Beath v McCurley [2018] ACTCA 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Beath v McCurley

Citation: [2018] ACTCA 48

Hearing Date: 8 May 2018

Decision Date: 23 October 2018

Before: Burns ACJ, Loukas-Karlsson and Bromwich JJ

Decision: 1. The appeal be allowed. 2. Orders 1, 2 and 3 made by the primary judge on 9 August 2017, as amended by further orders made on 22 August 2017, be set aside. 3. The parties submit agreed or competing draft orders within 14 days to give effect to this decision, to preserve the effect of additional order 3A made by the primary judge on 22 August 2017 and to preserve the effect of order 4 made by the primary judge on 9 August 2017.

Catchwords: APPEAL – CRIMINAL LAW – Appeal from ACT Supreme Court – licence disqualification - where appellant challenges jurisdiction of primary judge to entertain appeal from Magistrates Court proceedings – whether licence disqualification order is a sentence or penalty in terms of s 208(1)(d) of Magistrates Court Act 1930 (ACT) – whether magistrate has power to impose disqualification period that is the same as automatic period of disqualification – whether appeal lies under s 208(1)(d) of Magistrates Court Act 1930 (ACT) for an order beyond power – held: primary judge erred in finding jurisdiction to hear appeal from 11 out of 12 disqualification periods – held: primary judge did not have such jurisdiction – held: primary judge erred in setting aside those 11 disqualification periods – appeal allowed

Legislation Cited: Legislation Act 2001 (ACT) ss 134, 135, 146(1) Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (Alcohol and Drugs) Act 1999 (ACT) ss 20, 32, 33, 34 Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT) Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) ss 61A, 63, 64, 65, 69, 70, Div 4.2 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7(1) Supreme Court Act 1933 (ACT) s 20

Cases Cited: Altmore v Milner [2016] ACTSC 20 Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; 61 NSWLR 305 Barac v Thexton [2008] ACTSC 137 Bishop v Houlahan [2016] ACTSC 384 Bloxham v Wyte [2013] ACTSC 151 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) ALR 307 Director of Public Prosecutions (NSW) v Armstrong [2015] NSWSC 873 Hall v Jones (1942) 42 SR (NSW) 203 Kelly v Apps [2000] FCA 667; 98 FCR 101 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 Notaras v Earle [2016] ACTSC 146 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Kakura (1990) 20 NSWLR 638 Rich v Australian Investments and Securities Commission [2004] HCA 42; 220 CLR 129 Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; 77 NSWLR 189 Saraswati v The Queen (1991) 172 CLR 1 Scott v Wynants [2009] 4 ACTSC 62 Stoehr v Meyer [2016] ACTSC 144 Travini v Starczeski [2009] ACTSC 123; 169 ACTR 1

Texts Cited: Macquarie Dictionary, Seventh Edition, 2017 Shorter Oxford English Dictionary, Sixth Edition, 2007

Parties: Paul Gerard Beath (Appellant) Patrick McCurley (Respondent)

Representation: Counsel J White SC (Appellant) K Musgrove (Respondent)

Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)

File Number: ACTCA 37 of 2017

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 9 August 2017 Case Title: McCurley v Beath Citation: [2017] ACTSC 196 THE COURT:

Introduction

1. This is an appeal by an informant, Mr Paul Gerard Beath, from orders made by a judge of this Court on an appeal from the Magistrates Court by the defendant and now respondent, Mr Patrick McCurley. The subject matter of the appeal is confined to the topic of licence disqualification. The appeal principally concerns the appeal jurisdiction and appeal powers of a single judge of this Court.

2. Mr McCurley was charged with 21 driving and related offences in June 2016. He pleaded guilty and was convicted by a special magistrate to imprisonment for an overall maximum of three years with a non-parole period of two years for 18 of those 21 offences, backdated to commence from when he went into custody on 23 June 2016. His non-parole period therefore expired on 22 June 2018. Mr McCurley was also fined a total of $250 for the other three offences.

3. The 18 offences that resulted in a custodial sentence included 12 offences which resulted in Mr McCurley’s driver licence disqualification for wholly cumulative periods totalling 16 years and six months. This appeal concerns 11 of those 12 offences, and only in respect of the licence disqualification aspect, being the only matters that were the subject of the appeal heard by the primary judge.

4. The primary judge set aside the 12 disqualification periods arising from the Magistrates Court proceedings, and in lieu made orders for a shorter overall disqualification period of five years, largely by reason of concurrent disqualification periods. His Honour also ordered that Mr McCurley be disqualified from holding or obtaining a driver licence from the end of the period of disqualification arising from the 12 convictions and the operation of his Honour’s orders varying the periods of disqualification until the disqualification is set aside under s 65(3) of the Road Transport (General) Act 1999 (ACT).

5. Mr Beath challenges the jurisdiction of the primary judge to entertain any appeal by Mr McCurley in respect of 11 of the 12 periods of disqualification upon the primary ground that each disqualification was imposed by statute, rather than by the magistrate, and therefore could not be appealed. Mr Beath also contends that even if those 11 disqualification periods had been able to be imposed by the magistrate for the same duration as the automatic period of disqualification and had been so imposed, rather than imposed by statute, there was no right of appeal when the minimum period of disqualification was not exceeded, and, accordingly, no jurisdiction was vested in the primary judge to entertain such an appeal.

6. Having regard to his serious offending conduct detailed below, there is no doubt that Mr McCurley should not be driving a motor vehicle for a very long time. The only question is just how long that period of disqualification was required to be, or was able to be. There is no challenge to the decision reached by the primary judge if his Honour did have jurisdiction to entertain the appeals for the 11 disqualification periods in issue. It is therefore an appeal turning on questions of interpretation and jurisdiction and not on discretion or factual evaluation. This appeal gives rise to a key binary question – was the primary judge right or wrong to find that the Supreme Court had jurisdiction to entertain the appeal that was before his Honour: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [56].

The offences

8. Before turning to the summary of the offences provided by the primary judge, it is convenient to list the legislation that is referred to in these reasons, together with the abbreviated forms adopted:

(a) the Road Transport (Driver Licensing) Act 1999 (ACT) (Licensing Act)

(b) the Road Transport (General) Act 1999 (ACT) (General Act);

(c) the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety Act)

(d) the Road Transport (Alcohol and Drugs) Act 1999 (ACT) (Alcohol & Drugs Act); and

(e) the Magistrates Court Act 1930 (ACT).

