Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64

2 The applicant seeks review of a decision of the Commissioner of Police (the administrator) of which he was advised on 11 March 1999, to refuse his application for a Class One licence under the Security Industry Act 1997 (the Act). The ground for refusal is that the applicant has been convicted of a prescribed offence involving fraud, dishonesty or stealing. Under the scheme of the legislation the administrator is obliged to refuse an application in these circumstances: Act, s 16(1)(a); Security Industry Regulation 1998, cl 11(d) (the Regulation). The Tribunal has ruled that its jurisdiction on review is limited to the question of whether the objective facts relied on by the administrator are proven, and it is not open to the Tribunal to exercise any discretion in relation to the merits of the decision: Bourke v Commissioner of Police [1998] NSWADT 1 (Gen Div 17 December 1998).

3 The examination of the objective facts involves two questions: is the record of offence relied upon accurate; and has it been properly classified as a prescribed offence to which the administrator's duty to refuse attaches. Like one earlier case (Pike v Commissioner of Police [1999] NSWADT 5), this case raises the second question, the question of classification.

4 The record of conviction relied upon by the administrator is as follows: "Offence - Stealing, s.496; Court/Date - Newcastle LC on 24/03/92, Result $200."

5 For mandatory refusal to apply to an offence falling into the category of offences involving fraud, dishonesty or stealing it must be one "in respect of which the maximum penalty is ... imprisonment for 3 months or more": Regulation, cl 11(d). The question in this case is whether the offence of which the applicant was convicted was an offence with a maximum penalty of imprisonment for 3 months or more.

6 It is agreed by the parties that the applicant was proceeded against summarily for the offence of larceny before the Newcastle Local Court on 24 March 1992. The conviction followed a plea of guilty and related to the stealing of a bag of clothes from a St Vincent de Paul clothing bin valued at $40. It is agreed that the charge was dealt with summarily under the procedural provisions then in force. Section 496 of the Crimes Act 1900 was operative from 19 February 1989 until 31 August 1995.

7 The section provided for summary disposal of certain indictable offences. As relevant, s 496 provided:

(b) the offence of stealing any chattel, money, or valuable security from the person of another; or

and the amount of money or the value of the property in respect of which the offence is charged, or of the reward, does not exceed $5000, shall on conviction in a summary manner before two Justices be liable for imprisonment for twelve months or to pay a fine of $5000 or both.

(1A) If the amount of money or the value of the property does not exceed $2000, the maximum monetary penalty is $2000.

(2) The jurisdiction conferred on two justices by this section shall be exerciseable only by a stipendiary magistrate.

8 The applicant sought advice from Mr Austin of counsel and relies on that advice in these proceedings. The applicant's argument is simply that the maximum penalty in relation to the offence of which he was convicted was limited to a fine. In contrast to the position in relation to higher value offences (see for example s 496(1)) there was no penalty of imprisonment.

9 The administrator's argument essentially is that any offence of larceny dealt with summarily under s 496 attracts a term of imprisonment despite the value of the property. While there is no express reference to imprisonment in s 496(1A) the administrator argues that the proper interpretation of the reference to penalty in that sub-section is that it is merely qualifying the monetary penalty allowed for in s 496(1) and leaving untouched the penalty of imprisonment. The administrator emphasizes the use of the word "monetary" in s 496(1A) as disclosing an intention on the part of the Parliament only to qualify the operation of s 496(1A) in respect of its reference to the size of a fine; it was not seeking to qualify the operation of s 496(1) in relation to the term of imprisonment. The effect of the submission is that the provisions should be read compositely as follows:

"Where the value of the property does not exceed $5000 the offender shall be liable for imprisonment for twelve months or to pay a fine of $5000, except where the value of the property does not exceed $2000, in which case the maximum monetary penalty is $2000 but the liability to being imprisoned remains twelve months".

10 The administrator submits that the history of the legislation in relation to summary disposal of indictable offences supports its interpretation. Prior to 19 February 1989 the relevant provisions were found in ss 476 and 501 of the Crimes Act. Section 476 dealt with summary disposal of larceny offences where the value of the property did not exceed $10,000 while s 501 dealt with offences where the value of the property did not exceed $2000. In both instances imprisonment or fine was provided for. In the case of s 501 the maximum term of imprisonment was 12 months and the maximum fine $1000.

11 Since 1 September 1995 the current scheme for the summary disposal of indictable offences has been operative. It is found in Part 9A of the Criminal Procedure Act 1986. Under the scheme an offence of larceny where the value of the property does not exceed $5000 is to be dealt with summarily unless the prosecuting authority elects otherwise. The offence falls into Table 2. The maximum penalties for Table 2 offences are set out in s 33K. Section 33K(2)(c) deals with the offence of larceny. To assist interpretation the whole of sub-sections (1) and (2) (but not the remaining sub-sections) follow:

(1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 2 to this Part dealt with summarily under this Part in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law.

