Tkachenko v Police; Tkachenko v Police
[2012] SASC 79
•11 May 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TKACHENKO v POLICE; TKACHENKO v POLICE
[2012] SASC 79
Judgment of The Honourable Justice Gray
11 May 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeals against sentence - appellants pleaded guilty to breaching rule 256(1) of the Australian Road Rules, namely riding a bicycle without an approved bicycle helmet - appellants were convicted without further penalty - appellants were required to pay a victims of crime levy - where appellants were concerned with the need to protect themselves from ultraviolet radiation while riding their bicycles - whether the conviction should be set aside - whether the Court has a discretion to set aside the victims of crime levy.
Held: Appeal by each appellant allowed - convictions set aside - the Court does not have a discretion to set aside the victims of crime levy.
Victims of Crime Act 2001 (SA) s 4 and s 32; Criminal Injuries Compensation Act 1969 (SA) s 11; Criminal Injuries Compensation Act 1978 (SA) s 11 and s 13; Criminal Law (Sentencing) Act 1988 (SA) s 13, s 14, s 62, s 64, s 70I and s 70J; Australian Road Rules (SA) r 256(1), referred to.
Matulich v Police (2007) 252 LSJS 219; Police v Van Reesema [2010] SASC 183; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, considered.
TKACHENKO v POLICE; TKACHENKO v POLICE
[2012] SASC 79Magistrates Appeals
GRAY J.
These two appeals are closely related and were heard together. Both appeals are against sentence.[1]
[1] The sentence imposed was conviction without further penalty. The defendants contended that convictions should not have been recorded.
On 17 September 2011, the defendants and appellants, Svetlana Tkachenko and Oxana Tkachenko, were issued with expiation notices that in substance alleged a breach of rule 256(1) of the Australian Road Rules, namely riding a bicycle without an approved bicycle helmet.
On 17 September 2011, the defendants rode their bicycles in suburban Adelaide. Neither was wearing an approved bicycle helmet. A police officer observed Oxana Tkachenko riding her bicycle north across a suburban road and then on the footpath. The constable stopped Oxana Tkachenko and in response to a question as to why she was not wearing a helmet, she responded that she did not know that it was compulsory to do so. At or about the same time, Svetlana Tkachenko was observed by the same constable to be riding on the footpath. The constable asked why she was not wearing a helmet, to which she responded “I’m not riding on the road, I didn’t know”. The defendants were issued with an expiation notice.
Both defendants made an application for review of the notice. In support of her application, Oxana Tkachenko made the following submission:
I have been riding bicycle, without wearing a bicycle helmet, because: I have not known that it’s absolutely necessary; I prefer to wear a hat which can protect me from solar radiation; I ride the bicycle like a pedestrian, not a motorist - only on foot paths and not along automobile roads. Now, I know the requirement of wearing a helmet while riding a bicycle, and I will wear the bicycle helmet - which I have bought on the same day the expiation notice was issued - whenever I ride a bicycle, wherever I do so. If I cannot wear the helmet, I will dismount from the bicycle and walk. In the view of the promise to not have the offense repeated, could the fee be waived?
Svetlana Tkachenko’s submissions were in the following terms:
On September 17h 2011, I was issued a $147 expiation notice # E7563219 for not wearing a bicycle helmet.
Within one hour of the expiation notice, I purchased a helmet (please see a copy of the receipt attached), it has a “AS/NZ 2063” sticker.
Now I have found the bicycle riding rules at police.sa.gov.au website ( ) and will be wearing the helmet at the time of bicycle riding.
Please review the Expiation Notice and cancel the fee, if possible.
The applications were refused. Both defendants elected to be prosecuted for the alleged offence. The maximum penalty for this offence is a fine of $2,500.00.
On 27 January 2012, the defendants appeared before a Special Justice sitting in the Port Adelaide Magistrates Court. The defendants were unrepresented, both entered pleas of guilty. The defendants made submissions to the effect that the law with respect to bicycle helmets was at odds with the requirement to wear a wide brimmed hat outdoors to protect one from ultraviolet radiation. It was submitted that such a hat could not be worn under a helmet and that this needed to be recognised by the law.
According to the police prosecutor, the Special Justice remarked that there were other methods of protecting the face and neck from the sun that could be adopted by a bicycle rider. He suggested that if the defendants wished the law to be changed, they should approach their local member of Parliament.
