Meakin v Director of Public Prosecutions & Anor

The Road Transport (General) Act 20The Road Transport (General) Act , Pt 5.4 provides for sanctions relating to licences. Part 5.4, Div 1 provides for licence disqualification. Section 187, provides: " 187 Court may impose penalty and disqualify driver on conviction (1) Subject to section 188 of this Act ... a court that convicts a person of an offence under the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies. (2) If the court makes an order disqualifying the person, the person is disqualified from holding a driver licence for the period specified by the court. (3) Any disqualification under this section is in addition to any penalty imposed for the offence ..." 21Section 188 provides for licence disqualification for certain major offences. A major offence is defined in s 3 to mean, relevantly, a crime or offence referred to in the definition of " convicted person " in s 188. 22Section 188(1) is a definition section internal to s 188 itself. It provides, relevantly: " 188 Disqualification for certain major offences (1) Definitions In this section: automatic disqualification means a disqualification under this section from holding a driver licence without specific order of a court. convicted person means: ... (c) a person who is convicted of an offence under any of the following provisions: ... (iv) section 9 ... (3) (a) ... conviction means the conviction in respect of which a person is a convicted person. ordered disqualification means disqualification under this section from holding a driver licence that is ordered by a court." 23Section 188(2) deals with the disqualification period if a person had no previous major offence within a period of five years prior to the subject offence. Section 188(3) deals with the disqualification period if a person has a previous offence within a period of five years prior to the subject offence. As the applicant had convictions for a major offence within this statutory period, s 188(3) applied. The section provides, relevantly: " (3) Disqualification if previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction ... the convicted person is or has been convicted of one or more other major offences (whether of the same or a different kind): ... (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 3 years 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 12 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, or ... (d) where the conviction is for any other offence: (i) the person is automatically disqualified for 5 years 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 2 years) or longer period of disqualification-the person is disqualified from holding a driver licence for such period as may be specified in the order." 24Section 188(4) provides for the calculation of disqualification periods in case of multiple offences as follows: " (4) Calculation of disqualification periods in case of multiple offences If 2 or more convictions of a person are made, whether or not at the same time, for crimes or offences arising out of a single incident involving the use of a motor vehicle or trailer, the following provisions apply: (a) for the purpose of ascertaining which of subsections (2) and (3) should apply in relation to any such conviction: (i) the other of those convictions are to be disregarded, and (ii) subsection (2) or (3) (as the case may require) is, accordingly, to be the applicable subsection, and (b) the maximum period of automatic disqualification in respect of all those crimes or offences is to be: (i) if subsection (2) is applicable-3 years, or (ii) if subsection (3) is applicable-5 years ..." Section 188(4)(b)(ii) was the applicable subsection in this case. 25The effect of s 188 is that the periods of automatic licence disqualification apply, including the maximum period in cases of multiple offences, unless the court makes a specific order. The court may make an order which is either greater or less than the automatic period of licence disqualification subject to the minimum periods of disqualification that are prescribed. No maximum period is prescribed.

