Director of Public Prosecutions (NSW) v Armstrong

1. As at each of the dates of the offences with which the present proceedings are concerned (that is, 15 July and 10 August 2009), s 25A of the Road Transport (Driver Licensing) Act provided as follows (omitting irrelevant parts and with emphasis added): "25A Offences committed by disqualified drivers or drivers whose licences are suspended or cancelled (1) A person who is disqualified by or under any Act from holding or obtaining a driver licence must not: (a) drive a motor vehicle on a road or road related area during the period of disqualification, or (b) … Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence). … (7) If a person is convicted by a court of an offence under subsection (1), (2), (3) (a) or (3A), the person: (a) is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a driver licence, and (b) may also be disqualified, for such additional period as the court may order, from holding a driver licence. Note. Section 26 of the Road Transport (General) Act 1999 provides for the effect of a disqualification (whether or not by order of a court). (8) The disqualification referred to in subsection (7) is in addition to any penalty imposed for the offence. … (10) In this section, the relevant disqualification period is: (a) in the case of a first offence under subsection (1), (2) or (3) (a) - 12 months, or (a1) in the case of a first offence under subsection (3A) - 3 months, or (c) in the case of a second or subsequent offence under subsection (1), (2), (3)(a) or (3A) - 2 years. …."
2. The Local Court record shows that on 3 November 2009 the Defendant's two offences against s 25A(1)(a) (Events Nos 5 and 6 in the chronology) were dealt with as follows: "[Serial number for offence of 15 July 2009] - drive while disqualified from holding a licence. No Plea entered. The Court disqualified the offender BRIDGET SHARLEENA ARMSTRONG from holding a driver's/rider's licence for 2 years from 15 August 2011 to 14 August 2013. The Court quashed the Habitual Traffic Offender Declaration against the offender. The offender, BRIDGET SHARLEENA ARMSTRONG is convicted and is directed to enter into a good behaviour bond for 2 years pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act, 1999 to commence on 3 November 2009 and accept the following conditions: The offender must be of good behaviour and appear before the Court during the bond term if required. [Serial Number for offence of 10 August 2009] - drive while disqualified from holding a licence. A plea of guilty is accepted. … The Court disqualified the offender BRIDGET ARMSTRONG from holding a driver's/rider's licence for two years from 5 August 2013 to 4 August 2015 [sic - by comparison with Magistrate's signed proforma order, clearly an error which should read '15 August 2013 to 14 August 2015']. The Court quashed the Habitual Traffic Offender Declaration against the offender. ALL HOD quashed. The offender, BRIDGET ARMSTRONG is convicted and is directed to enter into a good behaviour bond for 2 years pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act, 1999 to commence on 3 November 2009 and accept the following conditions: The offender must be of good behaviour and appear before the Court during the bond term if required."
3. On the hearing of the Summons there has not been brought up into this Court or tendered any record of the Local Court which would show the legal basis upon which the Magistrate considered that it was open to him to make the two disqualification orders quoted above. There is no record of the Magistrate's reasons for deciding that the orders were appropriate to the circumstances. Neither party has adduced evidence of any other kind to establish what were the Magistrate's reasons for ordering the two cumulative disqualification periods.
4. There has been tendered a transcript of the Defendant's application to the Magistrate to re-open the sentence proceedings, heard on 26 June 2014. From that it is clear that the Magistrate, understandably, had no recollection in June 2014 of the matter before him on 3 November 2009 or of the manner in which he had then disposed of the case or of his reasons.
5. On 3 November 2009, the effect of the Magistrate convicting the Defendant of the earlier of the two offences dealt with that day (driving while disqualified on 15 July 2009) was that by s 25A(7)(a) of the Road Transport (Driver Licensing) Act she was automatically "disqualified by the conviction (and without any special order)" for a period of two years "from the date of expiration of the existing disqualification". The further words of subs (7)(a), "or from the date of such conviction, whichever is later", may be ignored throughout these reasons because on any view the expiration of the existing disqualification was the later event. The automatic disqualification period was two years by force of subs (10)(c) because this was a "second or subsequent offence" against s 25A(1)(a) - as explained below.
6. It is necessary to interpret what period of disqualification is referred to in subs (7)(a) as "the existing disqualification" for a case such as the present where the sub-section is engaged by reason of conviction for an offence against subs (1)(a). It seems clear that in its setting in s 25A(7) "the existing disqualification" refers to the disqualification which was in force when the offence of driving while disqualified was committed and which constituted an element of the offence. That is, "the period of disqualification" referred to in subs (1)(a).
