Smith v C
[2001] WASCA 262
•29 AUGUST 2001
SMITH -v- "C" [2001] WASCA 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 262 | |
| Case No: | SJA:1070/2001 | 23 AUGUST 2001 | |
| Coram: | HASLUCK J | 29/08/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | MEAGAN ELIZABETH SMITH "C" |
Catchwords: | Road Traffic Act 1974 Spent Convictions Act 1988 Conviction for driving with prescribed percentage of alcohol in the blood Magistrate's failure to take account of prior convictions the subject of a certificate issued under the Spent Convictions Act Application of statutory provisions concerning spent convictions Question whether Court can take account of spent convictions for the purpose of determining appropriate punishment Magistrate held to be in error in failing to take account of spent convictions in sentencing the offender |
Legislation: | Justices Act 1902 Road Traffic Act 1974 Sentencing Act 1995 Spent Convictions Act 1988 |
Case References: | IW v City of Perth (1996) 191 CLR 1 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SMITH -v- "C" [2001] WASCA 262 CORAM : HASLUCK J HEARD : 23 AUGUST 2001 DELIVERED : 29 AUGUST 2001 FILE NO/S : SJA 1070 of 2001 BETWEEN : MEAGAN ELIZABETH SMITH
- Appellant
AND
"C"
Respondent
Catchwords:
Road Traffic Act 1974 - Spent Convictions Act 1988 - Conviction for driving with prescribed percentage of alcohol in the blood - Magistrate's failure to take account of prior convictions the subject of a certificate issued under the Spent Convictions Act - Application of statutory provisions concerning spent convictions - Question whether Court can take account of spent convictions for the purpose of determining appropriate punishment - Magistrate held to be in error in failing to take account of spent convictions in sentencing the offender
Legislation:
Justices Act 1902
Road Traffic Act 1974
Sentencing Act 1995
Spent Convictions Act 1988
(Page 2)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Ms M Georgevic
Respondent : No appearance
Solicitors:
Appellant : State Crown Solicitor
Respondent : No appearance
Case(s) referred to in judgment(s):
IW v City of Perth (1996) 191 CLR 1
Case(s) also cited:
Nil
(Page 3)
1 HASLUCK J: The question raised by this appeal is whether in the course of sentencing an offender pursuant to certain provisions of the Road Traffic Act 1974 the learned Magistrate was obliged to take account of two previous convictions the subject of a spent convictions certificate.
2 On the complaint of the appellant, Police Officer Meagan Elizabeth Smith, the respondent, "C", came before the Court of Petty Sessions at Joondalup on a charge that on 1 May 2001 he drove a motor vehicle, Mazda 626 hatch, registered number 7FE 437 on Southside Drive, Hillarys with a percentage of alcohol in his blood exceeding 0.08 per centum, namely, 0.133 per centum, contrary to s 64(1) of the Road Traffic Act as amended.
3 On 4 May 2001, the respondent pleaded guilty to the charge. It appears from the transcript, and from the affidavit of Police Sergeant Lloyd Van Der Schoor, who was present at the hearing and presented the prosecution case, that the respondent was unrepresented.
4 The learned Magistrate acted on the plea of guilty and convicted the respondent of the offence the subject of the charge.
5 By s 64(1) of the Road Traffic Act a person who drives or attempts to drive a motor vehicle while the percentage of alcohol in his blood equals or exceeds 0.08 percent commits an offence. Section 64(2) goes on to provide that if a court convicts a person of an offence contrary to the provision just mentioned, the person is liable to the penalty prescribed in a table forming part of the statutory provision and the court shall order that the person be disqualified from holding or obtaining a driver's licence for not less than the relevant minimum period of disqualification in the Table.
6 The effect of the Table is that if the percentage of alcohol in the convicted person's blood exceeds 0.13 per cent but is less than 0.14 per cent, then in respect of a first offence he or she is liable to a minimum penalty of 14 PU, a maximum of 30 PU and disqualification for five months. The liability in respect of a second offence is a minimum of 24 PU, a maximum of 30 PU and disqualification for 10 months. The penalty for a subsequent offence is a minimum of 24 PU, a maximum of 30 PU and disqualification for 12 months.
7 I note in passing that by s 5 of the Road Traffic Act, the term "PU" stands for penalty units. A reference to a number of PU is a reference to an amount (in dollars) that is that number multiplied by 50.
(Page 4)
8 Section 106(2) of the Act provides that a minimum penalty in the Act is irreducible in mitigation. This rule is made subject to s 106(3) whereby a court sentencing a person who has been convicted of an offence against s 64 may, instead of imposing a fine, impose a community-based order under Pt 9 of the Sentencing Act1995. Nonetheless, by s 106(4) if a court deals with a person in that manner, it must also disqualify the offender from holding or obtaining a driver's licence for a period not less than any minimum period provided in relation to the offence concerned.