The Crimes (Sentencing Procedure) Act 26The Crimes (Sentencing Procedure) Act 1999, s 43 provides as follows: " 43 Court may reopen proceedings to correct sentencing errors (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. ... (6) In this section: impose a penalty includes: ... (e) make an order ... with respect to ... disqualification or loss ... of a licence ..." 27Section 43 is a remedial legislative provision and is to be given a broad construction so as to achieve its legislative purpose, namely, the provision of a simple procedure to correct sentencing error: see R v Tolmie [2004] NSWCCA 396; Ho v DPP (1995) 37 NSWLR 393, per Kirby P at 402; Erceg v The District Court of New South Wales & Anor [2003] NSWCA 379; 143 A Crim R 455 . See also the Second Reading Speech, where the Minister stated that the object of s 43 was to provide a " simple procedure to correct sentencing errors " and as a means of " correcting mistakes of a simple character " ( New South Wales Legislative Assembly , Parliamentary Debates (Hansard), 21 September 1988 at 1673). 28Section s 43 is not concerned with the correction of all sentencing errors. Rather, the section is engaged where there is a sentencing error that falls within the terms of the statute, namely, where the court had imposed a sentence that was " contrary to law " or where the court had failed to impose a penalty that was required to be imposed by law: see R v Finnie (No 2) [2004] NSWCCA 150. It is the former error that is in issue in this case, that is, whether the sentence relating to the licence disqualification period was imposed " contrary to law ". 29Section 43 is not confined to error in respect of the existence or terms of a statutory provision. It is sufficient that the penalty imposed was contrary to principles of law as expounded in the case law: see Ho per Kirby P at 402-403. See also Staats v The Queen (1998) 123 NTR 16; Melville v The Queen (1999) 150 FLR 296 . In Ho Kirby P pointed out at 403, in obiter comments in respect of the Criminal Procedure Act 1986, s 24 (the predecessor provision to s 43), that the phrase " contrary to law " is wider than the phrase " imposed a penalty that is not provided by law ". His Honour referred to the common law sentencing principle that where, prior to sentence, a person has spent time in custody in respect of an offence, the trial judge should take the period of pre-sentence custody into account. Ordinarily, credit should be given for the time served. A failure to consider this would be an error of law in the sentencing discretion and the resulting penalty would be " contrary to law " within the meaning of s 43. 30In Finnie (No 2) Howie J (Spigelman CJ and Dunford J agreeing) noted, at [32], that s 43 could be engaged where there had been an erroneous finding of fact or an omission to find, or take into account, a relevant fact. The section, on its terms, was not limited to " error of law ". Relevantly for present purposes, Howie J noted that there was no requirement that " any error be identified except in the outcome of the sentencing proceedings ". As his Honour stated: "It does not matter whether the sentencing court made a mistake of law or fact in arriving at a penalty that was contrary to law... It is not difficult to imagine a situation where a sentencer overlooked a fact in evidence before the court and as a result imposed a sentence that fell within the scope of the provision. A not uncommon example would be that the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists. Where a relevant error is established, the section is engaged and, at least in so far as the jurisdiction of the court to reopen the sentencing proceedings is concerned, it is unnecessary for the court to determine how the erroneous sentence came about." 31A similar construction was given to s 43's predecessor provision, the Crimes Sentencing Procedure Act , s 24. In R v Denning (New South Wales Court of Criminal Appeal, 15 May 1992, unreported), Grove J noted that s 24 was not limited to rectifications of error that could be achieved by mechanical adjustments. The section also applied to make a correction " to achieve the intended effect of the otiose earlier imposition ". His Honour stated that the purpose of the power granted by s 24 was the avoidance of unnecessary appellate proceedings where identifiable error of a particular kind could be brought to the attention of the sentencing tribunal. His Honour stated that was the section that enabled " the rectification of that perceived error ". 32It should be noted that in Queensland, the authorities are to the effect that a sentence based on a factual error is not encompassed within the term " sentence [imposed] that is not in accordance with law ": R v Woodford (1996) 89 A Crim R 146; R v Deacon (1993) 65 A Crim R 261; Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26. In Boyd v Sandercock it was held that the phrase " contrary to law " does not include a case where the sentence imposed was correct on the factual material before the court at the time of sentence. The Court stated that it was irrelevant that it was later ascertained that the factual material was erroneous. This Court in Finnie (No 2) left that particular question open: see at [30]. Shortland v Hea th 1977 WAR 61 and Traegar v Pires de Albuquerque (1997) 18 WAR 432 are to the same effect . See also Staats per Angel J at [27]. In Traegar , however, the Court of Appeal acknowledged that there was room for debate on the question. 33The question whether the section applies where a court has sentenced on wrong factual material may depend upon the nature of the factual material not brought to the court's attention and the consequences of that omission. In Traegar the penalty imposed was not the penalty required by statute had the correct facts been before the court. The consequence in that case was that on the correct facts, a higher penalty ought to have been and was subsequently imposed. That might be a reason against the construction given to the section by the Court of Appeal in that case. On the other hand, there is an argument that it would be contrary to the proper administration of the criminal justice system for a convicted person to have a penalty imposed to which the person was not liable, that is, a penalty that was " contrary to law ", because of a failure to bring a matter of fact or law to the attention of the sentencing judge. The discretion in s 43 itself may be sufficient to deal with the case where the result of reopening would result in any unfairness to the accused person, such as the imposition of a higher penalty.