9. The primary judge succinctly summarised the facts in the case that was before the magistrate as follows:

10. The appellant pleaded guilty to 21 offences. Sentencing submissions were made before the special magistrate on 1 November 2016. Her Honour gave her decision on 9 November 2016. 4. The offences were described by the special magistrate as being divided into three discrete sets of offending conduct. 5. The first incident involved the appellant driving an unregistered and uninsured car into a service station, filling up the tank with petrol and driving off without payment. Relevantly, he was a disqualified driver. On 12 April 2016 police noticed the car driven by the offender and attempted to stop it but it accelerated away from them. On 13 April 2016 police located the appellant and arrested him, charging him with the four offences committed on 9 April 2016. He was released on bail. 6. The second series of offences related to 23 June 2016. Police were notified of a motor vehicle collision in Deakin. A witness described the driver of the car, which was a blue Mazda and had been stolen five days earlier. Police were told that the appellant appeared to be drug affected and that he attempted to push the car off the road after the collision before leaving in a taxi. Later that day police received information about a car being stolen from the Hughes preschool, a short distance away from where the blue Mazda had crashed. The owner of the car stolen from the preschool had left it running while he went in to collect his child. The car was located about an hour later approximately 200m from where it was stolen and the appellant was near the car. He was arrested but attempted to escape. The keys to the car were found in his possession. He was requested to provide a sample of breath, which was negative for the presence of alcohol. The appellant later that day consented to provide a blood sample for analysis pursuant to the Road Transport (Alcohol and Drugs) Act 1977 (ACT). Subsequent forensic medical laboratory tests confirmed the presence of methamphetamine in his system. Property suspected of being stolen was also found in the car. He was charged with several offences including driving a vehicle without consent, driving whilst disqualified, attempting to escape arrest, unlawful possession of property, driving dangerously, and driving with a prescribed drug in his blood. He was remanded in custody on that day. 7. The third series of offences relate to 3 and 4 September 2016. The appellant escaped from the Alexander Maconochie Centre (AMC) late in the evening of 3 September 2016. On the afternoon of 4 September 2016 he was identified by an off-duty police officer at the Jamison Centre in Macquarie. Police saw him driving a Suzuki Swift and signalled him to stop but he did not. He crossed onto the wrong side of the road on a number of occasions in an attempt to evade police. Later that afternoon he was seen driving the vehicle on Hindmarsh Drive and was located by police at the Duffy shops. He was in the driver’s seat. He was told to get out of the car. He ignored the order and accelerated away. 8. The car was then observed on Stretton Drive in Rivett. Police signalled him to pull over. He again accelerated away. Later he was observed on the Tuggeranong Parkway. A police officer riding a motorcycle directed him to stop but he continued down the Parkway at high speed, crossing onto the wrong side of the road and travelling into oncoming traffic. 9. A short time later police observed the vehicle drive past them, activated their lights and sirens and signalled to the driver to pull over. The vehicle travelled on the wrong side of the road on the Lady Denman Drive off-ramp and travelled north on the Tuggeranong Parkway and Gungahlin Drive extension against the flow of traffic. 10. The police next saw the vehicle on Dryandra Street in O’Connor. Sirens were activated in order to persuade the vehicle to pull over but it accelerated away, crossing onto the incorrect side of the road and travelling against the flow of traffic on Macarthur Avenue. 11. Police then followed the vehicle in unmarked vehicles as it travelled along Macarthur Avenue and turned north onto Northbourne Avenue where it crossed the road and travelled into oncoming traffic. After travelling further through Dickson and Watson, police deployed “stop sticks” when the vehicle was back on Antill Street. Notwithstanding that the left tyres of the vehicle were deflated, the appellant continued to drive his vehicle on the wrong side of the road colliding with a log fence and then still continuing on the wrong side of the road on the Federal Highway. He continued northwards until he turned on to the Majura Parkway, still driving dangerously. About 500m along the Majura Parkway, he drove on the median strip until his vehicle struck a deep stone culvert causing the car sufficient damage to bring it to a stop. He was then arrested. 12. After reciting these facts, the special magistrate referred to the contents of a pre-sentence report and a CADAS report. Her Honour referred to the pleas of guilty. She found that it was difficult to judge whether or not he was remorseful. She found that he lacked insight into his offending behaviour. She referred to the fact that he had started to engage in some programs in the AMC but said that it was “early days”. She referred to the objective gravity of the offences and identified that he was at a high risk of reoffending. She found that “compelling considerations” in sentencing for all of the offences was general deterrence, specific deterrence, and punishment. 13. Her Honour then outlined the sentences on each of the charges. 14. During the course of that process, she indicated that she was minded to disqualify the appellant from holding a licence until the Court otherwise ordered. Further, in answer to a question asked by counsel for the appellant, her Honour indicated that the periods of disqualification were cumulative. 15. At the conclusion of the sentencing, her Honour indicated that all of the disqualification periods were cumulative. The period of disqualification was identified by counsel for the appellant as 16 and a half years. Her Honour said: So be it [counsel for the appellant], if that’s what they amount to. ... The way that he was driving and conducted himself on the road, it won’t be a loss to this community if Mr McCurley does not get back on the road. He can catch buses when he is released from custody. I appreciate that that is a crushing disqualification period, but he has really lost the right to drive on the road. 16. The appellant was sentenced on a total of 21 charges. The total sentence of imprisonment was three years with a non parole period of two years backdated to the date on which he was remanded in custody.

Charge Offence Statutory Statutory Disqualification provision disqualification minimum period following provision disqualification Magistrates Court period proceedings

1. Drive while s 32(1)(a), s 32(5)(b), 2 years 2 years disqualified Licensing Act Licensing Act (repeat offender): CC16/4061 2. Drive while s 32(1)(a), s 32(5)(b), 2 years 2 years disqualified Licensing Act Licensing Act (repeat offender): CC16/6661

2. Drive while s 32(1)(a), s 32(5)(b), 2 years 2 years disqualified Licensing Act Licensing Act (repeat offender): CC16/6662 4. Dangerous s 7(1), Safety s 63(2)(a), 3 months 3 months driving: Act General Act CC16/8746 5. (Not the subject s 32(4), s 20, Alcohol 1 year 3 years of this appeal) Alcohol and and Drugs Act (The increase from Drive with Drugs Act the automatic prescribed drug disqualification in blood (repeat period, gave offender): jurisdiction for the CC16/8880 appeal before the primary judge on that charge.) 6. Dangerous s 7(1), Safety s 63(3), General 1 year 1 year driving (repeat Act Act offender) (aggravated): CC16/9152 7. Fail to comply s 5C, Safety s 63(2)(a), 3 months 3 months with police Act General Act request or signal to stop: CC16/9273 Charge Offence Statutory Statutory Disqualification provision disqualification minimum period following provision disqualification Magistrates Court period proceedings

3. Fail to comply s 5C, Safety s 63(2)(b), 1 year 1 year with police Act General Act request or signal to stop: CC16/9274 9. Fail to comply s 5C, Safety s 63(2)(b), 1 year 1 year with police Act General Act request or signal to stop: CC16/9276 10. Drive while s 32(1)(a), s 32(5)(b), 2 years 2 years disqualified Licensing Act Licensing Act (repeat offender) CC16/9281

4. Dangerous s 7(1), Safety s 63(3), General 1 year 1 year driving (repeat Act Act offender) (aggravated): CC16/10202

5. Dangerous s 7(1), Safety s 63(3), General 1 year 1 year driving (repeat Act Act offender) (aggravated): CC16/10203 Cumulative total: 16 years, 6 months

6. Mr McCurley appealed against the above disqualification periods. The appeal succeeded. The primary judge set aside those disqualification periods above and in lieu made the following orders (in final form after some amendments were made):

