Matruglio v Garrett [2012] ACTSC 110

Supreme Court of the ACT|2012-06-19|Before: Refshauge J

1. The appellant have leave to amend the Notice of Appeal.

3. The conviction, sentence and orders made by the Magistrates Court on 28 February 2002 be set aside.

4. The conviction, sentence and orders made by the Magistrates Court on 21 October 2002 be set aside.

6. Anthony Mark Matruglio is, at the date of this order, not a person whose Australian driver licence is suspended or cancelled, nor a person who is disqualified from holding or obtaining a driver licence.

1. This appeal shows that care is needed when police, prosecutors and judicial officers are dealing with common offences, especially when they are contained in legislation which is often amended to change aspects that might need to be reflected in the approach taken by those officials to the offences and their prosecution.

2. It also shows that there can be misconceptions about what legislation actually provides, rather than what it sometimes is assumed to provide, in respect of such offences. This can usually be resolved by actually reading the legislation itself. It can also mean that unrepresented litigants, who often appear in the Magistrates Court and especially in respect of traffic matters, can sometimes assume that they are guilty of offences of which they are not, in fact, guilty, because they have been charged with the wrong offence, though to them the offence may appear to represent the acts that they have actually committed.

3. Finally, it shows the difficulties that can be caused by the statutory imposition of the consequences of conviction - a kind of mandatory sentencing. One of the undesirable side-effects is that judicial officers with a perfectly reasonable desire to ensure that the practical consequences of a conviction are made known both to the offender and the relevant authorities, such as the Road Traffic Authority, include in the sentence the statutorily mandated consequence apparently as an order, and this can sometimes have unforeseen and undesirable consequences.

4. Anthony Mark Matruglio was, on 9 December, 2009 convicted of a number of traffic offences, including a charge of, as a repeat offender, driving whilst disqualified, an offence against s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)) (the Driver Licensing Act). He was sentenced to imprisonment for six months.

5. He was also convicted of the following offences with the following fines imposed:

The learned Magistrate gave him no time to pay these fines.

6. He appealed against all these sentences on 6 January, 2010. On 12 March, 2010, he was granted bail. Presumably as a result of the congestion of the court lists in this Court at that time, his appeal could not be heard until 23 July, 2010, when the whole of his sentence of imprisonment would have been served.

7. When the appeal came on for hearing, however, Mr Matruglio did not appear to answer his bail and the appeal was adjourned. He did not appear on the adjourned date and his counsel and solicitor were granted leave to withdraw. He appeared on 9 March, 2012 following his arrest that day. He had, it appears, been in Canberra all along, but had neither been able to be contacted by his lawyers nor been arrested by police for breaching his bail until 9 March 2012. The respondent prosecutor did not oppose the continuation of bail and I extended it until the hearing of the appeal.

8. When the hearing began, it became clear that there was an issue as to the correctness of the charge laid against Mr Matruglio because of its dependence on certain prior convictions and court orders which were not necessarily in themselves correct. It was agreed between the parties, partly in reliance on my decision in Licciardello v McPherson [2012] ACTSC 31, that these were matters that needed to be investigated.

9. That having been done, it became clear that an issue did arise as to the validity of earlier convictions and, without opposition from the respondent, I gave Mr Matruglio leave to amend his Notice of Appeal to raise the correctness not only of the conviction on 9 December 2009, but also the correctness of certain earlier convictions on which the later one depended.

10. The Notice of Appeal, filed on 6 January 2010, initially challenged all the sentences, that is, the sentence of imprisonment as well is the fines. As to the fines, however, it seems to me that Mr Matruglio is no longer liable to pay them as a result of the operation of s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT). That section provides:

(1) If a fine defaulter is imprisoned other than under an order under section 116ZK, the time served is to count towards reducing the amount of any outstanding fines (the outstanding liability) for which the defaulter is liable.

(2) If the defaulter has more than 1 outstanding fine, the defaulter's outstanding liability is the aggregate amount of the defaulter's outstanding fines.