7. This follows primarily from the use of the definite article and from the fact that the expression is in the singular. Subsection (7)(a) contemplates that whenever it is engaged by the conviction of a person under subs (1)(a), there will be one and only one identifiable disqualification period which answers the description "the existing disqualification". The only such singular period which would always be identifiable in relation to every engagement of subs (7)(a) upon conviction under subs (1)(a) would be the period of disqualification which constituted an element of the offence.
8. The disqualification to which the Defendant was subject when the offence of 15 July 2009 was committed was a combination of three years from 15 August 2007 to 14 August 2010 plus a further twelve months from 14 August 2010 to 15 August 2011. The second component had taken effect from 14 July 2009 (Event No 4 in the chronology) by operation of s 25A(7)(a) and s (10)(a) upon the Defendant's conviction for the offence of 14 April 2009 (Event No 3). These two consecutive periods had both been imposed before commission of the offence of 15 July 2009. Together they constituted "the period of disqualification" referred to in subs (1)(a) and "the existing disqualification" referred to in subs (7)(a), with respect to that offence.
9. It follows that upon the Defendant's conviction for the first of her offences dealt with on 3 November 2009 her automatic disqualification was for a further two years, from 15 August 2011 to 14 August 2013. The Magistrate's order for disqualification for that period was unnecessary: R v Sirocic [2000] NSWCCA 325 at [14], [15] and [21]; Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189 at [84]. The making of the order did not displace or alter the operation of the statute; the order was simply redundant. Confusion would be avoided if the Local Court were to refrain from making orders for disqualification which duplicate the effect of sections such as this. An alternative course would be to enter upon the Local Court record a note that automatic disqualification by statute has taken effect, including reference to the period and to the section under which this has occurred.
10. The second of the Defendant's offences dealt with on 3 November 2009, driving while disqualified at Belmore on 10 August 2009, was also a "second or subsequent offence" within the meaning of s 25A(10)(c) - at least because the Defendant had been convicted on 14 July 2009 under s 25A(1). It is not necessary to consider whether her conviction for the first of the two offences dealt with on 3 November 2009 (that of 15 July 2009) was separated temporally from the conviction for the 10 August 2009 offence so as to provide an additional basis for treating the latter as a "subsequent offence". The Defendant's conviction of the offence of 10 August 2009 also attracted automatic disqualification under subs (7)(a), for two years from "the date of expiration of the existing disqualification".
11. "The existing disqualification" relevant to the offence of 10 August 2009 was the same as that for the earlier offence of 15 July 2009. That is because in the interval between 15 July 2009 and 10 August 2009 no further conviction had been recorded against the Defendant and thus there had been no occasion for any additional disqualification to be imposed, either by operation of statute or by order. Consequently, "the date of expiration of the existing disqualification", which would be the commencement date for the two year statutory disqualification under subs (7)(a), was the same for the two offences: 15 August 2011. The statute therefore gave rise to two concurrent automatic two year disqualifications.
12. The Director has submitted that s 25A(7) "does not contemplate concurrent disqualifications". It is true that the sub-section does not expressly refer to or recognise that its engagement may give rise to concurrence. But as "the existing disqualification" is the period which was in force at the time of the offence it follows that should two or more offences be committed during that period and before any extension of it has arisen pursuant to a further conviction (either by order or by operation of the statute) then each of those two or more offences would attract an automatic disqualification period under sub (7)(a) which would commence from a common date. They would commence from the expiry of a single existing disqualification period common to each of the two or more offences.
13. On the facts of this case, the automatic disqualification for the later of the two offences dealt with on 3 November 2009 would only be cumulative upon that for the earlier offence if "the expiry of the existing disqualification" for the purposes of the second offence should be taken to be the end of the additional automatic period attracted by the first conviction, recorded the same day. That would require that "the existing disqualification period" be interpreted to mean whatever period existed and was in force at the time of the second conviction, rather than that which was in force when the second offence was committed. The language of s 25A does not support such an interpretation. It is a result that would require quite different phraseology, such as that of s 219(6) of the Road Transport Act: "The period of any disqualification under this Division does not commence until all other disqualifications, and all other periods of licence cancellation or suspension, imposed on the person by or under this or any other Act have been completed."