7. On each of charges CC16/4061, CC16/6661, CC16/6662, CC16/8746, CC16/9152, CC16/9273, CC16/9274, CC16/9276, CC16/9281, CC16/10202, CC16/10203 the licence disqualification order made on 9 November 2016 is set aside. 2. The period of disqualification arising from the conviction on CC16/6662 is to be concurrent with the period of disqualification on CC16/6661 to the extent of one year. 3. The periods of disqualification arising from the conviction on charges CC16/8746, CC16/8880, CC16/9152, CC16/9273, CC16/9274, CC16/9276, CC 16/9281, CC16/10202, CC16/10203 are to be concurrent with the period of disqualification arising from the conviction on charge CC16/4061. 3A. The period of disqualification on charge CC16/8880 is to be concurrent with the periods of disqualification arising from order 2. 4. The appellant is disqualified from holding or obtaining a driver licence from the end of the period of disqualification arising from the conviction on the charges referred to in order 1 and the operation of orders 2 and 3 above until the disqualification is set aside under s 65(3) of the Road Transport (General) Act 1999 (ACT). 5. Each party has liberty to have the proceedings relisted for the making of any further orders in relation to the start or end date of the disqualifications from holding or obtaining a driver licence that are necessary to properly dispose of the appeal. Such liberty may only be exercised within 14 days after the date of these orders and may be exercised by sending an email requesting re-listing to my associate copied to the other party. 12. Mr Beath challenges the above driver licence disqualification outcomes imposed by the primary judge except as to charge number 5 in the table at [10] above, being CC16/8880, which did not involve an automatic disqualification period because the magistrate exceeded the statutory minimum of one year by ordering disqualification for three years. It was not in doubt that the order for CC16/8880 was appealable. For the other 11 charges, the automatic disqualification period applied, whether by force of the statute as Mr Beath contends, or by an order that was made by the magistrate, whether valid or not, as the primary judge found. Mr McCurley contends that his Honour was correct.

The primary judge’s reasoning on the licence disqualification appeal

13. Mr McCurley’s grounds of appeal before the primary judge were as follows:

(a) That the total period of disqualification from holding or obtaining a driver licence, imposed by [the special magistrate] on 9 November 2016 was manifestly excessive. (b) Her Honour failed to have regard to principles of totality in ordering that all periods of disqualification imposed be served cumulatively and in imposing the total period of disqualification that she did. (c) Her Honour failed to have regard to or exercise the discretion open to her under the provisions of section 69 [of the] Road Transport (General) Act 1999 to order that the periods of disqualification be served cumulatively [the reference to “cumulatively” should be “concurrently”]. (d) Her Honour erred in making an order under Section 65 of the Road Transport (General) Act 1999 in addition to imposing cumulative periods of disqualification. (e) Her Honour erred in making an order under Section 65 of the Road Transport (General) Act 1999 without having regard to the criteria for making such an order prescribed by subsection 65 (2) and 65 (7).

14. Mr Beath’s case before the primary judge was that there was no entitlement bestowed upon Mr McCurley to appeal from any periods of disqualification that were automatically imposed by legislation because no right of appeal was granted by s 208 of the Magistrates Court Act. That position, in respect of the 11 disqualifications in issue, is maintained and developed in this appeal.

15. It may be seen from the table at [10] above that:

(a) in relation to the 11 charges for which the primary judge’s conclusions are challenged on appeal:

(i) charges 1, 2, 3 and 10 each had an automatic disqualification period under s 32(5)(b) of the Licensing Act of two years, and the orders as entered referred to disqualification for the same period;

(ii) charges 4 and 7 each had an automatic disqualification period under s 63(2)(a) of the General Act of three months, and the orders as entered referred to disqualification for the same period; (iii) charges 8 and 9 each had an automatic disqualification period under s 63(2)(b) of the General Act of one year, and the orders as entered referred to disqualification for the same period; and

(iv) charges 6, 11 and 12 each had an automatic disqualification period under s 63(3) of the General Act of one year, and the orders as entered referred to disqualification for the same period; and

(b) charge 5, not being a subject of the appeal, had a one-year automatic disqualification period under s 34(2) of the Alcohol and Drugs Act, but the magistrate ordered a greater disqualification period of three years.

16. The key legislative provisions, also reproduced by the primary judge, were as follows:

(a) s 208 of the Magistrates Court Act provides as follows:

208 Appeals to which div 3.10.2 applies (1) Each of the following appeals is an appeal to which this division applies: … (b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375; (c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375; (d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 374 or section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed; (e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005: (i) part 3.2 (Sentences of imprisonment); (ii) part 3.3 (Non-custodial sentences); (iii) part 3.4 (Non-association and place restriction orders); (iv) part 3.5 (Deferred sentence orders); (v) part 3.6 (Combination sentences); Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16). … (g) an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum. Note Automatic disqualification provision—see the Road Transport (General) Act 1999, s 61A. (2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.

(b) the definition of “automatic disqualification provision” in s 61A of the General Act is as follows:

61A Definitions – div 4.2 In this division: automatic disqualification provision means any of the following provisions: … (c) section 63 (Automatic disqualification for certain other driving offences); ... (f) Road Transport (Alcohol and Drugs) Act 1977, section 34 (which is about automatic disqualification for other offences against that Act); … (c) ss 63, 64, 65 and 69 of the General Act provide as follows:

63 Automatic disqualification for certain other driving offences (1) This section applies to the following offences: … (d) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 5C (which is about failing to stop a motor vehicle when asked or signalled to do so by a police officer); … (f) an offence (including an aggravated offence) against the Road Transport (Safety and Traffic Management) Act 1999, section 7 (1) (which is about furious, reckless or dangerous driving); … (2) If a court convicts a person, or finds a person guilty, of an offence to which this section applies, the person is automatically disqualified from holding or obtaining a driver licence— (a) for a first offender—for 3 months or, if the court orders a longer period, the longer period; or (b) for a repeat offender—for 12 months or, if the court orders a longer period, the longer period. (3) However, if a court convicts a person, or finds a person guilty, of an aggravated offence mentioned in subsection (1) (f), the person is automatically disqualified from holding or obtaining a driver licence for 12 months or, if the court orders a longer period, the longer period. (4) If the person is already disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended, the disqualification under this section takes effect at the end of the existing disqualification or suspension. (5) A disqualification under this section is in addition to any penalty imposed for the offence. 64 Court may order disqualification for other offences (1) A court that convicts a person, or finds a person guilty, of an offence against the road transport legislation may disqualify the person from holding or obtaining a driver licence for the period the court considers appropriate. (2) However, if the offence is an offence against an automatic disqualification provision, any order under subsection (1) is subject to the automatic disqualification period for the offence. (3) If the court disqualifies the person, the person is disqualified from holding or obtaining a driver licence for the period ordered by the court. (4) A disqualification under this section is in addition to any penalty imposed for the offence. … 65 Disqualification until court order (1) This section applies if— (a) a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted, or found guilty, of an offence, or offences, against the road transport legislation or any other territory law; and (b) the total period of disqualification (the compulsory disqualification period) is 12 months or more. (2 If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3). (3) If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside. … (7) For subsection (2) or (3), the court must consider the following matters: (a) the total period for which the person concerned is, or has been, disqualified from holding or obtaining a driver licence; (b) the person’s history of offences (including offences for which infringement notices were served on the person)— (i) against the road transport legislation or a law of another jurisdiction corresponding to it (or to part of it); or (ii) against another law of any jurisdiction in relation to the use of motor vehicles; (c) any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person; (d) the risk to the safety of other road users. … 69 Multiple disqualifications cumulative unless court orders otherwise If— (a) a person is disqualified (whether or not by court order) from holding or obtaining an Australian driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction; and (b) before the period of disqualification has ended, the person is again so disqualified; the periods of disqualification are cumulative unless a court in Australia orders otherwise. (d) additionally, the following provide for automatic disqualification periods:

