Wednesday, 17 August 2011

Your sentence starts...later

A common occurrence in Magistrates' Courts is when a magistrate suspends or cancels the drivers licence of an accused person — frequently because of some mandatory provision such as for speeding or drink-driving — and the accused person or their lawyer then requests the Court order that the suspension not commence till some later time. Sometimes — though not always — the Bench will accede to the request. I've seen suspensions start from midnight following the conviction — and even a few days later, when the weekend rolls round.

Ideally the Bench should be able to impose its sentence to commence then and there, but for various reasons, folks don't always come prepared to start their licence suspension immediately. Sometimes they ignore advice from their lawyers; other times they don't meet their lawyer till the day of the hearing. And in some instances, they have no practical alternative to driving to answer their charges at court, particularly at country venues of the court.

I saw just such a post-dated sentence imposed a few weeks ago, and wondered if there were some basis for it other than convention. It sounds like an appropriate exercise of discretion, and that's often a good hint if something's right or not. But of course, the law requires more than gut instinct...

The Road Safety Act is silent about the commencement of licence suspensions, whether under the general power in s 28 or specific provisions such as s 50.

But Sentencing Act 1991 s 101(2) expressly permits a sentencing court to fix commencement of a sentence by some future time or event.

101. Time and place of sentence

(1) ...

(2) The judge or magistrate presiding at the trial or hearing of an offence or receiving a plea of guilty to an offence or any other judge or magistrate empowered to impose sentence may, when he or she thinks it desirable in the interests of justice so to do and from time to time if necessary—

(a) fix, or indicate by reference to a fact or event, the time; and

(b) fix the place—
at which the sentence is to be imposed.

That seems pretty darn unambiguous. So much so that there seem to be absolutely no cases considering the section. (At any rate, I can't find any.) And if no lawyer has ever found reason to dispute the interpretation or application of a legislative provision, it must be clear indeed!

The only question is if a driver licence suspension is a 'sentence'.

Strangely enough, there's no definition of 'sentence' in the Sentencing Act! But there is in s 3 of the Criminal Procedure Act 2009. Although it doesn't expressly capture licence suspensions, when you consider that definition of sentence, along with the power to suspend licences in s 89 of the Sentencing Act, it seems pretty certain that licence suspension is a sentence within the meaning of Sentencing Act s 101, and so can be imposed to commence at some point in the future.

That's not carte blanche for a court though. If a court were to commence a sentence too far into the future it might amount effectively to a refusal to deal with the matter: Howard v Pacholi [1973] VR 833; Ex parte Mylecharane (1898) 19 LR (NSW) 7; 14 WN (NSW) 125. Alternatively, if the commencement were set so that the sentence effectively circumvented the effect of mandatory provisions — for example, commencing a licence suspension a few months in the future when the accused went on an overseas holiday or sabbatical — that too would be wrong: Aherne v Freeman [1974] VR 121; Johnstone v Matheson (2008) 21 VR 570.

But a mere few hours seems completely unobjectionable. Indeed, it's probably quite proper to commence the penalty at midnight after the hearing, because some cases hold that the law takes no notice of fractions of the day, meaning that a suspension commencing today would be effective for all of the day, not just from the hour the sentence is imposed: Miller v Teale (1954) 92 CLR 406; Re Flavel [1916] SALR 47. (Mind you, that's not fixed in stone, and that presumption can be rebutted such as in Breare v Ward [1928] SASR 1, where the accused took out a wireless licence after an inspector visited him and was still convicted of not having a licence at the relevant hour of the day. The Supreme Court of Tasmania reached a similar conclusion about a fishing licence in Haslock v Blyth [1968] Tas SR 1.)

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