NABHAN -v- WOOD [2009] WASC 66 (25 March 2009)

Criminal Appeals Act 2004 (WA), s 14

Road Traffic Act 1974 (WA), s 41, s 49(3)(c), s 49(8)

Sentencing Act 1995 (WA), s 105

Cooke v Ginby (1994) 21 MVR 351

Di Camillo v Wilcox [1964] WAR 44

Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32

Horton v Burton (1999) 28 MVR 415

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Pickett v State of Western Australia [2004] WASCA 291

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Sevelj v Roffey [2002] WASCA 20

Skerritt v O'Keefe [1999] WASCA 183

State of Western Australia v Viskari [2008] WASCA 143

Vasallo v Allison [2006] WASC 147

1 The appellant, Choukry Nabhan, appeared before Justices of the Peace in the Perth Magistrates Court on Tuesday 14 October 2008.

2 He was charged with two offences of driving a motor vehicle, namely, Ford Falcon station sedan, registered number TAXI 528, on a road whilst not being a person authorised to do so by reason of his licence being disqualified contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA).

3 Section 49(1) of the Road Traffic Act provides that a person who drives a motor vehicle on a road while not authorised to do so commits an offence. By s 49(1)(c) it is said that if s 49(3)(c) applies the penalty for a subsequent offence shall be a fine of not less than 20 PU or more than 80 PU and imprisonment for not more than 18 months and the court shall order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than nine months and not more than three years.

4 Section 49(3)(c) provides that if an offence under s 49(1)(a) is committed by a person whose authority to drive is for the time being suspended a member of the police force may, without a warrant, arrest the person.

5 Importantly, for present purposes, s 49(8) reads as follows:

A period of disqualification ordered under subsection (1) is cumulative upon -

(a) any other period of disqualification to which the person may then be subject; or

(b) any period for which the operation of a driver's licence held by the person may currently be suspended.

6 The appellant is a man of Egyptian descent who has resided in this State for over 40 years. Evidentiary materials were handed up by consent during the course of the appeal hearing evidencing that for many years he has been well regarded as a taxi driver. In 2007 he was awarded a Certificate of Merit by Swan Taxis. It seems that in recent times the appellant's driver's licence was suspended after he became subject to a demerit point suspension. He made an enquiry from the Department of Planning & Infrastructure and understood that his suspension period was over but this in fact was not the case as at 1 August 2008 being the date when the events giving rise to the subject offences occurred.

7 The circumstances of the offending, as explained to the Justices of the Peace, were that the appellant had been a passenger in the taxi vehicle which was being driven by his wife. They had driven into the city but upon reaching the Wellington Train Station, the appellant's wife had pulled over to allow the appellant to swap places with her. The swap was to allow the appellant to park the car in a multistorey carpark close by. It was said that the appellant's wife was very nervous of parking in multistorey carparks and unwilling to park the car herself.

8 The court was told that the appellant and his wife swapped places and as the appellant's wife alighted from the car, a passerby came along and climbed into the back of the taxi. The 'in service' light was not on above the vehicle, but the passerby insisted that the appellant take him as a passenger. The appellant tried to ask the man to alight from the vehicle, but the passerby was insistent and so the appellant proceeded along Murray Street.

9 The appellant was stopped by police after a short distance and was instructed to pull over into a 15 minute zone. The police then advised the appellant that he would be charged with driving without a valid driver's licence. These were the circumstances of the first charge.

10 The appellant waited for an hour and a half in the 15 minute zone, attempting to call a tow company as well as his son, to request that they come and pick him up and remove the car. However, having waited an hour and a half, the appellant, being acutely aware that he was in a 15 minute zone, got back into his vehicle and drove it down the road.

11 The appellant parked his vehicle a short distance away on Terrace Road. There he successfully made contact with a third party to come and pick up the car. The appellant paid for that person to come and drive the car home.

12 However, as it happened, the appellant had been photographed parking the car on Terrace Road by surveillance cameras and these events led to the laying of the second charge of driving without a valid driver's licence.