Proceedings before Culver LCM 34In the proceedings in the Local Court, Culver LCM found that the applicant, who was represented by Mr Bolton SC, deliberately drove at two police officers who had signalled him to stop to undertake a random roadside breath test. She sentenced the applicant on that basis. As indicated, the applicant pleaded guilty to a mid-range PCA offence arising from the same incident. 35In her reasons on sentence, Culver LCM referred to the maximum penalty that could be imposed for both offences and the automatic period of licence disqualification relevant to each. In relation to the licence disqualification period, her Honour noted that the automatic period could be reduced but that there was a prescribed minimum period below which a disqualification period could not be ordered. 36Her Honour made no reference to the fact that the legislation did not prescribe a maximum period of licence disqualification and thus made no reference to the possibility of increasing the licence disqualification period beyond the automatic period. Nor did her Honour make any reference to s 188(4). 37Culver LCM stated that having regard to the factual circumstances in this case, the sentences she imposed should properly be made consecutive, so as to recognise the full criminality involved. It was apparent from her Honour's orders that that statement was directed both to the penalties imposed by way of imprisonment to be served by way of periodic detention and to the periods of licence disqualification. 38Her Honour convicted the applicant on the PCA offence and ordered that he was " disqualified from driving for three years ". Her Honour also sentenced him to a fixed term of 6 months imprisonment to be served by way of periodic detention. Her Honour then convicted the applicant of the drive in a manner dangerous offence, and ordered that he was " disqualified for five years from driving and that is consecutive upon the earlier disqualification I imposed ". Her Honour sentenced the applicant to a non-parole period of eight months with a total term of 12 months to be served by way of periodic detention. Her Honour then directed the following comments to the applicant: "Sir ... If you breach my orders for disqualification and you drive during that period you can be convicted and sent to gaol."

Appeal to the District Court 39On the appeal to the District Court, the applicant was represented by Mr Hughes QC, leading Mr Bolton SC and Mr Hughes of junior counsel. The applicant gave evidence on both the conviction and sentence appeals. Her Honour dismissed the appeal against conviction, but found a lower level of culpability than had been found by Culver LCM. 40Before the applicant was called to give evidence on sentence, Morgan DCJ asked the Crown what the penalties were in respect of both offences. She also asked what the disqualification periods were and what periods of disqualification had been imposed by Culver LCM. There is no transcript of the responses that were given to her Honour, although it was recorded that her Honour stated she could be given that information later. 41The applicant's evidence on sentence comprised approximately one page of transcript of evidence in chief. In response to a question from Mr Hughes QC, as to why he had abstained from alcohol since the day of his arrest, the applicant stated that he " could see it was not doing [him] any good ". He explained that it was endangering his health and his treatment. The applicant said that since the accident he had received treatment from a psychiatrist. 42Mr Hughes QC also asked the applicant what had happened to the car that he was driving on the night of the offences. The applicant responded that he had sold it. Apart from this one reference to the motor vehicle, Mr Hughes QC did not ask any questions of the applicant as to whether he needed his licence for any purpose, or as to what his transport needs were, or as to how he was managing his transport arrangements without his licence. Nor were these matters raised in cross-examination. 43As indicated, her Honour varied the sentence of periodic detention imposed by Culver LCM and sentenced the applicant to periods of community service. In respect of the licence disqualification periods her Honour made the following orders; "With respect to the driving PCA matter he is disqualified for three years to date from 4 October 2006 expiring on 3 October 2009. With respect to the period of disqualification from the drive manner dangerous (sic) I confirm the five years to date from 4 October 2009 expiring on 3 October 2014."