(i) s 32(5) of the Licensing Act, to be read with subsection (7), provides as follows:

32(5) If a court convicts a person of an offence against subsection (1) or (3), the person is automatically disqualified from holding or obtaining a driver licence— (a) for a first offender—for 12 months or, if the court orders a longer period, the longer period; or (b) for a repeat offender—for 24 months or, if the court orders a longer period, the longer period. Note Under the Road Transport (General) Act 1999, s 66 (1) the disqualification of a person from holding or obtaining a driver licence (whether or not by order of a court) operates to cancel any driver licence held by the person. … (7) If a person is already disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended, the disqualification takes effect at the end of the disqualification or suspension. (ii) s 34 of the Alcohol & Drugs Act provides:

34 Automatic drive licence disqualification—offences other than s 19 (1) If a court convicts a first offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for— (a) 3 years; or (b) if the court orders a shorter period of disqualification that is at least 6 months—the shorter period. (2) If a court convicts a repeat offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for— (a) 5 years; or (b) if the court orders a shorter period of disqualification that is at least 12 months—the shorter period. Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66. (3) For the Magistrates Court Act 1930, section 208 (1) (g), an automatic disqualification from holding or obtaining a driver licence under this section is taken to be an order of the court to disqualify a person from holding or obtaining a driver licence.

17. The primary judge rejected Mr Beath’s argument against Mr McCurley having an entitlement to appeal. His Honour reasoned as follows:

(a) The decision of this Court in Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157, in which it was found that:

(i) there was no appeal jurisdiction under s 208(1)(d) of the Magistrates Court Act because, on his Honour’s interpretation of that decision, there was “no sentence or penalty imposed by the Magistrates Court”;

(ii) there was no appeal jurisdiction under s 208(1)(g) of the Magistrates Court Act because there was no “order of the court to disqualify a person”; and

(iii) Kelly v Apps [2000] FCA 667; 98 FCR 101 was wrongly decided and s 20 of the Supreme Court Act 1933 (ACT) did not provide a statutory basis for an appeal,

should be distinguished because, in this case, the magistrate did in fact make or purport to make, in relation to each charge under appeal, an order in relation to disqualification. Those orders were entered and perfected, and neither party contended that they did not accurately reflect the orders made by the Magistrates Court;

(b) Given that each period of disqualification specified in the order entered was the same as the automatic period of disqualification, there was no need for an order to be entered unless it was actually made;

(c) There may be reasons why it is desirable to make a formal order, especially when a defendant is unrepresented, to ensure that the fact of disqualification is made known, but this practice was described in Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; 77 NSWLR 189 at [84] as “unnecessary and liable to be confusing”. In Director of Public Prosecutions (NSW) v Armstrong [2015] NSWSC 873 at [13], the alternative of a note on the record that an automatic disqualification had taken place was identified;

(d) The only court order permitted in respect of the 11 offences that were the subject of the appeal, those being offences against s 32(1)(a) of the Licensing Act, s 5C of the Safety Act or s 7(1) of the Safety Act, is one of ordering a period of disqualification that is longer than the automatic period, there being no statutory power to impose, by order, the same period as the automatic period. His Honour thus acknowledged that there was no power reposed in the magistrate by any of the directly applicable disqualification provisions in s 32(5)(b) of the Licensing Act or s 63(2)(a), s 63(2)(b) or s 63(3) of the General Act to make an order imposing the automatic disqualification period. Rather, there was only a power to order disqualification for a longer period than the automatic disqualification period;

(e) Section 20 of the Alcohol and Drugs Act, which is akin to the provision considered in Burow, provides that the automatic disqualification period applies unless the court imposes a lesser period, with there being no statutory power to impose, by order, the same period as the automatic period; (f) Section 64 of the General Act provides a power to impose a period of disqualification that is the same as the automatic period of disqualification because:

(i) the heading to s 64 makes it clear that it is dealing with offences other than those dealt with in ss 63 and 64 (it seems that his Honour probably did not mean to refer to s 64 at this point, but only to s 63);

(ii) section 64(1) is in general terms, both in relation to the offences to which it applies and the period of disqualification;

(iii) section 64(2) qualifies the generality of subsection (1) by providing, in relation to “automatic disqualification provisions”, that any order under subsection (1) is “subject to the automatic disqualification period for the offence”. However, the meaning of the words “subject to” is not obvious and should be interpreted as meaning that the exercise of power under subsection (1) may not result in a period less than the automatic disqualification period;

(iv) notwithstanding the fact that this general power may seem to overlap with the more specific provisions relating to disqualification, the fact that the legislature has seen fit to address in express terms the circumstance where an order is made under the provision where there are other more specific disqualification provisions that might also apply indicates that this is not a situation in which the operation of the general provision should be seen as being wholly excluded by the more specific provision, citing Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Saraswati v The Queen (1991) 172 CLR 1;

(v) While this may not have been the statutory intention, having regard to the words used in s 64(2), it is a conclusion compelled by the language actually used because:

A. when s 64 was first enacted, s 64(2) contained a list of statutory provisions and provided that s 64(1) was subject to those other sections;

B. the formal language made it clear that the generally stated power in s 64(1) did not extend to the sections referred to in s 64(2);

C. section 64 was amended by the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT), which introduced the concept of an automatic disqualification provision that corresponded to the provisions that had been listed in s 64(2) and hence permitted the removal of the shopping list of provisions from s 64(2);

D. the explanatory statement for the Bill for that amending Act provided, “this clause remakes existing section 64 consequent on the list of provisions in existing section 64(2) being moved to the new definition of ‘automatic disqualifying provision’ in new section 61A”. However, s 64(2) did not merely say the s 64(1) was subject to the automatic disqualification provisions, but went further; and

E. rather than simply excluding from s 64(1) the operation of the automatic disqualification provisions, the language used contemplated orders being made under s 64(1), with the sole qualification that the order be “subject to the automatic disqualification period”, such that the legislator achieved, perhaps inadvertently, a substantial change in the scope of s 64;

(g) It followed that because the imposition of the automatic period of disqualification by court order was supported by a power able to be derived from s 64 of the General Act, the making of the orders was within the statutory power of the Magistrates Court;

(h) The fact that the orders were in fact made means that the general appeal provision in s 208(1)(d) of the Magistrates Court Act is applicable;

(i) Even if s 64 did not support the making of the orders such that they had been made without power, there would still have been an order from which an appeal could be brought, as appellate jurisdiction is not denied merely because an order which was in fact made was beyond power; and

(j) Because the Magistrates Court made the orders that it did, there would be an entitlement to appeal against those orders under s 208(1)(d) notwithstanding that, had the court simply noted the operation of the automatic disqualification provisions without making the order, there would be no entitlement to appeal except in relation to the offence under s 20(1) of the Alcohol & Drugs Act, in which case s 208(1)(g) would have applied (a point not in dispute in this appeal).

