Willox v Warren

[1987] TASSC 74

Serial No B4/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Willox v Warren [1987] TASSC 74; B4/1987

PARTIES:  WILLOX
  v
  WARREN

FILE NO/S:  LDR LCA 32/1986
DELIVERED ON:  18 March 1987
JUDGMENT OF:  Cox J

Judgment Number:  B4/1985
Number of paragraphs:  9

Serial No B4/1987
List "B"
File No LDR LCA 32/1986

WILLOX v WARREN

REASONS FOR JUDGMENT  COX J

18 March 1985

1. This motion to review challenges a finding by the Court of Petty Sessions that the applicant had breached a condition upon which the execution of certain sentences of imprisonment had been suspended by that Court and the substituted sentence passed in consequence thereof.

1. On the 6 January 1986 the applicant received sentence for four criminal enterprises involving the burglary of certain buildings and a car and the stealing of sundry contents. There were four counts of burglary, in respect of each of which a conviction was recorded, and four counts of stealing, in respect of each of which a sentence of one month‘s imprisonment each cumulative upon its immediate predecessor was imposed. The execution of those sentences was however suspended on condition that the applicant “commits no similar offence for a period of two years”. In addition the court made a probation order against the applicant requiring him to be of good behaviour for a period of 18 months and to observe certain conditions such as supervision by a probation officer, acceptance of his directions as to place of residence, his employment and choice of associates, and abstaining from the excessive consumption of alcohol.

1. On the 2 May 1986 the applicant committed the offence of motor vehicle stealing created by the Police Offences Act 1935, s.37B. On the 16 September 1986 he was convicted of this offence and sentenced to a fine of $200 and disqualification from driving for six months. When proceedings pursuant to s.74C(2) of the Justices Act 1959 were taken against him, the learned magistrate held that the offence of motor vehicle stealing which he found the applicant had committed within the requisite time was a “similar offence” to that in respect of which the execution of the sentence had been suspended. It is submitted by the applicant that the learned magistrate was in error in so holding.

1. S. 37B of the Police Offences Act 1935 provides:–

“37B–(1) Subject to subsection (2), a person who drives or uses a motor vehicle without the consent of the owner of the vehicle or of some person who is lawfully in charge of the vehicle and has authority to give that consent is guilty of the offence of motor vehicle stealing.

(2) Subsection (1) does not apply to or in relation to the driving or use of a motor vehicle by a police officer or an authorized officer acting in the execution of his duty.”

The essential external elements of this offence are, first, that the defendant drove or used a motor vehicle and, second, that he did so without the consent of the owner or person lawfully in charge of it. To these should be added a mental element, namely that at the time he did so he knew that the owner or person lawfully in charge of it had not given his consent to such use (R. v. Murphy [1957] V.R. 545; Wray v. Robertson [1970] Tas.S.R. 253). Stealing on the other hand requires a dishonest taking or conversion with intent to permanently deprive the owner of the thing stolen. Although the summary offence is described as “stealing”, it has that clear generic difference to stealing as defined under the Criminal Code and at common law. It has frequently been said that the offence was introduced to prevent “joy riding” (see Wray v. Robertson (supra) at p.255 and cases there cited).

1. It is not the same offence as stealing in respect of which the original sentence was imposed, for “same” is the ordinary adjectival designation of identity (Shorter O.E.D.) and the offence of motor vehicle stealing cannot be said to be identical to that of stealing. However, the expression is not “same” but “similar”, which that dictionary defines as “1. of the same substance or structure throughout; homogeneous and 2. having the marked resemblance or likeness; of a like nature or kind”. Although there is some likeness to be found in the two offences, noteably in that both involve inference with the property of others with guilty knowledge of lack of authority, that in my view is not sufficiently marked to constitute the two of a like nature or kind. There are many crimes of violence, but the co–existence of the fact of violence does not make the crime of assault a “similar” crime to that of murder for example. Put another way, absence of some of the crucial distinguishing features such as the requisite intention clearly makes the two dissimilar. Even when intention is the only distinguishing feature between crimes, as in the case of murder and manslaughter, I would not have thought that for present purposes it was apt to describe them as similar crimes.

1. In Words and Phrases Judicially Defined, reference is made to the case of The King v. Manning (1933) 33 S.R. (N.S.W.) 385, which is cited under the title “Similar”. In that case Street C.J. said at p.389:–

“I think that what is meant by ’similar offences‘ is offences, generally speaking, of a similar character. For instance in a case of this kind, a case of forgery, I think that all that is necessary is that the other similar offences relied on for the purpose of showing intent should be instances of forgery or of the use of forged documents.”

As the court was there concerned with similar fact evidence, it is not of assistance in the present context. Likewise, a number of cases on joinder of counts, which were also cited in argument, address a different question.

1. In the instant case the learned magistrate imposing the original sentence required that the applicant commit no offence similar to that of stealing and imposed a probation order, one of the conditions of which was that he should be of good behaviour. The applicant’s breach of s.37B of the Police Offences Act 1935 was evidence of a failure to be of good behaviour which could have been made the subject of a complaint under the Probation of Offenders Act 1973, s.9, but it was not in my view a breach of the condition upon which the execution of the sentence was suspended.

1. The conviction and sentence on complaint number 8612500 which this motion seeks to review must be quashed.