Nikro v O'Sullivan [2013] ACTSC 129

Supreme Court of the ACT|2013-07-04|Before: Nield AJ

1. I refuse to grant leave to the appellant to adduce the further evidence.

3. I confirm Magistrate Lunney's conviction and sentence, that being a fine of $500.

4. I disqualify the appellant from holding or obtaining a driver licence for 12 months from 1 July 2013 to and including 30 June 2014.

1. The appellant is Mr Abdul Karim Nikro. He has appealed from a decision of Special Magistrate Lunney made on 27 January 2012 finding him to be guilty of driving a motor cycle on a public road on 6 January 2011 when his driver licence was suspended by operation of law, convicting him of the offence, fining him $500 for having committed the offence and disqualifying him from holding or obtaining a driver licence for 12 months.

3. The facts which brought the appellant before the Magistrates Court are not in dispute. The following facts are contained in the evidence adduced before Magistrate Lunney.

4. On 31 July 2010 an image of a motor vehicle owned or being driven by the appellant was captured by a camera in the commission of a traffic offence, the type of which is not revealed by the evidence. Later, on a date not revealed by the evidence, but during August 2010, an infringement notice (see section 24 of the Road Transport (General) Act) was sent by the RTA by prepaid post to the appellant at his home address (see section 139(1) of the Road Transport (Driver Licensing) Regulation and see also my judgment in Barratt v Merhi [2013] ACTSC 125) recorded in the register kept by the RTA (see section 14 of the Road Transport (Driver Licensing) Regulation), namely X Buggy Crescent, McKellar, ACT. The notice is presumed to have been served on the appellant four days after the date on which the notice was posted (see section 9B of the Road Transport (General) Regulation).

5. The infringement notice penalty was not paid by the appellant within the time allowed for the payment of the penalty.

6. On 20 September 2010 a reminder notice (see section 27(2) of the Road Transport (General) Act) was sent by the RTA by prepaid post to the appellant at his home address. This notice is presumed to have been served on the appellant on 23 September 2010.

7. The penalty and an administration fee were not paid by the appellant within the time allowed for the payment of the penalty and fee.

8. Accordingly, on 28 October 2010 a notice of suspension of driver licence (see section 44(2) and (3) of the Road Transport (General) Act) was sent by the RTA by prepaid post to the appellant at his home address. This notice is presumed to have been served on the appellant on 31 October 2010. This notice informed the appellant that suspension action would occur on 15 November 2010 if the penalty and fee were not paid before that date.

9. The penalty and fee were not paid by the appellant before 15 November 2010 and, on that date, the RTA suspended the appellant's driver licence (see section 44(5) and (8) of the Road Transport (General) Act) by operation of law.

10. On 18 November 2010 a notice of confirmation of suspension of driver licence (see section 44(9) of the Road Transport (General) Act) was sent by the RTA by prepaid post to the appellant at his home address.

11. At about 6 pm on 6 January 2011 Constable Bridget O'Sullivan and Constable Damian Kinnane, who were in a marked police vehicle, came upon the appellant and two other men at the Mobil Service Station in Braddon, ACT. The appellant and the two other men were in the close vicinity of three "Chopper" style motorcycles.

12. On the arrival of police at the service station two of the three men each mounted a motorcycle and drove it away from the service station, leaving the appellant standing next to the third motorcycle at the station.

13. Police spoke with the appellant who, when asked, produced an ACT driver licence. A check of the licence revealed that it had been suspended on 15 November 2010 for failure to pay the fine and administration fee (referred to in paragraph 9 above). A check of the motor plate UXX-XX5 Western Australia attached to the motorcycle revealed that the motorcycle was unregistered in the ACT and Western Australia.

(1) using an unregistered registrable motor vehicle on a public road, contrary to section 18(1) of the Road Transport (Vehicle Registration) Act;

(2) using an uninsured motor vehicle on a public road, contrary to section 17(1) the Road Transport (Third Party Insurance) Act;

(3) using a registrable motor vehicle on a public road to which was attached a false number plate, contrary to section 22(1)(a) of the Road Transport (Vehicle Registration) Act; and

(4) driving a motor vehicle upon a public road when his driver licence had been suspended, contrary to section 32(2)(a) of the Road Transport (Driver Licensing) Act.