18. The primary judge thus concluded that the Supreme Court had jurisdiction to entertain the appeal under s 208(1)(d) of the Magistrates Court Act in respect of the 11 charges. As noted above, Mr Beath challenges that conclusion by this appeal.

19. In reaching that conclusion, the primary judge appears to have accepted, correctly, that the only possible source of jurisdiction to entertain an appeal in this case would have been s 208(1)(d) or (1)(g) of the Magistrates Court Act. This appeal falls to be determined upon that basis.

The grounds of appeal

20. Mr Beath’s grounds of appeal are as follows:

21. The learned judge erred in holding that he had jurisdiction under s208(1)(d) of the Magistrates Court Act 1930 to hear the appeal against the disqualifications under the automatic disqualification provisions. 2. The learned judge did not have jurisdiction under s208(1)(g) of the Magistrates Court Act 1930 to hear the appeal against the disqualifications (apart from the disqualification for the drug driving charge, CC16/8880). 3. The learned judge erred in setting aside the disqualifications. Mr Beath’s submissions

22. Mr Beath focuses on the aspect of the primary judge’s reasons (summarised at [17(f)- (i)] above), whereby his Honour, having found no power to impose a disqualification period that was the same as the automatic disqualification period in the directly applicable provisions, nonetheless found:

(a) that such a power existed in the more general provision in s 64, and thus that the purported orders were in fact made and were appealable; or

(b) in the alternative, that even if there was no such power to be found in s 64, there was, in any event, a purported order which could be appealed against,

such that the Supreme Court did have jurisdiction to entertain the appeal.

22. The direct disqualification period provisions warrant reproduction again as follows in aid of understanding Mr Beath’s submissions, being:

Licensing Act – s 32(5)(b) 32(5) If a court convicts a person of an offence against subsection (1) or (3), the person is automatically disqualified from holding or obtaining a driver licence— … (b) for a repeat offender—for 24 months or, if the court orders a longer period, the longer period. General Act – s 63(2) (2) If a court convicts a person, or finds a person guilty, of an offence to which this section applies, the person is automatically disqualified from holding or obtaining a driver licence— (a) for a first offender—for 3 months or, if the court orders a longer period, the longer period; or (b) for a repeat offender—for 12 months or, if the court orders a longer period, the longer period. General Act – s 63(3) (3) However, if a court convicts a person, or finds a person guilty, of an aggravated offence mentioned in subsection (1) (f), the person is automatically disqualified from holding or obtaining a driver licence for 12 months or, if the court orders a longer period, the longer period.

23. Mr Beath contrasts each of those provisions with s 34(2) and (3) of the Alcohol and Drugs Act, which provide as follows (noting that neither has any counterpart in either the Licensing Act or the General Act):

(2) If a court convicts a repeat offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for— (a) 5 years; or (b) if the court orders a shorter period of disqualification that is at least 12 months— the shorter period. Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66. (3) For the Magistrates Court Act 1930, section 208 (1) (g), an automatic disqualification from holding or obtaining a driver licence under this section is taken to be an order of the court to disqualify a person from holding or obtaining a driver licence.

24. Mr Beath points to the amendment of ss 32, 33 and 34 of the Alcohol and Drugs Act having been a response to the decision in Burow, so as to provide a right of appeal if (but only if) the disqualification was greater than the statutory minimum period. In Burow, this Court dismissed an appeal in circumstances where a magistrate had declined to vary the statutory default disqualification period for a drink driving offence, holding that it was the statute, and not the magistrate, who had imposed the disqualification period, such that there was no jurisdiction to entertain the appeal under s 208(1)(g) of the Magistrates Court Act. Their Honours held:

Did s 208(1)(d) of the Magistrates Court Act provide jurisdiction for the appeal? 31. We are not persuaded s 208(1)(d) gave the court the relevant jurisdiction. As Mr Edmonds correctly said, the issue when attempting to find jurisdiction there is whether the Magistrate imposed the disqualification period. In our view what the Magistrate did was to decline to vary the period imposed by statute. It was the statute which imposed the disqualification period, not the magistrate. The fact that the magistrate consciously decided not to reduce the period of disqualification does not detract from that reasoning. 32. It follows that, contrary to Mr Edmond’s submission, Refshauge J correctly construed s 208(1)(d) in Barac v Thexton [2008] ACTSC 137 and Travini v Starczewski (2009) 169 ACTR 1. 33. Although Mr White submitted that Loughton v Smorhun (2014) 67 MVR 157 was wrongly decided, it is unnecessary for this court to consider that submission, since the magistrate appealed from here explicitly declined to make an order. Did s 208(1)(g) of the Magistrates Court Act provide jurisdiction for the appeal? 34. We are not persuaded that s 208(1)(g) provided the relevant jurisdiction. The Explanatory Statement shows it may have been the intention of the author of the Explanatory Statement for the amendment to s 208(1)(g) to provide appeal rights to an offender where a magistrate has declined to vary a period of disqualification. But that is not what the statute says (or indeed what the Explanatory Statement unequivocally says). As the plurality said in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]: ...the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. 35. In Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39] the Court said: Legislative history and extrinsic materials cannot displace the meaning of the statutory text. 36. Here the statutory text in s 208(1)(g) shows an intention to give a right of appeal: ...from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision...if the order is for a longer period than the minimum. 37. In the case of the appellant, no such order was made. The clear meaning of the statute is to provide rights to those subjected to orders by the Magistrates Court to reduce automatic periods of disqualification. There may be very good reason why the legislature has chosen to restrict rights of appeal only to those who are subject to orders.

25. Reliance is placed on the following part of the explanatory statement of the amending Act in response to Burow:

Currently under section 208(1)(g) of the Magistrates Court Act 1930, a person may appeal from an order of the court disqualifying that person from holding or obtaining a driver licence under an automatic disqualification provision under division 4.2 of the General Act, if the order is for a longer period than the minimum period of disqualification. Clause 61A of division 4.2 of the General Act provides that an automatic disqualification provision includes sections 32, 33 and 34 of the Alcohol and Drugs Act. Under each of these provisions, where the court convicts a driver of a relevant drink or drug driving offence, the driver is automatically disqualified from holding or obtaining a driver licence for either the default period for the relevant offence, or if the court orders a shorter period that is not less than the minimum period identified for the offence, the shorter period. The period of disqualification may therefore be the minimum period, the default period, or a period shorter than the default period that is not less than the minimum period. In the case of section 32 of the Alcohol and Drugs Act, this means that a convicted driver is automatically disqualified from holding or obtaining a driver licence for either the default period identified in column 4 of Table 32 of section 32, or if ordered by the court, the minimum period identified in column 3 of Table 32, or some period of time in between the default period and the minimum period. The interaction between section 208(1)(g) of the Magistrates Court Act 1930 and the relevant provisions of the Alcohol and Drugs Act has been judicially interpreted as meaning that only a person who is subject to a shorter period of disqualification ordered by the court (that is not less than the minimum period) can appeal the disqualification period. Under this interpretation, a person who has been convicted of a drink or drug driving offence and is automatically disqualified from holding or obtaining a driver licence for the default period, cannot appeal, because the disqualification is said to have arisen by operation of the relevant legislative provision, not by a Court order. The purpose of the amendment is to remedy this inconsistency by providing that an automatic disqualification under the relevant provisions of the Alcohol and Drugs Act is taken to be an order of the Court for section 208(1)(g) of the Magistrates Court Act 1930. … Clause 9 inserts a new subsection (3) in section 34 of the Alcohol and Drugs Act to provide that for the Magistrates Court Act 1930, section 208(1)(g), an automatic disqualification from holding or obtaining a driver licence under that section is taken to be an order of the court to disqualify a person from holding or obtaining a driver licence. The result of this amendment will be that a person who has been disqualified for the default period of disqualification identified in section 34(1)(a) or the default period in section 34(2)(a), or for a shorter period of disqualification ordered by the Court (that is not less than the minimum period identified in section 34(1)(b) or section 34(2)(b) of the Alcohol and Drugs Act) may appeal the disqualification period. A person who has been disqualified for the minimum period remains unable to appeal.

