Director of Public Prosecutions v Sukhera

Supreme Court of NSW|2012-04-04|Before: Fullerton J

Judgment 1HER HONOUR: By summons dated 6 September 2011 the Director of Public Prosecutions appeals from a decision of Magistrate Coombs dismissing a charge of driving with the special range prescribed concentration of alcohol ("PCA") under s 9(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 which was laid against the defendant by service of a Court Attendance Notice on 26 April 2011. 2The defendant did not appear in the proceedings before this Court. I am satisfied that he was made aware of the proceedings and does not wish to be heard against the orders sought by the Director. 3The appeal is brought pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 which provides that the prosecutor may appeal to this Court as of right against an order in the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law. In accordance with the power provided for in s 59(2) of the Act orders are sought setting aside his Honour's orders and remitting the matter to the Local Court to be dealt with according to law. 4On 26 April 2011 proceedings were commenced against the defendant for the offences of driving a motor vehicle while licence suspended contrary to s 25A(3A)(a)(i) Road Transport (Driver Licensing) Act 1998, and driving a motor vehicle whilst present in his blood the special range prescribed concentration of alcohol under s 9(1)(a) Road Transport (Safety and Traffic Management) Act. The defendant was a special category driver as defined by reason of his status as a suspended driver to which a special range prescribed content of alcohol applied. 5On 18 May 2011 the defendant appeared unrepresented at Fairfield Local Court and pleaded guilty to both charges. His Honour found the offence of driving a motor vehicle whilst under suspension proved and placed the defendant on a s 10(1)(b) bond under the Crimes (Sentencing Procedure) Act 1999 for 18 months. He dismissed the related charge on the basis that the defendant was only a special category driver because his driver's licence had been suspended and, being in that statutory category, he was, in effect, placed in what his Honour described as a "catch 22 situation" in the sense that his liability for one offence was dependent on his liability for the other. 6The Director submitted that the Magistrate erred in law in the following two respects: (i) by failing to provide adequate reasons for his decision to dismiss the proceedings for the offence of the defendant driving a motor vehicle whilst present in his blood or breath the special range prescribed concentration of alcohol whilst being a special category driver; and (ii) dismissing the proceedings for the offence of the defendant driving a motor vehicle whilst present in his blood or breath the special range prescribed concentration of alcohol whilst being a special category driver impliedly on the basis that the elements of that offence were totally absorbed by the elements of the first offence of driving a motor vehicle while licence suspended.

The background 7At about 5.10pm on 26 April 2011 the defendant, whose licence was suspended due to fine default and who had been notified of that fact four days earlier, was driving on the M4 motorway when he was detected by police using mobile automated number plate recognition software. 8The defendant told police that the reason why he had been driving whilst licence suspended was because he was lonely. He said that he was going through the break down of a relationship and that it was a difficult time for him. He said that he was aware "of the fact that [he would] be driving so [he] restricted [himself] to a bare minimum of alcohol". 9He returned a positive result for alcohol when breath tested. He was arrested and conveyed to Merrylands Police Station where he was subjected to a breath analysis which returned a reading of 0.029 grammes of alcohol in 210 litres of blood.

The offence provisions 10Section 25A of the Road Transport (Driver Licensing) Act provides: 25A Offences committed by disqualified drivers or drivers whose licences are suspended or cancelled ... (3A) A person whose driver licence is suspended or cancelled under section 66 of the Fines Act 1996 must not: (a) in the case of a suspended licence: (i) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates, ... 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).

The special prescribed concentration of alcohol offence 11Section 8A(b) of the Road Transport (Safety and Traffic Management) Act provides for a special range of a prescribed concentration of alcohol, namely a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood. 12Section 9(1)(a) creates a series of specific offence of driving a motor vehicle as follows: (1) Offence-special range prescribed concentration of alcoholA person must not, while there is present in his or her breath or blood the special range prescribed concentration of alcohol: (a) if the person is a special category driver in respect of a motor vehicle-drive the motor vehicle, or ... Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence). 13The category "special category driver" is defined in the Road Transport (Safety and Traffic Management) Act: 8 General definitions (3) For the purposes of this Part, a person is a special category driver in respect of a motor vehicle: ... (b) if the person is not authorised to drive that motor vehicle in New South Wales because the person, in New South Wales or elsewhere, has had his or her application for a relevant driver licence or authority refused, has been disqualified from driving, has had a relevant driver licence or authority suspended or cancelled or has never obtained a relevant driver licence or authority ... 8A Prescribed concentrations of alcohol In this Part: ... (b) special range prescribed concentration of alcohol means a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and 14Being a "special category driver" by reason of his status as a suspended driver, the defendant was subject to the "special range" of alcohol concentration specified for special category drivers pursuant to s 8A, and since his blood alcohol reading was 0.028, which placed him within the special range (of between 0.02 to less than 0.05 grammes) he was liable to conviction for that reason.