14. The Director further submitted that the "clear underlying policy" of s 25A is "to ensure that a person is automatically disqualified from driving for the relevant disqualification period for each conviction of driving while disqualified". I am not able to discern a policy intention that periods of automatic statutory disqualification which may be imposed in consequence of two or more such offences in breach of a disqualification period common to both of them should necessarily be cumulative rather than concurrent. I find in the wording of the section itself and in its setting in the Act no basis for inferring a policy at that level of detail with respect to the operation of s 25A.
15. The predecessor of s 25A, Road Transport (Driver Licensing) Act was s 7A of the Motor Traffic Act 1909 (NSW). Section 7A was introduced by an Amending Act of 1951 and employed language similar to that of s 25A of the Road Transport (Driver Licensing) Act. Subsection (2) of s 7A created an offence constituted by a person "disqualified for holding or obtaining a driver's licence" driving a motor vehicle on a public street "during the period of disqualification". Subsection (3) prescribed an automatic statutory disqualification upon conviction for that offence, "for a period of six months from the date of expiration of the existing disqualification…or from the date of such conviction, whichever is the later". Emphasis has been added in the above quotations.
16. Section 7A of the Motor Traffic Act 1909 was amended in 1998 by (amongst other things) the addition of subs (2)(b) which defined the meaning of "a second or subsequent offence" and subs (3A) which increased "the relevant disqualification period" to twelve months for a first offence and two years for a second or subsequent offence of driving while disqualified. The Road Transport (Driver Licensing) Act with which the present case is concerned substantially re-enacted s 7A of the Motor Traffic Act, 1909 as s 25A.
17. If any Second Reading Speech could be of assistance in relation to the history of the expression "the existing disqualification" in subs (7)(a) of s 25A, it would likely be a speech concerning the introduction of s 7A into the Motor Traffic Act 1909, by the Motor Traffic (Amendment) Act 1951 (NSW). The wording which I am required to interpret has not relevantly changed since then, either in s 7A or its successor. I do not see in the Second Reading Speech for the Bill by which s 7A was introduced anything which throws light upon the meaning of the expression as it appeared in s 7A or as it appears in the current section. In Hansard of 4 December 1951, p 4740, the Second Reading Speech of Mr Sheahan includes the following: "Therefore, the bill provides for insertion in the Motor Traffic Act of a new section to the effect that where a person is disqualified from holding a licence… and while such disqualification…is in force he drives a motor vehicle… he shall be liable to imprisonment [etc] and the period of any existing disqualification…will be extended by six months or such additional period as the court may order" (emphasis added and irrelevant words omitted)."
18. Mr Sheahan's employment of the expression "any existing disqualification", which is inconsistent with the expression "the existing disqualification" enacted by Parliament, does not indicate that consideration was given by the speaker to how the amended s 7A would operate if two or more offences of driving while disqualified should be committed, each on a separate date, during an interval throughout which a period of disqualification remained in force and was not extended.
19. Counsel submitted that I should consider an Explanatory Note and a Second Reading Speech associated with the amendment to s 7A which was introduced in 1998 (as referred to in [20] above). There is nothing in those materials, either, to contradict or to support the interpretation which I have adopted. That is unsurprising as the important phrase which defined the commencement of the statutory disqualification (namely, "expiration of the existing disqualification") was left unchanged by the 1998 amendment.
20. The conclusion that "the existing disqualification" refers to that which was extant at the date of the offence does not lead to absurdity or inconvenience or frustration of the operation of s 25A, so as to suggest that this could not be what Parliament intended. This is illustrated by the present case, where the same disqualification period was in force at the dates of multiple offences. Although each of the two year automatic disqualification periods imposed by subs 7(a) ran concurrently, it was open to the Magistrate to order an additional period of disqualification under subs 7(b) if he considered that the circumstances warranted this course. Subsection (7)(b) provides that a person convicted of an offence under s 25A(1) "may also be disqualified, for such additional period as the court may order, from holding a driver licence".
21. When one takes into account the automatic operation of subs (7)(a) and the orders which the Magistrate made on 3 November 2009, the effect with respect to disqualification flowing from the proceedings that day was as follows: 1. for the offence committed 15 July 2009, automatic disqualification from 15 August 2011 to 14 August 2013 (the redundant order to the same effect may be ignored) and 2. for the offence committed 10 August 2009, automatic statutory disqualification from 15 August 2011 to 14 August 2013 and an order disqualifying the Defendant for an additional period of two years from 15 August 2013 (that is, following expiry of the statutory disqualification) up to 14 August 2015.
22. The Defendant's application to the Magistrate to re-open the sentence for her offence of 10 August 2009 was brought under s 43, Crimes (Sentencing Procedure) Act 1999. Relevantly, that section is in the following terms: "s 43(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order."