The s 43 application 44The only evidence on the s 43 application was the affidavit of Mr Laxon, in which he annexed the transcripts of the Local Court hearing and the District Court appeal hearing, although there was no transcript of counsel's submissions in either court. The affidavit otherwise set out, relevantly, a chronology and the orders that had been made in the Local Court and in the District Court. 45Morgan DCJ recorded the applicant's submission that whilst Culver LCM, in imposing sentence: "... had regard to the automatic periods of disqualification applicable to the individual offences and indeed ultimately imposed those periods" she had not made any reference to the " correct period of licence disqualification ", being the maximum automatic period of disqualification in the case of multiple offences or which provision was made in s 188(4). In this regard, the applicant argued that " the correct period of licence disqualification " was a relevant consideration to which Culver LCM had failed to have regard and that she had thereby erred in law. The applicant contended that as Morgan DCJ had merely confirmed the period of licence disqualification, she had 'adopted' Culver LCM's error and therefore had also erred in law. 46Morgan DCJ identified the issue raised by the applicant as being whether she had failed " to consider the legal basis of disqualification " when she confirmed the periods of licence disqualification made by Culver LCM, and thus had made an order " contrary to law " within the meaning of s 43(2). 47It is apparent from her Honour's reasons that she considered that she had not been asked to vary the period of licence disqualification. In this regard, her Honour stated that no submissions were made with respect to the periods of disqualification and that she was " quite certain that at no time was the issue of s 188(4) raised ". She said that the subsection had not been brought to her attention and had not been taken into account by her. Her Honour observed that prior to the s 43 application, she was not aware of the provision and noted that it was not known whether Culver LCM had been referred to s 188(4). 48Her Honour also recorded her " clear recollection " that there was " but a fleeting reference to the periods of disqualification " imposed by Culver LCM. Her Honour's reference to " a fleeting reference to the periods of disqualification " reflected the exchange between her Honour and Mr Dhanji SC during the course of argument in the s 43 application. Her Honour indicated to Mr Dhanji that she remembered Mr Hughes QC referring " right at the end [to] whether I would consider changing the period of disqualification ", to which her Honour recalled responding, " Mr Hughes, you shouldn't push your luck because [the applicant] had been very fortunate ", or words to that effect. 49Her Honour then noted in her reasons that the applicant: "... was not asked one question by his legal representatives nor by the Crown relating to the periods of disqualification imposed upon him." 50Morgan DCJ held that regardless whether s 188(4) was brought to the attention of Culver LCM, this was not a case where a period of licence disqualification had been imposed that could not be imposed. Nor could it be said that the periods of disqualification were not imposed in accordance with the proper exercise of the sentencing discretion. Morgan DCJ concluded, therefore, that no error of law had been disclosed in the licence disqualification periods imposed by Culver LCM. 51It followed, on her Honour's reasoning, that her confirmation of the periods of licence disqualification did not disclose any error of law. As the periods of disqualification imposed and their accumulation were not contrary to law, no basis had been established to reopen the sentencing proceedings. Accordingly, her Honour refused the application.

Is the applicant entitled to relief in this Court? 52To be entitled to any of the relief claimed in the summons, the applicant must establish jurisdictional error in the refusal of Morgan DCJ to reopen the sentencing proceedings: see the District Court Act 1973, s 176; Supreme Court Act , s 69(5); Spanos v Lazaris [2008] NSWCA 74 at [15]; Hoffenberg v District Court [2010] NSWCA 142. 53In Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177 the High Court held that an inferior court commits jurisdictional error if it mistakenly denies the existence of jurisdiction, including where the inferior court makes an order to the effect that it lacks jurisdiction, or refuses to exercise jurisdiction based upon a mistaken assumption or denial of jurisdiction, or a misconception of the nature or limits of its jurisdiction. The Court stated further, at 177: "... jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case." 54In Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531 at [56], the High Court acknowledged that a degree of uncertainty attended what is meant by " jurisdictional error ". The Court, at [72], referred to three examples of jurisdictional error identified in Craig , including, relevantly, disregarding a matter that the relevant statute required to be taken into account as a condition of jurisdiction, and the misconstruction, by the inferior court of the relevant statute, thereby misconceiving the nature of the function the inferior court was performing or the extent of its powers. The Court noted, as it had in Craig , that in the last of these categories, " the line between jurisdictional error and the error in the exercise of jurisdiction may be particularly difficult to discern ". 