The Magistrate's rulings 15The Magistrate did not give formal reasons for dismissing the special range prescribed concentration of alcohol offence. In fact he gave no reasons at all save for the fact saying that the laying of both charges placed the defendant in what his Honour described as a "catch 22 situation" because "he can't quality for one unless he's got the other". His Honour likened the situation to "driving unregistered and uninsured". Despite the prosecutor's protestations that his Honour was asked to deal with two separate offences, without more the Magistrate dismissed the charge under s 9(1)(a) of the Road Transport (Safety and Traffic Management) Act and dismissed the related charge under s 25A(3A)(a)(i) Road Transport (Driver Licensing) Act under s 10 of the Crimes (Sentencing Procedure) Act. 16Despite the need to allow for the fact that the decision dismissing the charge was made ex tempore, I am satisfied that his Honour's remarks do not satisfy the requirement for a judicial officer to give at least basic reasons for a judicial decision. In DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Johnson J observed at [19] that one of the conventional functions of the requirement to give reasons relates to the appellate process. Just as it is not satisfactory that an appeal court be left to undertake an analysis of exchanges between the bench and counsel during submissions to ascertain a magistrate's reasons for determination, equally it is wholly unsatisfactory for a Magistrate to undertake no reasoned analysis at all. To the extent that his Honour's reasoning might be thought to be inherent in his analogy with the prohibition on using an unregistered vehicle under the Road Transport (Vehicle Registration) Act 1997 or an uninsured vehicle under the Motor Accidents Compensation Act 1999 it is not apposite, since it is only the prohibition on using an uninsured motor vehicle in s 8 of the Motor Accidents Compensation Act which creates an offence, the prohibition on using an unregistered registrable vehicle under s 18 of the Road Transport (Vehicle Registration) Act attracts a penalty provision only but without language that permits it to be charged as a criminal offence. 17The failure to give reasons is sufficient to uphold the appeal and to require that the matter be remitted to the Local Court to be dealt with according to law. 18However, in order to give further guidance to the approach that the Local Court might take, I propose to deal with the substantive error relied upon by the Director as the second ground of appeal, albeit in summary only. 19In reliance upon the articulate and most helpful written submissions of counsel, I am satisfied that to the extent that the Magistrate is to be taken to have applied some form of double jeopardy reasoning, or that he might have applied the principal of autrefois convict, or that for the prosecutor to proceed against the defendant for both offences amounted to an abuse of process, he is also in error. 20It is not the law in Australia that a person cannot be prosecuted for a number of distinct offences simply because they arise out of the same course of conduct. In this case although the offences were detected by police at the same time, the constituent elements and the factual allegations relied upon in proof of each were quite different. Each required proof of a fact which the other did not. For instance, the drive while suspended charge could be committed irrespective of whether or not the defendant had any alcohol in his blood. In regards to the drink driving offence, the only relevance of the defendant's suspended license in proof of that offence was that it dictated the blood alcohol level which applied to him because of his status as a suspended driver. The critical point of distinction is that neither offence was wholly included in the other. The offences were quite separate and distinct (see Pearce v R [1998] HCA 57; 194 CLR 610 at [16]). 21In addition, there was no proper basis, so far as I can discern it, upon which the Magistrate could have concluded that the laying of the two charges involved an abuse of process. Given the quite distinct criminal conduct constituted by the defendant both driving while suspended and driving with a prescribed content of alcohol, there could not be said to be any unfairness in laying the two charges and certainly no suggestion or any basis for a finding of any ulterior purpose or malice in the police proceeding in that way.

Orders 22Accordingly, I make the following orders:

The appeal is upheld.
The order of Coombs LCM dismissing the charge under under s 9(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 is set aside.
The matter is remitted to the Local Court to be dealt with according to law.
The defendant is to pay the plaintiff's costs in respect of which I grant an indemnity certificate under s 6 of the Suitors' Fund Act 1951.

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: 20 April 2012

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