23. On the hearing of her application the Defendant's solicitor submitted that in the Magistrate's orders of 3 November 2009 his Honour "ran the disqualifications consecutively … whereas I say they should run concurrently. … you've dated … one of them, which we will call the first, from the end of that existing [disqualification period] and then you've done the second from the end of that new one".
24. The Magistrate, clearly without recollection of the proceedings of 3 November 2009, said: "I must have just looked at it wrongly, I think, because I don't do that". Having ascertained that the Prosecutor who was present in Court on 26 June 2014 did not wish to be heard on the Defendant's application, the Magistrate without further consideration and giving no reasons amended his order of 3 November 2009. The effect of the amendment was that the period of disqualification he had ordered for the offence committed 10 August 2009 would commence 15 August 2011 instead of 15 August 2013.
25. Section 43 of the Crimes (Sentencing Procedure) Act did not confer upon the Magistrate power to amend in this respect because the original order was not "contrary to law" within the meaning of the section. In the sentence proceedings of 3 November 2009 the Magistrate had been empowered by s 25A(7)(b) to make his order for two years disqualification dating from 15 August 2013.
26. In this Court the Defendant's counsel argued for the interpretation of subs (7)(a) which I have adopted and for resultant concurrency of the automatic disqualification periods attracted by the two offences respectively, both commencing 15 August 2011. He submitted that when the Magistrate originally made his disqualification order for the 10 August 2009 offence, for two years from 15 August 2013, he must have intended to do no more than defer commencement of the period which was automatically imposed by subs (7)(a) for that offence. It was submitted that deferral of commencement of the statutory period was "contrary to law" and that the Magistrate had properly corrected this in the proceedings before him under s 43, Crimes (Sentencing Procedure) Act on 26 June 2014.
27. Even if, on 3 November 2009, the Magistrate intended only to give effect to the automatic two year disqualification which the statute imposed for the second offence and thought that he was required or had power to defer commencement of that disqualification until expiry of the two year period which was automatically attracted by conviction for the 15 July 2009 offence on the same day, those misconceptions would not have rendered the order for two years disqualification dating from 15 August 2013 "contrary to law". As it happens, there is no Court record or other foundation upon which to attribute these subjective intentions to the Magistrate.
28. In Achurch v R [2014] HCA 10; (2014) 88 ALJR 490 four Justices joined in holding that s 43 "does not authorise the re-opening of proceedings in which a sentence open at law was reached by a process involving error of law": at [4]. This decision established that in order for the jurisdiction under s 43 to be enlivened what must be shown is that the result or outcome was "contrary to law", not the findings or reasoning which led to it.
29. At [32] their Honours said: "[32] Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to re-open those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that 'a court has…imposed a penalty that is contrary to law'. On the ordinary meaning of that collocation, what must be contrary to law is the 'penalty'. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender… A penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s.43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal."
30. The Magistrate's original order for two years disqualification from 15 August 2013 was a penalty open under subs (7)(b) of s 25A as an "additional period" to the automatic two years (which ran from 11 August 2011). If the Magistrate made this order in the mistaken belief that it would merely duplicate the automatic effect of the statute, that would not have rendered his order "contrary to law" as those words have been explained in Achurch v R (supra). If on 3 November 2009 the Magistrate had been actuated by such an erroneous understanding, the result could only have been challenged by way of appeal, not under s 43.
31. The Defendant's counsel cited Roads and Traffic Authority of New South Wales v O'Sullivan [2011] NSWSC 1258 as authority for the proposition that a Magistrate has no power to order that a disqualification period should commence at a date earlier than or later than the date of conviction. On that basis he said the Magistrate's order for two years disqualification commencing 15 August 2013 was "contrary to law".
32. However O'Sullivan's Case (supra) was concerned with provisions quite different from subs (7)(a) of s 25A. With respect to a speeding offence in that case, r 10-2, subr (3)(b) of the NSW Road Rules 2008 provided that a driver is: "(b) disqualified from holding a driver's licence by a conviction for the offence (and without any specific order) for 6 months from holding a driver licence or, if the court on the conviction thinks fit to order a different period of disqualification determined in accordance with sub-rule (4) is disqualified for the period specified in the order." Sub-rule (9) provided: "(9) A period of disqualification imposed by or under this rule commences on the date of conviction for the offence to which it relates."
