31 Sirocic had been convicted in July 1998 of driving in a manner dangerous to the public in breach of s 10A(1)(b) of the Traffic Act. This was a major offence: s 2(1), Traffic Act. In June 1999 he pleaded guilty to driving while disqualified in March 1999. The magistrate found the offence proved but dismissed the charge pursuant to s 556A of the Crimes Act 1900. The Crown appealed against the inadequacy of the sentence.
32 Christie DCJ upheld the appeal. He convicted and sentenced the respondent. He also disqualified Sirocic from driving a motor vehicle for 12 months from the day of the magistrate's decision, having concluded he did not have to disqualify him from driving for the "statutory period of two years as specified by section 7A(3)(b)(a) [sic section 7A(3A)(b)] of the Traffic Act, 1909 …".
33 Christie DCJ then stated a case for consideration by the Court of Criminal Appeal. The stated case raised two questions of law, both of which turned in substance on whether the disqualification periods specified in s 7A of the Traffic Act were automatic (as the Crown had contended) or discretionary (as he had held).
34 Priestley JA (with whom Foster AJA and Smart AJ agreed) concluded, in an ex tempore judgment, that Christie DCJ had erred. His Honour set out the relevant terms of s 7A of the Traffic Act. It is unnecessary to repeat those provisions. It is sufficient, in my view, to note that s 7A(2)(a) - (f) substantially corresponded to s 25A(1) - (3). Section 7A(2)(g) set out the penalty for a first offence against any of subsections 7A(2)(a) - (f), while s 7A(2)(h) set out the penalty for a second or subsequent offence.
35 Subsection 7A(2B) provided:
"(2B) For the purposes of subsection (2) , an offence under subsection (2) is a second or subsequent offence if:
(a) it is the second or subsequent occasion on which the person is convicted of the offence within the period of 5 years immediately before being convicted of the offence, or
(b) within that 5-year period, the person was convicted of a major offence …" (emphasis added)
36 Section 7A(3) provided:
"(3) Where a person is convicted of an offence under subsection (2) (a), (b), (c), (d) or (e), the person shall be disqualified by such 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 may also be disqualified, for such additional period as the court may order, from holding a driver licence."
37 Section 7A(3A) was in substantially the same terms as s 25A(10), save that where the latter provision refers to "subsection (1), (2) or (3)(a)", subs 7A(3A) referred to an offence "under subsection (2)". Section 7A(4) was in like terms to s 25A(8).
38 Priestley JA prima facie concluded (at [14] - [15]) that the literal effect of s 7A(2), (2B), (3) and (3B) led to automatic disqualification of Sirocic for two years, leaving the Court with a discretion to increase the minimum period.
39 He then considered Sirocic's submission that Christie DCJ's approach had been correct. This submission turned on the application of s 10A of the Traffic Act, which was in substantially similar terms to s 188 of the General Act and permitted the court if it thought fit "to order a shorter period (but not shorter than 6 months) or longer period of disqualification" and s 10 which conferred a power on a court before which a person had been convicted of an offence against the Traffic Act or regulations, to disqualify a person from holding a driver licence "for such period as the court specifies".
40 Priestley JA noted (at [17]) that s 10 was expressed to be subject, inter alia, to s 7A, leading (at [18]) to the result that s 7A was the "disqualifying regime … not affected by the more general power of disqualification conferred by section 10." Accordingly he held that Christie DCJ had erred in not disqualifying Sirocic for 2 years.
41 The appellant submits that Sirocic provides "some support" for his argument. The respondent, on the other hand, contends that Sirocic should be confined to the point it determined, namely whether a general power to determine the disqualification period for an offence allowed the Court to override otherwise automatic disqualification periods: cf Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 (at [79]) per McHugh J.
Consideration
42 Statutory provisions imposing an increased penalty by virtue of a second or subsequent offence have a long lineage. Commentary upon such provisions appears in Coke's Institutes of Law where, as Smith J explained in Farrington v Thomson & Bridgland [1959] VR 286 (at 288), the learned author observed that such provisions should be understood to operate only in circumstances where the alleged repeat offender has previously been convicted of the relevant offence. This proposition was explained by Lord Alverstone CJ in The King v The Licensing Justices for the County Borough of South Shields [1911] 2 KB 1 as demonstrating that such enactments aim at "a persistent breach of the law after a previous conviction". That proposition is well accepted in Australian law: see O'Hara v Harrington [1962] Tas SR 165 (at 169) per Burbury CJ; Police v Nowak [2000] SASC 82; (2000) 76 SASR 551 (at [9] - [12]) per Doyle CJ (Debelle and Bleby JJ agreeing); Reid v Rowbottam [2005] NTSC 7; (2005) 190 FLR 17 (at [17] - [41]) per Martin (BR) CJ, Riley and Southwood JJ agreeing).
43 Another line of authority considers whether the term "subsequent offence" can include a conviction for an earlier offence committed under a subsequently repealed or amended statute. The underlying principle which has been applied in such cases is that where the offence remains substantively the same, offences committed under a previous legislative scheme will constitute subsequent offences under the new legislation: Pointon v Police [2004] SASC 4; (2004) 143 A Crim R 416 (at [24] - [29]); Police (SA) v Whitehouse [2005] SASC 220; (2005) 92 SASR 81 (at [45] ff) per Layton J (Duggan and Besanko JJ agreeing).
44 Conversely, Bray CJ held in Bartlett v D'Rozario [1971] SASR 88 that a second offence could not be a "subsequent offence" within the meaning of s 47(1) of the Road Traffic Act 1961 (SA) as the offences with which the case was concerned were different in nature.
45 Section 25A reflects these fundamental principles, albeit not entirely consistently.
46 First, s 25A(6) provides that an offence is only a "second or subsequent offence" if the person has previously been "convicted".
47 Secondly, s 25A(6)(b)(ii) expressly provides that "an offence under ss 6(1C) or 7A of the Traffic Act (as in force before its repeal)" constitutes a "second or subsequent offence", thus avoiding any argument as to whether, for example, an offence under subsections 25A(1) - (3) is substantively the same as was an offence under s 7A.
48 Thirdly, s 25A(6)(b)(i), (ii) (insofar as it refers to s 6(1C) of the Traffic Act) and (iii) extends the reach of s 25A to offences which are different in nature to those in s 25A(1) - (3).
49 The inconsistency to which I referred (at [45]) is that s 25A(10) refers to "offence" rather than conviction. It is consistent, however, with the authorities to which I have referred (at [42]) that s 25A(10)(b) would only be attracted in the case of an earlier conviction, not merely the commission of an offence.
50 In examining the terms of s 25A, it is useful to bear in mind the following statement in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355:
"70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions . Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.