15. On 20 December 2011 the appellant appeared before Magistrate Lunney in the Magistrates Court on the hearing of the charges. Magistrate Lunney heard evidence from Constable O'Sullivan and Constable Kinnane and he admitted a photograph of the appellant's driver licence (Exhibit 1), a certificate under section 98(2) of the Road Transport Act 1974 (WA) as to number plate UXX-XX5, issued by the Director General of the Western Australian Department of Transport (Exhibit 2), a statement of Constable Andrew Warry (Exhibit 3) and a certificate under section 72(1)(a) of the Road Transport (General) Act (Exhibit 4) into evidence.

16. After the close of the Crown's case, the appellant's then legal representative submitted to Magistrate Lunney that the appellant did not have a case to answer in relation to any of the charges. After hearing submissions from the Crown Prosecutor and the appellant's legal representative, Magistrate Lunney held that:

(1) in relation to the charge of using an unregistered registrable motorcycle upon a public road, although the certificate (Exhibit 2) identified a particular motorcycle by make, colour, year, model, VIN and engine number, the evidence did not confirm that, as at 6 January 2011, the subject motorcycle was a registrable motorcycle, and that it was unregistered;

(2) in relation to the charge of using an uninsured motorcycle upon a public road, the evidence did not disclose that, as at 6 January 2011, the subject motorcycle was an uninsured motorcycle;

(3) in relation to the charge of using a registrable motorcycle to which was attached a false number plate; and

(4) in relation to the charge of driving a motorcycle upon a public road when the appellant's driver licence had been suspended, there was a case to answer in relation to those charges.

17. Notwithstanding that the Crown has not appealed from Magistrate Lunney's dismissal of the first and second charges, I think that I should say that Magistrate Lunney erred in his approach as to whether the evidence applicable to those charges showed a prima facie case. In my view the evidence showed that the motorcycle had attached to it number plate UXX-XX5 Western Australia, which was a number plate issued by the Department of Transport of Western Australia, that the registration referable to that number plate had expired on 28 November 1992, and that the number plate was returned to the Department of Transport on 28 May 1993. Therefore, either the number plate was false, or it had been unlawfully obtained. In either case prima facie the motorcycle to which the number plate was attached was registrable (see the definition of registrable vehicle in the dictionary to the Road Transport (Vehicle Registration) Act), but unregistered and, being unregistered, it was uninsured. The Crown had made out a case to answer in relation to each charge.

18. On 27 January 2012 Magistrate Lunney resumed the hearing in relation to the third and fourth charges. On this occasion the Crown Prosecutor agreed to the dismissal of the third charge on the appellant entering a guilty plea to the "backup" charge, whatever that was, leaving only the fourth charge to be heard. Then the appellant gave evidence. He told Magistrate Lunney that he had not received any infringement notice, that he had not received the notice that his driver licence would be suspended, and that he had changed his place of residence a few times, without informing the RTA of his change of residence.

19. After the close of the appellant's case, Magistrate Lunney heard submissions from the Crown Prosecutor and the appellant's then legal representative. The Crown Prosecutor submitted that the evidence, specifically the certificate (Exhibit 4), showed that the RTA had complied with section 44 of the Road Transport (General) Act. The appellant's legal representative conceded that the required notices had been sent to the appellant at his home address recorded in the register kept by the RTA, but submitted that the so-called Proudman v Dayman defence of honest and reasonable belief applied to the appellant's circumstances because he had not received the infringement notice, or the notice of suspension of his driver licence and he had been stopped by New South Wales Police on 4 January 2011 for a random breath test and a licence check, after which he was told that he was "right to go".

20. After hearing submissions, Magistrate Lunney gave his judgment. He said that, although he accepted the appellant's evidence that he had not received the infringement notice, or the notice of suspension of his driver licence, he was not satisfied that the appellant's belief that he had a valid driver licence was a reasonable one because, having changed his place of residence a few times, he had not informed the RTA of his changes of address and he had not taken reasonable steps to check on any mail received at his earlier places of residence. Accordingly, he found the offence proved, convicted the appellant of the offence, fined him $500.00 and disqualified him from holding or obtaining a driver licence under the relevant legislation for 12 months.

