Discretionary considerations
95Even if I am wrong in any of the foregoing, I would, as a matter of discretion, refuse the relief the applicant seeks for the following reasons.
96The s 43 application was seriously delayed, having been made some three years after the District Court appeal was determined. No explanation has been given for that delay, other than for the applicant's wish to have some amelioration of the lengthy period of disqualification that was imposed.
97Even if the licence disqualification period was in issue on the sentence appeal, the main focus of the appeal was to obtain a variation of the sentence of imprisonment that was imposed. At the most, there was a fleeting mention of the disqualification period. In my opinion, as a matter of discretion, when the applicant did not seriously contend for a different result on the sentence appeal, the Court ought not now enable that possibility by the grant of prerogative relief requiring the District Court to reopen the sentence hearing.
98For these reasons, I would order that the summons be dismissed with costs.
99BASTEN JA : On the night of 4 October 2006 the applicant, Mr Peter Meakin, failed to stop as directed by police, for breath testing. He was charged with dangerous driving and driving with a prescribed concentration of blood alcohol in the mid-range. In April 2007 he was convicted by Magistrate Culver of the dangerous driving offence and pleaded guilty to the mid-range PCA offence. He was sentenced to imprisonment, to be served by way of periodic detention and was disqualified from holding a driver licence for eight years. He appealed to the District Court.
100On 17 December 2007, Morgan DCJ dismissed the appeal against conviction, but, taking a lesser view of the seriousness of his misconduct, varied the sentences of imprisonment to community service orders. She "confirmed" the costs order and the period of disqualification imposed in the Local Court.
101There was no appeal available from those orders. No application was made to this Court in its supervisory jurisdiction suggesting jurisdictional error in the sentencing proceedings. Rather, almost three years later, on 13 September 2010, the applicant sought an order, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act "), re-opening the judgment of 17 December 2007, with respect to the period of disqualification. On 15 December 2010 the application was dismissed by Morgan DCJ.
102There was no appeal available from the refusal to reopen the proceedings in which the applicant was sentenced. The application to this Court invokes the supervisory jurisdiction, seeking relief in the nature of the old prerogative writs, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Given the privative clause in s 176 of the District Court Act 1973 (NSW), to obtain relief in this Court, the applicant must, as he accepts, demonstrate jurisdictional error on the part of the District Court at the re-opening hearing: Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45] and Hoffenberg v District Court of New South Wales [2010] NSWCA 142 at [3]-[5].
103It was not contended by the applicant that the period of disqualification imposed by the magistrate was not available to her, in the sense that it was beyond power. Nor was it contended that it was not within the power of the District Court to confirm that sentence on appeal. There may have been an error on the part of the magistrate in specifying the date on which the period of disqualification terminated, given that the order was stayed by the appeal to the District Court, but that is not an error of which the applicant complains: cf Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151.
104The argument for the applicant was that Morgan DCJ committed jurisdictional error by denying the existence of a jurisdiction which she in fact enjoyed. She thus failed to exercise the jurisdiction vested in her, inviting an order in the nature of mandamus and, no doubt, certiorari in support thereof. Relief in the nature of certiorari is not, however, available for non-jurisdictional error of law discernable from the reasons of the primary judge.
105Morgan DCJ, on the re-opening application, summarised the operation of the relevant provisions of s 188 of the Road Transport (General) Act 2005 (NSW) in terms with which the applicant does not cavil. That provision empowers a court to disqualify the person "for such period as may be specified in the order". In respect of specific offences, minimum periods are imposed and, in the absence of a court order, there is an automatic statutory disqualification.
106The periods of automatic disqualification for the two offences for which the applicant was convicted were 3 years and 5 years respectively. However, in respect of two convictions arising from "a single incident" the lesser period would have been disregarded and the period of automatic disqualification would have been 5 years: s 188(4)(b). The magistrate specified a period of 8 years which was, in effect, an accumulation of the automatic disqualification periods for each offence. Whether or not she realised she was extending the period of automatic disqualification is not clear, but it no longer matters. The sentencing exercise was undertaken afresh by the District Court. As a result, the relevant sentence is that imposed by the District Court: Wishart v Fraser [1941] HCA 8; 64 CLR 470. Whatever error may have been made by the magistrate, there can be no challenge to her orders and therefore the error is irrelevant, except to the extent that it can be shown that the District Court adopted her reasoning and thus her error.
107In seeking to re-open, the applicant relied upon an affidavit of his solicitor, which noted that submissions on penalty in the District Court had not been transcribed and which provided no evidence as to what, if anything, was said in the course of submissions with respect to the disqualification order. There is no suggestion in the judgment of Morgan DCJ on sentence, that there had been any challenge to the disqualification order. Further, in her judgment on the re-opening application, Morgan DCJ stated (p 4):
"To my clear recollection there was but a fleeting reference to the periods of disqualification which had been imposed by the learned Magistrate.
...
Although the submissions by counsel were not transcribed, to my recollection no submissions were made to me with respect to the periods of disqualification. I am quite certain that at no time was the issue of s 188(4) raised before me."