26. Mr Beath also relies on similar reasoning by judges of this Court, pre- and post-Burow, as follows:

(a) in Travini v Starczeski [2009] ACTSC 123; 169 ACTR 1, approved in Barac v Thexton [2008] ACTSC 137, Refshauge J noted at [19]:

Neither party suggested that s 208(1)(d) of the Magistrates Court Act was a source of jurisdiction. That must be correct where the court does not reduce the default period of a disqualification (Scott v Wynants) [2009] ACTSC 62 (at [23])) for the disqualification is imposed not by the Court but by ss 32 and 33 of the Alcohol and Drugs Act. The court may reduce the length of the statutorily imposed disqualification (if in its discretion it so decides) and I found in Barac v Thexton that that is not properly described as “imposing” the order. This is the third matter I need to consider and where I now consider I was wrong.

(b) in Notaras v Earle [2016] ACTSC 146, Burns J at [26]-[27] followed Burow to hold that when a magistrate exercised the discretion not to vary the statutory default disqualification period in a drug driving case, it was the statute and not the magistrate who imposed the disqualification and accordingly there was no jurisdiction to hear an appeal against that statutory disqualification period;

(c) in Bishop v Houlahan [2016] ACTSC 384, Penfold J also followed Burow, and concluded at [52]-[53], that an appeal was incompetent where a magistrate had declined to vary the statutory default disqualification period.

27. Turning to what the magistrate did in this case, Mr Beath characterises what transpired as follows:

(a) In the course of convicting Mr McCurley and imposing sentences for the various matters before her, the magistrate only made a disqualification order on count CC16/8880, the order being that the respondent be disqualified from driving for three years (being longer than the automatic disqualification period);

(b) It was only after pronouncing those sentences and making that disqualification order that the magistrate was prompted by the prosecutor about the other offences that also carried disqualification periods, reminding her Honour that the offence of drive whilst disqualified carried “an automatic disqualification of two years”, whereupon her Honour noted that “what I was minded to do towards the end was disqualify the defendant until the court orders otherwise”;

(c) Her Honour then went through each of the offences containing a disqualification period and stated in relation to each what the automatic disqualification period was, and when asked whether those periods were concurrent, answered “no they’re cumulative. That’s the way that the Road Transport Authority takes them in any event”;

(d) Thus the magistrate was simply recording, rather than ordering, the automatic disqualification period, rather than purporting to do what she was not authorised to do. Orders that could be made were confined to imposing a longer period of disqualification; and

(e) The reference to cumulative periods emphasises the fact that the magistrate was leaving in place the automatic effect of the statutory disqualification.

28. Mr Beath submits that the issues raised in the appeal can be expressed by the following questions and by giving the answers he proposes:

29. Is an order disqualifying a person from holding or obtaining a driver licence (or indeed, a disqualification which results for the operation of the automatic disqualification provisions) a sentence or penalty in terms of s208(1)(d) of the Magistrates Court Act? The Crown submits that it is not. 2. Does s 64 of the RTG Act provide to a magistrate a power to impose a period of disqualification that was the same as an automatic period of disqualification? The Crown submits that it does not. 3. Does an appeal lie under s 208(1)(d) of the Magistrates Court Act from an order which was beyond power. The Crown submits that it does not: the only appeal that would lie from such a purported order would be an appeal on the basis of want of jurisdiction to make the order.

Question 1 – is a licence disqualification order a “sentence or penalty” under s 208(1)(d) of the Magistrates Court Act?

The competing arguments

29. The substance of Mr Beath’s argument on this question turns on the language of s 208(1)(d) in contrast to s 208(1)(g). He submits that it is manifest from the structure of s 208 that an order made by the Magistrates Court to disqualify a person from holding a driver licence does not fall within the term “sentence or penalty” in s 208(1)(d) because such disqualification is separately dealt with in s 208(1)(g), which would otherwise be otiose. He submits that the more limited ambit of a licence disqualification appeal, being confined to longer-than-minimum periods of disqualification, is clearly a deliberate manifestation of legislative intent; and that a distinction between a sentence or penalty on the one hand, and disqualification on the other, is also clear from the disqualification provisions themselves. He relies, by way of an example, upon s 32(5) of the Licensing Act, which provides (emphasis added) that a “disqualification under this section is in addition to any penalty imposed for the offence”. The same words appear in ss 63(5) and 64(4). Mr Beath thus submits that even if the primary judge was right that disqualification orders had been made by the magistrate, rather than her Honour merely recording the automatic disqualifications imposed by statute, s 208(a)(d) would nonetheless not be engaged.

30. Mr Beath further submits that s 70 of the General Act underlines the distinction between the general function of courts to impose sentences and penalties on the one hand, and courts’ powers in relation to disqualification on the other, by making it clear that the powers of licence suspension and disqualification and related powers in Div 4.2 are “additional to other powers of the court”. However, Mr Beath submits that this important distinction was not observed by the primary judge in concluding, at [45], that (emphasis added) “the effect of the order made in relation to the disqualification periods resulted in a sentence which was manifestly excessive”. He submits that a period of disqualification is not a sentence but, rather, a consequence of a conviction, and that the distinction between the two was required to be maintained.

31. Mr Beath also submits that a driver licence is granted by the executive, such that its suspension, whether by a court or by operation of a statute, does not constitute a penalty within the meaning of that word in s 208(1)(d). He submits that in (using a shortened version of the case name) Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; 61 NSWLR 305 (drink driving guideline judgment case), Howie J, with whom the other four members of the New South Wales Court of Criminal Appeal agreed, at [110]-[117] rejected a submission that licence disqualification was irrelevant to sentence, characterising it as being a circumstance that could be taken into account on the punishment to be imposed in much the same way as extra-curial punishment, rather than being any part of the sentence itself. Mr Beath submits that the later decision of Higgins CJ in Scott v Wynants [2009] 4 ACTSC 62 at [23], which expressed a conclusion by Howie J that licence disqualification was part of the sentence to be imposed, did not allow for the greater subtlety in Howie J’s reasoning.

