Rimanic v Business Licensing Authority [2001] VSC 400

Supreme Court of Victoria|2001-10-31|Before: HABERSBERGER, J

Solicitor to Consumer and Business Affairs Victoria

By an originating motion dated 8 August 2001 the plaintiffs, Mr. Michael Rimanic and Kingstrate Pty. Ltd. (ACN 084 793 831) ("Kingstrate"), sought the following declarations:

"1. That the motor car traders licences of the plaintiffs have not been cancelled by the operation of section 28 of the Motor Car Traders Act by reason of the conviction of the first plaintiff at the Dandenong Magistrates' Court on 5 October 2000 of making a threat to kill. 2. That the first plaintiff's said conviction was not a conviction of an offence involving violence and therefore not a conviction of a serious offence as defined in of the , and within the meaning of of the said Act. 3. That the plaintiffs are licensed motor car traders and are entitled to continue to conduct business as motor car traders."

The defendant, the Business Licensing Authority ("the Authority"), is a body corporate established by the Business Licensing Authority Act 1998. Its functions are to administer the licensing and registration provisions of various Acts including the Motor Car Traders Act 1986 ("the MCTA").

The facts leading up to the issue of the originating motion are as follows. On 18 March 1997, the first plaintiff, Mr. Rimanic, was granted a wholesale motor car trader's licence (LMCT 9018W) in his own name. The second plaintiff, Kingstrate, a company of which Mr. Rimanic was a director, was granted a retail licence (LMCT 3669) on 26 May 1999. Three businesses were being operated under these licences in Dandenong.

One of the salesmen employed in Mr. Rimanic's businesses was a Mr. Luke Whiffen. However, in March 1999, Mr. Whiffen and two other employees were summarily dismissed by Mr. Rimanic following an incident at one of the car yards after they had returned in a drunken state from the Grand Prix. Petrol had been poured onto the bitumen to enable the employees to create smoke by spinning the rear wheel of a traded-in motor cycle. This had damaged the bitumen and put the car yard at risk. Mr. Rimanic told the dismissed employees that he would deduct the cost of the repairs to the bitumen from their entitlements.

Mr. Whiffen made a claim for unfair dismissal. He alleged he was owed approximately $2,000. At about 2.35 p.m. on 20 December 1999 Mr. Rimanic telephoned Mr. Whiffen. According to Mr. Whiffen's statement to the police which was signed at 7.04 p.m. that evening, Mr. Rimanic said:

"Hi Luke. It's Mike Rimanic. I've got this claim you've made against me in front of me. I'll make this quite clear. You have 24 hours to drop this claim against me or I'll break every bone in your fucking body and this will be a Christmas you will not forget. Do you understand me? ... Do you understand me? I looked after you while you were here and if you pursue this any further I will kill you, you little cunt. Do you understand me? Do you understand me?"

In an affidavit filed in this proceeding, Mr. Rimanic stated:

"On about 20 December 1999 I telephoned Mr. Whiffen in an attempt to resolve the unfair dismissal claim he had brought against me. At the time of the telephone call I was upset and angry, because I'd given Mr. Whiffen a job and looked after him in the job, and he had repaid me by bringing an unfair dismissal claim against me. The conversation was lengthy, and we began by discussing the unfair dismissal claim he had made against me. I am unable to recall the precise words I used during the conversation. However, I recall that during the course of the conversation I lost my temper completely, and began swearing at Mr. Whiffen and calling him any name that came into my head. I cannot deny saying that I was going to kill him, but I have no recollection of having done so. I did not intend to say that I would kill him, or that he would believe that I would do so. I was simply very angry at this situation and at his lack of gratitude for the employment I had given him."

Mr. Rimanic and Mr. Whiffen's representative subsequently agreed to settle Mr. Whiffen's claim for $1,000.

In April 2000 Mr. Rimanic was contacted by the Dandenong Police. He subsequently attended the Dandenong Police Station and was interviewed. He made no admissions, saying he had no recollection of threatening to kill Mr. Whiffen.