55The applicant submitted that her Honour's refusal to re-open the sentence proceedings pursuant to s 43 constituted jurisdictional error. The jurisdictional error identified by the applicant was that her Honour erred in denying that there was jurisdiction to reopen the sentence proceedings pursuant to s 43. 56The appellant advanced the following propositions in support of his argument that Morgan DCJ had committed jurisdictional error: (1) The automatic maximum period of disqualification set by the legislature in s 188(4), where a person had committed multiple offences, was a relevant consideration in determining whether to set a longer or shorter period of licence disqualification. (2) Morgan DCJ erred in holding that the failure to take into account the correct automatic disqualification period was not an error within s 43. (3) As a result of the error identified in (2), her Honour wrongly held that she did not have jurisdiction to reopen the proceedings. As that was an error going to jurisdiction, relief pursuant to s 65 and/or s 69 was available. (4) There was no discretionary basis upon which this Court would refuse relief. 57The applicant acknowledged that the period of licence disqualification imposed by Culver LCM and " confirmed " by Morgan DCJ was within power. He submitted, however, that the power had to be exercised according to law. To exercise the sentencing discretion according to law, it was necessary for the sentencing judge to know what the relevant law was before imposing sentence. 58This led to the applicant's central submission, namely, that a failure to consider the automatic period of licence disqualification provided for by s 188(4) was a failure to exercise the sentencing power according to law and that such an error was one to which the Crimes (Sentencing Procedure) Act , s 43 applied. The applicant submitted that this was so, regardless whether any evidence or submissions were directed to the automatic period provided for by s 188(4). The applicant submitted that in confirming the licence disqualification period imposed by Culver LCM, her Honour had failed to consider the maximum period of automatic licence disqualification applicable in the case of multiple offences arising out of a single incident. Her Honour's finding on the s 43 application that the sentence imposed was not contrary to law was thus amenable to declaratory and prerogative relief. 59The applicant submitted that the effect of Morgan DCJ's " confirmation " of the licence disqualification period was to displace the sentences imposed by Culver LCM: see Crimes (Appeal and Review) Act , ss 17, 20 and 68. See also Wishart v Fraser [1941] HCA 8; 64 CLR 470. It followed that the relevant error for the purposes of seeking relief in this Court was that of Morgan DCJ. The applicant submitted, however, that the question whether Culver LCM had failed to take into account the automatic period of licence disqualification period under s 188(4) was relevant, as Morgan DCJ had not exercised an independent sentencing discretion in confirming the periods of disqualification ordered by Culver LCM. If Culver LCM had erred, Morgan DCJ erred in the adoption of that error.

Is the decision of Culver LCM relevant? 60As I have indicated, the applicant's approach on the s 43 application was that her Honour had adopted the error made by Culver LCM and had thereby erred. The same argument was advanced on the hearing of the summons in this Court, but was expanded to include a submission that Morgan DCJ was required, on the sentence appeal, to turn an independent mind to the disqualification period to be imposed, regardless of whether the applicant had put that aspect of the sentence in issue and regardless of whether her Honour was directed to the terms of, relevantly, s 188(4). 61As I have already indicated, it is possible that her Honour did not sentence the applicant afresh on the sentence appeal insofar as the licence disqualification period was concerned. The position in Wishart v Fraser , where a magistrate's order ceased to have effect once an order was made by the District Court on an appeal, was different. The legislation in that case included a power, on appeal to " confirm " the order of the magistrate. There was no power in the legislation to dismiss the appeal: the Justices Act 1902, s 125. 62Notwithstanding the uncertainty as to whether the orders made by her Honour replaced the orders of Culver LCM and subject to the question whether the licence disqualification period was in issue on the sentence appeal, her Honour was required to independently exercise her discretion as to whether to set aside or vary the sentence or dismiss the appeal. It follows that the relevant decision for the purposes of s 43 application and for this Court is the decision of Morgan DCJ. However, in deference to the argument that Morgan DCJ in fact " adopted " the order and, therefore, the underlying reasoning of Culver LCM, I will deal with the applicant's arguments in support of that submission.