The Special Justice then convicted both defendants without further penalty. In accordance with the Victims of Crime Act 2001 (SA), the defendants became liable to pay a victims of crime levy.
The Appeals
On the hearing of the appeals, both defendants sought the setting aside of the convictions and an order setting aside the requirement to pay the victims of crime levy.
An order was also sought that the requirement to wear a bicycle helmet be suspended until a recommended helmet is available that provides adequate sun protection. Plainly this order cannot be made. The Court does not have power to make such an order. The Special Justice was correct in observing that if the defendants wish to have the law changed, they should approach their local member of Parliament. This is a matter for the legislators, not for the judiciary.
The defendants made written and oral submissions on the appeal directed to health issues arising from exposure to the sun. Complaints were advanced about the inadequacy of bicycle helmets to provide such protection. These submissions are not to the point. Parliament has decided that for reasons of safety, approved bicycle helmets must be worn.
The defendants were both young women who appeared to have had a misunderstanding about the law. They have acknowledged that they breached the law and took immediate steps following their apprehension to purchase bicycle helmets. Their reason for not wearing bicycle helmets related to their concern as to the effects of radiation from the sun. Having regard to their youth and good character, I consider it appropriate to set aside the convictions. Counsel for the police did not oppose the making of such orders.
Victims of Crime Levy
As noted above, the defendants sought an order setting aside the requirement to pay the victims of crime levy. Counsel for the police submitted that the levy was imposed automatically and that the Court did not have a discretion to set aside the levy. Counsel filed a written argument in support of this submission.
At first I was inclined to take the view that the Court may have retained a residual discretion to set aside the levy, but on reflection I have reached the conclusion that the police submission should be accepted for the reasons set out below.
The State of South Australia first provided for a legislative regime for victims’ compensation in 1969 with the passage of the Criminal Injuries Compensation Act 1969 (SA). Section 11 provided that orders for compensation were to be funded by moneys provided by Parliament.
The 1969 Act was repealed by the Criminal Injuries Compensation Act 1978 (SA). Section 11 of this Act provided that compensation payments would be provided by the Attorney-General.
The 1978 Act was amended in 1987 to insert provisions including section 13. That section provided for the imposition of a levy as a source of revenue for the Criminal Injuries Compensation Fund. Section 13 of the 1978 Act was in similar terms to section 32 of the Victims of Crime Act 2001 (SA), an Act which is currently in force. Section 13(6)(b) of the 1978 Act provided for the prohibition of the reduction or omission of the levy by the court at the time of convicting or sentencing the defendant. Further, section 13(6)(c) provided for the recovery of the levy under the Criminal Law (Sentencing) Act 1988 (SA).
The 1987 amendments to the 1978 Act included the definition of “conviction” which is also found in the Victims of Crime Act. The term conviction “includes a formal finding of guilt and to convict has a corresponding meaning”.
The wording of section 13 of the 1978 Act as amended and of section 32 of the Victims of Crime Act is clear. Section 13(2) of the 1978 Act provided that the levy is imposed on all persons convicted of offences and all persons who expiate offences, subject to any exemptions provided by the regulations. Counsel for the police contended that none of those exemptions are relevant to the present proceeding. Counsel submitted that the legislative intention was evidently that the levy should be imposed broadly, regardless of whether or not a conviction is formally imposed.
Counsel for the police further contended that should there be any doubt about Parliament’s intention on the face of section 13 of the 1978 Act, that doubt is removed by consideration of the Parliamentary debates on the passage of the amendments to the 1978 Act. In enacting the 1987 amendments, Parliament determined that to impose an additional monetary penalty upon offenders was a “way for offenders to pay back part of their debt for violating society’s laws and [was] a means of providing additional funding for criminal injuries compensation and thus allowing the maximum amount of compensation payable to be increased”.[2]
[2] South Australia, Parliamentary Debates, Legislative Council, 1 April 1987, 3688 (The Hon CJ Sumner).
The Bill provided for the imposition of a levy on persons expiating offences and on persons found guilty of summary or indictable offences. During the debate on the second reading, the Shadow Attorney-General raised a series of questions. Relevantly, those questions included:
-whether offences under occupational licensing legislation would be the subject of the levy, given that such offences were part of “a wide range of offences which may be called victimless offences”;[3] and
-whether the levy was intended to apply to each count for which a person was convicted, regardless of how many offences were the subject of a series of charges.