(3) The defaulter's outstanding liability is reduced at the rate of $300 for each day or part of a day for which the defaulter is imprisoned.

(4) However, a young fine defaulter's outstanding liability is reduced at the rate of $500 for each day or part of a day for which the defaulter is imprisoned.

11. Although this provision was introduced after Mr Matruglio had been sentenced, it was expressed in s 800 of the transitional provisions to apply to fines imposed before as well as after the commencement of the Act.

12. Even had that not been effective, it was clear that the learned sentencing Magistrate in granting Mr Matruglio no time to pay when he sentenced him to immediate imprisonment, was intending to bring into operation s 154D of the Magistrates Court Act 1930 (ACT), though since repealed. That reduced a fine by $100 for each day of imprisonment.

13. When the Notice of Appeal was filed, the sentence was stayed under s 216 of the Magistrates Court Act 1930 (ACT), but by then Mr Matruglio had spent 32 days in custody. The total fines for the purpose of reducing the fine by imprisonment is

$1600, which would have been reduced under s 116ZP(2) to no further penalty by 14 December 2009 or under s 154D by 25 December 2009, before the stay took effect.

14. He has now abandoned the appeal against the fines imposed for the offences of using an unregistered motor vehicle, using an uninsured motor vehicle, having number plates not properly issued, and with a registration label not properly issued.

15. I permitted the Notice of Appeal to be amended to include the appeals against conviction and sentences of:

(a) the charge of driving whilst disqualified heard on 9 December 2009;

(b) the charge of driving whilst licence cancelled on 28 February 2002; and

16. That he had pleaded guilty of these offences is, in the circumstances, no bar to his appeal against conviction: Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 at 9; [38].

17. Appeals from the Magistrates Court in criminal matters are regulated by div 3.10.2 of the Magistrates Court Act. The principles have been described in Hanel v Shoemark [2010] ACTSC 67 and Cooper v Corvisy (No 2) (2010) 5 ACTLR 151.

18. So far as the appeal against conviction is concerned, it is a re-hearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong by that Court falling into error of law, making a finding of fact that is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong. This Court, as the appellate court, will give proper allowance to the advantage of the learned Magistrate who has seen and heard the witnesses so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

19. This appeal, however, dealt with a question of law and matters of evidence are not in contention between the parties.

20. So far as the appeal against sentence is concerned, that depends upon whether the appeal against conviction is upheld. If the convictions are upheld, then the sentence imposed in the Magistrates Court is not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

21. As noted above (at [13]), s 216 of the Magistrates Court Act stays the conviction and sentence the subject of the appeal upon the filing of the Notice of Appeal. That often has to be addressed at the conclusion of the appeal.

22. Mr Matruglio has a long history of offending. Many of the offences he has committed include traffic offences, criminal offences nevertheless. For much of this time, he has not held a driving licence or, as it is called under the current legislation, a driver licence. Indeed, on the material before me, it appears that he only held a driver licence for some short period after 20 June 1984.

23. On 2 July 1986, he appeared before Magistrate Cahill (as his Honour then was) on four charges under s 193A(4) of the Motor Traffic Ordinance 1936 (ACT), of driving on 2 November 1984 while his licence was suspended as a result of an offence committed some time earlier. He was fined and under s 193(10) of the Motor Traffic Ordinance his licence was cancelled.

24. In Licciardello v McPherson, following Director of Public Prosecutions v Greene [2003] NSWSC 613; (2003) 58 NSWLR 252, I held that after a licence has expired the cancellation ceases to be operative and, subject to the relevant legislation, the person becomes an unlicensed driver. This is reinforced by the provisions of s 193A(2) of the Motor Traffic Ordinance, which, at the relevant time, were in the following terms:

Where a driving licence is cancelled under this Ordinance or under any other law of the Territory, the holder of the licence shall, from the date of the cancellation, cease to be licensed to drive a motor vehicle, and be disqualified from holding a driving licence, until such time as the Court declares that he is a fit and proper person to hold a driving licence.