Did Culver LCM impose a licence disqualification period contrary to law? 63The applicant submitted that although Culver LCM referred to the automatic periods of disqualification for the individual offences of which Mr Meakin had been convicted, she made no reference to what Parliament had prescribed when dealing with multiple convictions arising out of a single incident, such that it should be inferred that her attention had not been drawn to s 188(4) and that she overlooked the maximum period of disqualification provided for in that section. 64For my part, I would not draw that inference. It is apparent from her reasons that Culver LCM was aware that there were automatic periods of disqualification; what those periods were in respect of each offence; that she could make orders in respect of the disqualification period; and that minimum periods of disqualification were prescribed. Those were matters of importance to the sentencing function that her Honour was about to undertake. In particular, it was relevant for her Honour to know that she could " order " a period of disqualification. Her Honour's comment, reproduced at [38] above, indicates she was fully aware that she could order a period of disqualification. It was also critical for her to know that there was a minimum period of disqualification and what that was. 65In my opinion, the absence of any mention of the maximum automatic period specified in s 188(4) does not necessarily give rise to the inference that her Honour was unaware of the provisions. Her Honour may have considered it unnecessary to refer to the provision because, as was apparent from her reasons, she had decided that the sentences she was intending to impose, including the disqualification period, should be cumulative, to take account of the criminality involved. 66I say something below as to the nature and extent of the evidence on the summons. Insofar as the submission was made that the Court should infer that Culver LCM's attention was not drawn to s 188(4) by counsel, I merely comment that direct evidence could have been adduced to establish that matter. However, the Court was asked to draw inferences from the content of her Honour's reasons. In my opinion, the material before the Court, at the most, gives rise to competing inferences of equal likelihood: see Luxton v Vines [1952] HCA 19; 85 CLR 352.

Did Morgan DCJ impose a licence disqualification period contrary to law? 67As the applicant has not established that Culver LCM erred as alleged, it has not been established that Morgan DCJ erred because she adopted Culver LCM's error. Accordingly, the applicant's first argument should be rejected. 68That leaves for consideration the further questions: whether the licence disqualification period was in issue on the sentence appeal; whether her Honour was bound to consider s 188(4) when imposing a period of licence disqualification regardless of whether the licence disqualification period was in issue on the sentence appeal; and whether her Honour committed jurisdictional error in refusing the application to reopen the sentencing proceedings. 69In support of his submission that the licence disqualification period was in issue on the sentence appeal, the applicant contended that his evidence as to his abstinence from alcohol since his conviction was relevant both to sentence by way of fine or imprisonment, as well as to any period of licence disqualification. He pointed out that at the time of the appeal, the evidence as to his abstinence from alcohol was that his prognosis was positive, the inference being, as I would understand the submission, that he was fit to hold a licence and that this was a matter relevant to the licence disqualification period. 70During the course of argument, attention was drawn to the applicant's evidence before Morgan DCJ that he had sold his car, which might indicate that the licence disqualification period was not in issue. The applicant submitted that this evidence was at best neutral and certainly could not base an inference that he was not concerned to raise the period of licence disqualification as part of his appeal against sentence. I do not agree. This evidence, expressly elicited from the applicant by his senior counsel, is supportive of, but not sufficient of itself, to draw an inference that the period of disqualification was not in issue, or at least not seriously in issue, before her Honour. If the period of licence disqualification was in issue, questions would have been asked that directly concerned it. In the absence of those questions being asked, the Court should not draw the inference that the applicant seeks: see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (No 2) (1991 ) 22 NSWLR 389. 71The applicant also relied upon a medical report of a treating psychiatrist, a Probation and Parole pre-sentence report, a final report from the PCYC Traffic Education Program and testimonial material that had been in evidence in both the Local Court proceedings and on the sentence appeal in the District Court. This material was not re-tendered on the s 43 application and there was a question as to its relevance in the present proceedings. 72In my opinion, the material is relevant to the question whether the licence disqualification period was in issue on the sentence appeal. Whether it supported that proposition is a different question. The medical and testimonial evidence was directed to the applicant's good character, his contrition, his attempts at rehabilitation in relation to his alcohol problems and to his realisation of the harm that can be caused by drink driving and speeding. The Probation and Parole pre-sentence report did not direct any attention to the question of licence disqualification. The Traffic Education Program final report indicated that the applicant had an understanding of the dangers of drink driving and speeding. 