Kane Stephen Davis v Director of Public Prosecutions

Factual Background 3Except as otherwise indicated, I find the facts to be as follows. 4On 14 June 2008 the plaintiff was charged with the offence of driving with a High Range Prescribed Concentration of Alcohol pursuant to s9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The arresting police officers confiscated the plaintiff's licence and he was suspended from driving from that date. The plaintiff was issued with a Court Attendance Notice requiring him to appear at the Penrith Local Court on 9 July 2008. As a result of his loss of licence, it was necessary for the plaintiff to employ a driver which cost him in excess of $26,000. 5The proceedings were adjourned on a number of occasions. On 24 September 2008 the plaintiff entered a plea of not guilty. The proceedings were listed for hearing at the Penrith Local Court on 19 November 2008. On that date, agreed facts were tendered to the Court by the prosecutor. Those agreed facts asserted a reading of .1, which was within the Middle Range Prescribed Concentration of Alcohol. 6On the basis of those agreed facts, the presiding magistrate (the second defendant) was invited to find the plaintiff guilty of the offence of driving with the Middle Range Prescribed Concentration of Alcohol (a mid-range offence) as an alternative to the High Range Prescribed Concentration of Alcohol charged. His Honour found the mid-range offence proved and proceeded to sentence on that offence. 7Having heard submissions, his Honour gave judgment in the matter as follows: "HIS HONOUR: Well this is a very unusual matter for an offence to be charged before the Court. I have heard of cases like this in the past but I have never had one before me, nor been involved in one and when I take into account all of the material that Mr Blunt has put before me, I think of some significance is the fact that the defendant has already suffered a far more significant extra-curial punishment than is even available to the Court. For this offence, the maximum penalty is $2,200 in fines. There is, of course, a possible gaol sentence of 9 months, and it is a first offence in five years and so that is the penalty. Automatically there is a disqualification of 12 months, and the Court has power to reduce it to 6 months. Mr Davis has not driven for the period commencing on 4 June. His licence is attached to the papers and I accept that he has employed a driver in that time. In the guideline judgment concerning these matters the guidelines all relate to high-range matters. From recollection there is reference to - there are some references to mid-range driving in the matters, but I take all the material into account that I have referred to, but most especially the fact that the matter comes before the Court as a plea of guilty. I take into account the lack of danger, or potential danger to the public by virtue of the fact that the defendant was driving and I am persuaded by defence counsel to deal with the matter pursuant to s10A." 8The reference to s10A was a reference to the Crimes (Sentencing Procedure) Act 1999 (the Act). Section 10A provides: "10A(1)A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 to be a sentence passed by the court on the conviction of the offender." 9After the passing of sentence, Mr Blunt on behalf of the plaintiff, requested that his licence be returned to him. His Honour gave such a direction. 10Later that same day, of the Court's own motion, his Honour arranged to have the matter come before him again. His Honour said: "Sergeant I have asked Linda to bring back the papers in relation to the PCA matter that Mr Blunt was in, as I dealt with that under s10A and I'm just concerned that as there is a conviction that - Mr Johnson - because a conviction has been recorded that the Motor Transport authorities might in fact impose their own disqualification. ...." 11Thereafter the sound recording ceased. What then occurred is set out in an affidavit of Mr Blunt, sworn 15 October 2010. The contents of this affidavit have been accepted by the parties as accurate. Mr Blunt set out what occurred: "10. However upon my attendance, I recall Magistrate Bugden said: "Mr Blunt, I am concerned with the fact that I have convicted your client and what the effect is that that will have on his licence." 