25. That is to say, the cancellation simply cancels the effect of the licence but the statute determines the ongoing bar to regaining a licence, disqualifying the offender, until the Court makes the appropriate direction. Thus, he becomes and remains a person disqualified from holding a licence until the appropriate declaration is made. This is also consistent with the terms of s 193(11) of the Motor Traffic Ordinance which, at the relevant time, provided:

Where a person is convicted of an offence against this Ordinance referred to in this section and he does not, otherwise than by reason of a suspension or cancellation under this Ordinance, hold a driving licence (whether or not he is to be deemed to be licensed to drive a motor vehicle under section 107 or 108 of this Ordinance), that person shall, by force of the conviction, be disqualified from holding a driving licence for the period of suspension provided by this section in respect of that offence or, if the additional penalty provided by this section in respect of the offence is cancellation of a driving licence, until such time as the Court, in the same way as it could if he had held such a licence, declares him to be a fit and proper person to hold such a licence.

26. It is also consistent with s 193A(6) of that Ordinance at the time which provided:

Where a person's driving licence is suspended or cancelled under this Ordinance or any other law of the Territory, the person shall, forthwith after the suspension or cancellation, as the case requires, return the licence to the Registrar.

27. Thus, at least by 20 June 1987, Mr Matruglio was no longer the holder of a driving licence and had ceased to be a person "whose licence is cancelled."

28. That situation has now been rectified by s 41 of the Driver Licensing Act (originally, until 17 September 2002, s 35 of that Act), in respect of any suspension of a licence, providing that the person whose licence is suspended cannot apply for or be issued with a driver licence until the end of any period of suspension notwithstanding that, before that date, the licence which has been suspended has expired. No such provision appeared in the Motor Traffic Act 1936 (ACT).

29. Mr Matruglio then came before the Magistrates Court on 2 July 1987. He was charged with offences of driving with the prescribed concentration of alcohol, driving in a manner dangerous and driving whilst cancelled allegedly committed on 23 April 1987. Though, at the date of the hearing the Court purported to cancel his licence, it could not strictly do so as he then had no licence to cancel.

30. The operation of s 193(11) of the Motor Traffic Ordinance, as it then stood (as set out above at [22]), would, however, automatically disqualify him from holding a driving licence until a Court declares him to be a fit and proper person to hold such a licence.

31. The purported cancellation was of no effect; the statute, by its own force, had disqualified him.

32. On 13 May 1988, he applied to have the appropriate declaration made and his licence restored but the Court refused the application.

33. He then came before the Magistrates Court again on 5 February 1990 and 8 August 1991, on both occasions charged with driving while he was a person whose "driving licence is cancelled" even though that was not the correct charge; he was, instead, a person who "is disqualified from holding a driving licence" at the time. This rendered him liable to prosecution for, as held in Wade v Evans [2003] ACTSC 85; (2003) 180 FLR 290, a different offence. Nothing, however, turns on that so far as these proceedings are concerned.

34. On 2 March 1998 (see Australian Capital Territory, Australian Capital Territory Gazette, No S427, 19 December 1997), substantial amendments were made to the Motor Traffic Ordinance which had, by virtue of s 34(4) of the Australian Capital Territory (Self-Government) Act 1998 (ACT), then become the Motor Traffic Act 1936 (ACT).

35. The transitional provisions in the amendment, made by the Motor Traffic (Amendment) Act (No 2) 1997 (ACT), provided for the position where a person had been disqualified from holding a driver licence as follows:

Driving licences - current disqualification

21. (1) Where -

(a) a person was disqualified from holding a driving licence for a period under, or by force of section 192A, 193 or 193A of the Principal Act;

(b) the disqualification was not because of the suspension of a driving licence; and

(c) but for the repeal of that section, the period of disqualification would have ended on or after the commencement day;

the person remains disqualified from holding a driving licence by force of this subsection, subject to the amended Principal Act, until the end of that period.