9 I have already observed that the respondent was not represented at the hearing before the learned Magistrate. However, he was allowed an opportunity to speak in mitigation of penalty, and did so.
10 In the course of the hearing, the respondent's prior record was submitted to the court. It became apparent that he had previously incurred a conviction on 4 December 1982 for driving while the percentage of alcohol in his blood exceeded 0.08 per cent contrary to s 64 of the Road Traffic Act. He had also been convicted of driving under the influence of alcohol contrary to s 63 of the Act.
11 It was common ground at the hearing that the respondent held a certificate dated 27 November 2000 issued pursuant to s 7(1) of the Spent Convictions Act 1988 that these two previous convictions were spent.
12 It is apparent from the transcript that after some discussion in which the prosecutor submitted that the learned Magistrate was entitled to take account of the previous convictions for sentencing purposes, the learned Magistrate formed a view to the contrary. He proceeded upon the basis that he was not to take account of the previous convictions in determining the appropriate sentence. He said further: "I'll deal with you on the basis that it's your first conviction."
13 Against that background, and having taken account of the matters relied upon by the respondent by way of mitigation, the learned Magistrate proceeded to sentence the respondent in these terms: "You'll be fined 20 penalty units, $1,000, costs of $38. You're disqualified from holding or obtaining a driver's licence for a period of 8 months."
14 The appellant was of the view that the two previous convictions should have been regarded as convictions for the purposes of imposing a sentence pursuant to s 64 of the Road Traffic Act, notwithstanding that the respondent held a spent convictions certificate in respect of the same. On this view of the matter, the respondent should have been disqualified from holding a driver's licence for a period of 12 months.
(Page 5)
15 On 30 May 2001, pursuant to s 187 of the Justices Act 1902, the appellant obtained leave to appeal against the decision of the learned Magistrate on the following basis:
"The learned Magistrate erred in law in failing to deal with the offence for which the Respondent was convicted on 4 May 2001 as a third offence under section 64(2) of the Road Traffic Act 1974 (WA).
Particulars
Although the Respondent's convictions on 4 December 1982 for the offence of driving with a percentage of alcohol in his blood of excess 0.08% and the conviction on 27 February 1990 of driving under the influence were spent convictions under the Spent Convictions Act1988 (WA), under section 14(2)(b)(ii) of that Act, the convictions must still be regarded for the purpose of determining the appropriate penalty for the offence for which he was convicted on 4 May 2001.
The appellant seeks orders in these terms:
(a) The appeal be allowed.
(b) The sentence imposed by His Worship Mr RK Black SM given on Complaint No. 5247 of 2001 in the Court of Petty Sessions at Joondalup on the 4th day of May 2001 be set aside.
(c) This honourable court impose a sentence in accordance with section 64(2) of the Road Traffic Act 1974 (WA).
(d) In the alternative to order (c) above, Complaint No. 5247 of 2001 be remitted to His Worship Mr RK Black SM in the Court of Petty Sessions at Joondalup for sentence to be imposed according to law.
(e) The Respondent pay the Applicant's costs of the appeal to be taxed if not agreed upon between the parties."
16 The respondent was not represented at the hearing of the appeal before me. Affidavits of service established that he had been served with the relevant papers, including the appellant's written outline of submissions. The respondent contacted the court prior to the hearing and indicated that, although he was aware of the hearing date, he did not
(Page 6)
- intend to attend the hearing due to his state of health. The appellant was represented by counsel and relied upon the matters reflected in her written outline of submissions.
17 The Spent Convictions Act is described in its long title as an Act to make provision for a person who has been convicted of an offence and who has not reoffended during a specified period to be rehabilitated by limiting the effects of the conviction.
18 The Act sets out a procedure for obtaining a spent conviction certificate in respect of previous convictions. Later provisions of the Act establish that there is to be no discrimination on the ground of a spent conviction in regard to employment and other matters. Section 5 provides that the Act binds the Crown.
19 I must now look at the structure of the Act in more detail.
20 Part 3 of the Act deals with the effect of a conviction becoming spent. By s 13 of the Act, Pt 3 is said to have effect notwithstanding any other written law. Division 2 of Pt 3 deals with exceptions to the effects prescribed by Div 4, that is to say, the rules mentioned earlier concerning discrimination and related matters such as the obtaining of information from official criminal records.
21 Section 14 lies within Div 2 of Pt 3 and must, therefore, be characterised as a provision directed to exceptions to the general rules about the effect of a conviction becoming spent.