11. I replied, words to the effect: "Considering the Court has dealt with the matter pursuant to s10A, and that you ordered no penalty be imposed, it was my opinion that this includes that there be no disqualification as disqualification is classified as a penalty." 12. Magistrate Bugden replied: "I am concerned that the Roads and Traffic Authority will impose a statutory period." 13. Magistrate Bugden further stated: "Having regard to my order that there be no penalty, I want to make it clear that there be no disqualification." 12The record of the Court in respect of that day is of little assistance, it records merely: "This charge proceeded and was dealt with as a mid-range offence only. Dealt with under s10A." 13The Roads and Traffic Authority subsequently imposed a period of disqualification of 12 months, pursuant to s188(2)(b) of the Road Transport (General) Act 2005 (RT(G) Act) commencing on 19 November 2008. That section relevantly provided: "188(2)(b) Where the conviction is for an offence under section 9 (3) or 12 (1) of the Road Transport (Safety and Traffic Management) Act 1999: (i) the person is automatically disqualified for 12 months 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 6 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, ..." 14On 9 December 2009 the plaintiff filed an application to re-open the sentence proceedings pursuant to s 43 of the Act (the "application proceedings"). Section 43 relevantly provides: "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. ..." 15On 28 January 2010 the application proceedings were listed before his Honour sitting at the Griffith Local Court. The application before his Honour was headed "Application for Correction of Sentence". The order sought was "that the automatic period be corrected to 12 months". The grounds for the application were stated as: "The Magistrate ordered that there be no penalty in respect of this offence pursuant to section 10A of the Crimes (Sentencing Procedure) Act . This included no licence disqualification. The Roads and Traffic Authority do not recognise no disqualification." 16The transcript of proceedings before his Honour for that day includes the following: "MAGISTRATE: Yes, I dealt with a matter at Penrith 12 months ago something like that. It was at Penrith on 19 November 2008, dealt with it pursuant to section 10A but did not impose a disqualification and that was of course 12 months ago. He had already been suspended by the police from the date of the offence which was 14 June and unless I hear something from yourself to the contrary, what I propose to do is to mark the papers in the following way: "Pursuant to section 43 I reopen the proceedings and impose a disqualification of 12 months to commence on 14 June 2008 and that will go into 13 June 2009." 17The following exchanges took place. Mr Gallagher appeared for the plaintiff on this occasion: "GALLAGHER: Your Honour for the record my instructions from instructing solicitors would be to seek the minimum disqualification period. I know that it is only a matter of protest. MAGISTRATE: The application says that the automatic period to be corrected to 12 months. GALLAGHER: To six months, your Honour. MAGISTRATE: No 12 months. I've got an application in front of me and that application prepared by Paul Blunt says that the automatic period be corrected to 12 months and that's what I propose to do. That 12 months is of course expired by 6 months now. ... MAGISTRATE: That was the application in front of me. Do you wish to change the application? GALLAGHER: Your Honour do you have before you the submissions of Mr Blunt made 28 January 2010? MAGISTRATE: No I don't. SERGEANT McGOLDRICK: Nor do I your Honour. GALLAGHER: If I could tender those. SERGEANT McGOLDRICK: If I could have a copy because I will seek to be heard on the reduction of the automatic period in light of the objective circumstances of the offence and the record. MAGISTRATE: Are your instructions to seek 6 months? SERGEANT McGOLDRICK: They are your Honour. MAGISTRATE: Oh, I see. Well when he lodged the application he put 12 months down. GALLAGHER: That is the automatic period your Honour and I assume only that the submissions would then need to have that automatic period reduced to 6 months. MAGISTRATE: There was nothing on the application that was lodged that's why here it said 12 months. GALLAGHER: Your Honour I don't have a copy of the application. MAGISTRATE: Here it is, you can have a look, it's up the top. GALLAGHER: Your Honour my submission on