(2) Where -

(a) under, or by force of section 192A, 193 or 193A of the Principal Act, a person was disqualified from holding a driving licence until a court orders otherwise or declares the person to be fit and proper to hold a driving licence; and

(b) no such order had been made before the repeal of that section;

the person remains disqualified from holding a driving licence by force of this subsection, subject to the amended Principal Act, unless the court orders otherwise (whether or not it makes an order under section 11A of that Act for the grant of a special licence to the person).

(3) An application for an order under subsection (2) shall be filed with the Registrar of the court with an affidavit of the applicant setting out the grounds on which the order is sought.

(4) The respondents to an application are -

(a) the Registrar of Motor Vehicles; and

(b) the chief police officer.

36. There was, in this provision, consistent with the construction I have given to the cancellation of a licence, no transitional provision that referred to cancellation of a licence. That is to be expected, and reinforces the construction that I have given to that provision.

37. The operation of this provision meant that on 2 March 1998, Mr Matruglio remained, by force of s 21(2), a person disqualified from holding a driving licence until the Court ordered otherwise.

38. The Motor Traffic (Amendment) Act (No 2) also introduced a number of provisions under which a person's licence was cancelled on conviction by force of the relevant section or by order of the Court. It also introduced a more general power to impose a disqualification until the Court orders otherwise. This was s 191K, which was in the following terms:

Extraordinary disqualification by court

191K. (1) This section applies where -

(a) a court convicts a person of an offence against a law of the Territory; and

(b) because of the conviction, or that conviction and any other conviction, the person is disqualified from holding a driving licence for a period of, or periods totalling, at least 12 months (in this section called 'compulsory disqualification period').

(2) Where the court is satisfied that it is necessary in the public interest, it may, by order, disqualify the person from holding a driving licence from the end of the compulsory disqualification period until the order is set aside under subsection (3).

(3) Where a court is satisfied that a disqualification under subsection (2) is no longer necessary in the public interest, it may, by order and on application in accordance with subsection (4), set aside the order under that paragraph.

(4) An application for an order under subsection (3) shall be filed with the Registrar of the court with an affidavit of the applicant setting out the grounds on which the order is sought.

(5) The respondents to an application are -

(a) the Registrar of Motor Vehicles; and

(b) the chief police officer.

(6) For the purposes of subsection (2) or (3), the matters to which the court shall have regard include the following:

(a) the period during which the applicant is, or has been, disqualified from holding a driving licence;

(b) the applicant's history concerning any offence or infringement under this Act or any other law in relation to the use of a motor vehicle;

(c) any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the applicant;

(d) the risk to the safety of other road users if the applicant were to be granted a driving licence.

39. On 24 November 1999, Mr Matruglio appeared in the Magistrates Court to answer a charge of being an unlicensed driver under s 176 of the Motor Traffic Act. That offence could certainly be made out against him though he could probably have been charged with the more serious offence under s 191P of that Act, of driving whilst disqualified.

40. Nevertheless, the Court fined Mr Matruglio and disqualified him from holding a licence for 12 months. I could not find, in the Motor Traffic Act, any power to order that licence disqualification.

41. On 23 December 1999 (see Australian Capital Territory, Australian Capital Territory Gazette, No S65, 23 December 1999) a substantial change was made to traffic regulation in the Territory with a number of Acts made that brought the traffic law largely into line with national regulation. On 1 March 2000, the Road Transport Legislation Amendment Act 1999 (ACT) repealed the Motor Traffic Act including all amendments to it. There were no transitional provisions in this Act. The regulation of licensing of drivers was then subject to one of the new Acts, the Driver Licensing Act. Relevant provisions were also contained in the Road Transport (General) Act 1999 (ACT) (the General Act). These various acts commenced on 1 March 2000 (see Australian Capital Territory, Australian Capital Territory Gazette, No S5, 21 February 2000; Driver Licensing Act s 2).