On 3 July 2000, over six months after the telephone conversation, Mr. Rimanic was charged with the following offences:

(a) making a threat to kill (s.20 of the Crimes Act 1958);

(b) making a threat to inflict serious injury (s.21 of the Crimes Act 1958);

(c) extortion with a threat to kill (s.27 of the Crimes Act 1958);

(d) extortion with a threat to inflict serious injury (s.27 of the Crimes Act 1958);

(e) improper use of a telecommunication service (s.85ZE(1)(a) of the Crimes Act 1914 (Cth.)).

On 5 October 2000 the charges came before the Dandenong Magistrates' Court. They could not proceed as a contested matter on that day. Mr. Rimanic said in his affidavit that in order to get the matter resolved and to put it behind him he agreed to plead guilty to the charge of making a threat to kill if the other charges were dropped. He said that his barrister advised that this seemed to be a good result. Presumably, no one turned their mind to the wider implications of pleading guilty to the agreed charge. Mr. Rimanic was convicted and fined $2,000.

In the course of making his Annual Statement by a licensed motor car trader dated 13 March 2001 Mr. Rimanic answered "no" to the following questions:

"Since your last Annual Statement ... has the licensee or any person listed in the Annual Statement: ... 2. (a) been convicted of any offence involving fraud, dishonesty, drug trafficking or violence; or (b) had a penalty imposed for such an offence; or (c) had any such offence proved against them?"

On 17 May 2001 when completing Kingstrate's Annual Statement Mr. Rimanic again answered "no" to a similar question. On 19 July 2001 Mr. Rimanic completed a questionnaire on behalf of Riverquest Pty. Ltd. ("Riverquest"), a company of which he was a director, in respect of an application by that company for a motor car trader's licence. As part of that application Mr. Rimanic made a statutory declaration answering "no" to the following question:

"Have you ever personally been charged with or pleaded guilty to an offence involving fraud, dishonesty, violence or drug trafficking, punishable by imprisonment for three months or more (whether or not a penalty of imprisonment was imposed) in Australia or elsewhere?"

On 1 August 2001 Mr. Rimanic was telephoned by Ms. Lissa Zass, the Registrar of the Authority, who advised him that, following the checking of Riverquest's application, the Authority had just become aware of his conviction for making a threat to kill and that because this was an offence involving violence within the meaning of s.28(2) and (3) of the MCTA, both Mr. Rimanic's licence and Kingstrate's licence had been automatically cancelled on 5 November 2000. She stated that she was required by the MCTA to record the cancellations on the register.

Section 28(2) of the MCTA provides that a motor car trader's licence is -

"automatically cancelled 30 days after the licensee - (a) is convicted of a serious offence; or (b) is disqualified from holding a licence."

Section 28(3) of the MCTA provides that a motor car trader's licence is -

"automatically cancelled if a partner of a licensee that is a partnership, or a director of a licensee that is a body corporate - (a) is convicted of a serious offence or is disqualified from holding a licence; and (b) is still a partner or director of the licensee 30 days after the conviction or disqualification."

A "serious offence" is defined in s.3(1) of the MCTA as meaning:

"An offence involving fraud, dishonesty, drug trafficking or violence punishable by imprisonment for three months or more."

The only way for an individual licensee to avoid the automatic cancellation found in these sub-sections is to apply under s.29B or s.29C within the 30 day period for permission to continue to hold the licence. If that is done, s.28(4) provides that the person's licence is only automatically cancelled if the application is withdrawn or is refused by the Authority. In the case of a partnership or body corporate automatic cancellation can also be avoided if the convicted person resigns as a partner in, or director of, the licensee. None of these steps were taken by Mr. Rimanic within the 30 day period ending on 5 November 2000.

Following receipt of the telephone call from Ms. Zass, Mr. Rimanic sought legal advice and subsequently issued the originating motion. Mr. Rimanic also applied to the County Court of Victoria for leave to appeal from his conviction although it is common ground that a successful appeal will not affect the automatic cancellation of the two licences if the conviction at first instance was a conviction of a serious offence (see Abalana Pty. Ltd. v. The Business Licensing Authority[1]). The Authority agreed to refrain from making the appropriate entries in the Register, although it said that this step was only a formality, pending Mr. Rimanic making urgent application to the Court. On 28 August, 2001, Beach, J. granted an interlocutory injunction restraining the defendant, by its Registrar or other servants or agents, from making any entry in the Register kept pursuant to s.22 of the MCTA amending the Register in respect of licences held by the plaintiffs by reason of the conviction of the first plaintiff of making a threat to kill.

