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R v El Kerhani [2021] NSWLC 14 | Case summary | Zoe

NSWNSWLC

R v El Kerhani

[2021] NSWLC 14

Local Court of NSW|2021-12-01|Before: Price J

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At a glance

Source facts

Court

Local Court of NSW

Decision date

2021-12-01

Before

Price J

Source

Original judgment source is linked above.

Judgment (3 paragraphs)

[1]

Judgment

The accused is charged with twice driving a vehicle with illicit drugs in blood. The first charge relates to driving on 13 July 2021 and was first before the court on 1 December 2021 when there was a plea of guilty. The second charge relates to driving on 29 July 2021 and was first before the court on 18 November 2021 when there was a plea of guilty.
An earlier offence against the same provision was the subject of a conditional release order without conviction, which concluded on 15 September 2020. He has no other driving matters on his criminal record. These two offences however did breach a community correction order imposed for six months from 16 June 2021 for offensive conduct. Breach of that order aggravates these offences and is a relevant factor on sentencing, however I have decided not to call up the community correction order because it is different offending, and because I also took the existence of that community correction order into account as an aggravating factor when sentencing some other unrelated matters.
Both driving offences were charged as a first offence. The prosecutor has submitted that should I convict him of the first of these offences, they would seek to amend the court attendance notice to charge the second in time offence as a second or subsequent offence, thereby exposing the accused to the increased penalty - the maximum fine increases from $2200 to $3300, and the periods of disqualification increase from automatic 6 months to 12 months, and the minimum disqualification on conviction from 3 months to 6 months
The question to be determined is whether the accused is liable to a penalty and disqualification as a first offence, or as a second or subsequent offence.

[2]

