CITATION: Boulton -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 135 DIVISION: General Division APPLICANT Jamie Boulton PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003278 HEARING DATES: 22/09/2000 SUBMISSIONS CLOSED: 09/22/2000 DATE OF DECISION: 09/27/2000 BEFORE: Rice S - Judicial Member APPLICATION: Impounded vehicle - Road Transport (General) Act - Impounded vehicle MATTER FOR DECISION: Principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, solicitor ORDERS: 1. I decline to make the order sought, and the application is refused; 2. I make no order as to costs; 3. I direct that the document 'Effect of Decision for the Applicant' be attached to a copy of this decision, and that together they be sent this day by express post to the applicant who is unrepresented in these proceedings. Offence 1 A 'burnout' offence is defined in s41(1) of the Road Transport (Safety and Traffic Management) Act 1999 ("RT Safety Act") as operating a motor vehicle so as to cause it to "undergo sustained loss of traction by one or more of the driving wheels". 'Aggravated burnout' is defined in s41(2) of the RT Safety Act as operating a motor vehicle in the manner described in s41(1) knowing that petrol, oil etc has been placed on the road surface. 2 For an alleged burnout offence, the driver of the vehicle can be fined by way of a penalty notice. Alternatively the driver can be required by way of charge or summons to attend court for the alleged offence. If it finds the offence proved, the court has its usual range of sentencing options available to it, within the maximum penalty limits for the offence - s41(1): 5 penalty units; s41(2): 7 penalty units. Impoundment 3 The offences and maximum penalties having been created by the RT Safety Act, all provisions relating to other consequences and procedures are found in the Road Transport (General) Act 1999 ("RT General Act"). 4 When a police officer reasonably believes that a vehicle was operated in a burnout offence within the past 10 days, the officer can "seize and take charge" of the vehicle and cause it to be removed to a place: s39(1) of the RT General Act. Effectively the vehicle is confiscated and impounded. 5 Thus a vehicle can be confiscated and impounded up to ten days after an alleged burnout offence regardless of what enforcement action, if any, is taken in relation to the alleged offence. 6 As well, if a court finds a first burnout offence proved the court may order that the vehicle be impounded for up to three months: s40 of the RT General Act. Provision is made (s49(3)) for the court to take account of "hardship to any person or other injustice" in deciding whether to impound the vehicle and for how long. If the vehicle has already been impounded by the police under s39, the period it has been impounded will count towards the period set by the court: s 40(4). 7 On a second or further offence the court may order that the vehicle be forfeited, subject to the same considerations of hardship etc in s40(3). 8 Thus when a vehicle is impounded by a court the period of impoundment cannot be for more than three months from the court decision , and will be shorter if the vehicle has already been impounded by the police. Release from impoundment 9 Under clause 6(1) of Schedule 1 of the RT (General) Act a person can apply to the Tribunal for the release of the impounded vehicle. The only prescribed criterion for the Tribunal in ordering or refusing to order the release of an impounded vehicle is "as justice requires" (clause 6(5)). 10 The Tribunal "is entitled to in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case" (clause 6(4)). This provision is permissive not obligatory, but I would expect those matters to be addressed in any consideration of the what justice requires. Facts 11 On 21 July 2000 Mr Boulton received a penalty notice at Newcastle for the alleged offence of 'aggravated burnout'. His vehicle was confiscated on the same date. Mr Boulton has applied to the Tribunal for the release of his vehicle. Other relevant facts are described in the reasons below. Decision 12 The passing of time is an issue in this case if justice is to be done. This is explained under the heading 'Defining the impoundment period' below. Accordingly I gave my decision at the conclusion of the hearing of Mr Boulton's application on the evening of 22 September. 13 The decision is that Mr Boulton's application for the release of his vehicle is refused. But I made this decision only because of Mr Boulton's insistence that he will elect to have the alleged offence dealt with by a court. I give my reasons below for this decision. 