22 Section 14(2)(b) states expressly that s 25(1) does not apply in a court or tribunal for the purpose of (i) the determination of the guilt or innocence of a person charged with an offence where a conviction is relevant to that determination; or (ii) a determination of the appropriate punishment to be imposed by that court or tribunal for an offence.
23 Section 25(1) lies within Div 4 of Pt 3 and reflects the main objective of the Act. It provides that a reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction.
24 The immediately following provisions provide that, where a written law allows a person to take into account the good character or other like attribute of a person, the person shall not in doing so have regard to a spent conviction or the charge to which the conviction relates. Questions about a convicted person shall not be taken to relate to a spent conviction.
(Page 7)
- A person shall not, without lawful reason, obtain information about a spent conviction, or the charge to which the conviction relates, from an official criminal record.
25 Put shortly, these provisions suggest that the general rule set out in s 25(1), which is designed to ameliorate any adverse consequences that might attach to a person with prior convictions, is subject to an exception constituted by s 14(2)(b). The effect of the exception is to displace the general rule where the presence of prior convictions is relevant to the sentencing process or the determination of guilt or innocence.
26 Counsel for the appellant referred also to some other statutory provisions bearing upon the question of what use can be made of spent convictions in the course of legal proceedings and the sentencing process.
27 Section 105 of the Road Traffic Act provides a limitation period of 20 years after which previous convictions against that Act shall not be taken into account. I note in passing that this provision does not apply directly to the circumstances of the present case, for 20 years have not yet expired since the first of the earlier convictions was recorded. Nonetheless, the terms of s 105 lend some support to the notion that, subject to the effect of the Spent Convictions Act (and certain provisions of the Sentencing Act1995, to be reviewed in a moment), the Road Traffic Act envisages that previous convictions will be taken into account for sentencing purposes until the prescribed limitation period expires.
28 Counsel for the appellant submitted that the structure of the Sentencing Act is consistent with and underpins the provisions of the Spent Convictions Act, especially in regard to the exceptions spelled out in Div 2 of Pt 3 of the latter Act.
29 Section 39 of the Sentencing Act lays out a framework of sentencing options for offenders who are natural persons. The options within the lower order of the hierarchy of options are prefaced by words indicating that the sentencing option may be utilised "with or without making a spent conviction order". Thus, for example, s 39(2)(c) contemplates that a court may impose a fine with or without making a spent conviction order.
30 These provisions are expressly made subject to s 45 of the Act concerning the making and effect of spent conviction orders pursuant to s 39(2) of the Act. Importantly, for present purposes, s 45(5) provides expressly that a spent conviction order in respect of a conviction does not affect the right or the duty of a court to disqualify the offender from holding or obtaining a driver's licence under the Road Traffic Act.
(Page 8)
- Further, a spent conviction order does not affect the operation of any provision of the Road Traffic Act relating to the cancellation of or disqualification from holding or obtaining a driver's licence under that Act.
31 Counsel for the appellant submitted that these provisions of the Sentencing Act are entirely consistent with and reinforce a fundamental precept reflected in s 14 of the Spent Convictions Act, namely, that a court sentencing an offender is entitled and obliged to take account of a spent conviction in the course of arriving at a determination of the appropriate punishment to be imposed by that court for an offence. The corollary is that the court must take account of spent convictions in determining whether the conditions precedent to disqualifying a driver from holding a driver's licence have been satisfied.
32 It follows from this view of the matter, counsel argued, that the learned Magistrate in the present case should have sentenced the respondent for the offence of which he was convicted as a "subsequent offence" under s 64(2) of the Road Traffic Act in that he had been convicted of two prior offences. As indicated earlier, s 64(2) provides (by reference to the prescribed Table) that in circumstances where the respondent's blood alcohol level was admitted to be 0.133 per centum, the appropriate sentence is a minimum of 24 PU, or penalty units, a maximum of 30 PU, and a minimum disqualification period of 12 months.
33 Under and by virtue of s 106 of the Road Traffic Act, the learned Magistrate could have considered a community-based order in lieu of a fine, but nonetheless was required by s 106(4) to disqualify the respondent from holding a driver's licence for not less than 12 months as stipulated in s 64(2) of the Act.
34 Counsel submitted that in these circumstances, it would be appropriate for the Supreme Court to allow the appeal and either to sentence the respondent under s 64(2) of the Road Traffic Act or remit the case for rehearing by the learned Magistrate according to law in the manner contemplated by the notice of appeal.
35 I have reviewed the various provisions relied upon by counsel for the appellant. I take account of the fact that the Spent Convictions Act, as appears from the long title and the provisions of the Act itself, is not aimed at extinguishing all the consequences of a conviction being recorded against an individual, but, rather, to use the words of the long title, at "limiting" the effects of a conviction.