that would be that that is the correct automatic period for your Honour to impose, however, the application itself is here to consider reduction to 6 months. SERGEANT McGOLDRICK: I'll just read this document your Honour. MAGISTRATE: Yes, I'm reading at the same time. Reading ... MAGISTRATE: Look I've read that document. I don't propose to change the order that I've made. I make it the 12 months and that expires on 13 June 2009. In fact the document you handed up refers to a transcript attached. There is no transcript attached. GALLAGHER: Your Honour I do have the transcript if you wish to read it. I understand this is a purely procedural matter. MAGISTRATE: Yes I've made the order that I'm making. I hand down the papers." 18Although the transcript does not indicate that a break in the proceedings took place, it is clear that the matter concluded before his Honour at that point in time. 19Later the same day, the matter came back before his Honour and the following exchange took place before his Honour and Mr Gallagher: "MAGISTRATE: Now Mr Gallagher you've come back. GALLAGHER: Unfortunately your Honour. If I could your Honour I would like to re-mention the matter of Kane Davis. I've received some instructions from my principal relevant to these proceedings. I understand the order that was made. I would ask the Court's indulgence in a reconsideration of that. The submissions made to your Honour on my principal's behalf. MAGISTRATE: Yes. GALLAGHER: They did not include the transcript of proceedings. MAGISTRATE: No. GALLAGHER: Now your Honour I would ask that. MAGISTRATE: What are you asking? You want 6 months rather than 12? GALLAGHER: The relevance being your Honour, which I myself only found out just recently was that he was picked up by the RTA and he was issued with a Drive While Disqualified charge between the 6 and 12 months period of what would have been between the 6 and 12 month period had he been disqualified by this Court. There's two ways to rectify it of course. MAGISTRATE: Well section 43 a second time today. GALLAGHER: Yes your Honour there is obviously the bringing forward a defence whether that be down the lines of ... . My instructions are to act at that line. Pursuit can't be taken or alternatively if the disqualification is reduced that would not need to happen. Now I'm not asking the Court to make that decision based on this submission however I'm asking the Court to make that decision based on the transcript that wasn't here on the last occasion. MAGISTRATE: I'll read the transcript over lunch. How many pages is it? GALLAGHER: Five or six I think your Honour. ..." 20Having read the transcript, when his Honour came back he said: "MAGISTRATE: Well I'm minded to without hearing from Mr Gallagher. I've read the transcript and that did change things from this morning when you handed me the certificate and so I again pursuant to s43 I re-open the proceedings and impose a disqualification of 6 months. That 6 months is to start on 14 June 2008. That'll go to 13 December 2008. I hand down the papers." 21The prosecution did not object to the re-opening of the proceedings, nor did the prosecution oppose the period of disqualification proposed by his Honour. 22By letter dated 17 March 2010 Messrs Hunt and Hunt, solicitors, on behalf of the Roads and Traffic Authority wrote to the Registrar of the Griffith Local Court. In that letter they sought to have the matter re-listed before his Honour on the basis that his Honour had erred in purporting to apply s43 of the Act when he made the orders of 28 January 2010. The plaintiff opposed the matter being re-listed. 23His Honour acceded to the request of the Roads and Traffic Authority and the matter came before him on 13 May 2010 in the Local Court at Griffith. Having heard submissions his Honour stood the matter over to Deniliquin on 24 June 2010 for the purpose of handing down judgment. 24On 24 June 2010 his Honour handed down his judgment. In doing so he purported to apply s43 of the Act. His Honour concluded that he had not had power to re-open the matter pursuant to s43 on 28 January 2010 and consequently had no power to make the orders which he made on that date. His Honour then, in effect, reinstated the order which he had originally made on 19 November 2008, i.e. that a conviction of driving with the Middle Range Prescribed Concentration of Alcohol be recorded against the plaintiff pursuant to s10A of the Act.

