Lopes v Carter [2006] WASC 197

Appeal - Criminal Law and Procedure - Sentencing - Stealing of motor vehicle and driving dangerously - Failing to stop - Driving under the influence of alcohol - Dangerous driving - Driving without a licence - Work development order in lieu of a sentence of imprisonment - Imprisonment suspended for 2 years - Fines imposed

Criminal Appeals Act 2004 (WA), s 14

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(2)(a)(iv), s 53(1)(b), s 61, s 63

Sentencing Act 1995 (WA), s 57A, s 57A(5)

1 MARTIN CJ: This is an appeal with leave from the decision of the Magistrate on five separate charges. I will refer to the particular charges shortly. The essence of the appeal is that the Magistrate erred in law by imposing a work development order in respect of those five charges.

2 The first charge was that of stealing a motor vehicle and driving dangerously contrary to s 378(2)(b) of the Criminal Code (WA). In respect of that charge, the Magistrate imposed a term of 12 months' imprisonment suspended for 2 years.

3 The second charge was that of failing to stop when called upon, contrary to s 53(1)(b) of the Road Traffic Act 1974 (WA). On that charge the Magistrate imposed a fine of $200.

4 The third charge was that of driving under the influence of alcohol contrary to s 63(1) of the Road Traffic Act upon which charge the Magistrate imposed a fine of $1500.

5 The fourth charge was that of dangerous driving contrary to s 61(1) of the Road Traffic Act upon which the Magistrate imposed a fine of $600.

6 The fifth charge was that of driving without a driver's licence contrary to s 49(1)(a) and subsection (2)(a)(iv) of the Road Traffic Act in respect of which the Magistrate imposed a fine of $400.

7 The Magistrate also imposed a period of disqualification in respect of the holding of a motor vehicle driver's licence. It is unnecessary for me to relate the circumstances of the offences because the appellant accepts that but for the imposition of the work development order the sentences imposed by the Magistrate were otherwise within the range of a sound discretionary judgment.

8 I have before me the transcript of the proceedings before the Magistrate. It is clear that he gave careful consideration to the circumstances of the offence and the circumstances of the offender and then fashioned a regime and a series of penalties which, in his view, amounted to the most appropriate disposition of the various matters that came before him.

9 As I have already observed, the appellant does not assert - nor I think could it be credibly suggested - that there is any basis for any criticism of the penalties imposed by the Magistrate with the exception of that pertaining to the work development order. That order came about at the very conclusion of the interchange between the Magistrate and the prosecutor and defence counsel.

10 What the Magistrate said at the very conclusion of the hearing was, "What I will do, I will convert them all to a work and development order". It seems to me to be unlikely that by those words, the Magistrate intended that a work development order should be imposed in respect of the first charge of stealing a motor vehicle and driving dangerously in respect of which he had not imposed a fine, but a sentence of imprisonment suspended for 2 years.

11 I am sure that the Magistrate would have been aware that the statutory provisions do not involve the imposition of a work development order in lieu of a sentence of imprisonment. As such, I think it is fairly obvious that in relation to that particular charge, the problem has arisen essentially as a result of misconstruction of what the Magistrate in fact ordered. To avoid any doubt, and because it does appear that the Magistrate's order has been construed as applying to the sentence of suspended imprisonment, I will allow the appeal in respect of that matter and quash the work development order; if, as I say, on the proper construction of the events in Court it was ever in fact imposed in respect of that sentence.

12 In relation to the four other matters in respect of which fines were imposed, the appellant points to s 57A of the Sentencing Act 1995 (WA), and in particular to subsection (5) which provides:

"The court must not make a fine enforcement (WDO) order unless -

(a) the offender is personally present in court;

(b) the court is satisfied by evidence on oath from the offender that the offender -

(i) does not have the means to pay the fine, either within 28 days or pursuant to a time to pay order;

(ii) is not the holder of a vehicle licence;

(iii) does not have any personal property that could be seized under a warrant of execution issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994 to satisfy, wholly or partly, the fine;

(iv) will be unlikely to have the means to pay, or personal property that could be so seized, within a reasonable time after the fine is imposed_;_ and

(v) is mentally and physically capable of performing the requirements of a WDO;

(c) the court is satisfied by evidence on oath from the offender that the offender -

(i) is the holder of a driver's licence but is disqualified from holding or obtaining such a licence_;_ or

(ii) is not the holder of driver's licence;

and

(d) the court is satisfied that the issue of a licence suspension order under the Fines, Penalties and Infringement Notices Enforcement Act 1994 would be unlikely to result in the fine being paid within a reasonable time after the fine is imposed."

13 Plainly some of those conditions were satisfied because the offender was personally present in court and the Magistrate was well aware of the position in relation to the respondent's driver's licence. However, there was no evidence on oath from the respondent in relation to the matters specified by par (b) of subsection (5).

14 The language of subsection (5) of s 57A is mandatory and emphatic in that it provides that the Court must not make a fine enforcement (WDO) order unless the requirements of the subsection are satisfied. It is clear in this case that no evidence on oath dealing with the matters identified in that subsection was given by the respondent, nor, indeed, were those matters traversed in the course of submissions from counsel who appeared on her behalf. It seems to me to necessarily follow that the statutory prerequisite to the making of the work development order by the Magistrate was not satisfied and that he therefore erred in making that order.

15 The question then arises as to what I should do in these circumstances. One option would be to simply quash the order and leave the matter at that. However, there is difficulty with that course; namely, because the respondent, who is not present today and that is understandable, given that she resides in Derby, would be precluded from having the opportunity to put evidence before the Magistrate to satisfy him of the matters of which he is required to be satisfied before making such an order.

16 I would not like to deny the respondent that opportunity and so I would accordingly use the powers conferred upon me by s 14 of the Criminal Appeals Act 2004 (WA) to quash that portion of the sentences imposed by the Magistrate, insofar as he made a work development order in relation to the fines which he imposed, and remit the matter to him to be dealt with according to law. By that I mean that the respondent can be given notice of the return of the matters to the Magistrate and given the opportunity, if she wishes, to put evidence before him so as to enliven the jurisdiction to make a work development order in respect of those fines.

1. In relation to Charge BM 1042/06 - stealing a motor vehicle and driving dangerously, the appeal is allowed and the work development order quashed (if imposed in respect of that sentence).

2. In relation to:

Charge BM 1043/06 - failing to stop when called upon;

Charge BM 1044/06 - driving under the influence of alcohol;

Charge BM 1045/06 - dangerous driving; and

Charge BM 1046/06 - driving without a driver's licence

the appeal is allowed and the sentences are quashed insofar as the Magistrate made a work development order and remit the matter to him to be dealt with according to law.