convicts a person of an offence against subsection (1) must, in addition to imposing a fine, disqualify the person from driving for a period not exceeding 3 months.
(4) When a court imposes a disqualification from driving under this section, it must suspend or cancel any Australian driver licence held by the person against whom the disqualification is imposed, as required by section 17 of the Vehicle and Traffic Act 1999."
On 1 January 2010, s 6A was amended in an important respect. Subsection (1) was amended by deleting the reference to a fine as the penalty, and subss (3) and (4) were omitted. Instead, s 6A was included as an offence specified in column 1 of the Table of Penalties contained in s 17. Thus, in its present form, which applied at the time of the applicant's offence, the s 17 Table is as follows:
"TABLE
PART 1 - FIRST OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months Section 6 0·05 or more but less than 0·1 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months 0·1 or more but less than 0·15 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 18 months 6 months 0·15 or more Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 6A(1) Not applicable Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months TABLE
PART 2 - SUBSEQUENT OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months Section 6 0·05 or more but less than 0·1 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months 0·1 or more but less than 0·15 Minimum 8 penalty units Maximum 40 penalty units Minimum 12 months Maximum 36 months 12 months 0·15 or more Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 6A(1) Not applicable Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months"
Section 17(3) of the RSAD Act is mandatory: Wilkie v Taylor [2015] TASFC 7; 71 MVR 239. Thus, the combined effect of s 17(3) and the Table is that a court which convicts a person of a first or subsequent offence under one of the sections listed in the Table, must impose a fine of at least the minimum amount shown in the Table, or a term of imprisonment, or both the fine and imprisonment, as well as a period of disqualification of at least the minimum specified term. In the case of a first offence against s 6A, the court must impose a fine of at least two penalty units, or a term of imprisonment, or both the fine and imprisonment, and also disqualify the person from driving for at least three months. Section 17(5) permits a court which convicts a person of an offence specified in the Table to impose a lesser fine or period of disqualification than the specified minimum, but only if satisfied that there are special circumstances. In this case there was no claim to the existence of special circumstances. The reference to a "lesser fine" in s 17(5) invites the question of whether a court is permitted to impose no fine, but it is unnecessary in this case to determine that question.
The applicant submits that the terms of the RSAD Act and the Sentencing Act 1997 should be interpreted so as to confer upon a sentencing court a power to fine or imprison for a s 17 offence without conviction. The submission necessitates consideration of both Acts.
The Sentencing Act 1997
The Sentencing Act deals with sentencing law in this State. It is a consolidation, but not a codification, of the law. Section 6 provides in full:
"This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders."
Section 7 of the Sentencing Act is headed "Sentencing orders", and gives to a court a variety of sentencing options listed, at least from pars (a) to (h) inclusive, in descending order of seriousness:
"7 A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence —
(a) record a conviction and order that the offender serve a term of imprisonment; or
(ab) if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or
(b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or
(c) record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or
(d) with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or
(e) record a conviction and order the offender to pay a fine; or
(ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or
(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or
(g) record a conviction and order the discharge of the offender; or
(h) without recording a conviction, order the dismissal of the charge for the offence; or
(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."
It will be seen from the terms of the various options that some, being a sentence of imprisonment, a drug treatment order, a community service order and a fine, may only be ordered in conjunction with the recording of a conviction: (pars (a), (ab), (b), (c) and (e)). Others, being a probation order, a rehabilitation program order, and an adjournment of proceedings and release of the offender on an undertaking with conditions, may be ordered with or without recording a conviction: (pars (d), (ea) and (f)). Under par (g), a court may record a conviction and order the discharge of the offender. Under par (h) the court may order the dismissal of the charge without recording a conviction. Where a court has a discretion whether or not to record a conviction, s 9 requires certain matters to be taken into account. The purpose of orders under s 7(f), (g) or (h) is dealt with in s 58.
The difficulty faced by the applicant arises from the operation of s 7. An order that an offender serve a term of imprisonment or pay a fine may, in each case, be made only in conjunction with the recording of a conviction. The Sentencing Act makes no provision for imprisonment or fine without conviction. Because the RSAD Act, s 17, mandates the imposition of a fine or a sentence of imprisonment, and if it is the case that the court had no power to impose either form of sentencing order without conviction, then the learned magistrate had no alternative than to convict, and the motion must fail.
Counsel for the applicant submitted that a power to fine or imprison without conviction may be derived from the terms of s 7(i). He correctly recognised that there is never likely to be a circumstance which would justify the exercise of discretion to impose a sentence of imprisonment without conviction, but contended that the power nevertheless exists. Section 7(i) provides that a court that finds a person guilty of an offence may:
"(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."