108Those statements constitute findings of fact, relevant to the application then before the District Court. Those findings are unchallenged and, in the present proceedings, unchallengeable. Furthermore, they require the dismissal of the present application. A judge imposing a sentence entirely within power, who was not asked by the applicant to impose any different sentence, cannot have committed jurisdictional error.
109In her careful judgment on the re-opening application, Morgan DCJ then referred to cases in relation to the scope of s 43 of the Sentencing Procedure Act , dealing with the circumstances in which a court might re-open an earlier proceeding and, in particular, Ho v Director of Public Prosecutions (1995) 35 NSWLR 393 and R v Finnie (No 2) [2004] NSWCCA 150. She then concluded:
"As has been acknowledged by counsel for the applicant the Magistrate had a discretion to increase the period of automatic disqualification above that specified in the section. In structuring the periods of disqualification the way that she did makes clear how seriously she regarded these offences.
In my view, whether or not s 188(4) was brought to her attention, this is not a case in which the learned Magistrate imposed a period of disqualification which was not available to her. This is not a case like Ho where the judge overlooked a period of time already served in custody and even giving the section the widest possible operation it could not be said that the periods of disqualification were not imposed in accordance with the proper exercise of her discretion.
In my view there has not been disclosed any error of law made by her Honour in imposing the disqualification periods which she did and it follows nor does my confirmation of the orders of disqualification of licence made in respect of each of the offences. Therefore I do not consider the penalty that has been imposed is contrary to law."
110In order to challenge this reasoning, senior counsel for the applicant put forward three propositions. The first, being the broad statement that her Honour denied she had jurisdiction under s 43, is unsupportable. She clearly recognised that such jurisdiction existed, but denied that it was engaged in the present case.
111The second proposition was at a lower level of generality, namely that her Honour misconstrued s 43, by failing to adopt a broad construction of the kind required by Ho and Finnie . In other words, a wider range of errors was available for correction under s 43 than she recognised. As her Honour properly acknowledged, she was bound by the reasoning in Ho and Finnie and correctly identified the scope of the jurisdiction conferred. If she had failed to apply the principles correctly, there might have been a question as to whether that constituted an error of law at all, let alone jurisdictional error. However, it cannot be said that she identified an error which in fact fell within the scope of s 43 but held that it did not. Rather, she found that there had been no error at all.
112The third proposition relied on by the applicant was that there was error in imposing a period of disqualification without having regard to the period of automatic disqualification applicable to the circumstances before the Court. That period was, in the language of judicial review, a "relevant consideration", being a mandatory consideration in the sense that a failure to take it into account will invalidate the exercise of power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 (Mason J). However, such language should be used with care, particularly when transposing the concept from administrative to judicial decision-making. Here, there is a sense in which the period of automatic disqualification is critical to the exercise of the court's power: a court cannot prescribe the automatic period of disqualification, but only a shorter period or a longer period. However, beyond that statutory limitation on power, it is by no means clear what it means to say that the automatic disqualification must be "taken into account" by the Court in making some other order. The statute does not say that it must be taken into account, nor how it should be taken into account. The statute does not say that it is the period appropriate to a particular kind of offence; rather, the statute expressly provides that the court may order disqualification, without identifying any relevant criteria, standards or limits (except minimum periods for specific offences).
113There is a further difficulty in suggesting that there are mandatory matters in respect of such an exercise as sentencing, absent consideration of which the sentence will be invalid, or at least erroneous in some lesser sense. Thus, in situations where the consideration of specified matters is prescribed, as in s 21A of the Sentencing Procedure Act , the obligation is carefully limited to such matters as are "relevant and known to the court": s 21A(1). Such a limitation would no doubt be implied, if not made express. Were it otherwise, the sentencing process would become fraught with the risk of erroneous decision-making and every case would need to be expanded to avoid the risk of inadvertent error. Senior counsel for the applicant noted that in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531, even the consent of a defendant to a particular course would not save a conviction from invalidity if that course constituted jurisdictional error. However, there is a difference between matters which are fundamental to the validity of proceedings, and matters which must be taken into account, if drawn to the attention of the court.
114There may be circumstances in which a miscarriage of justice can occur because of the manner in which a case was conducted by counsel: see, eg, Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9]-[10] (Gleeson CJ). However, failure to take a point, including one as to the constitutional validity of the law under which proceedings are brought, will not usually provide a basis for re-opening a case finally determined. As explained in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 at 483:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had [an] opportunity to do so."
115In any event, the submission fails on a factual basis. The primary judge was not satisfied that the magistrate did not take s 188(4) and the relevant automatic disqualification period into account: she said that whether it was "brought to her Honour's attention ... is not known": p 5. That left the applicant with the proposition that even though the period of disqualification imposed by the magistrate was not challenged on appeal, and no one referred the District Court to any possible error on the part of the magistrate in failing to take account of s 188(4), nevertheless because her Honour confirmed the period without herself having reference to s 188(4) (or any other relevant consideration) she must have imposed a sentence "contrary to law" and thus within the terms of s 43. To dismiss such a submission not only did not constitute jurisdictional error, but was clearly correct.
116The summons should be dismissed. The proceedings being in the supervisory jurisdiction, the civil costs rules are engaged. The applicant must pay the respondent's costs in this Court.