13 It was against this background that the appellant was convicted of each of the two charges after entering pleas of guilty, the events giving rise to the subject charges having occurred on the same day. He was sentenced by the Justices of the Peace at the hearing on 14 October 2008 as a consequence of his pleas of guilty and fines of $400 were imposed in respect of each count.

14 It was also ordered that the appellant be disqualified from holding a driver's licence for a further nine months on each count to be served cumulatively. This gave rise to an aggregate period of 18 months disqualification cumulative on any outstanding disqualification period.

15 For the sake of completeness, I feel obliged to say that the words used in imposing the sentences are reflected in the following passage from the transcript. The appellant was represented at the hearing by Ms Rogers:

ROGERS, MS: ... Your Honour, I would submit given the circumstances and with Mr Nabhan's personal circumstances he can't obviously work without a licence (indistinct) as struggling (indistinct) because of this. I would ask you to impose the minimum period of suspension in relation to these offences and (indistinct) concurrent between the two counts, your Honour.

JP1: Thank you, Ms Russell [sic].

ROGERS, MS: Thank you, your Honour.

JP1: Charge number 57447 a fine of $400 and you are disqualified from holding or obtaining a driver's licence for a period of nine months. Right from this very moment - - -

NABHAM, MR: Thank you very much.

JP1: Just a moment I haven't finished and charge number 57448 is $400 and a suspension of nine months to be served cumulative. So we have a global fine of $800, costs of $114. Thank you, you may step down.

16 I note in passing that in the course of making her plea in mitigation, as appears from the passage quoted above, counsel for the appellant referred to the appellant's personal circumstances and his livelihood as a taxi driver. A specific request was made also that the periods of suspension be concurrent. However, in the event, the Justices of the Peace ruled that the two periods of suspension of nine months were to be served cumulative.

17 The reasoning underlying this decision is not apparent from the transcript. In other words, it is not clear whether the sentencing judicial officers were of the view that they were subject to a mandatory obligation to make these periods of suspension cumulative or whether the overall period of 18 months was arrived at in the belief that this was the appropriate disposition in the exercise of a discretionary power to determine that the period should be cumulative and not be served concurrently.

18 The appellant then proceeded to institute an appeal by lodging an appeal notice dated 7 November 2008. The grounds of appeal were expressed in this way:

1. The learned Justices of the Peace erred in their sentencing discretion by ordering that the two period of disqualification run cumulative, the aggregate period of disqualification offending the totality principle both in terms of being crushing on the Appellant as a taxi driver and being disproportionate to the Appellant's offending.

19 On 17 December 2008 Blaxell J made various orders including that an extension of time be granted for the appellant to apply for leave to appeal and that leave to appeal be granted in respect of ground 1 of the appeal notice.

20 It emerges from a consideration of the relevant statutory provisions and the ground of appeal that there are two issues to be dealt with. First, a question arises as to whether the court had any discretion to impose concurrent disqualification in respect of the appellant's offences. This is because s 49(8) states that a period of disqualification ordered under s 49(1) is to be cumulative upon any other period of disqualification to which the person may then be subject. There is therefore an issue to be resolved as to whether the provision imposes a mandatory obligation in respect of discrete offences to make the periods of disqualification cumulative.

21 Second, if it be held that upon its proper construction the provision allows for concurrent disqualification period, a further question arises as to whether in the exercise of a discretionary power to that effect application of the totality principle in the circumstances of the present case required that the disqualification periods be served concurrently.

22 It will now be useful to look at certain statutory provisions and legal principles bearing upon the issues raised by the appeal notice.

23 Appeals from the Magistrates Court are now governed by the Criminal Appeals Act 2004 (WA). By s 14 of that Act the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

24 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

25 I note in passing that a magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32.

26 However, in the case of a busy court it is not always practicable or necessary for full or detailed statements of reason to be given in every case. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion: Skerritt v O'Keefe [1999] WASCA 183 at 146.