21. On 30 January 2012 the appellant's solicitor filed the appellant's notice of appeal in this court's registry. The notice of appeal stated that the grounds of appeal were:

(1) The verdict in respect of charge case CC 2011/4740 is unsafe and unsatisfactory, having regard to all the evidence.

(2) His Honour erred by failing to sentence the appellant according to law."

(2) the verdict be set aside and a verdict of not guilty entered in respect of charge case CC 2011/4740 or, in the alternative to (1), the conviction and sentence in respect of charge case CC 2011/4740 be set aside and the appellant be resentenced with a non conviction order imposed.

(3) Any other order that this honourable court thinks appropriate.

22. However, on 21 December 2012 the appellant's solicitor filed the appellant's amended notice of appeal in the court's registry. This amended notice of appeal sought an additional order that leave be granted to the appellant to adduce further evidence on the hearing of the appeal, that evidence being the notice of confirmation of suspension of driver licence sent by the RTA by prepaid post to the appellant at his home address on 18 November 2010.

23. On 17 May 2013 the appellant's appeal came on for hearing before me. I had already received the appellant's solicitor's written submissions and the Crown Prosecutor's written submissions. I heard submissions from the appellant's solicitor and the Crown Prosecutor and, without deciding as to whether or not to allow the appellant to adduce the further evidence, I stood over the appeal to a date to be fixed for my judgment.

24. Division 3.4 of the Road Transport (General) Act is headed "Enforcement Procedures". Section 44 applies to "Suspension for non payment of infringement notice penalties" and provides that:

(a) an infringement notice and a reminder notice have been served on a person by an authorised person under this part for an infringement notice offence; and

(b) the offence involved a registrable vehicle; and

(c) the infringement notice has not been withdrawn or the infringement notice penalty for the offence has not been waived; and

(d) the person does not have an infringement notice management plan for the infringement notice penalty for the offence; and

(e) the penalty has not been paid to the administering authority within the time for payment under this part; and

(f) notice disputing liability has not been given to the administering authority in accordance with this part.

(a) send the person a written notice (a suspension notice) that contains the information required by subsection (3); and

(b) if the infringement notice penalty is not paid before the suspension date in the suspension notice - take action under subsection (5), (6) or (7) (the suspension action) on the suspension date.

(a) particulars of the infringement notice and the reminder notice to which the suspension notice relates; and

(b) that if the person does not pay the infringement notice penalty by a stated date (the suspension date), the authority will take suspension action on the suspension date; and

(d) any other information that the road transport authority considers appropriate.

(4) However, the suspension date must not be earlier than 10 days after the day the suspension notice is sent to the person.

(5) If the person is the holder of a driver licence, the road transport authority must suspend the licence.

(6) If the person is not the holder of a driver licence, or the person's driver licence is suspended, but the vehicle involved in the offence is registered under the Road Transport (Vehicle Registration) Act 1999 and the person is the responsible person (or a responsible person) for the vehicle, the road transport authority must suspend the vehicle's registration.

(7) In any other case, the road transport authority must do 1 of the following:

(a) suspend the person's right to drive the vehicle involved in the offence in the ACT;

(b) suspend the person's right to drive any vehicle in the ACT;

(8) A suspension under this section takes effect on the suspension date.

(9) If the road transport authority takes suspension action, the authority must send a suspension confirmation notice to the person that states -

(b) the action that was taken on the suspension date; and

(d) any other information that the road transport authority considers appropriate.

time for payment, of an infringement notice penalty, includes any extension of time allowed for payment under section 29 (Extension of time to do things).

25. The certificate (Exhibit 4) admitted into evidence by Magistrate Lunney proved that:

(1) on 28 October 2010 a notice of suspension of driver licence was sent by the RTA by prepaid post to the appellant at the home address recorded in the register kept by the RTA, as required by section 44(2)(a);

(2) the suspension of the appellant's driver licence was to take effect on 15 November 2010 if the penalty and administration fee were not paid before that date, as required by section 44(4);

(3) on 15 November 2010 the suspension of the appellant's driver licence took effect as the penalty and administration fee had not been paid, as provided for by sections 44(5) and (8); and

(4) on 18 November 2010 a notice of confirmation of suspension of the appellant's driver licence was sent by the RTA by prepaid post to the appellant at his home address, as required by section 44(9).