14 So that Mr Boulton would be in no doubt as to the options available to him as a result of my decision, and because of the shortness of time, I undertook to provide these reasons as soon as possible. I now consider the various matters relevant to making the decision justice requires. Facts of the alleged offence 15 Mr Boulton agrees with the circumstances of the alleged offence as described by Senior Constable Edwards in his statement. He differs only in saying, crucially, that he didn't spin the wheels deliberately and that he didn't know the oil was on the road. 16 Relevant circumstances of the alleged offence which I can confidently take into account as not being contested by Mr Boulton are that about 100 people were standing in the carpark area where the conduct occurred, and that the carpark is a place known for the gathering of vehicles which are used to perform burnouts. Likelihood of an offence having been committed 17 Mr Boulton denies deliberately operating his vehicle so that it would lose traction. He denies knowing there was oil on the road. He is therefore asserting defences to the alleged offence, and intends having the matter dealt with by a court. 18 Neither the truth of the facts alleged by the police, nor of Mr Boulton's claimed state of mind were examined in the proceedings. I heard Mr Boulton's untested claim that his conduct was not deliberate and that he did not know of the oil. I have read the untested statement of Senior Constable Edwards who was a witness, on a plain clothes police operation, to the alleged offence. 19 For purposes only of weighing factors relevant to the justness of a decision I make concerning the continued impounding his vehicle, and not otherwise to anticipate any court hearing in relation to the alleged offences, I am satisfied that Mr Boulton at some stage in the sequence of events described by both him and Senior Constable Edwards did deliberately cause the wheels of his vehicle to lose traction. That is conduct which is proscribed by s41(1). Government policy 20 The Government has a clear policy to prevent such conduct in the public interest, particularly public safety. This policy described in further detail below at paragraph 47. Driving record 21 Mr Boulton has a poor driving record which shows offences of the same type being repeated soon after each other: i. Having exceeded the speed limit in June 1997 he lost his provisional licence. When the provisional licence was re-issued in November 1997 he exceeded the speed limit a month later. ii. Shortly before losing his provisional licence he failed to display his P Plates. When the provisional licence was re-issued in November 1997 he again failed to display his P Plates. iii. The combination of the second speeding offence and the second failure to display P Plates resulted in him again losing his provisional licence, in May 1998. His provisional licence was re-issued in September 1998 and he drove without incident for 17 months. iv. His unrestricted licence was issued in September 1999, and he exceeded the speed in February 2000 and again a further three months later in May 2000. The alleged burnout offence occurred less than two months after the last speeding offence. Character 22 Mr Boulton is a third year formwork concreting apprentice. He studies at technical college. He is in regular employment. He lives at home with his mother and brothers. 23 Aside from his driving record, the Commissioner's representative did not contest that Mr Boulton is otherwise of good character. Hardship 24 Mr Boulton's car has been impounded for two months, since 21 July 2000. He gave evidence of his personal circumstances and how they are adversely affected by the impounding of his car. He has been helped by his mother who has a car, he continues to drive, and he has access to his mother's car. His mother is unwell. Mr Boulton has financed the purchase of his car and is paying off that loan. 25 I am satisfied that the impounding of his car for the past two months, and for the next few weeks, is not causing Mr Boulton hardship. If, as is possible for reasons I give below, the period of impounding were to continue for some months, then Mr Boulton's continued loan repayments on a vehicle he cannot use, and his dependence on his mother and her car, would cause hardship. Period of impoundment 26 The clear intent of the legislation is that the period of impoundment be for three months unless a decision is made to reduce that period. 27 Mr Boulton's vehicle has been impounded for two months. If I were to order its release now, the effect would be that the period of impoundment is reduced to two months. Decision required by justice 28 Subject only to a concern that arises under the legislation on these facts, I consider that on the above considerations justice requires that I refuse to order the release of the vehicle. 