27 The failure by a decision-maker to mention a matter expressly does not reasonably give rise to an inference that it was not considered. It is to be assumed that the decision-maker has taken all relevant matters into account: Pickett v State of Western Australia [2004] WASCA 291 at [10].

28 The plea of guilty admits all the essential elements of the offence charged. There is no error in the magistrate acting on the guilty plea and convicting without further enquiry into the facts: Di Camillo v Wilcox [1964] WAR 44 at 46.

29 By s 6 of the Sentencing Act 1995 (WA) a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty for the offence, the circumstances of the matter, any aggravating factors and any mitigating factors.

30 Sentencing principles also require that consideration be given to the totality principle. Where there is more than one offence under consideration an appropriate sentence is to be fixed for each offence followed by consideration of cumulation or concurrence and then by questions of totality. To the extent to which two or more charges contain comment elements it would be wrong to punish the offender twice with the result that concurrence is appropriate where there is essentially one transaction or commonality is evident: Pearce v The Queen (1998) 194 CLR 610 at 623.

31 The totality principle enables a court to mitigate what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long or too crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307; State of Western Australia v Viskari [2008] WASCA 143. The key factor is proportionality with a view to ensuring that the aggregate of the sentence is appropriate for each offence and is a just and appropriate measure of the total criminality involved, not only in respect of the offences for which the offender is being sentenced but also as to any offences for which the offender is currently serving a sentence. An appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63.

32 It has been said that the purposes of disqualification of a drivers licence are both punitive and for public safety. It is clear that parliament had in mind both of these aspects when providing for increasing periods of disqualification for repeat offences as in s 49 of the Road Traffic Act 1974 (WA) where provision is made for cumulative disqualification for the offence commonly known as 'driving while disqualified': Horton v Burton (1999) 28 MVR 415.

33 Section 105 of the Sentencing Act 1995 contains provisions concerning disqualification orders. By s 105(2) that a term of disqualification set by the court is to be concurrent with any other term for which the offender's drivers licence is or may be disqualified or any term for which the offender's drivers licence is or may be suspended unless the court orders that the term is to be cumulative on those terms.

34 However, importantly for present purposes, s 105(4) of the Sentencing Act provides that the provisions just mentioned do not affect the right or duty of a court to disqualify a person from holding or obtaining a drivers licence under the Road Traffic Act 1974.

35 In Sevelj v Roffey [2002] WASCA 20 McLure J held that s 105(2) of the Sentencing Act, which makes the term of disqualification prima facie concurrent, was inconsistent with the more specific provision contained in s 49 of the Road Traffic Act (being at that time s 49(3c)) whereby a period of disqualification imposed pursuant to a sentencing order is to be cumulative upon any other period of disqualification to which the person may then be subject (being the provision now contained in s 49(8) of the Road Traffic Act mentioned earlier).

Further, s 105(4) of the Sentencing Act does not in terms extend to s 49(3c) of the RTA. However, in my opinion, the specific and subsequently enacted s 49(3c) of the RTA is intended to and does prevail over the general provision in s 105(2) of the Sentencing Act in relation to disqualifications under the RTA and Fines Act: see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7. [23]

37 This view of the matter was subsequently approved by Le Miere J in Vasallo v Allison [2006] WASC 147 at [16].

38 I pause here to say that, I am of the view that I must follow these previously decided cases, namely, Sevelj v Roffey and Vasallo v Allison, in regard to that aspect of the matter.

39 In other words, in dealing with an order for disqualification in respect of charges brought pursuant to the Road Traffic Act, the general rule reflected in s 105(2) of the Sentencing Act that periods of disqualification be served concurrently does not apply and the issue must be dealt with having regard to the more specific provisions of the Road Traffic Act being, in this case, s 49(8) mentioned earlier. It is said in that provision that a period of disqualification ordered under s 49(1) is cumulative upon any other period of disqualification to which the person may then be subject.

40 This brings me to a number of decisions bearing upon the first issue in the present case as to whether certain provisions of the Road Traffic Act impose a mandatory obligation in respect of discrete offences to make the periods of disqualification cumulative.