(Page 9)
36 It follows that the Act must be carefully construed in order to discern the exact manner in which the consequences of a conviction are being ameliorated. This view of the matter compels me to approve the line of argument advanced by counsel for the appellant and to conclude that the learned Magistrate was in error in failing to take account of the two previous convictions of the respondent the subject of the spent conviction certificate.
37 Section 14(2)(b) of the Spent Convictions Act is explicit that s 25(1) is not to apply in a court for the purpose of a determination of the appropriate punishment to be imposed by that court for an offence. In other words, the general rule established by s 25(1) whereby a reference in a written law of the State to a conviction of a person is not to be taken as including a reference to a spent conviction is displaced by the exception to that rule expressly created by s 14(2)(b) which allows for a court to take account of spent convictions in fixing an appropriate punishment. An exception of this kind is consistent with the scheme of the Spent Convictions Act and is consistent with similar provisions in the Sentencing Act.
38 Counsel for the appellant was unable to refer me to any previously decided cases bearing upon the nature and extent of the exception constituted by s 14(2)(b) of the Spent Convictions Act. I find some support, however, for the views I have expressed about the scheme of the Spent Convictions Act in IW v City of Perth (1996) 191 CLR 1.
39 The question before the High Court in the City of Perth case was whether a local authority had discriminated against an applicant for planning approval contrary to provisions of the Equal Opportunity Act 1984 (WA).
40 Chief Justice Brennan and McHugh J noted at 14 that given the artificial definitions of "discrimination" in the Act and the restricted scope of their applications, a court should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act was not a comprehensive anti-discrimination or equal opportunity statute. The legislature had deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields.
41 These two members of the court went on to observe at 15 that most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups to the needs of
(Page 10)
- the victims of discrimination. Courts and tribunals must faithfully give effect to the text and structure of such statutes without any preconceptions as to their scope. When ambiguities arise, they should not hesitate to give the legislation a construction that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to Acts that most people would regard as discriminatory.
42 It follows from reasoning of this kind that one cannot simply assume that a spent conviction certificate issued pursuant to provisions of the Act is supposed to negate the effect of the previous convictions for all purposes. On the contrary, the scheme of the Act reveals that provisions designed to ameliorate the effect of previous convictions with a view to assisting the process of rehabilitation are subject to some important exceptions. One must, therefore, be careful to ascertain exactly the scope of the legislative provisions. Section 14 clearly contemplates that previous convictions the subject of a spent conviction certificate will continue to have an effect in the context of formal legal proceedings, including the sentencing process.
43 It follows that upon the proper interpretation of s 14(2)(b), the learned Magistrate was entitled and obliged to treat the two previous convictions as first and second offences for the purpose of the Table forming part of s 64(2) of the Road Traffic Act. This meant, having regard to s 64(2)(b), that he was required to hold that the respondent be disqualified from holding or obtaining a driver's licence for not less than 12 months, this being the relevant minimum period of disqualification prescribed by the Table.
44 In summary, then, I am persuaded that the learned Magistrate fell into error. He disregarded the two previous convictions under the Road Traffic Act in circumstances where they ought to have been taken into account and dealt with the respondent as though he was a first offender.
45 It is clear from s 14(2) of the Spent Convictions Act and the other provisions I have mentioned that a spent conviction should properly be taken into account for the purpose of imposing a punishment, notwithstanding the provisions of a spent conviction certificate. Thus, the respondent was not dealt with on the correct basis. I find that the ground of appeal contended for by the appellant has been made out.
46 It is open to this Court pursuant to the powers allowed to it by s 199 of the Justices Act to substitute the decision that ought to have been made.
(Page 11)
- Nonetheless, in my view, for the sake of consistency in sentencing, it will be better in the circumstances of this case if the matter is dealt with in the manner foreshadowed by the alternative form of orders proposed by the notice of appeal, namely, that complaint number 5247 of 2001 be remitted to his Worship Mr R K Black SM in the Court of Petty Sessions at Joondalup for a sentence to be imposed according to law.
47 I will, therefore, order that the sentence imposed by the learned Magistrate on 4 May 2001 be set aside and order that the matter be remitted to the learned Magistrate for a sentence to be imposed according to law.
48 This appeal has come about not due to any default or contentious issue for which the respondent is responsible. Accordingly, I will order that there be no order as to costs. Having regard to s 14(3) of the Spent Convictions Act, and the requirement that a court shall take such steps as are reasonably necessary to avoid or minimise publication of evidence concerning spent convictions, I will direct that in any report of these proceedings the respondent be described only as the "respondent" or by the initial "C".
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