As to service of a notice under the road transport legislation, see my judgment in Barratt v Merhi.

26. However, the appellant's solicitor submitted that the notice of confirmation of suspension of the appellant's driver licence was invalid as it did not state the suspension date, as required by section 44(9)(a), thus rendering invalid the notice of suspension of the appellant's driver licence.

27. The notice of confirmation of suspension of driver licence dated 18 November 2010 sent by the RTA by prepaid post to the appellant at his home address stated, inter alia, that:

"The notice of suspension previously sent to you advised of the suspension action (including the date of effect of the suspension action) taken by the road transport authority under the Road Transport (General) Act 1999 section 44. This notice is to confirm that your ACT driver licence number 5XXXXX5 was suspended. This suspension will continue until the suspension is revoked. You are required to return your licence to a Canberra Connect shopfront within seven days of receipt of this notice. Once payment is received for all outstanding parking and traffic infringement penalties relating to this suspension, the suspension will be revoked."

"the purpose of subsection (9) is clearly to ensure certainty, in respect of the disqualification/suspension. Where this is not complied with the suspension should be regarded as invalid. Therefore, it is submitted on this further basis the conviction should be quashed."

29. It is obvious that the notice did not state the date on which the suspension of driver licence was to take effect, that date being 15 November 2010, although it stated that "the date of effect of the suspension action" was stated on the notice of suspension. This much is conceded by the Crown Prosecutor who wrote in her submissions:

"the suspension confirmation letter of 18 November 2010 is on its fact defective since it does not specify the suspension date. This is non compliant with section 44(9) of the Road Transport (General) Act."

30. However, the Crown Prosecutor submitted, first, that leave should not be granted to adduce the further evidence, that being the notice of confirmation of suspension of driver licence, because the appellant had not provided a reasonable explanation for the failure to adduce it on the hearing before Magistrate Lunney, as required by section 215(4)(b) of the Magistrates Court Act, and, secondly, if leave is granted to adduce the further evidence, that the defective notice of confirmation of suspension of the appellant's driver licence should not render invalid the valid suspension of his driver licence, as held by Chief Magistrate Walker in Stone v French [2013] ACTMC 4.

31. I agree with the Crown Prosecutor that the appellant has not given any explanation, let alone a reasonable one, for the appellant's former legal representative's failure to adduce the evidence of the defect in the notice of confirmation of suspension of the appellant's driver licence during the hearing before Magistrate Lunney. For all I know, the appellant's former legal representative was aware of the decision of Chief Magistrate Walker in Stone v French and made the decision not to raise the issue before Magistrate Lunney.

32. In any event, I agree with the decision of Chief Magistrate Walker in Stone v French, in which she said:

"I agree it would be nonsensical to allow a suspension that had been validly effected to be invalidated by a notice, the sole purpose of which was to confirm the suspension. A suspension confirmation notice should, as section 44(9) paragraph A requires, specify the date of suspension rather that refer the addressee to another document or require them to make a telephone inquiry to find out the relevant date. However, it could not have been the legislature's intention for an irregularity in the administrative process to have the effect of revoking a properly imposed suspension. I further note that the defect in the suspension confirmation notice does not cause detriment to any person. The detriment flows from the suspension itself."

I consider that the valid suspension of the appellant's driver licence on 15 November 2010 following the valid notice of suspension of driver licence sent on 28 October 2010 by the RTA by prepaid post to the appellant at his home address was not rendered invalid by the defective notice of confirmation of suspension of driver licence sent on 18 November 2010 by the RTA by prepaid post to the appellant at his home address.

33. Accordingly, I refuse leave to the appellant to adduce the further evidence referred to in paragraph 22 above.

34. The appellant's solicitor submitted that the conviction was unsafe or unsatisfactory because Magistrate Lunney "appeared to struggle" with the so-called Proudman v Dayman defence of honest and reasonable belief as he said that he "must be satisfied on the balance of probabilities that [the appellant's] belief was a reasonable one."