Submissions 25The plaintiff submits that when his Honour passed sentence on 19 November 2008 he made errors so that what he did could be correctly characterised in terms of s43 of the Act as "impos[ing] a penalty that is contrary to law". The errors which the plaintiff identifies are the direction that there be no disqualification imposed on the plaintiff, the order that the plaintiff's licence be returned to him and the failure to take into account the period of disqualification already served. 26The plaintiff relies upon s43(6)(e) which at the time provided: "(6) In this section: "Impose a penalty" includes: (a) ... (e) Make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege." 27The plaintiff submits that his Honour's order/direction that "there be no disqualification" was an order/direction with respect to disqualification so as to "impose a penalty" as defined by s43(6). In that regard the plaintiff relies upon Erceg v District Court (NSW) (2003) 143 A Crim R 455 at 475 which held that the definition of penalty in s43(6) should be given a wide interpretation. It follows, so the plaintiff submits, that by making a direction that there be no disqualification of his licence his Honour imposed a penalty that was contrary to law. 28If that is so, the plaintiff submits that this allowed his Honour to re-open the sentence proceedings on 28 January 2010 and impose a sentence in accordance with law. He submits this is what his Honour did on 28 January 2010. 29In the alternative, the plaintiff submits that his Honour failed to properly take into account the period of suspension of 5 months which had already been served by the plaintiff when he was sentenced on 19 November 2008. Had his Honour done so the plaintiff submits he would have reduced the automatic period of disqualification or backdated the commencement date of disqualification to 14 June 2008 when the plaintiff's licence was confiscated by the police. 30The plaintiff submits that the effect of this failure was to impose a period of suspension of 17 months. Accordingly, the plaintiff submits the failure to properly take into account the period of suspension already served led to his Honour imposing a sentence "contrary to law". In that regard the plaintiff relies upon Ho v Director of Public Prosecutions (1995) 82 A Crim R 80 at 90. 31In Ho Kirby P said at 90: "It is to be noted that the phrase used in s24(1)(a) is not "imposed a penalty that is not provided by law". A broader adjectival phrase is used to describe the "penalty" which authorises the application of the section. It is enough that the penalty is "contrary to law". It is a part of the law of sentencing that where a person has, in respect of an event of which that person is convicted and stands for sentence, already served some time in custody, the sentencing judge should give credit to the offender for the time already served. To fail to consider this is an error of law in the exercise of the sentencing discretion. The resulting penalty is then one "contrary to law"." 32The plaintiff submits that by ordering that his licence be returned to him following the completion of proceedings on 19 November 2008 his Honour erred in law. The basis for that submission is s189 of the RT(G) Act which provides: "189(1) If, as a consequence of being convicted of an offence by a court, a person is disqualified under the road transport legislation (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification." 33Section 189 goes on to direct that if the person is at Court, that person should surrender his or her licence. 34The plaintiff submits that his Honour's direction that the licence be returned to him after he had been convicted, was contrary to law. That also he submits entitled his Honour to re-open the sentence proceedings and impose a new sentence in accordance with s43(2) on 28 January 2010. 35The final part of the plaintiff's argument is that his Honour made no error in the sentences which he passed on 28 January 2010 so that there was no basis for him re-opening those sentence proceedings on 25 May 2010. The plaintiff submits that following the passing of the sentences on 28 January 2010 his Honour was functus officio and accordingly had no jurisdiction to further consider the matter on 13 May 2010 or to make orders on 24 June 2010.