(a) ss 134 and 135 of the Legislation Act 2001 (ACT), each of which commence with the words “This section applies if a penalty (however expressed) is stated in a law”, to suggest that a penalty is capable of including a disqualification;

(b) the reasoning of the High Court in Rich v Australian Investments and Securities Commission [2004] HCA 42; 220 CLR 129 at [37], in which it was held that a risk of disqualification from holding office as a director of a company was a penalty, because of its consequences for the individual, for the purposes of privilege against exposure to penalties and forfeitures to avoid being subject to discovery;

(c) Altmore v Milner [2016] ACTSC 20, in which Refshauge J held, in the context of a s 208(1)(g) appeal concerning level 4 prescribed concentration of alcohol, that the licence disqualification was “part of the sentence, so that questions of manifest excess or inadequacy must take the period of disqualification into account, but the disqualification itself has protective as well as punitive aspects”; and

(d) Stoehr v Meyer [2016] ACTSC 144, in which Murrell CJ:

(i) at [31], disavowed the usefulness and applicability of the drink driving guideline judgment case;

(ii) at [32], assuming that disqualification was a form of sentence to which ordinary sentencing purposes apply, held that the predominant purpose was protection of the public.

Consideration

34. It is not necessary to attempt to resolve the differing views outlined above as to whether, in any general sense, licence disqualification may be considered to be either part of the process of sentencing or penalty imposition or separate from that process. Licence disqualification is at least a relevant consideration to be taken into account in arriving at any fine or term of imprisonment, or other lesser consequence arising directly from the offending. What matters for present purposes is not the scope of the abstract concepts of sentence or penalty, but, rather, whether the words “sentence or penalty” as they appear in s 208(1)(d) can be interpreted to include licence disqualification in light of the restrictive right of appeal from licence disqualification contained in s 208(1)(g).

35. Section 208(1)(g) expressly deals with appeals from an order of the Magistrates Court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under Div 4.2 of the General Act, but only if the disqualification order made is for “a longer period than the minimum”. That limited right of appeal can be seen to be a quite deliberate legislative choice, depriving a person who has been disqualified from driving for the statutory minimum period from having any right of appeal. It operates to reinforce the ordinary meaning of “minimum”, being “the least quantity or amount possible”: Macquarie Dictionary, Seventh Edition, 2017; “The smallest amount or quantity that is possible, usual, attainable etc”: Shorter Oxford English Dictionary, Sixth Edition, 2007.

36. If there has been only a minimum period of disqualification by way of an order made by a magistrate, if that is legally possible, s 208(1)(g) provides no right of appeal. In those circumstances, whether or not the imposition of a disqualification might, for purposes other than the interpretation of the scope of s 208(1)(d), be thought to be within or outside the concept of a penalty or sentence, it is difficult to see how that provision could be read rationally in a way that provides a right of appeal that is inconsistent with the limited direct appeal provision in s 208(1)(g). The legislative intent is clearly to ensure that in all circumstances, the minimum licence disqualification period for a given offence is a fixed and immutable floor. It would make no sense to impose such a strict limit on appeals from the minimum disqualification period imposed automatically, only to allow that appeal limit to be subverted when precisely the same period of disqualification is imposed by a magistrate, assuming that is legally possible. A court is “entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense”: Hall v Jones (1942) 42 SR (NSW) 203 at 208.

Conclusion

37. The answer to this question must be “no”, a licence disqualification order is not a “sentence or penalty” under s 208(1)(d) of the Magistrates Court Act. Upon this basis alone, the appeal must succeed, irrespective of the conclusion reached on the question of whether or not the 11 disqualification periods were imposed by force of statute, or by the magistrate, whether validly or invalidly. However, in deference to the full argument that has been presented on the remaining questions, each should be considered.

Question 2 – Does s 64 of the General Act provide a magistrate with power to impose a period of disqualification that is the same as an automatic period of disqualification?

38. Section 64 is reproduced at [16(b)] above. As recorded above at [17], the primary judge accepted that the specific offence provisions to which Mr McCurley pleaded guilty provided no statutory power to impose a period of disqualification equal to that imposed automatically by statute. However, his Honour found that despite that lack of direct power, s 64(1) provided a general power to the same effect.

39. The primary judge acknowledged that this may not have been the legislature’s intention, but that this was a conclusion compelled by the language used. In reaching that conclusion, his Honour placed great stock in a prior version of s 64(2) making the power in s 64(1) subject to a list of automatic disqualification provisions, whereas the amendments to create the present s 64(2) made the power in s 64(1) subject to the automatic disqualification period brought about by the application of the same provisions as now separately defined. His Honour considered that this change in language brought about a substantive change, giving rise to a more limited restriction on the scope of s 64(1) by virtue of this difference in the terms of s 64(2).

40. Without the primary judge’s interpretation of s 64(2), s 64(1) as a general provision could not provide a greater power to order disqualification for a period equal to the minimum than that provided by the specific provision. It was only with that material difference being found between the specific and the general provisions that his Honour needed to consider whether the specific provision excluded the operation of the general provision, and to conclude that it did not. It follows that the critical issue is whether his Honour erred in limiting the operation of s 64(2) in this way.

The competing arguments

41. Mr Beath, after making the observation that it would be strange for a general provision to provide jurisdiction when a specific provision did not, submits that the primary judge’s reasoning was unconvincing and ultimately that it was wrong. He submits that, in effect, his Honour’s reasoning went awry in limiting the meaning of s 64(2) to prevent a court imposing a disqualification period less than the minimum, rather than limiting a court to imposing a disqualification period greater than the minimum, with the minimum itself being imposed by the operation of the statute. That is because, he submits, when read with the automatic disqualification provisions themselves, which preclude the court from ordering anything other than a longer period than the minimum, the automatic period will apply unless such a longer period is ordered. Mr Beath submits that s 64(2) should not be read in a way that, for no apparent reason, produces a different outcome in allowing the automatic disqualification period to be replicated.

42. In relation to the primary judge’s reliance on legislative history and the change from the concept of automatic disqualification provision to the concept of an automatic disqualification period, Mr Beath submits that this is not a material change, and that the phrase now in s 64(2) that makes s 64(1) “subject to an automatic disqualification period” can only mean that the Court is precluded from disqualifying a person for the automatic period or any shorter period.

43. Mr McCurley characterises the General Act as being the overarching Act for the suite of road transport legislation, which includes the three Acts that gave rise to the offences and convictions leading to his driver licence disqualifications. He submits that, reading the General Act as a whole and as containing the dominant provisions, and having regard to the process described in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70] of reconciling conflicts in legislation by reference to leading and subordinate provisions, the general power in s 64(1), as constrained by s 64(2), should prevail over the specific automatic disqualification periods for the 11 offences in question. In relation to the terms of s 64(2), he submits that s 64 as a whole is “clear and unequivocal”, and that a court that convicts a person may, if it so chooses, disqualify the person from holding a driver licence as a matter of discretion, as provided for by s 146(1) of the Legislation Act.

44. In relation to the meaning to be given to the phrase “subject to an automatic disqualification period” in s 64(2), Mr McCurley submits that this does not preclude a court from making a disqualification order of the same length as the applicable automatic disqualification period. That is said to be because any such order is merely “subject to” such a period and contains no other restriction. He submits that this phrase means only that any such order must be compliant with the automatic disqualification period, an interpretation that takes into account the fact that for some offences, the court may increase or decrease the disqualification period. This does not, it is submitted, preclude making an order for the same period of disqualification as would be imposed automatically. It is submitted that the change from the use of the word “provisions” to the use of the word “period” is significant and indicates that the intention was that, if the Court makes an order under s 64(1), there is no automatic disqualification but, rather, as per s 64(3), there is only a disqualification for the period ordered by the Court.