35. The Crown Prosecutor submitted that, in relation to an appeal against a conviction based upon the ground that the conviction is unsafe or unsatisfactory, the question to be asked is whether, upon a consideration of the whole of the evidence, it was open for the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty of the offence.

36. I agree with the Crown Prosecutor as to the question to be asked. As the appellant's former legal representative conceded during the hearing before Magistrate Lunney that the RTA had sent the required notices to the appellant at his home address, the appellant's driver licence was validly suspended on 15 November 2010, until the outstanding fine and administration fee were paid, and, therefore, on 6 January 2011, the appellant was driving a motorcycle upon a public road when his driver licence had been suspended. This left the appellant's evidence that he did not know, as at 6 January 2011, that his driver licence had been suspended because he had not received the relevant infringement notice or the relevant driver licence suspension notice, and, because, on 4 January 2011, he had been stopped by New South Wales Police for a random breath test and licence check, after which he was told that he was "right to go".

37. As to the appellant's evidence, Magistrate Lunney said that:

"Firstly, I should say I accept his evidence. I have got no reason to disbelieve the defendant at all. I accept his evidence that he honestly believed that he was licensed at the time. I also accept that he had not received any mail notifying him of the infringement notice, nor of the suspension of his licence, as a result of non payment of the fine."

38. Without deciding whether the appellant's belief was a mistake of law or a mistake of fact, considering whether the appellant's belief was a reasonable one, the evidence before Magistrate Lunney was this:

(1) during September 2009 the appellant left his then home address as recorded in the register kept by the RTA, that being X Buggy Crescent, McKellar, to live at X Dumas Street, McKellar;

(2) the appellant did not notify the RTA of this change in his place of residence;

(3) on 31 July 2010 a motor vehicle owned or being driven by the appellant was captured by a camera in the course of a traffic offence;

(4) on a date during August 2010 an infringement notice was sent by the RTA to the appellant at his registered home address;

(5) on 20 September 2010 a reminder notice was sent by the RTA to the appellant at his registered home address;

(6) on 28 October 2010 a notice of suspension of driver licence was sent by the RTA to the appellant at his registered home address;

(7) on 18 November 2010 a notice of confirmation of suspension of driver licence was sent by the RTA to the appellant at his registered home address;

(8) on 14 December 2010 the appellant left Australia to visit Lebanon;

(9) on 4 January 2011 the appellant arrived in Sydney on his return from Lebanon and, when driving a motor vehicle from Sydney to Canberra, he was stopped for a random breath test and a licence check;

(10) on some date before 6 January 2011 the appellant left X Dumas Street, McKellar, to live at X Jean McNamara Street, McGregor;

(11) the appellant did not inform the RTA of this change in his place of residence;

(12) on 6 January 2011 the appellant was spoken to by Constable O'Sullivan and Constable Kinnane, he gave X Jean McNamara Street, McGregor, as his place of residence;

(13) on 11 January 2011 the appellant notified the RTA that his home address was X Jean McNamara Street, McGregor; and

(14) on a date during February 2011 the appellant left X Jean McNamara Street, McGregor, to live at a home in Oodgeroo Avenue, Franklin (I do not know whether the appellant notified the RTA of this change in his place of residence).

39. In Auburton v Western Australia [2006] WASCA 229; (2006) 167 A Crim R 1, the Court of Appeal of Western Australia considered the scope of the defence of honest and reasonable belief. McClure JA said:

"For there to be an operative mistake under section 24 an accused must have acted under an actual belief in the existence of a state of things, the subjective element, and, the accused belief must be reasonable, the mixed element. The focus in this case is on the mixed element. The mixed element is not wholly objective. Reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not, to my knowledge, been identified or exhaustibly enumerated. It covers matters over which an accused has no control such as age, maturity, gender, ethnicity as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive."

I accept that this judgment correctly states what must be considered.