42. The General Act included transitional provisions in ss 291 and 292 as follows:

291 Effect of disqualification before commencement

(1) If a disqualification of a person from holding or obtaining a driving licence was in force under the Motor Traffic Act or the Motor Traffic (Alcohol and Drugs) Act immediately before the commencement, then, on the commencement, any driver licence held by the person immediately before the commencement is cancelled.

(2) Subsection 66(3) (Effect of disqualification) of this Act applies to the disqualification of a person from holding or obtaining a driver licence whether the disqualification arose before, or arises after, the commencement.

292 Existing disqualification until court order

(1) A disqualification from holding a driving licence in force under section 191K of the Motor Traffic Act, or subsection 19(2) of the Motor Traffic (Alcohol and Drugs) (Amendment) Act 1997, immediately before the commencement is taken, after the commencement, to be a disqualification from holding or obtaining a driver licence in force under section 65 (Disqualification until court order).

(2) Subsection 65(2) applies to a conviction recorded, or a finding of guilty made, after the commencement.

(3) An application under section 191K of the Motor Traffic Act, or section 19 of the Motor Traffic (Alcohol and Drugs) (Amendment) Act 1997, that had not been finally dealt with before the commencement is taken, after the commencement, to be an application under subsection 65(3).

43. Mr Matruglio is a person in respect of whom a disqualification from holding a licence under the Motor Traffic Act was in force immediately before the commencement of the new Act as provided for in s 291(1). As he did not hold a licence, however, the section had no operation so far as he was concerned.

44. Section 66(3) of the General Act, referred to in s 291(2), only relates to the disqualification of a person by a court in another jurisdiction than the ACT and so has no application to Mr Matruglio.

45. Section 292 did not apply to Mr Matruglio either, for the disqualification was not, and had not been deemed under any other transitional provisions to be, made under s 191K of the Motor Traffic Act.

46. As the Motor Traffic Act had been repealed, the question arises as to what was the status of the disqualification that had been effected by the operation of s 193(11) of the Motor Traffic Act when Mr Matruglio was relevantly convicted on 2 July 1986 and probably (if those convictions were to stand in the light of the status of his licence) on 2 July 1987, 5 February 1990 and 8 August 1991.

47. Ms T Warwick, who appeared for Mr Matruglio, submitted that the repeal of the Motor Traffic Act, in a suite of legislation which introduced a completely new regime, had the effect of causing his disqualification to lapse.

48. That depends on the effect of the repeal. Section 41 (formerly s 38) of the Interpretation Ordinance 1967 (ACT) (which also had by then, become an enactment - Interpretation Act 1967 (ACT)), made a provision for the effect of repealed and amended laws. It applied until the Legislation Act 2001 (ACT) was enacted, and was in the following terms:

(1) The repeal or amendment of an Act does not -

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the Act or anything done, begun or suffered under the Act;

(c) affect a right, privilege or liability acquired, accrued or incurred under the Act;

(d) affect a penalty or forfeiture incurred for an offence against the Act; or

(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability, penalty or forfeiture mentioned in paragraph (c) or (d).

(2) The investigation, proceeding or remedy may be begun, continued or completed, and the right, privilege, liability or forfeiture may be enforced and the penalty imposed, as if the repeal or amendment had not happened.

(3) Without limiting subsections (1) and (2), the repeal or amendment of an Act does not affect -

(a) the proof of anything that has happened; or

(b) any right, privilege or liability saved by the Act; or

(c) any repeal or amendment made by the Act; or

(d) any transitional or validating effect of the Act.

(4) This section is in addition to, and does not limit, any other provision of this Division or any provision of the Act by which the repeal or amendment is made.

49. It might be arguable whether the disqualification is a liability preserved by s 41 for the purposes of that section. Section 193(14) of the Motor Traffic Act had, at all relevant times, provided:

The suspension or cancellation of a driving licence or disqualification from holding a driving licence under this section in respect of an offence is in addition to any other penalty imposed by the Court for that offence.