Because of the drastic consequences which cancellation of the licences would have on his businesses, Mr. Rimanic also lodged with the Authority fresh applications for licences by Kingstrate and himself. Mr. Rimanic deposed to the fact that if the businesses were forced to cease trading, income of approximately $1,000,000 per week would be lost and 40 or so employees would be stood down with the risk that their jobs would be permanently lost. Mr. Rimanic also referred to the damaging effect the closure would have on relationships with his franchisor, other vehicle manufacturers and finance companies.

The sole question which I have to decide is whether Mr. Rimanic's conviction of making a threat to kill is "an offence involving violence" and therefore a "serious offence" within the meaning of the MCTA.

Both parties referred to dictionary definitions. Relevant dictionary meanings of "involve" are "to include; to contain, imply" (The Shorter Oxford English Dictionary) and "to include as a necessary circumstance, condition or consequence; imply; entail" and "to include, contain, or comprehend within itself or its scope" (The Macquarie Dictionary). Relevant dictionary meanings of "violence" are "the exercise of physical force so as to inflict injury on or damage to persons or property" and "vehemence of personal feeling or action" (The Shorter Oxford English Dictionary) and "any unjust or unwarranted exertion of force or power" and "rough or immoderate vehemence, as of feeling or language" (The Macquarie Dictionary).

Mr. Burke of counsel for the defendant submitted that protection of the public was the paramount consideration in legislation of the type represented by the MCTA. In response, Mr. Sher, one of Her Majesty's counsel, who appeared with Mr. Tatarka of counsel for the plaintiffs, argued that this was only one of two purposes of the MCTA to be found in s.1 of that Act. That section reads:

"The purpose of this Act is to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who purchase motor cars are adequately protected."

Mr. Sher argued that equity to licensees was therefore an important consideration, particularly in the task of construing the sections which provided for automatic cancellations of licences. He argued that a strict construction was required to limit the potentially catastrophic effects of such provisions.

The defendant then referred me to the unreported decision of Nathan, J. in The Director of Consumer Affairs v. Jay Jacq Pty. Ltd, 4 May 1988, where at p.7a his Honour said:

"The Act is one designed to protect the interests of the community".

But as the plaintiffs pointed out, this was a reference to the 1973 Act which did not contain the equivalent of s.1 of the MCTA.

In any event, even if the MCTA is designed to protect the interests of the community, which it clearly is, this hardly assists in determining the critical issue. It is still a question of what Parliament meant by the phrase "an offence involving violence".

Mr. Burke made the further point that in legislation aimed at the protection of the public, the statutory consequence of breaches is for that very purpose rather than punishment of the individual concerned for his misconduct. (See Glynn v. Denman[2].) It was therefore not to the point to argue that the automatic cancellation of the licence was a draconian result. The motor car purchasing public were entitled to be protected from aggressive or violent traders. Conviction of a serious offence can also be a disqualifying factor when application is initially made for a licence (see s.13 of the MCTA).

Both parties referred me to parts of the Sentencing Act 1991 in support of their submissions as to the proper construction of a "serious offence". The defendant drew my attention to the definition of "serious offence" in s.3 of the Sentencing Act and pointed out that it included threats to kill. Counsel argued that this definition, which was inserted in 1993, was significant because it was already on the statute books when the MCTA was amended in 1996 to include the reference to "serious offence".

On the contrary, the history seems to me to point to the opposite conclusion. Clearly, the definition of "serious offence" in the Sentencing Act is for a particular statutory purpose - Sub-division (1A) of Division 2 of Part 3 of that Act (indefinite sentences). If the Legislature had intended in 1996 that the words "serious offence" in the MCTA should have the same meaning as they did in the Sentencing Act, the simplest thing would have been to incorporate the definition. Instead, in the amended MCTA, the words "serious offence" have been given their own special meaning.