The then-Attorney-General answered the above questions in the affirmative.
[3] South Australia, Parliamentary Debates, Legislative Council, 2 April 1987, 3757 (The Hon KT Griffin).
The levy system imposed was very comprehensive, even requiring prisoners to pay the levy. The Attorney-General also clarified that the levy would apply for each conviction which, according to the definition in the Bill, included a finding of guilt.
Prior to amendments which came into force in 2010, sections 13 and 14 of the Sentencing Act were such that an order for the payment of the levy could not be made by a sentencing court in circumstances in which a defendant would be unable to satisfy the order. Accordingly, there was inconsistency between the mandatory operation of imposition of the levy in section 32(7)(b) of the Victims of Crime Act and its progenitor section 13(6)(b) of the 1978 Act as amended on the one hand, and sections 13 and 14 of the Sentencing Act on the other. I will return to this inconsistency later in these reasons.
Section 62 of the Sentencing Act establishes how payments are to be distributed by the Manager once pecuniary sums have been received from offenders. The first payment is to be made to satisfy the victims of crime levy imposed. Counsel for the police highlighted the fact that the levy is to have precedence even over compensation ordered by the court to victims of crime, demonstrating the significance placed by Parliament on the levy.
Sections 70I and 70J of the Sentencing Act are also worth noting. Those provisions provided that the court could remit or reduce pecuniary sums in the event of a finding that the debtor’s[4] means were deficient to satisfy the orders. Section 70I remains in the Act, whereas section 70J was deleted by an amending Act in 2009. Section 70J specifically related to the remission of a victims of crime levy. That provision empowered the Registrar, an authorised officer or the court to remit the levy in the event of a finding that the debtor did not have, and was unlikely within a reasonable time to have, the means to satisfy the pecuniary sum consisting in whole or part of the levy.
[4] Debtor is the term used in these provisions.
In 2001, the Victims of Crime Act was passed by Parliament and it came into force in 2003. As earlier mentioned, for relevant purposes, it left section 13 of the 1978 Act as amended largely unchanged. Section 32 of the Victims of Crime Act provides:
(1) A levy is imposed for the purpose of providing a source of revenue for the Fund.
(2)Subject to subsection (3) and any exceptions prescribed by the regulations, the levy is imposed on—
(a) all persons convicted of offences after the commencement of this section (whether the offence was committed before or after the commencement of this section); and
(b) all persons who expiate offences under expiation notices issued after the commencement of this section.
(3)A levy is not imposed on a person convicted of an offence if the person has paid the levy under an expiation notice issued for the same offence.
(4) The amount of the levy is to be fixed by regulation.
(5)The amount of the levy may vary according to any one or more of the following factors:
(a) the nature of the offence;
(b) whether the offence is a summary or an indictable offence;
(c) whether or not the offence is expiated;
(d) whether or not the offender is an adult;
(e) variations in the consumer price index.
(6) If a levy is payable under this section by a person who expiates an offence—
(a) the amount of the levy must be shown on the expiation notice; and
(b) despite any other law, the offence will not be regarded as expiated, and no immunity from prosecution will arise, unless the levy has been paid.
(7) If a levy is payable under this section by a person who is convicted of an offence—
(a) the amount of the levy must be shown in—
(i) any formal record of the conviction and sentence; and
(ii) any notice of the conviction and sentence given to the defendant; and
(iii)any warrant of commitment issued for the imprisonment of the defendant for the offence; and
(b) the court may not, at the time of convicting or sentencing the defendant for the offence, reduce the levy or exonerate the defendant from liability to pay it; and
(c) the levy is recoverable under the Criminal Law (Sentencing) Act 1988.
In my view, the above history of the scheme for victims’ compensation demonstrates Parliament’s intention that a court convicting or sentencing a defendant should have no discretion as to whether the levy is applied. Pursuant to section 32(2) of the Victims of Crime Act, the imposition of the levy relevantly flows automatically from conviction. Recording the levy is an administrative act. On this topic, I repeat the observation I made in Matulich:[5]
It is to be observed that there is an obligation on the Court to record the levy. This is an administrative duty. In the ordinary course, this is a task to be undertaken by those preparing the record of the Court, a document later signed by the presiding judicial officer. It is not a judicial act.