40. The appellant gave evidence that he understood that he was under a responsibility to notify the RTA of his change in his home address. He said that his reason for not notifying the RTA of his change of address from X Buggy Crescent, McKellar, was that he "was building a home in Franklin and [he] was not going to move to it." However, as I have said, he left X Buggy Crescent, McKellar, for X Dumas Street, McKellar. Then he left X Dumas Street for X Jean McNamara Street, McGregor. Then he left X Jean McNamara Street for Oodgeroo Avenue, Franklin. I ask the rhetorical question, how did he expect the RTA to contact him?

41. The reasonableness of the appellant's belief as to the status of his driver licence must be considered in light of the regime that exists under the road transport legislation for the issue of driver licenses, provisional or otherwise, the registration of vehicles, the keeping of the registers and the services of notices issued to both holders of a driver licence and owners of a registered motor vehicle. In this appeal the reasonableness of the appellant's belief as to the status of his driver licence must be assessed in light of his obligation to provide up to date details to the RTA so as to permit it to send correspondence, particularly notices, to him by post to his registered home address.

42. In my view, the appellant's belief as to the status of his driver licence based upon his not having received the infringement notice or the notice of suspension of driver licence was not a reasonable one.

43. Also, in my view, the appellant's belief as to the status of his driver licence based on his being stopped by New South Wales Police on 4 January 2011 for a random breath test and a licence check is not a reasonable one. The evidence does not show that police used a computer in any police vehicle to check on the status of the appellant's driver licence. I suspect that all police did was to check that the appellant's face looked like the face on the appellant's driver licence and that the licence had not reached the expiry date. Being let go by police said nothing about the status of the appellant's driver licence.

44. Accordingly, I am satisfied beyond reasonable doubt that the appellant's belief as to the status of his driver licence, even if honestly held, was not a reasonable one. Also, I am satisfied that there is evidence upon which the tribunal of fact, in this case Magistrate Lunney, could have been satisfied beyond reasonable doubt that the appellant was guilty of the offence of driving a motor vehicle upon a public street, when his driver licence had been suspended.

45. The appellant's solicitor submitted that the sentence imposed upon the appellant by Magistrate Lunney was manifestly excessive and that Magistrate Lunney should have applied section 17 of the Crimes (Sentencing) Act and dismissed the charge without recording a conviction.

46. The Crown Prosecutor, after pointing out that error must be shown before the sentence might be considered, submitted that, in view of the seriousness of the offence, which is one for which the prescribed penalty is imprisonment for a maximum of six months, or a fine of a maximum of 50 penalty units, or both, a conviction was appropriate and that there was nothing in the appellant's age, character, antecedents, health, mental condition or the circumstances in which the offence was committed which cried out for the application of section 17 of the Crimes (Sentencing) Act.

47. I agree with the Crown Prosecutor. I consider that Magistrate Lunney was aware of the factors which he needed to consider, indeed, the Crown Prosecutor and the appellant's then legal representative referred to the relevant factors in their submissions as to sentence, and that he considered those factors, although I would have liked him to have stated the factors that he took into account in his remarks on sentence. I do not see any error in what Magistrate Lunney did. Frankly, I agree that dismissal of the charge pursuant to section 17 of the Crimes (Sentencing) Act was neither warranted, nor justified.

(1) I refuse to grant leave to the appellant to adduce the further evidence.

(3) I confirm Magistrate Lunney's conviction and sentence, that being a fine of $500.

(4) I disqualify the appellant from holding or obtaining a driver's licence for 12 months from 1 July 2013 to and including 30 June 2014.

(5) I allow 14 days from today for the payment of the fine.

I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the appellant: Office of the Director of Public Prosecutions

Road Transport Act 1974(WA)

Transport (General) Act 1999

Transport (Driver Licensing) Regulation 2000

Transport (Vehicle Registration) Act 1999

Transport (Third Party Insurance) Act 2008

Transport (Driver Licensing) Act 1999

(Sentencing) Act 2005

Road Transport Act 1974(WA)

Transport (General) Act 1999

Transport (Driver Licensing) Regulation 2000

Transport (Vehicle Registration) Act 1999

Transport (Third Party Insurance) Act 2008

Transport (Driver Licensing) Act 1999

(Sentencing) Act 2005

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