33. At [15]-[17] James J noted that the automatic period of disqualification under r 10-2 was required to commence on the date of conviction. Although the Court was given power to lengthen or shorten the period it was not given power to order that it commence on any date other than that of conviction. His Honour noted that subr (9) expressly excluded any such power.
34. This is an entirely different regime from that under subs (7) of s 25A. In that subsection, because automatic statutory disqualification under par (a) runs from the date of conviction, any "additional period" under par (b) necessarily must be ordered to commence from the expiration of the automatic period.
35. Also in O'Sullivan's Case (supra) the Court considered provisions relating to disqualification for driving with a high range prescribed concentration of alcohol: s 9(4) of the Road Transport Safety and Traffic Management Act 1999 (NSW) and s 188, Road Transport (General) Act 2005 (NSW). Paragraph (d) of s 188(2) of the latter Act provided as follows: "(d) where the conviction is for any other offence: (i) the person is automatically disqualified for a period of 3 years from holding a driver licence, or (ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification - the person is disqualified from holding a driver licence for such period as may be specified in the order."
36. At [27] James J held that, as with r 10-2, the automatic period of disqualification under s 188(2)(d) must commence from the date of conviction. Rothman J had reached the same conclusion in Hei Hei v R [2009] NSWCCA 87.
37. Again it can be seen that the regime of s 188(2)(d) is materially different from that of s 25A(7) of the Road Transport (Driver Licensing) Act; the latter permits an order for an "additional period" which, inherently, must commence from a deferred date, being the end of the automatic disqualification.
38. The Magistrate erred on 26 June 2014 in re-opening the sentence proceedings of 3 November 2009. Section 43(2), Crimes (Sentencing Procedure) Act had no application to the circumstances brought before him by the Defendant because his disqualification order of 3 November 2009 for two years from 15 August 2013 was supportable by subs (7)(b) and not contrary to law.
39. In the result the Director succeeds on the Summons. Although the Director sought his costs I will not order that they be paid by the Defendant, having regard to the Prosecutor's failure to raise any objection to the Defendant's application when it was heard by the Magistrate on 26 June 2014. I accept that the construction and operation of s 25A requires careful analysis and consideration. The Prosecutor who appeared that day may not have been in a position to argue the matter with the care that might have prevented the Magistrate falling into error. It may be said that the Defendant invited the Magistrate to make what I have concluded was an erroneous decision. However the Prosecution must bear a degree of responsibility for having acquiesced in the Defendant's application in the Local Court.
40. The Summons may be viewed as, in substance, an appeal pursuant to s 56(1)(a), Crimes (Appeal and Review) Act 2001 (NSW), against a sentence imposed by the Local Court. The powers of this Court on such an appeal include setting aside and varying the sentence: s 59. The relevant sentence is that of 26 June 2014, imposed by the Magistrate's order of that date in lieu of his order of 3 November 2009. Subsection (5) of s 43, Crimes (Sentencing Procedure) Act 1999 provides that for the purposes of an appeal against a penalty imposed in exercise of a power conferred by s 43, the time for lodging an appeal commences on the date when the s 43 power is exercised.
41. The Director alternatively invoked the power of this Court under s 69, Supreme Court Act 1970 (NSW). The Magistrate's order of 26 June 2014 involved an error of law that appears on the face of the record of the proceedings, within the meaning of s 69(3). It was a jurisdictional error, well within that concept as expounded in Craig v South Australia (1995) 184 CLR 163 at 176-178 and in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [71]-[73].
42. The conclusions expressed in these reasons can be given effect, under either head of the power of this Court, by setting aside the Magistrate's order of 26 June 2014. The original sentence of 3 November 2009 will thereby be reinstated and the disqualification, by order of the Local Court, for the 10 August 2009 offence will run for two years from 15 August 2013.
43. The evidence does not reveal whether the Defendant has held a driver licence since the Magistrate made his order of 26 June 2014. From that date until the giving of this decision the Defendant has not been subject to the original disqualification order, the end date of which was 14 August 2015, whereas she should have been. The Court has not been asked by the Director to make any order for disqualification extending beyond 14 August 2015 by way of adjustment.
44. The only order of the Court is therefore as follows: 1. The order made by the Local Court of New South Wales sitting at Burwood on 26 June 2014 in proceeding "2009/00184179-001/actual offence - drive while disqualified from holding a licence", being the order "sentence disqualification commencement date corrected so that disqualification commences on 15 August 2011", is set aside.

Amendments 03 July 2015 - Hearing date changed from 15 June to 12 June 2015 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. Decision last updated: 03 July 2015