[5] Matulich v Police (2007) 252 LSJS 219, [56].
Section 32(7) of the Victims of Crime Act is also of relevance. The use of the phrase “may not” in section 32(7)(b) is clear, particularly when considered in the context of section 32 as a whole as well as its corresponding historical provisions. The following remarks of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation are pertinent:[6]
This [question] does not depend on the abstract meaning of the word "may" but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised—so that in those events the "may" becomes a "must". …
While the use of the word “may” initially suggests that a discretion arises, that suggestion is immediately dispelled when one considers that the following word is “not”. The use of the phrase “may not” demonstrates the proscriptive nature of the provision. This conclusion is also supported by the following remarks of Vanstone J in Van Reesema:[7]
In relation to the purported waiver of the victims of crime levy, counsel for the appellant argues that the magistrate acted without power. The effect of s 32(2) of the Victims of Crime Act 2001 (SA) is that, subject to exceptions which here have no application, a levy is imposed upon all persons convicted of an offence. The court is unable to waive a levy imposed by operation of the statute. This submission is correct.
[6] Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134.
[7] Police v Van Reesema [2010] SASC 183, [8].
Further, the amendments made through the Statutes Amendment (Victims of Crime) Bill which was considered by Parliament in 2009 also support the view that the court is not able to waive the imposition of the levy. That Bill acknowledged anomalies between section 32 of the Victims of Crime Act and sections 13 and 14 of the Sentencing Act. Parliament sought to redress the inconsistency to make it more difficult to obtain dispensation from paying the victims of crime levy. Amendments were drafted to ensure that the levy could not be remitted or varied by the court of sentence, nor by a Registrar of court, but could only be remitted or varied by a court on review.
It was noted during the explanation of the 2009 amendments that the existing system had its own test for dispensation – that is, the test in section 70I(1) of the Sentencing Act – which was considered an appropriate test. Relevant amendments were made to sections 13, 64 and 70I of the Sentencing Act. This latter provision empowers the court, upon referral by the Registrar, to reconsider an order against an offender that a pecuniary sum, including a victims of crime levy, be paid. Parliament deleted section 32(8) of the Victims of Crime Act which had provided that the Governor had the power to remit or reduce the amount of the levy payable by an offender. As earlier mentioned, these amendments further demonstrate the mandatory nature of the imposition of the levy, subject only to the exercise of the court’s discretion on review as provided for in section 70I of the Sentencing Act.
The timing of the prohibition in section 32(7)(b) is relevant. It is to be recalled that “the court may not, at the time of convicting or sentencing the defendant for the offence, reduce the levy or exonerate the defendant from liability to pay it”. Whereas section 70I(3) allows for a court, at the time of reconsideration of the imposition of the penalty, to, inter alia, remit or reduce the pecuniary sum, defer payment of it or revoke the order imposing it altogether and make an order for community service or an order disqualifying or cancelling the debtor’s driver’s licence. It is at this later time that the court may exercise a discretion, having been informed by the Registrar of the outcome of an investigation of the debtor’s financial means.
Accordingly, I have reached the conclusion that, a court has no discretion to waive or reduce the victims of crime levy at the time of imposing a sentence or conviction. As earlier mentioned, the recording of the imposition of the levy is an administrative duty performed by the court. Should the Registrar’s investigation into the means of an offender reveal that there is an inability to pay the levy, the Registrar will remit the matter to the court for potential reduction or remission of the levy at the court’s discretion.
In the within proceeding, the defendants both pleaded guilty to the offence against rule 256(1) of the Australian Road Rules. As earlier mentioned, I have decided that it is inappropriate to impose convictions. However, this does not alleviate the defendants from the requirement to pay the victims of crime levy because the definition of conviction “includes a formal finding of guilt”.[8]
[8] Victims of Crime Act 2001 (SA) section 4.
Conclusion
For these reasons, the appeals against sentence should be allowed and the convictions recorded set aside. Both defendants remain liable to pay the victims of crime levy. The police should pay the filing fee incurred by each defendant when lodging their notice of appeal in the Supreme Court.
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