29 Justice requires however that I look at the consequences for Mr Boulton of such a decision. I am concerned that a consequence might be that, contrary to what I consider to be the intention of the legislation and the outer limits of the Government's policy of impoundment for a period on a first offence, Mr Boulton might not secure the release of his car for some time or at all. That would be unjust and if, as I consider is the case, I have the power only to release or not release his vehicle, I would order its release in such circumstances. Defining the impoundment period 30 When a vehicle is impounded by the police under s39 RT General Act, the period of impoundment is not explicitly defined. There appear to be three ways in which the period of impoundment can be brought to an end. By the court 31 If the burnout offence comes before a court, the court can, if the offence is proved, set a period of up to three months for impoundment under s40. The offence will necessarily come before a court if the police charge or summons the person, but not if the police issue a penalty notice. 32 If the police issue a penalty notice, the person may elect to have the matter dealt with by a court, and the court can, if the offence is proved, set a period of up to three months for impoundment under s40. Alternatively the person may not elect to have the matter dealt with by a court, in which case the person must pay the amount due under penalty notice. By payment of a penalty notice 33 If the person pays the amount due under penalty notice, payment "has the same effect as a finding by a court that the offence was proven": s40(6). This works a deeming provision, equating payment with a court decisions for purposes of triggering the three month period of impoundment. 34 The vehicle is therefore impounded for three months from the date of payment, less any time the vehicle has already been impounded by the police. 35 In these circumstances there is no provision for the period to be further reduced because of "hardship to any person or other injustice". This appears to be an anomaly. A person who receives a penalty notice and pays it will have their vehicle impounded for three months. A person who is charged or summonsed for the same alleged offence, or who elects to have their penalty notice dealt with by a court, has access to the court's discretion to reduce the three month period. If no payment of the penalty notice 36 If the person does not pay the amount due under penalty notice, the enforcement provisions of the Fines Act 1996 operate. The person can then apply for the time for payment to be extended or for the penalty to be paid by instalments (s100), or for the fine to be remitted (s123). 37 The RT General Act does not define or refine the word "payment" in s40(6). There seems to be no allowance, for example, for the time for payment being deferred, for payment being made by instalments, or for the fine being remitted. The result is that the penalty notice must be paid in full before s40(6) operates to commence the three month maximum period for impoundment. For as long as the fine under a penalty notice is not paid, the vehicle remains impounded unless its release is otherwise ordered. Release by the Commissioner 38 Schedule 1 of the RT General Act has effect in relation to impounded vehicles. The Commissioner of Police, who holds vehicles impounded by the police under s39 or by court order under s40, may release the vehicle in two defined circumstances: clause 5 of Schedule 1. 39 Clause 5(2)(b) effectively allows the release of the impounded vehicle to the owner at any time if the owner of the vehicle neither knew of nor consented to it being driven so as to commit the burnout offence. 40 Clause 5(2)(a) allows the release of the of the impounded vehicle to the owner when "the period for which the vehicle would be liable to be impounded under section 40 as a result of the conviction for the offence that gave rise to its impounding has expired". 41 But when a penalty notice is issued and the recipient does not elect to have the matter dealt with by a court, there will be never be a conviction for an offence to give rise the impounding. The impounding is by the police under s39. 42 The effect of clause 5(2)(a) seems therefore limited in its effect to cases where a court is going to deal with an alleged burnout offence but has not done so within three months of the police having impounded the vehicle under s39. 43 If, instead, clause 5(2)(a) referred only to "the period for which the vehicle would be liable to be impounded under section 40", and did not go onto to relate the offence that gave rise to its impounding, then three month limit to impounding could be attached to an impoundment under s39. But that is not the case. Storage fees 44 Whenever a vehicle is released, by the Commissioner or by order of the Tribunal, storage fees are payable unless waived. Release by the Tribunal 45 Finally, clause 6 allows any person – not only a person "lawfully entitled to possession" as is the case for the Commissioner under clause 5 – to apply to this Tribunal at any time for the release of an impounded vehicle. 