Whilst making the point that the two pieces of legislation were serving entirely different purposes, the plaintiffs referred to Part 2A of the Sentencing Act which is concerned with serious offenders. Section 6B of the Sentencing Act includes definitions of a "serious violent offence" and a "violent offence", both of which include threats to kill. Again I find little assistance to be gained by consideration of these provisions of the Sentencing Act.

Mr. Sher's primary submission was that the relevant definition of a "serious offence" in s.3(1) of the MCTA as one involving violence ought to be interpreted as applying only to those offences a necessary element of which is violence, for example, murder, robbery or rape. He submitted that a conviction for a breach of s.20 of the Crimes Act is, in and of itself, not "an offence involving violence". A threat to kill may involve no violence at all, or it may be an extremely violent event. Given this, it could not be said to be by definition "an offence involving violence".

Alternatively, Mr. Sher submitted that if a threat to kill could be "a serious offence" within the meaning of the MCTA, whether a particular offence was one "involving violence" required an objective examination of the facts of each case to determine whether those facts established that the particular offence "involved violence". He submitted that in this case such an examination led to the conclusion that the offence of which Mr. Rimanic was convicted did not "involve violence".

In response to the plaintiffs' primary submission, Mr. Burke argued that it required the Court to add words which were not present in the statutory definition. In any event, Mr. Burke submitted, a threat to kill provided the necessary element of violence to satisfy even the plaintiffs' favoured test. It was the intimidation that was intended by the threat of death that constituted the element of violence.

The parties referred me to a number of interesting authorities. The plaintiffs took me, first, to a group of English criminal cases. In R. v. Ragg[3] the Court of Appeal, Criminal Division, held that two threats to kill were not "violent offences" within the meaning of the Criminal Justice Act 1991. The first threat occurred when the appellant, who had a history of violence towards his former common law wife, banged on the bolted door and window of her home and shouted at her: "I'm going to fucking kill you, I'm going to fucking have you". He said he would return that night to "finish her off", and said that this was her last warning. He then drove off and was later arrested. The second threat was made when the appellant was being held in prison on remand in relation to the first threat. He telephoned the victim and said "You fucking tramp, you are going to be dead tonight". The Court of Appeal held that neither of these threats was a violent offence. However, as Mr. Burke pointed out, this result flowed from the special statutory definition of a violent offence - "an offence which leads, or is intended or likely to lead, to a person's death or to physical injury to a person". The Court of Appeal decided that in relatively rare cases a threat to kill could meet the restricted definition. Examples were where the threat was intended to lead to death or injury, because to the defendant's knowledge the victim's health was delicate, or where the circumstances of the offence were such that the threat made it likely that death or injury would happen, as where the victim was standing on a balcony or precipice and was likely to recoil and fall as a result of the threat.[4]

In the similar case of R. v. Richart[5] the appellant made numerous abusive telephone calls to a woman with whom he had had a brief relationship. He threatened to shoot her. Subsequently the appellant sent the victim an envelope containing a bullet with the victim's name written on it. When the appellant was arrested, a large quantity of ammunition, together with guns and a bayonet, was found in his possession. The Court of Appeal held that the offence was not a "violent offence" within the meaning of the Criminal Justice Act 1991.

Mr. Burke referred me to R. v. Wilson[6], another case under the Criminal Justice Act 1991, where notwithstanding the special statutory definition of a violent offence, threats by a mentally disturbed man to kill and mutilate his wife were held to constitute a "violent offence". The threats had been repeated to a number of people over a period of time and the husband had concealed butchers' knives on top of a kitchen cupboard with a view to carrying them out. In the circumstances of that case the Court of Appeal held that what the husband intended was likely to lead to a person's death or to physical injury. However, Mr. Burke also referred me to a critical comment on this case in the 1998 Criminal Law Review at p.74, which concluded that it was difficult to see how the decision could be reconciled with the statutory definition or the above previous decisions.

In the end, I have not found this group of cases to be of assistance because of the significantly different statutory definition of "violent offence" on which the decisions turned.