Consideration 36In orders 1 and 2 of his Further Amended Summons the plaintiff relies upon s55(2)(a) of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). A person who has been convicted or sentenced by the Local Court may appeal to this Court as of right against the conviction or sentence but only on a ground that involves a question of law alone (s52 of the Appeal Act). 37The plaintiff has brought himself within that requirement. There is no issue between the parties as to the facts. The only issue is the legal characterisation which should be given to those facts. That is a question of law. 38This Court's powers under s55(2) are wide. The Court may determine an appeal against sentence by setting aside or varying the sentence, by setting aside the sentence and remitting the matter for redetermination or by dismissing the appeal. If the plaintiff is successful, those powers are sufficient to deal with the issues raised in this matter. It follows that the plaintiff does not need to rely upon order 3 in his summons and I do not propose to deal further with that order. 39The start point for assessing the plaintiff's submissions is to determine exactly what happened on 19 November 2008. 40When the matter came before the Court evidence in the form of an agreed statement of facts was placed before his Honour, submissions were made and his Honour passed sentence. The sentence which his Honour passed was clear - there was a conviction recorded under s10A of the Act but otherwise no further punishment was ordered. There appears to have been no error in the process which led to that sentence. Subject to the matters raised by the plaintiff in this appeal, there was on the face of it no error in the sentence. His Honour had jurisdiction to pass a sentence of that kind. If that is a correct characterisation of what occurred, then his Honour became functus officio at that point in time and there was no jurisdiction under s43 of the Act or otherwise for him to further consider the matter. That applies to what occurred later that day and on 28 January 2010. 41The plaintiff submits that despite the apparently simple process described above, error occurred in that the sentence which his Honour passed was contrary to law as that phrase is understood in s43(1)(a) of the Act. 42The plaintiff submits that in accordance with the observations of Kirby P in Ho that when his Honour sentenced the plaintiff in accordance with s10A, he should have taken into account the five months of disqualification which the plaintiff had already served and backdated the commencement of any disqualification to 14 June when the plaintiff's licence was first taken from him. 43The submission misunderstands what his Honour was doing. His Honour was recording a conviction under s10A. His Honour was not asked to impose a period of disqualification, nor was he doing so. The disqualification took place by operation of law in accordance with s188(2)(b) of the RT(G) Act 2005. Accordingly, it could not be regarded as an error on his Honour's part that he did not impose any disqualification and in particular, that he did not backdate it. 44If there were any doubt on that issue it is resolved by the observations of Howie J (with whom Spigelman CJ and Dunford J agreed) in R v Finney (No 2) [2004] NSWCCA 150. Having reviewed the authorities, his Honour there said that there was no doubt as to the breadth of s43 of the Act provided an error of the necessary kind was established. His Honour held, however, that it was insufficient that facts not before the Court were subsequently said to affect the way in which the Court exercised a sentencing discretion. His Honour said that the section did not apply to correct a perceived injustice of that kind. 45The plaintiff submits that for the reasons previously set out, his Honour erred at the conclusion of the proceedings in directing that the plaintiff's licence be returned to him. The plaintiff submits that this direction was contrary to law, in particular s189 of the RT(G) Act. 46In considering that submission it is necessary to have regard to the circumstances in which that direction was given by his Honour. His Honour ordered that the plaintiff's licence be returned to him at the request of the plaintiff's solicitor. That was an order made after sentence had been passed. In my opinion the passing of sentence was complete by the time the licence was ordered to be returned and that order should not be regarded as forming any part of the sentencing process. 47Alternatively, if the direction was part of the sentencing process it was of no effect. Even though the plaintiff's licence was returned to him, the effect of his conviction under s10A of the Act was as follows: (i) Automatic disqualification pursuant to s188(2)(b) of the RT(G) Act. (ii) Permanent cancellation of his licence pursuant to s189(1) of the RT(G) Act. (iii) Prohibition from obtaining another drivers licence during the period of the disqualification pursuant to s189(5) of the RT(G) Act. 48Finally, it cannot be said that the return of the plaintiff's licence operated as an implicit reduction by his Honour of the period of disqualification to 5 months. The context and transcript are to contrary effect. In any event, a reduction of the period of disqualification to 5 months was beyond power. 