50. This, I held in Hugg v Driessen [2012] ACTSC 46, was consistent with the disqualification of a licence being a penalty which, in that case, I held it was. It seems to me it is a penalty and therefore, prima facie, preserved on repeal unless there is a contrary intention.

51. Thus, s 41 of the Interpretation Act would preserve the existing liability, the disqualification incurred under the repealed Act, unless the expressed transitional provisions were regarded as exhaustive in the sense used by the High Court in G F Heublin and Bro Inc v Continental Liqueurs Pty Ltd [1962] HCA 66; (1962) 109 CLR 153 at 161 or a contrary intention was otherwise to be shown.

52. The preservation of the disqualification before 1 March 1998 was made by s 21 of the Motor Traffic Amendment Act (No 2) and by force of that section. In those circumstances, those transitional provisions must be taken to have evinced a contrary intention, that the repeal it effected was intended to exclude the ongoing preservation of such a disqualification outside the terms of the section, for the section would, otherwise, have little or no purpose.

53. What also should be noted is that the section also established a regime for the hearing and determination of applications for declaring a person to be a fit and proper person to hold a driving licence. One of the persons to be made a respondent to such applications is designated by reference to a position that the road transport legislation subsequently abolished.

54. The transitional provision in s 292 of the General Act subsequently made similar provision for the application for restoration of a disqualified licence but by reference to s 65 of that Act. It not only prescribed the relevant parties for such an application but it also set out criteria by which the application was to be considered.

55. Having carefully considered the legislation, I am satisfied that the effect of the transitional provisions in ss 291 and 292 of the General Act is to be exhaustive and evinces a contrary intention under s 41 of the Interpretation Act so as to end the effect of the disqualification that had been preserved by s 21 of the Motor Traffic (Amendment) Act (No 2). The fact that there would otherwise be no mechanism for ending that disqualification, whereas a quite detailed regime is established by the new legislation for comparable disqualifications under similar subsequent legislation, is, to me, highly significant. Further, under the present regime there is simply no power for a court to make an order in respect of a disqualification imposed prior to 1 March 1998. It cannot have been the intention of the legislature to leave such persons without any way of having such a disqualification brought to an end.

56. In addition, of course, it does not mean that Mr Matruglio became licensed again. It only means that he must apply under the relevant legislation, namely the Driver Licensing Act and the Road Traffic (Driver Licensing) Regulation 1999 (ACT). The Road Traffic Authority may then refuse the application and he has a right of appeal to the ACT Civil and Administrative Tribunal.

57. Ms Warwick pointed out that the preservation of the disqualification from before 2 March 1998 was for a period of almost exactly two years between that date and

1 March 2000 when the new legislation commenced. That, she submitted, was a reasonable period of time for any disqualification to be worked through or to lapse. I am not so sure about that, but, perhaps, it supports the position I have taken. By 1 March 2000, Mr Matruglio was, in any event, no longer disqualified from holding a licence though he was unlicensed. Mr Matruglio, however continued to drive notwithstanding that he was unlicensed.

58. On 28 February 2002, he appeared in Court charged with driving on 20 September, 2001 whilst cancelled, a charge under s 32(3) of the Driver Licensing Act. He was convicted, sentenced to a term of imprisonment to be served by periodic detention and was disqualified from holding or obtaining a licence for twelve months. At that stage, however, he was not, "a person ... whose Australian driver licence is cancelled" as required for prosecution under s 32(3), as he had no unexpired licence that had been cancelled at that time. He was certainly unlicensed and, if I am wrong about the transitional provisions of the General Act, disqualified. These, however, are different offences provided for in different provisions of the Driver Licensing Act (ss 33(1) or (2) and 32(1)): Wade v Evans.