There was another group of English cases concerned with the question of whether there had been a "crime of violence" within the meaning of the Criminal Injuries Compensation Scheme 1964. In Regina v. Criminal Injuries Compensation Board ex parte Clowes[7], a police sergeant was injured by an explosion when he was investigating the suicide of a man who had broken off the end of a gas stand pipe in his house. The sergeant successfully applied to quash the decision of the Board rejecting his application. Eveleigh, J. stated, at p.1358, that in order to constitute a crime of violence in the context of the scheme it was not necessary for there to be actual physical force. Wien, J. concluded:

"One cannot categorise crimes of violence. One cannot prepare a list in advance and say: 'Such and such an offence is a crime of violence'. One may say that certain offences do not concern violence by definition. For example, simple theft would not. Robbery, on the other hand, would by definition concern violence. I would rather say that a crime of violence means some crime which by definition as applied to the particular facts of a case involves the possibility of violence to another person. I think viewing a crime of violence in that manner does justice to the ordinary meaning of the words 'a crime of violence', because there is a possibility of violence to another person."

Lord Widgery, C.J. dissented. He said that "a crime of violence is a crime which is accompanied by violence, or, as Wien, J. put it, 'concerned with violence'." His Lordship suggested that violence in this context meant an unlawful use of force or threats directed at the person of another. "It is the threat to the person which matters in my view because it is the threat to the person which is the concern of the public ..."

In R. v. Criminal Injuries Compensation Board ex parte Webb[8], Watkins, L.J. and Lloyd and Nolan, JJ. held that a crime of violence is one where the definition of the crime itself involves either direct infliction of force on the victim, or at least a hostile act directed towards the victim or class of victims.[9] On appeal, Lawton, L.J. stated that most crimes of violence will involve the infliction or threat of force but some may not.[10] Whilst it is worth noting the acceptance by the Judges that threats can constitute violence, the different statutory context means that, once again, these cases provide little assistance in resolving the difficult question facing me.

The final English authority of any relevance was Antonelli v. Secretary of State for Trade and Industry[11]. In that case the question was whether the appellant's conviction in the United States of arson was an offence involving violence within the meaning of s.3(1)(a)(i) of the Estate Agents Act. In delivering the judgment of the Court of Appeal, Beldam, L.J. considered whether an offence involving violence was confined to violence to the person or also extended to violence to property. He referred to the definition of violence from the Oxford English Dictionary referred to above. His Lordship continued:

"In the context of an offence related to activities in connection with estate agency and the management of property, the unlawful eviction of the occupiers of premises with the threat of violence is one of the situations in which property managers have been known to commit an offence 'involving violence'. Thus a threat or an attempt to set fire to property even if no actual danger to life or limb would be expected is to my mind an offence 'involving violence' within the meaning of the section. Accordingly I have no doubt that Parliament intended that convictions for an offence involving violence towards property should be within s.3(1)(a)(i) of the Act of 1979."

Again, there is reference to a threat of some action as possibly constituting an offence involving violence.

Some Australian authorities I was referred to were more helpful. The defendant placed a great deal of reliance on the decision of Green, C.J. in R. v. McCrossen[12]. In that case a man was convicted of attempting to commit the crime of threatening to murder by writing and sending a letter to a woman threatening to chop off her hands and shoot her in the head. The Chief Justice had to decide whether that was a conviction "of a crime involving an element of violence". (Section 392(1)(a) of the Criminal Code). His Honour held that the "element of violence" involved need not be an essential ingredient of the crime. He continued:

"The word 'involving' is not the equivalent of 'one of the essential ingredients of which is' and there is no reason not to give the word its ordinary meaning. However, if the element of violence relied upon is not an essential ingredient of the particular form of the crime with which the accused is charged I think the crime may only be regarded as 'involving an element of violence' if the violence relied upon is so connected with one of the ingredients of the crime that the court would be entitled to take it into account when exercising its ordinary sentencing discretion ..."[13]

The Chief Justice concluded that: "The making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence".[14]

Mr. Sher subjected this decision to critical examination. He pointed out that the Chief Justice had cited Webb as standing for a certain proposition when in fact the passage referred to contained the Judges' view of what should be the appropriate definition, if they were asked to provide one. Mr. Sher also drew my attention to the comment by the Chief Justice during argument when he is said to have stated "But the only acts here, writing and transmitting a letter, are not violent".[15] This was contrary to the view subsequently taken by His Honour. Nevertheless, Mr. Sher submitted that the decision in McCrossen supported his case because all that it decided was that the making of a threat to kill was "capable" of constituting a crime involving "an element of violence". He submitted that use of the word "capable" meant that it was a question of fact in each particular case. He further submitted that an element of violence was clearly intended to be and was construed as being something less than involving violence.