41 In Cooke v Ginby (1994) 21 MVR 351 the offender was sentenced by a magistrate in October 1994 in respect of two offences of driving while disqualified from holding or obtaining a drivers licence committed in July and August 1994. At the time of sentencing the appellant was already serving a period of disqualification in respect of an offence committed in May 1994. Walsh J made these observations at 356 in the course of dealing with an appeal:

All that s 49(3) of the Road Traffic Act 1974 requires is that any period of disqualification imposed must be cumulative on any period of disqualification currently being served. It does not require that if more than one period of disqualification is imposed for different offences, as is the present case, those periods be served cumulatively.

42 Pursuant to this reasoning, Walsh J ordered that the periods of disqualification imposed in respect of the offences committed in July and August be served concurrently but cumulatively with the period of disqualification imposed in May.

43 However, there appears to be a divergence in authority as to whether two periods of disqualification imposed on the same occasion must be cumulative.

44 In Vasallo v Allison, in dealing with the provision equating to what is now s 49(8) of the Road Traffic Act, Le Miere J expressly found that the provision requires that periods of disqualification imposed on the same day be cumulative upon any other period of disqualification to which the person may then be subject. The period of disqualification to which the person may then be subject refers to the time at which the period of disqualification is ordered rather than the time the offence occurs.

45 Le Miere J indicated in the course of his observations that the position may be different where a court imposes two periods of disqualification in respect of two offences at the same time and referred to Cooke v Ginby as being such a case. However, overall, the tenor of his Honour's reasoning indicates that where there are two discrete offences the periods of disqualification are to be cumulative.

46 Let me now return to the circumstances of the present case.

47 It appears that the policy of s 49 of the Road Traffic Act is to ensure that a person is disqualified from holding a drivers licence for additional periods of nine months for each offence of driving whilst disqualified, so that the periods of disqualification in those circumstances should be cumulative upon each other.

48 This view of the underlying policy was approved by Le Miere J in Vasallo v Allison at [21] and it appears to be consistent with the position referred to earlier whereby the general rule of concurrency reflected in s 105(2) of the Sentencing Act 1995 has been displaced by the more specific provisions of the Road Traffic Act.

49 It is against this background that the task of construing s 49(8) must be undertaken.

50 It is true, as appears from my review of the sentencing principles, including the principles concerning concurrence and totality, that in sentencing an offender for more than one offence a judicial officer would normally have a discretionary power to provide for concurrence in order to ameliorate what might otherwise be an overly severe result. However, it is open to the legislature, by the use of clear language to override the usual approach if it is thought necessary to do so in respect of certain offences. This emerges from the reasoning in Sevelj v Roffey and Vasallo v Allison mentioned earlier. These later decided cases weigh heavily against what was said by Walsh J in Cooke v Ginby.

51 To my mind, s 49(8) of the Road Traffic Act is quite explicit that a period of disqualification ordered under s 49(1) is cumulative upon any other period of disqualification to which the person may then be subject. It is a mandatory provision which is clearly intended to exclude the discretionary power which might otherwise be thought to exist.

52 In the present case, when the time came for the justices of peace in the present case to deal with the second offence, the position was that a period of disqualification of 9 months had already been imposed in respect to the first offence with the result that the appellant had to be regarded as a person by then subject to a period of disqualification. The effect of the provision is mandatory with the result that the second period of disqualification was to be cumulative.

53 It follows, then, that the court was obliged to sentence the offender upon the basis that the second period of disqualification was to be cumulative. This gave rise to an aggregate period of disqualification for the subject offences of 18 months.

54 It emerges, then, that in my view, the court did not err in requiring that the two periods of disqualification be cumulative. This therefore makes it unnecessary to proceed to the second issue as to whether the sentence imposed ought to have been ameliorated pursuant to the totality principle so as to allow for the two periods of disqualification to be served concurrently.

55 I consider that the appeal must be dismissed. I will hear from the parties as to whether any further orders or directions are required.