73To the extent that this material related to the applicant's recognition of the dangers of drink driving it may have had some relevance to the period of licence disqualification. I would infer that that was the case in the Local Court. So far as the sentence appeal in the District Court was concerned, the tendered material would have been relevant to the disqualification period to the same extent, if the disqualification period was in issue. However, of itself, that part of the material relating to the applicant's recognition of the dangers of drink driving is insufficient to base an inference that the period of licence disqualification was in issue on the District Court appeal. 74The applicant then advanced a number of arguments which he contended demonstrated that the disqualification period was in issue. He submitted that the result on the conviction appeal had been favourable to him, in the sense that her Honour had found the objective seriousness of the offence was less than had been found by Culver LCM. It was for that reason that her Honour had varied the sentence of imprisonment and had ordered that the applicant serve consecutive periods of community service totalling 250 hours. The applicant submitted that it followed that her Honour was required to consider the period of disqualification to be imposed. 75In an allied submission, the applicant contended that there was no basis to infer that he had litigated his way out of challenging the disqualification period imposed upon him by Culver LCM. He submitted that there was a difficulty in finding that an inference could be drawn that a deliberate decision had been taken on the appeal to the District Court not to raise the period of licence disqualification, in circumstances where it could only have been to his benefit to have raised it. 76Whilst these are arguments that support the applicant's contention, they do not advance the question whether the licence disqualification period was in issue one way or the other. In particular, the last argument fails to grapple with Mr Hughes QC's obvious retreat when Morgan DCJ told him " not to push his luck ". 77Nor do these arguments counterbalance the fact that, as her Honour noted at p 4 of her reasons, the applicant had not been asked " one question by his legal representatives or by the Crown relating to the periods of disqualification imposed upon him " and she was " certain that at no time was the issue of s 188(4) raised before [her] ". The highest the matter reached, on her Honour's recollection, was that the question of the period of licence disqualification had, at the most, been " lightly touched upon " by the applicant's senior counsel. I infer her Honour considered that the question of licence disqualification was not a matter that had been raised in any way that required her to turn her attention to it. 78The applicant sought to neutralise the effect of this apparent, if not obvious, omission of senior counsel to raise s 188(4) before her Honour, or to submit that she was required to deal with the licence disqualification period, with the response that although his senior counsel was highly experienced, licence disqualification was not his area of legal expertise. I do not consider the response assists the applicant. The period of licence disqualification was either in issue or it was not. It was apparent that Mr Hughes QC retreated from putting the disqualification period in issue. 79Accordingly, given the transcripts and her Honour's reasons on both the sentence appeal and the s 43 application, I am of the opinion that the disqualification period was not in issue on the sentence appeal. The applicant sought to have the Court draw an inference that it was in issue on material that was equivocal at best. There was evidence that could have established that fact. The applicant, his solicitor, or any of the three counsel who appeared for him in the District Court could have given that evidence. No explanation was given as to why none of these persons gave evidence on this question. In the circumstances, the Court is more comfortably able to draw the inference that the matter was not in issue: see Jones v Dunkel [1959] HCA 8; 101 CLR 298. 80In my opinion, subject to one matter, there cannot be a failure to take into account a relevant consideration in respect of a sentence that was not in issue in the proceedings. In this case, I have concluded that the aspect of the sentence comprising the period of licence disqualification was not in issue on the District Court appeal. That is different from a case such as Traegar where the relevant sentence was in issue but the court was not told of a fact relevant to the sentence that by law ought to have been imposed. There is at least one qualification to the view I have expressed in the first sentence of this paragraph. If in making an order, the effect of which was to confirm an order made in the court below, then, if the lower court's order was not within power, s 43 would be available to correct the error. That was not the position here.

Was Morgan DCJ required to have regard to the automatic licence disqualification period? 81The applicant's next submission was that regardless whether he had raised the period of disqualification on the sentence appeal, her Honour was obliged to have regard to the legislative regime that governed licence sentence disqualification. It was said that ss 188 and 188(4) was a relevant consideration in the sense of one that the trial judge was bound to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. Put shortly, it was submitted that her Honour was required to know what the relevant law was so as to impose a sentence according to law. I will consider this submission on the assumption that I am wrong in my conclusion that the licence disqualification period was not in issue on the appeal. 82The premise upon which the submission was based was that her Honour was required to sentence the applicant afresh. I have doubted that premise, but I will proceed on the basis that the same arguments would be advanced even if the correct premise is that her Honour was required to exercise an independent discretion as to whether to dismiss the appeal in respect of the disqualification period. 