The first point to be made about this provision is that, as a general provision, it is not to be interpreted so as to incorporate a power to fine or imprison with the exercise of a discretion not to convict, when the existence of such a power is contrary to the express terms of s 7(a) and (d). Secondly, no form of sentence or order other than those expressly referred to in s 7 was identified by the applicant as authorised by the Sentencing Act, and the combination of orders available to a court under the Act are identified in s 8, none of which authorise the type of order the applicant contends for. Although the Sentencing Act, s 6, makes clear that the Act does not derogate from any power that a court may exercise under any other enactment or law, the applicant did not point to another enactment which authorised the type of order which he submits is available, other than the RSAD Act. I will consider that Act separately.
The applicant also referred to s 10 of the Sentencing Act as a source of the authority to fine without conviction. The submission is that s 10(2)(b)(v) of the Act "clearly envisages the imposition [of the mandatory penalty] notwithstanding a conviction has not been made" [sic]. That submission, with respect, misunderstands the meaning and operation of the provision. Under the heading "Effect of finding of guilt without recording of conviction" it provides:
"10(1) Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.
(2) A finding of guilt without the recording of a conviction —
(a)does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and
(b)has the same effect as if a conviction had been recorded for the purpose of —
(i) appeals against sentence; or
(ii) proceedings for variation or breach of sentence; or
(iii) subsequent proceedings against the offender for the same offence; or
(iv) enactments providing for the mandatory forfeiture of property on conviction; or
(v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits."
The section is of general operation and, as the section heading suggests, is directed to the effect of a finding of guilt without the recording of a conviction. Subsection (2)(b)(v) is directed to the obligation to impose statutory mandatory penalties. It assumes the power to proceed without conviction. It is not the source of the power. Whether the mandatory penalty is such that it can be ordered without conviction depends on the terms of s 7 and any other applicable statute. If the mandatory penalty can be ordered without conviction, then s 10 has effect. If the mandatory penalty cannot be ordered without conviction, then a conviction must be ordered, and s 10 is not relevant.
The applicant relied on the decision of Underwood J (as he then was) in Shirley v Mooloo Farms [2003] TASSC 101. That decision does not assist the applicant. Mooloo Farms Pty Ltd was prosecuted for breaching its obligation under s 97 of the Workers Rehabilitation and Compensation Act 1988 to maintain a policy of insurance. It pleaded guilty. The magistrate utilised s 7(f) of the Sentencing Act and adjourned the proceedings without conviction. The offence was punishable by fine, but a fine was not mandatory and no fine was imposed. However, s 97(10) of the Act did make it mandatory to order payment of "an amount equivalent to the total of any insurance premiums … avoided by failing to maintain insurance …". The sentencing magistrate assumed that the requirement to order the payment depended on conviction and did not order it. On appeal, Underwood J determined that the sentencing magistrate erred because the s 97(10) payment was a penalty to which s 10(2)(b)(v) applied and the order for payment was required on determination of guilt despite the absence of conviction. The power to proceed without conviction was not in question. The power to make the order for payment without conviction was not in question. That is because the order under s 97(1), although it was a penalty, was not an order for payment of a fine. Unlike this case, nothing in the Sentencing Act or the relevant legislation required the order for the payment to be made in conjunction with an order for conviction.
The applicant referred to a "general sentencing power" without identifying what was meant by that. The source of the sentencing power of a court, in this case the Magistrates Court, is statutory, and the exercise of the sentencing discretion exists within the terms of the legislation. The suggestion that sentencing courts have power to fine without conviction is contrary to the long accepted wisdom of judges and magistrates in this State. No such power exists in the Sentencing Act. If such a power exists in this case, it could only come from the terms of the RSAD Act, and it is to that legislation I now turn.
Does the RSAD Act extend sentencing power to permit penalty under s 17 without conviction?
The introductory words of s 7 of the Sentencing Act make its provisions "subject to any enactment relating specifically to the offence". Thus, in this case, s 7 is to be applied subject to the RSAD Act. This motion can only succeed if the RSAD Act is to be construed, according to its language and purpose, as to give a court power to fine or imprison a person guilty of an offence listed in the Table to s 17 without conviction.