Mr. Burke relied on the finding in McCrossen that the crime to which the accused pleaded guilty was "a crime involving an element of violence". He submitted that the similarities between the facts of the two cases gave support to the proposition that Mr. Rimanic had been convicted of "an offence involving violence".

The other case on which the defendant placed great reliance was R. v. Butcher[16]. That case was concerned with the construction of the statutory restatement of the felony-murder rule contained in s.3A of the Crimes Act 1958. The question was whether armed robbery was a crime "the necessary elements of which include violence". The Full Court, consisting of Murphy, Murray and Gobbo, JJ., held that robbery was a crime of violence:

"There can, we think, following an examination of the cases, be little doubt but that at common law, robbery was always considered to be a crime of violence whether carried out by actual force or merely putting a person in fear."[17]

Their Honours rejected the submission that the Victorian statute had altered the common law by introducing a non-violent element in robbery:

"It was submitted that since robbery may be committed if the accused simply 'seeks to put any person in fear', it is not a necessary element of the crime that violence be committed. We would agree that actual force need not be used either at common law or under the statute, but this is not the same thing as saying that violence need not be used. However, if actual force is not used, then the menace or threat must either be such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion, if force is used there can be no debate but that this is actual violence. If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is constructive violence, as Willes J. said in Donnally's Case. But both putting a person in fear or seeking to put a person in fear of being 'subjected to force' have always been accepted under the common law as violence, sufficient to render a contemporaneous larceny a robbery."[18]

Their Honours also discussed the meaning of the word "violence":

"In our opinion, the word 'violence' where it is used in s.3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence. When the words 'act of violence' and 'crime the necessary elements of which include violence' are used in s.3A, violence is used in a descriptive sense. 'Act of violence' means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element. This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: 'inherent overpowering force, whether physical or mental'. In the Oxford English Dictionary violence is defined as follows: '(Law) unlawful exercise of physical force, intimidation by the exhibition of this.' ... [I]t seems to us that if the word violence in the phrase 'act of violence' is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s.3A."[19]

Finally, the Court dealt with the question of what could constitute violence if actual force was not used:

"If there is not actual force used then the putting in fear or seeking to put in fear must be intended to induce the victim through fear to part with his money or goods in his keeping. The intent to cause the victim to fear personal injury is most common, by terror resulting from such threatening, by word or gesture, as in common experience is likely to create an apprehension of danger and induce a person to part with his property for the safety of his person. ... [V]iolence must be interpreted to include threats such as in common experience would be expected or likely to take away resistance, which has always been considered to be an element, necessary to prove, in the crime of robbery."[20]

Mr. Sher submitted that I should approach Butcher with some caution and that I should remember that the Full Court in that case was construing the Crimes Act and not the MCTA. He submitted that the Court's emphasis was on an exhibition of physical force as the means of intimidation, or menaces or threats as the means of intimidation, and that menaces or threats did not mean a one off conversation by telephone, which only resulted in a complaint to the police some four hours later. Menaces or threats required physical presence, he submitted.

Mr. Burke submitted that the reasoning in Butcher meant the phrase "an offence involving violence" should be held to include actual physical force and threats or menaces, and not just threats or menaces made in the presence of the victim. He pointed out the absurd results that would follow if the contrary interpretation were adopted. A slight altercation in a car yard which ended with the dealer pushing the customer and thereby assaulting him would result in an automatic cancellation of the dealer's licence, but this would not be the result where the much more serious offence of threatening to kill was committed. Alternatively, and even more absurd, whether or not the dealer's licence was automatically cancelled would depend on whether the threats were made by letter or telephone or in the physical presence of the victim, if the distinction sought to be drawn by Mr. Sher were correct.