83As I have already indicated, s 43 is concerned with the correction of sentencing errors that answer the description in s 43(1) and, relevantly in this case, a sentence that was " contrary to law ". The only way in which it was asserted that the section was engaged was the argument that Morgan DCJ, in determining what disqualification period to order, was required to have regard to the automatic disqualification period under s 188(4). As she had not done so she had imposed a sentence that was " contrary to law ". 84In support of this submission, the applicant relied upon the remarks of Howie J in the Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (the Guideline judgment), at [126]-[127]. 85Howie J, at [126] of the Guideline judgment, stressed that the automatic disqualification period was not to be treated as if it were the maximum period of disqualification. His Honour observed that there must be cases where a period of disqualification greater than the disqualification period ought to be ordered. However, his Honour further commented, at [127], that " courts are too ready to reduce the automatic period and choose the minimum period ". His Honour continued: "The failure of the courts to give sufficient regard to the automatic disqualification periods prescribed by Parliament is indicated by a finding that in only 11 per cent of cases was the offender disqualified for as long as 2 years and 14 per cent for as long as 3 years ... There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament's view that the automatic period is the period of disqualification to apply in the usual case." 86Later, at [146], in proposing the guideline for a high range PCA, his Honour stated that in an ordinary case, " the automatic disqualification period will be appropriate unless there is good reason to reduce the period of disqualification ". It is apparent from his Honour's remarks that the minimum period of disqualification would usually involve the imposition of a penalty that was inadequate. Although his Honour's remarks were made in respect of a high range PCA, it can be accepted that they would be relevant to a mid-range PCA, as was the case here. 87The applicant's submission relied, in particular, on the last sentence of Howie J's remarks at [127], namely, if the automatic period was the period of disqualification to be imposed in the usual case, the Court would have to know what that period was in order to determine whether some greater or lesser period was warranted. 88As a matter of sentencing principle, a court is required to have regard to the maximum penalty for an offence. It would be contrary to law to impose a sentence in excess of the statutory maximum. This is a trite proposition and needs no exposition. The maximum penalty also provides an indication to the court of the relative seriousness of the offence: Muldrock v R [2011] HCA 39; 281 ALR 652 at [31]. It was in this sense that in Muldrock the Court described the maximum prescribed sentence as a legislative " guidepost ": see at [27]. 89The Court applied the same description to the standard non-parole periods. After making the observation that the maximum penalty served as an indication of the relative seriousness of the offence, the Court stated: "The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case. It may be, as the Court of Criminal Appeal observed in Way , that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction." (citations omitted) 90Section 188, as I have indicated, does not prescribe a maximum period of licence disqualification. It prescribes a minimum period and an automatic default period if no order of disqualification is made. The minimum period of disqualification is a matter that a sentencing judge would be required to have in mind when determining what order to make, as the imposition of a lesser period would be contrary to law. 91In my opinion, the automatic disqualification period is also a matter to which a sentencing judge should have regard in determining the penalty to be imposed, as it provides to the court an indication of the seriousness with which the legislature regarded various levels of PCA offences. The fact that the legislature considered it appropriate to legislate for a maximum period of disqualification in the case of multiple offences arising from the same incident, also provides an indication to the sentencing judge that the legislature had in mind that a form of accumulation was appropriate. These observations say no more than that, as is the case in sentencing in respect of any statutory offence, a judge, in sentencing for an offence or offences that fall within the Road Transport (General) Act , Pt 5.4, should be aware of the statutory provisions. 92A failure to be aware of such statutory provisions may result in a sentence that is manifestly inadequate or excessive. It is a different question as to whether that constitutes a sentencing error that is " contrary to law " within s 43. In my opinion, that question can be answered fairly readily. As I have discussed, the effect of the authorities is that s 43 looks to the outcome of the proceedings. It is the sentence imposed which must be " contrary to law ". That is, there must be an error in the sentence imposed with the consequence that some different sentence is required. Thus a sentence that is greater or less than that prescribed will be a sentence imposed that is " contrary to law ". For example, if a sentence is imposed in respect of a high range PCA, when the offence was a mid or low-range PCA, there will be a sentence imposed that is " contrary to law ". 93The applicant accepts that the licence disqualification period imposed by Culver LCM and " confirmed " by Morgan DCJ was within power. Although the applicant did not fashion his submission this way, what in fact he seeks to do is demonstrate that had Morgan DCJ been aware of the automatic disqualification, there may have been a different result in the exercise of her Honour's sentencing discretion. In my opinion, s 43 does not cover such a case. This case is quite different from the example given in Ho where the appellant could specifically identify what sentence would have been imposed had the court taken into account the period of pre-sentence imprisonment. 94In my opinion, the applicant has not demonstrated jurisdictional error.

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.

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