The meaning of the term "conviction" has been considered many times. There cannot be a conviction without a determination of guilt, but a determination of guilt does not always lead to a conviction. To the extent that authority for that proposition is necessary I need only refer to the reasons of Crawford J (as he then was) as a member of the Court of Criminal Appeal in Attorney-General v Smith [2002] TASSC 10 at [23]:
"23 The meaning of 'conviction' is ambiguous and in each case depends on the context in which it is used. 'It is sometimes used in the narrow sense as indicating merely that an accused has been made the subject of a finding of guilt. Sometimes it is used in the wider sense of the finding of guilt combined with the sentence of the court.' R v Hannan; Ex parte Abbott [1986] NTSC 22; (1986) 41 NTR 37 at 40. See also Re Stubbs (1947) 47 SR (NSW) 329 at 339; Griffiths v R (1976 - [1977] HCA 44; 1977) 137 CLR 293 at 334 - 336; Maxwell v R [1996] HCA 46; (1996) 135 ALR 1 at 4 - 7, 14 - 16; Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 266, 267; Dreezer v Duvnjak [1996] TASSC 160; (1996) 6 Tas R 294 at 304. It was pointed out by the Full Court in R v Tonks and Goss [1963] VicRp 19; [1963] VR 121 at 127 that without a determination of guilt, there cannot be a conviction, but a determination of guilt will not in all cases amount to a conviction."
Throughout the RSAD Act, a distinction is made between a determination of guilt and a conviction. Sections 4, 6, 6A, 10 and 14 (the offences listed in the s 17 table), as well as other offence provisions, describe the facts which, if proved, make a person guilty of an offence. In contrast, s 17(3) speaks of the mandatory penalties being imposed when a person is convicted of a listed offence. The terms of s 17(1)(b), dealing with the higher penalties to be imposed for a subsequent offence, provide an example of the distinction:
"(b) a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4, section 6, section 6A(1) or section 14(5) or an offence in respect of a failure to comply with a requirement made under section 10(4) or section 10A(1) or (1A)." [Emphasis added.]
The Sentencing Act, s 10, is another provision which emphasises the distinction. As Crawford J continued, in Attorney-General v Smith, by reference to s 10 at [23]:
"It follows from it that in this State, notwithstanding a finding of guilt combined with the sentence of the court, for most purposes the offender is not to be taken to have been convicted unless the court announces that it records the conviction."
Section 10 has particular relevance to this case, because by operation of s 10(2)(b)(v), as I have already explained, a finding of guilt without the recording of a conviction has the same effect as if a conviction had been recorded for the purpose of the application of the mandatory penalty provisions in the RSAD Act, s 17. Thus, regardless of whether a conviction is recorded, the sentencing magistrate was required, absent special circumstances, to impose at least the minimum fine or imprisonment according to the Table. For the same reason, the recording or non-recording of a conviction would make no difference to the requirement that a person who has previously been subject to a determination of guilt to a listed s 17 offence be sentenced as a subsequent offender, and be liable to the specified minimum penalties.
In this case, it is not necessary for me to determine whether the term "conviction" when used in the RSAD Act, s 17, is confined to cases in which a conviction has been recorded, as opposed to those cases where a determination of guilt has been arrived at; as was considered, for example by Gray J in the Supreme Court of South Australia in Police v Hallett [2010] SASC 256. That is so because I am satisfied that nothing in the language or purpose of the RSAD Act derogates from the requirement in the Sentencing Act, s 7, that a fine or sentence of imprisonment may only be imposed on conviction. The RSAD Act does not express such a power. Nor is it to be implied. A legislative intention to create such a power is not to be found by an examination of the language of the Act. To imply from the distinction between a determination of guilt and conviction in the RSAD Act a power to impose a fine or imprisonment without conviction requires a tortured and unnatural interpretation of the statutory language. Nor does a construction that such power exists promote the purpose of the RSAD Act: Acts Interpretation Act 1931, s 8A. A purpose of the Act is protection of the public. The terms and history of the legislation, as well as the Minister's second reading speech on introduction of the 1991 amendments, make clear the legislative intention to strengthen the punishment and deterrent effect of the penalty provisions of the legislation to discourage drink driving. The legislative history since 1991 confirms that intention, now in respect to both alcohol and drug offences. As was pointed out in Attorney-General v Smith at [25], the recording of a conviction is in itself an element of punishment. It is contrary to the purpose of the RSAD Act to imply from its terms a legislative intention to permit a more lenient course concerning fine and imprisonment without conviction for an offence under that Act than is contemplated by the express terms of the Sentencing Act. The legislature can be presumed to know of the Sentencing Act regime. If it had wished to make different provision for offences under RSAD Act it could easily have done so.
Conclusion and orders
For the foregoing reasons the sentencing magistrate was correct to conclude that on a determination of the applicant's guilt for an offence against the RSAD Act, s 6A, she was required to convict him of the offence. The ground of appeal fails and the motion to review is dismissed.
There is one further matter. Her Honour ordered a fine of $306. She was obliged to impose a fine of at least two penalty units. At the time of sentence a penalty unit was $154. Her Honour intended to impose the minimum fine. Thus, the fine should be $308. It is a small matter, but the parties agree that the penalty should be in accordance with the law, and asked that I correct it. I order that the order made by the sentencing magistrate imposing a fine be amended by deleting $306 and substituting $308. In all other respects the orders made by her Honour are undisturbed.
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