(2) The maximum penalty that a Local Court may impose for the following offences is:

(a) for an offence under section 35A (2), 58, 59, 60(1), 61L or 61O (1) or (1A) of the Crimes Act 1900 imprisonment for 2 years, or a fine of 50 penalty units, or both,

(b) for an offence under section 56, 61 or 61N of the Crimes Act 1900 imprisonment for 12 months, or a fine of 20 penalty units, or both,

(c) for an offence listed in Part 2 of Table 2 to this Part (other than an offence under section 154A of the Crimes Act 1900) imprisonment for 12 months, or a fine of 50 penalty units, or both, however, the maximum fine that a Local Court may impose if the value of the property, amount of money or reward concerned does not exceed $2,000 is 20 penalty units,

(d) for an offence under section 154A of the Crimes Act 1900 imprisonment for 2 years, or a fine of 50 penalty units, or both,

(e) for an offence under section 93G or 93H of the Crimes Act 1900 imprisonment for 2 years, or a fine of 50 penalty units, or both,

(f) for an offence under section 562AB of the Crimes Act 1900 imprisonment for 2 years, or a fine of 50 penalty units, or both,

(i) for an offence under section 100 (1) of the Rural Fires Act 1997 imprisonment for 2 years, or a fine of 100 penalty units, or both,

(j) for an offence under section 578C (2A) of the Crimes Act 1900 in the case of an individual, imprisonment for 2 years, or a fine of 100 penalty units (or both), or in the case of a corporation, 200 penalty units,

(k) for an offence under section 10 or 20 of the Liens on Crops and Wool and Stock Mortgages Act 1898 imprisonment for 12 months, or a fine of 50 penalty units, or both.

12 It will be seen that the new Act clearly indicates in most instances whether both penalties apply. But para (b) of sub-s (2) departs from the usual language. Nonetheless it is clear that the qualification in para (b) only relates to the fine which may be imposed, through the use of the words "however, the maximum fine" et cetera.

13 The legislative history supports the administrator's submission that it is unlikely that the Parliament intended to vary the position when inserting s 496(1A) so as to remove the penalty of imprisonment from larceny offences involving goods valued at less than $2000, one that clearly applied prior to 1989 and has clearly applied since 1995.

14 As Mr Austin noted in his advice to the applicant, stealing or "larceny" as it is more properly known in the Crimes Act, is an offence charged under s 117 of that Act. Section 496 does not create an offence. Rather it is a procedural section which determines whether an offence is to be dealt with summarily or on indictment. Mr Austin noted that larceny under s 117 carries a maximum penalty of 5 years penal servitude and is indictable. If dealt with summarily under s 496 he noted that the maximum penalty is determined by reference to the value of the property stolen. As noted earlier, his view is that sub-s (1) provides for both imprisonment and a fine while the words of sub-s (1A) - "If the amount of money or the value of the property does not exceed $2000, the maximum monetary penalty is $2000" - limit the penalty for stealing of lower amount goods to a fine.

15 The modern purposive approach to statutory interpretation was put in this way by Kirby P in Metal Manufacturers Pty Ltd v Lewis [1988] 13 NSWLR 315 at 319:

"The modern approach to statutory construction is purposive ... .

To the extent that courts fail to adopt this modern approach to statutory construction they invite cumbersome, detailed and sometimes unintelligible legislation in the attempts by Parliament to spell out its purpose in such detail as to prevent the frustration of the legislative purpose by the courts.

These consequences can be avoided if courts give effect to the clear purpose of Parliament, as disclosed by the legislative language. Such purposes emerge more clearly when they are considered against the history of the relevant category of the law, the context in the statute of the provision under scrutiny and the scheme apparently reflected in the legislation, as it is intended to operate in the practical world."

16 In the present case sub-s (1A) reads as a qualification or proviso to sub-s (1). It does not read as a provision independent of sub-s (1). Sub-section (1) refers to two types of penalty; sub-s (1A) only concerns itself with one of them, the "monetary" penalty. Sub-section (1A) should be construed as stating an exception to the general rule expressed in sub-s (1).

17 The history of the legislative provisions relating to penalties in respect of offences of larceny disposed of summarily also supports this approach. The position expressed in sub-s (1) as to the penalty of imprisonment is left unvaried by the exception contained in sub-s (1).

18 Accordingly I am satisfied that the offence of which the applicant was convicted in 1992 fell within the scope of the prescribed offences to which mandatory refusal attaches.