Mr. Burke also submitted that the Parliament had used different words when it intended a reference to violence to be limited to actual violence. He referred to s.8(1) of the Community Protection Act 1990 which provided that the Supreme Court could order that a named person be placed in preventive detention if satisfied, on the balance of probabilities, that he:

"(a) is a serious risk to the safety of any member of the public; and (b) is likely to commit any act of personal violence to another person ..."

In Attorney-General v. David[21], Hedigan, J. rejected a submission that "any act of personal violence to another person" not only included an act of physical violence but also a threat of violence. His Honour held that the suggested construction did not conform to the ordinary use of language.

"... the phrase 'any act of personal violence' conveys, to my mind, violence to the person, or body. It is, I think, true that many dictionary definitions of 'violence' include language, although not as a primary meaning ... But the word 'personal' effects a crucial difference."[22]

Another helpful decision relied on by Mr. Burke was R. v. Breeze[23]. The question in that case was whether the sentencing Judge was obliged to have regard to certain sentencing principles set out in s.9(2)(a) of the Penalties and Sentences Act 1992 (Qld.) or whether they were excluded by s.9(3) because the offence "involved the use of ... violence against another person." A female shop assistant had been threatened by three males, including Breeze, with raised screwdrivers or iron bars and told to open the till. Leave to appeal the trial Judge's decision that this offence "involved the use of ... violence against another person" was refused. The Court of Appeal, consisting of Pincus and Davies, JJA. and Demack, J., stated:

"It is true that on some occasions a threat of violence without any application of violence can be extremely upsetting to the person threatened. But that does not mean that the distinction between actual violence and threatened violence is unreal or asinine; it is recognised, for example, in the Code definition of the offence with which the applicant was charged: s.409. ... The expression 'violence' has now acquired what might be called resonances which have perhaps broadened its meaning. In some contexts it seems to be used as descriptive of any act, whether violent in the ordinary sense or not, to which the user of the word strongly objects."[24]

The Court referred to McCrossen and Butcher, which it described as "most significant", and continued:

"The decision is capable of being distinguished, on the ground that the question here is not what are the necessary elements of the offence of robbery, but rather whether what was actually done involved the use of violence against a person. At the heart of the decision, however, is the view that at least in the context of commission of a robbery, a threat of violence to induce compliance is itself regarded as violence. It appears to us that the proper course is to apply these authorities, with the result that, for reasons other than those which the primary judge gave, we are of opinion that his Honour's conclusion that the present case is caught by s.9(3)(a) of the Penalties and Sentences Act is correct."[25]

The final authority relied on by Mr. Burke was Pollard v. Commonwealth Director of Public Prosecutions[26] The question in this case was whether the plaintiff had, by virtue of pleading guilty to three offences under s.178BB of the Crimes Act 1900 (NSW), made himself liable to a prosecution, under s.227(2) of the Companies (New South Wales) Code, for taking part in the management of a corporation, when he had been convicted of an offence "involving fraud or dishonesty". Section 178BB related to obtaining money by false or misleading statements.

In Pollard, Abadee, J. rejected the plaintiff's submission that the words in s.227(2)(b) of the Companies Code should be read as referring to, or limited to, an offence "of" fraud or dishonesty. His Honour said:

"... the argument is not one that is prima facie an attractive one, as it appears to involve re-writing the section by excluding the word 'involving' and substituting for it the word 'of'. There is no warrant for so reading the section. The word 'involving' appears to have been deliberately inserted in contradistinction to the insertion of the word 'of'. Further, the argument fails to give the section its ordinary meaning which, in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence 'involving' fraud or dishonesty, and an offence 'of' fraud or dishonesty."[27]

The result of these cases is, it seems to me, that certain crimes have been regarded as "intrinsically involving violence". Murder, robbery and rape all fall within that category. In the case of rape it is the act of penetration which constitutes the requisite violence. (See R. v. Evans[28]). The question is whether a threat to kill is such an offence.