49Accordingly, my primary finding is that his Honour at the time that he passed sentence pursuant to s10A of the Act, became functus officio and it was beyond power for him to make any further orders in relation to the sentence. If I am correct in holding that up to that point in time no errors had occurred such as would cause the sentence passed to be contrary to law, the precondition upon which s43 of the Act operates, had not occurred. 50If that analysis is correct, it is necessary to determine the legal effect of what later happened on 19 November 2008 when of his own motion, his Honour asked Mr Blunt to appear before him and made a direction, or gave an order, that there be no disqualification imposed on the plaintiff. 51I do not believe the second hearing on that day can properly be regarded as a continuation of the first. The first was complete in every way and there was nothing more required to be done by his Honour. While his honour had power when the matter first came before him on 19 November 2008 to reduce the automatic period of disqualification of the plaintiff's licence from 12 months to 6 months he did not do so. All that he did was convict the plaintiff under s10A of the Act. That this is what occurred seems clear from the transcript. No indication was given by his Honour or by the parties that the proceedings were not finalised. 52When his Honour brought the matter back before himself later on 19 November 2008, was this a re-opening of those earlier proceedings? If the proceedings are to be regarded as a re-opening of the earlier proceedings, there must be some basis for his Honour to do so. In that regard I have already indicated why I do not think that s43 gave his Honour power to do so. 53The only other source of power which has been suggested as entitling his Honour to reopen the sentence proceedings later on 19 November 2008 was the need for his Honour to clarify what he had meant when he passed sentence or to correct a slip which he had made when he passed sentence. The difficulty with that proposition is that there is no inherent or general jurisdiction in the Local Court to review, rehear, vary or set aside any judgment or order once formally made, other than by way of appeal. The jurisdiction of the Local Court arises from statute. While it is clear that this statutory jurisdiction carries with it "implied powers" under the principle that a grant of power carries with it everything necessary for its exercise, such implied powers derive from a different source and are limited in their extent compared to the inherent powers possessed by superior courts. 54This was made clear (if such clarification were necessary) in Director-General of Fair Trading v O'Shane (NSW Supreme Court Graham AJ, unreported, 22 August 1987) where his Honour summarised the relevant principles as follows: "In my opinion it is necessary to have regard to the following principles in determining the issues arising in this case:

1. A court may be invested with express powers and implied powers. It may also possess inherent powers ( Grassby v The Queen (1989) 168 CLR 1 at 15-17).
2. A court's express jurisdiction will arise by Statute.
3. Its implied jurisdiction will arise upon the principle that a grant of express power carries with it everything necessary for its exercise (per Dawson J in Grassby at p16). Recognition of the existence of implied powers is called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but are confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction". (Per Dawson J in Grassby at p17). By way of illustration, a Magistrate exercising jurisdiction under the Local Courts Act 1982 as amended has an implied discretionary power to grant leave to an informant to withdraw an information charging an offence punishable summarily where the informant applies for leave to withdraw the information before any hearing has commenced (per James J in Lay v Cleary unreported, Supreme Court of NSW 23 February 1993 at p30-p31).
4. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction (per Menzies J in The Queen v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7). Inferior courts with limited jurisdiction which do not have any general responsibility for the administration of justice beyond the confines of their constitutions, such as the Local Court, Downing Centre in this case, do not possess any inherent powers (per Dawson J in Grassby at p.15-16). Accordingly, for example, such Courts do not possess any inherent power to correct a clerical mistake or error in a judgment or an order if it was the result of an accident slip or omission ( Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449 per McHugh JA; Ex parte Hassell; Re Quirk (1937) 37 SR (NSW) 192 at 198-9 and Milson v Carter (1893) AC 638 at 640). 55It follows that his Honour did not have power to reopen the sentence proceedings to clarify the sentence previously passed or to correct an error. The only power to reopen the proceedings was that provided by s43 of the Act and for the reasons already indicated, no basis for the operation of that section in respect of the sentence proceedings has been established. In any event his Honour did not purport to proceed under s43 of the Act when dealing with the matter later on 19 November 2008. 56If I am incorrect in that characterisation of the events of 19 November 2008 and the later hearing on 19 November 2008 is to be regarded as either part of the original sentencing hearing or as a re-opening of the sentencing hearing, I am still not persuaded that an error of the kind relied upon by the plaintiff occurred. 