46 The Tribunal "may order or refuse to order the release of an impounded vehicle as justice requires". I understand that to mean that the Tribunal has a very wide power to take account of all considerations relevant to what justice requires in the circumstances, but that the Tribunal can only order the release of the vehicle or refuse to order its release. It cannot, for example, make an order on terms, such as 'release in X days' or 'release on X date'. In s40 of the same Act a court is given power to reduce or dispense a period of impounding; in the absence of any reference to the Tribunal having power other than to order or refuse release, I must conclude that that is the extent of orders the Tribunal can make. 47 The Tribunal must give effect to any relevant Government policy (s64 Administrative Decisions Tribunal Act). It is clear from the second reading speeches supporting the introduction of the legislation that Government policy is to deter people from dangerous driving practices which put lives at risk (Hansard 27 November 1996 pp 6739 – 6752). Further, government policy is to deter such conduct by "taking away the means of committing the offence". Three month maximum period of impounding 48 It is also clear from the terms of the legislation that, while forfeiture is anticipated for a second or subsequent offence, impounding for no more than three months is anticipated for a first offence. Three months impoundment is the longest period a court can impose, the period of any previous impounding by the police is credited towards that three months, and the court has discretion to reduce the three month period or dispense with it. 49 It is anomalous therefore that a person should have their vehicle impounded for considerably longer than three months, or perhaps indefinitely, because they cannot afford to pay a penalty notice other than by instalments or extension of time, or at all. The only way for a person to avoid this anomaly is to elect to have the matter dealt with by a court, thereby securing access to the defined three month maximum period of impoundment. 50 But that is not a real election. A person elects to have the matter dealt with by a court because they genuinely wish to contest the issue. In doing so they expose themselves to the risk of a higher penalty and court costs. It is not an election that should be made by a person of limited means as the only way of securing the release of an impounded vehicle within the three month period. 51 More than anomalous, the situation strikes me as profoundly unjust, although no doubt unintended. No injustice in this case 52 In this case I have decided above that, apart from the issue of when an impoundment might come to an end, justice requires that the vehicle not be released at this time. 53 I agree with the submission for the Police Commissioner that I must accept Mr Boulton's repeated statements at the hearing, in evidence and from the bar table, that he intends to have a court deal with the alleged offence. He intends electing to have the matter dealt with by a court as he denies he deliberately operated his vehicle so as to commit a burnout offence, and it is a defence if a court is satisfied that that was the case (s40(3) RT Safety Act). 54 For the reasons I have given above, his doing so will avoid the injustice of his not securing the release of his car for some time or at all. I have reservations that a person should be forced to have a court deal with an alleged offence only so as to avoid such an injustice, but in this case Mr Boulton genuinely wants to contest the alleged offence. 55 I am satisfied that Mr Boulton does intends acting in such a way as to bring about one of the circumstances above in which the period of impoundment will come to an end, and satisfied that the injustice of an indeterminate impoundment will not occur in this case. 56 Mr Boulton has not yet made the election, and has only until 28 September before time expires. If, contrary to what he has said, he decides not to make the election, then I do not see how he will secure the release of his car other than by paying the penalty when he can afford to. 57 Alternatively the Commissioner may believe I am wrong, and too narrow in my reading of his powers under clause 5(2)(a) of Schedule 1 of the RT General Act, and might on Mr Boulton's application release the vehicle after it has been impounded for three months. ORDERS 58 For the reasons given above I decided on 22 September 2000 not to order the release of Mr Boulton's impounded vehicle under clause 6(5) of Schedule 1 of the Road Transport (General) Act 1999. 59 The Tribunal orders: (i) I decline to make the order sought, and the application is refused. (ii) I make no order as to costs (iii) I direct that the document 'Effect of Decision for the Applicant' be attached to a copy of this decision, and that together they be sent this day by express post to the applicant who is unrepresented in these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.