It is important to note that the definition of "serious offence" in s.3(1) of the MCTA is, relevantly, "an offence involving violence". That is, it is something less than an offence of violence (Pollard) or an offence one of the essential ingredients of which is violence (McCrossen). As Mr. Burke submitted, one of the relevant meanings of "involving" is "implying" and a threat to kill clearly implies violence. Whatever the means of death threatened, there is an implication of violence. Cases such as Butcher, Breeze and McCrossen establish that the requisite violence can be constituted not only by actual force but also by a threat of violence, and a threat to kill is the most serious kind of violence which can be threatened.

Mr. Sher submitted that a threat to kill may involve no violence at all. If by this he was referring to his attempt to draw a distinction between a threat in the physical presence of the victim which it was conceded could be regarded as violent, and a threat by letter or telephone, which it was submitted could never be held to be violent, then I reject the submission. In my opinion, the distinction sought to be drawn is non-existent. In both cases, the threat to kill involves or implies violence and it is irrelevant that in the latter case it cannot be carried out on the spot.

On the other hand, if by his submission Mr. Sher was referring to cases such as the spectator in the crowd at a football match threatening to kill the umpire, then the submission ignores the requirement in the MCTA that the dealer be convicted of an offence involving violence. The mental element required for an accused person to be convicted of a threat to kill is that he made the threat intending that the victim would fear that the threat would be carried out, or being reckless as to whether or not the victim would fear the threat would be carried out.[29] By pleading guilty to the charge, Mr. Rimanic admitted that this was his intention. The spectator at the football match would not be convicted because:

"The somewhat unusual mental element required for the commission of this offence is clearly an acknowledgement by the legislature of the fact that words which, on their plain meaning, amount to a threat to kill, are frequently made in jest or temper in contexts where they are not intended to be taken seriously."[30]

Apart from the type of cases referred to above I do not understand how it can be said that a threat to kill may involve no violence at all. Therefore, it seems to me that a threat to kill is an offence involving violence within the meaning of s.3(1) of the MCTA. Even if the definition of "serious offence" is interpreted as applying only to those offences a necessary element of which is violence, as submitted by the plaintiffs, I accept the defendant's argument that the threat to kill provides the necessary element of violence. The plaintiff's primary submission therefore fails.

Alternatively, if the correct approach to the construction of the definition of a "serious offence" in s.3(1) of the MCTA is to inquire whether the facts of the particular case establish that the offence "involved violence", I find that the making of the threat by Mr. Rimanic during his telephone conversation with Mr. Whiffen did "involve violence". Even though there was no actual physical proximity between the offender and the victim and thus no present ability to carry out the threat, the language allegedly used by Mr. Rimanic in making the threat was extremely violent - he threatened to break every bone in Mr. Whiffen's body and to kill him. Despite Mr. Sher's submission to the contrary, it seems to me that an objective view of the facts of the case, including Mr. Rimanic's plea of guilty, inevitably lead to the conclusion that the threat "involved violence".

Mr. Sher's final submission was that certainty was required in respect of the type of offences which resulted in automatic cancellation of a licence under s.28(2) or (3) of the MCTA. Otherwise a licensee would not know whether he, she or it had to take steps to protect the licence from automatic cancellation following a conviction, and the Registrar would not know whether a licence had been automatically cancelled following a conviction. Mr. Sher argued that the construction put forward on behalf of the plaintiffs provided this certainty. There would be no automatic cancellation unless the offence was one of those offences a necessary element of which was violence, such as murder, robbery or rape. In my opinion, the question that would have to be asked by a licensee or the Registrar if this approach were adopted does not provide any more of the desired certainty. The question - is violence a necessary element of the offence of which the licensee was convicted? - is no less complicated, and is probably more complicated, than the question - does the offence of which the licensee was convicted involve violence? I therefore see no reason to change my conclusions set out above.

Subject to hearing from counsel, the order of the Court will be that the proceeding be dismissed.

[1] [2000] VSC 424 per Gillard, J.

[28] [1999] TASSC 25; (1999) 8 Tas R. 325 at 333 per Wright, J., with whom Cox, C.J. agreed, and at 334 per Slicer, J.

[30] R. v. Williams (1987) 84 Cr.App.R. 299 at 300

Car Traders Act 1986

Licensing Authority Act 1998

Criminal Justice Act 1991

At a glance

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Judgment (121 paragraphs)

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Legislation Cited (5)