Consideration

45. This question again does not require each and every aspect of the competing submissions to be resolved, including as to leading or subordinate provisions. The question requires resolution only of the issue as to whether the primary judge erred in treating the change from the use of the word “provisions” to the use of the word “period” in s 64(2) as meaning that s 64(2), which used to limit a court to imposing a disqualification period greater than the statutory minimum, with the minimum itself being imposed by the operation of the statute, no longer precludes a court from imposing a disqualification period that is the same as the statutory minimum. The underlying issue is what reason might have existed for bringing about such a change. No such reason was suggested by the primary judge, nor by Mr McCurley. However, there are compelling factors as to why there was no such reason for that change to be brought about. As noted in answer to the first question above, the clearest legislative intent, running across all of the automatic disqualification provisions, is to ensure that in all circumstances, a minimum licence disqualification period for a given offence is a fixed and immutable floor. It is unlikely that such an overall evident purpose would be changed by a legislative side wind, brought about only by the change, in form and in substance, of a single word in the relevant legislation that produced a disharmonious result. Moreover, it is not an interpretation that commends itself to the words now used in s 64(2). There is no apparent reason why the reference to “subject to the automatic disqualification period” should be read as referring to something less than that period. The automatic disqualification period is a single figure in each case. Section 64(2) means that the power in s 64(1) is subject to that single figure. It operates to impose a floor below which a court cannot go, and, in doing so, limits the court to the option of only imposing a lengthier period of disqualification.

46. Importantly, s 64(1), as limited by s 64(2), gives a court a general power, if necessary, to impose a period of disqualification when no power of disqualification otherwise exists, or that is in excess of the maximum period of disqualification that might otherwise apply by reason of the specific provision. In that sense, the general power in s 64(1) can be seen to be an overarching provision, expanding the power of the Court to ensure that a wider range of situations can be addressed than provided for by specific provisions.

Conclusion

47. The answer to this question must be “no”, s 64 of the General Act does not provide a magistrate with power to impose a period of disqualification that is the same as an automatic period of disqualification. When an automatic period of disqualification applies, the Court may impose any such longer period of disqualification as it considers appropriate. Question 3 – does an appeal lie under s 208(1)(d) of the Magistrates Court Act for an order that is beyond power?

48. This question is based on the assumption that the magistrate in fact made orders for 11 periods of driver licence disqualification that were equal to the automatic disqualification period, as opposed to her Honour having merely recorded the periods of automatic disqualification. Given that orders were entered, it is convenient to adhere to that assumption for the purposes of answering this question, without needing to decide the factual issue one way or the other.

49. Mr Beath submits that there can be a challenge to an order made without power by way of judicial review, but not by way of s 208(1)(d). He submits that appeal courts are creatures of statute, with appellate jurisdiction being restricted to the scope of such statutes. It followed that there must be a legislative basis for an appeal, citing Bloxham v Wyte [2013] ACTSC 151 at [9] to that effect and, further, the observation by Penfold J at [49] that “the nature of an appeal must, and can only, be determined by reference to the details of its statutory foundation”. That general position is reinforced by the terms of s 207 of the Magistrates Court Act, which provides:

207 Jurisdiction of Supreme Court (1) The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others: (a) appeals to which division 3.10.2 (Appeals in criminal matters) applies; (b) reference appeals under division 3.10.2A (Reference appeals in criminal matters); (c) review appeals under division 3.10.3 (Review appeals in criminal matters). (2) This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.

50. Mr Beath thus submits that if there was no jurisdiction for the Magistrates Court to make an order, the fact that such an order was in fact made does not enliven the appellate jurisdiction of this Court vested in a single judge. Applied to this case, Mr Beath submits that if the magistrate did in fact make disqualification orders despite having no jurisdiction to do so, that did not give rise to any right of appeal under s 208(1)(d).

51. Mr McCurley submits that this question does not arise because the magistrate did have jurisdiction to make the disqualification orders, contrary to the conclusion now reached above.

52. Mr Beath’s submissions must be accepted. There is no scope for interpreting the word “order” as it appears in s 208(1)(d) as meaning other than an order in law, rather than just an order in fact. This is to be contrasted with the position for judicial review of executive decisions that are, or are said to be, made beyond jurisdiction, and judicial review of a curial decision that is similarly asserted to be infected by some kind of jurisdictional error: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) ALR 307, upheld in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [39]-[40]. The strictness with which an appeal statute must be interpreted to give or deny an appeal court jurisdiction was emphasised in R v Kakura (1990) 20 NSWLR 638 at 642-5.

53. Section 208(1)(d) of the Magistrates Court Act does not give this Court at first instance any jurisdiction to entertain an appeal from an order that is itself not made within the jurisdiction of a magistrate. Clear words would be needed to give a right of appeal from an order made beyond or without jurisdiction. The appellate power bestowed by s 208(1)(d) extends to orders that are within power, so as to be orders that legally exist, but not to merely purported orders. The remedy for an order made by a magistrate that is beyond jurisdiction is judicial review, rather than an appeal under s 208(1)(d).

Did the magistrate make disqualification orders for the 11 offences to which an automatic period of disqualification applied?

54. A collateral question that arose during this appeal is whether or not the primary judge erred in concluding that the magistrate had done more than record the automatic periods of disqualification for the 11 offences to which an automatic period of disqualification applied, and had made, or purported to make, disqualification orders that were of the same duration as those that would otherwise have been imposed by the operation of the automatic disqualification periods in the three applicable offence statutes. The conclusions reached above mean that this issue does not need to be resolved. That is because, even if the magistrate did purport to make disqualification orders, such orders were made without jurisdiction and were of no legal effect. Those 11 disqualification periods were imposed by the operation of the three relevant statutes, rather than by any order that might have been made to the same effect.

Conclusion

55. By reference to the grounds in the notice of appeal, the primary judge:

(a) erred by holding that his Honour had jurisdiction under s 208(1)(d) of the Magistrates Court Act to hear the appeal from the 11 driver licence disqualification periods that were the same as the automatic disqualification periods;

(b) did not have jurisdiction under s 208(1)(g) of the Magistrates Court Act to hear the appeal from the 11 driver licence disqualification periods that were the same as the automatic disqualification periods; and

(c) erred in setting aside the 11 disqualification periods that were the same as the automatic disqualification periods.

56. The appeal must therefore be allowed. Orders 1, 2 and 3 made by the primary judge on 9 August 2017, as amended by further orders made on 22 August 2017, setting aside the 11 driver licence disqualification periods that were the same as the automatic disqualification periods and imposing different periods of disqualification and orders for concurrency, must be set aside.

57. The parties are directed to submit agreed or competing draft orders within 14 days to give effect to this decision, to preserve the effect of the primary judge’s order 3A in relation to CC16/8880, and to preserve the effect of order 4 by which Mr McCurley is disqualified from holding or obtaining a driver licence from the end of the period of disqualification until it is set aside under s 65(3) of the General Act. I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Acting Chief Justice Burns and Justices Loukas-Karlsson and Bromwich.

Associate:

Date: 23 October 2018