57Even if the plaintiff's analysis of what occurred is correct and pursuant to s43(6)(e) his Honour did "impose a penalty", it is clear that the order was of no effect. The Roads and Traffic Authority ignored the order as being beyond power and pursuant to s180(2)(b) of the RT(G) Act imposed the statutory disqualification and cancellation of driver licence. On that approach s43 had no work to do because there was nothing to correct. 58It must be implicit in a section such as 43 that the penalty which has been imposed is operative and that unless the Court is allowed to intervene, a circumstance contrary to law and therefore an injustice, will be allowed to continue. That is not the case here. As indicated, the order made by his Honour that there be no further period of disqualification was of no effect and there was no requirement for the Court to intervene because no injustice had occurred. 59The above findings are sufficient to conclude the matter. In accordance with those findings, the first defendant is entitled to order 2 in its cross summons. 60In deference to the submissions made by the plaintiff, I should say something about what occurred on 28 January 2010. 61The plaintiff submits that in the first hearing on that day, an error of law occurred in that his Honour passed sentence, i.e. imposing a 12 month period of disqualification, without allowing Mr Gallagher on behalf of the plaintiff to put submissions. In that regard, the plaintiff relies upon Nitiva v DPP and 2 Ors [1999] NSWCA 332 at [64] - [65] where the Court restated the well known principle that "it is important to remember that the relevant duty of the Court is to ensure that a party is given a reasonable opportunity to present his case". 62The plaintiff submits that it is clear from the transcript that his Honour did not have all relevant documents before him and in particular, did not have the transcript of what had occurred on 19 November 2008. It was only when his Honour had read that transcript that he was prepared to once again invoke s43 of the Act and reduce the period of disqualification to 6 months. 63That is not how I read what occurred on 28 January 2010. It is clear from the transcript that his Honour had formed a preliminary view. He indicated to the parties what he intended to do. He did not, however, at that point pass sentence. It is also clear from the transcript that his Honour was willing and in fact did hear submissions from Mr Gallagher concerning the reduction of the disqualification period. Although Mr Gallagher was aware that his Honour had not read the transcript of 19 November 2008 he did not urge or insist that his Honour do so. It was against that background that his Honour passed the first sentence on 28 January 2010. 64When Mr Gallagher approached his Honour later that same day and requested that his Honour re-open the sentence proceedings, he asked his Honour to read the transcript of what had occurred on 19 November 2008. As it turned out, the reading of that transcript proved decisive in persuading his Honour to change the period of disqualification. 65The point of distinction between what happened on 28 January 2010 and the situation in Nitiva is clear. 66Counsel in Nitiva was prevented from making submissions. On 28 January 2010 Mr Gallagher on the first occasion that he appeared before his Honour could have asked that his Honour read the transcript, as he did later in the day, but chose at that time not to do so. As was pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 (Deane J) there is an obligation to give a party a reasonable opportunity to present his or her case but not to ensure that the party takes the best advantage of the opportunity thus given. This is very much the situation which occurred on 28 January 2010. 67Accordingly, I am not persuaded that there was a denial of fairness by his Honour in the first hearing on 28 January 2010 such as would give rise to error entitling a re-opening under s43 of the Act. It follows that even if I am incorrect in my characterisation of what happened on 19 November 2008, the 12 month disqualification imposed by his Honour in the first hearing on 28 January 2010 would still apply. 68For the above reasons, the orders which I make are as follows: (1)The plaintiff's summons is dismissed. (2)I make an order in the nature of certiorari pursuant to s69 of the Supreme Court Act 1970 that the record of the proceedings of the Local Court sitting at Penrith in respect of the plaintiff for the offence of Drive with midrange concentration of alcohol be removed to this Court and in respect of those proceedings, I make the following orders: (a) I quash the further order of his Honour Bugden LCM made 19 November 2008 that the plaintiff suffer no further licence disqualification as a result of his conviction for the offence of Drive with a midrange prescribed concentration of alcohol. (b) I quash the orders of his Honour Bugden LCM made on 28 January 2010 pursuant to the purported re-opening of the proceedings pursuant to s43 Crimes (Sentencing Procedure) Act 1999 imposing: (i) First, a licence disqualification period of 12 months to commence 14 June 2008 and expire 13 June 2009. (ii) Subsequently, a licence disqualification period of 6 months to commence 14 June 2008 and expire 13 December 2008. (3)I order the plaintiff to pay the first defendant's costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2011