59. Accordingly, that conviction and the penalties must be set aside.

60. On 21 October 2002, he was again before the Court charged yet again under s 32(3) of the Driver Licensing Act for driving on 18 February 2002 whilst his "Australian driver licence is cancelled". He was sentenced to a period of imprisonment and in addition it is recorded: "licence cancelled/disqualified from holding [sic] for period until Court further orders." I pause to note that such an order does not comply with what is required under s 32(6) of the Driver Licensing Act or s 65 of the General Act which establishes quite a specific process for orders of disqualification, there being no power in the court to cancel licences: that is effected by the legislation itself. In any event this, again, was the wrong charge, for Mr Matruglio was still not a person who had an unexpired licence that had been cancelled.

61. Accordingly, that conviction and the penalties must be set aside.

62. Mr Matruglio then appeared before the Magistrates Court on 7 March 2007 for driving on 11 April 2006 while disqualified. He was sentenced to a term of imprisonment and he was disqualified from holding or obtaining a licence for two years. That period has now expired. Indeed, it expired before the offence that I next consider was alleged to have been committed. It may be that this was an offence of which he could not have been convicted, but he has not appealed against it. I do not consider it any further.

63. Finally, Mr Matruglio appeared before the Magistrates Court on 9 December 2009 for the offences that were originally the subject of this appeal. The principal charge, and the only one now subject to appeal, was a charge of driving as a repeat offender on

64. For the reasons set out above, Mr Matruglio was no longer disqualified; he was an unlicensed driver, thus the offence could not be sustained. The appeal against conviction must be upheld and the conviction set aside.

65. As a result I am not required to consider the appeal against sentence in any of these matters.

67. In some ways this is a very unsatisfactory result for Mr Matruglio has a truly appalling driving record. It is fundamental, however, that convictions can only be entered and sentences can only be imposed for offences which have been committed and not for other offences, no matter how similar they may be to the offences it is alleged he has committed. The rule of law demands no less.

68. Mr Matruglio will, no doubt, have to show to the Road Traffic Authority, or in any appeal from a refusal by it, that he should be relicensed. If he continues to drive without a licence he will soon fall into the regime where he will again be disqualified from holding or obtaining a licence and that will render him at risk of further imprisonment.

69. Having said that, he has, so far as I am aware, not come to the notice of the courts since the last time on 9 December 2009 which related to an offence alleged to have been committed on 20 September 2009 and that is, hopefully, a sign that he now recognises his responsibilities.

70. Accordingly, I will make appropriate orders and a declaration as to the status of Mr Matruglio's driver licence.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Darryl Perkins Solicitor

Solicitor for the respondent: ACT Director of Public Prosecutions

Motor Traffic Ordinance 1936(ACT)

Motor Traffic Act 1936(ACT)

Australian Capital Territory (Self-Government) Act 1998(ACT)

Road Transport Legislation Amendment Act 1999(ACT)

Interpretation Ordinance 1967(ACT)

Interpretation Act 1967(ACT)

Road Traffic (Driver Licensing) Regulation 1999(ACT)

(Sentence Administration) Act 2005

Traffic Ordinance 1936

Transport (Driver Licensing) Act 1999

Transport (General) Act 1999

Transport Legislation Amendment Act 1999

Capital Territory (Self-Government) Act 1998

Traffic (Driver Licensing) Regulation 1999

Traffic (Alcohol and Drugs) (Amendment) Act 1997

Motor Traffic Ordinance 1936(ACT)

Motor Traffic Act 1936(ACT)

Australian Capital Territory (Self-Government) Act 1998(ACT)

Road Transport Legislation Amendment Act 1999(ACT)

Interpretation Ordinance 1967(ACT)

Interpretation Act 1967(ACT)

Road Traffic (Driver Licensing) Regulation 1999(ACT)

(Sentence Administration) Act 2005

Traffic Ordinance 1936

Transport (Driver Licensing) Act 1999

Transport (General) Act 1999

Transport Legislation Amendment Act 1999

Capital Territory (Self-Government) Act 1998

Traffic (Driver Licensing) Regulation 1999

Traffic (Alcohol and Drugs) (Amendment) Act 1997

At a glance

Court

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Judgment (94 paragraphs)

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Legislation Cited (34)

Cases Cited (4)