Supreme Court Authority on previous legislation

In RTA v Fletcher [2008] NSWSC 936, Price J dealt with s 96(2) of the former Road Transport (General) Act 2005 (NSW) which directed attention to the "occasion" on which the second offence occurred. Section 96 relevantly provided: (2) Separate occasion of second or subsequent offence A person is found guilty of a second or subsequent offence if and only if the occasion in respect of which the second or subsequent offence occurred was different from the occasion in respect of which the first offence from which the person was found guilty occurred. (3) Order in which offences actually committed is immaterial It is immaterial in which order the offences were committed.
His Honour referred to a principle in Coke's Institute of Laws to the effect that statutory provisions imposing an increased penalty by virtue of a second or subsequent offence, should be understood to operate only in circumstances where the alleged repeat offender has previously been convicted of the relevant offence
His Honour found the Coke principle to have been overturned by the legislation. His Honour then dealt with the offence first occurring as a first offence, and the balance before him as second offences. It was not part of his reasoning that the conviction by him in the first sequence was a prior conviction leading to an increased penalty in the subsequent sequences. The legislation meant that the question was whether the occasion of the subsequent offending was later.
In DPP v Partridge [2009] NSWCCA 75 the Court of Appeal interpreted s 25A of the former Road Transport (Driver Licensing) Act 1998 (NSW). It dealt with different legislation.
Subsections 1, 6, 7 and 10 provided as follows: (1) A person who is disqualified by or under any Act from holding or obtaining a driver licence must not: (a) drive a motor vehicle on a road or road related area during the period of disqualification… (6) An offence under this section is a second or subsequent offence for the purposes of this section if: (a) it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1), (2) or (3) (a) within the period of 5 years immediately before the person is convicted of the offence… (7) If a person is convicted by a court of an offence under subsection (1), (2) or (3) (a), the person: (a) is disqualified by the conviction (and without any specific order) for the relevant disqualification period … (10) In this section, the relevant disqualification period is: (a) in the case of a first offence under subsection (1), (2) or (3) (a) - 12 months, or (b) in the case of a second or subsequent offence under subsection (1), (2) or (3) (a) - 2 years. [underlining added]
It interpreted the section having regard to the existence of conflicting lower court authorities. It drew a distinction between the penalty for an offence against the section (provided for in subsections 25A(1) to (3)) and the disqualification which the offence attracted (provided for in Subsection 25A(7)). It did so by a process of statutory construction so as to "harmonise" every word in the section. An offence was held to be only a second offence for disqualification purposes if there had been a prior conviction.
Partridge at [42] also refers to the Coke principle mentioned in Fletcher at [59]. However ultimately it is a question of statutory construction.
In Bimson, RMS v Damorange Pty Ltd [2014] NSWSC 734 Beech-Jones J at [75] followed Fletcher, finding in legislation equivalent to that in Fletcher, that the second offence being sentenced is a second offence, because "occasion" meant the occasion of the offending, not the occasion of the prosecution.
The legislature has since changed. The new provision is s 9 of the Road Transport Act 2013 (NSW). It provides a definition of "second or subsequent offence" for all purposes. It provides as follows: (1) Application of section This section applies to the determination of whether an offence against a provision of this Act or the statutory rules is: (a) a first offence, or (b) a second or subsequent offence. Note. The Act and the statutory rules provide in some cases for different penalties or disqualification periods, or for forfeitures or the making of mandatory interlock orders, in connection with an offence depending on whether a particular offence is a first offence or a second or subsequent offence. (2) Second or subsequent offence If a person is convicted of an offence (the "new offence") against a provision of this Act or the statutory rules, the new offence is a "second or subsequent offence" only if: (a) the person, within the applicable re-offending period (if any) for the offence concerned, was convicted of another offence (the "previous offence") that was: (i) an offence against the same provision, or (ii) an offence against a former corresponding provision, or (iii) an equivalent offence to the new offence, and (b) the occasion when the new offence occurred was different from the occasion when the previous offence occurred… (7) In determining whether an offence is a second or subsequent offence, the following matters are immaterial: (a) the order in which the offences concerned are committed, (b) whether or not the offences concerned were subject to the same penalties. (8) First offence An offence against a provision of this Act or the statutory rules is a "first offence" if it is not a second or subsequent offence. (9) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was convicted, the court may only impose a penalty for the offence as if it were a first offence. [underlining added]
I have omitted subsections 3 to 5 which define "applicable re-offending period" and "equivalent offence".
The new legislation focuses on conviction, clarifying that the order of the occasions of offending is immaterial (ss 7). The critical question is whether at the time of conviction relating to the "new offence" the person within the applicable re-offending period "was", i.e. had been in the past, "convicted" of another relevant (first) offence (ss 2(a)), which first offence occurred on a different occasion (ss 2(b)).
This new definition was inserted after the above cases.
Thus, in cases where there has been a prior (first) conviction, the legislature has displaced the Coke principle and intends that the second offence to be sentenced is to be treated as a second offence regardless of the occasion when that offence occurred, i.e. whether or not it was before the date of the occurrence of the other offence, or whether or not it was before the date of conviction for the other offence. This leads to a change in the penalty and disqualification regime depending on when Police choose to charge matters and when they become the subject of conviction, including any delays arising from adjournments, different time frames in different court lists, whether one is delayed by a different plea, whether one is the subject of an ex parte conviction etc. That is the necessary consequence of the wording of the provisions.
In this case the two matters are to be sentenced on the same day.
In R v Ahmed [2008] NSWDC 380, Bennett SC DCJ considered the authorities as to when a conviction has occurred. His Honour referred to authority (i) that judicial acts are taken to date from the earliest minute of the day on which they are done (Edwards v the Queen (1854) 9 Ex. 628), and (ii) where convictions are both entered on the same day in the course of contemporaneous proceedings neither one could be said to precede the other (R v Miller [1986] 2 Qd R 518). His Honour held two convictions in the same proceedings should be treated as having occurred simultaneously. As it is a decision of another inferior court that is not clearly wrong, I will follow it (cf Valentine v Eid (1992) 27 NSWLR 615). There is nothing said inconsistent with that case in the 3 Supreme Court cases.
The convictions when I pronounce them, will be treated as occurring at the same time.
For those reasons I will treat both offences as first offences.
The position would be different if the offences had been sentenced on different days, so the second conviction would be on a later date than the first conviction, or if there had been a conviction, for example on non-appearance, at an earlier stage of one of them. Because of the Ahmed principle, both convictions are deemed here to be on the same day at the same time. So I will not grant leave to amend the CAN of the second charge to be sentenced to treat it as a second offence.
Bearing in mind totality, and the pleas of guilty, and that the offending has occurred on two occasions, I will not reduce the automatic disqualification period. Both offences will be the subject of a $500 fine, and a disqualification for the automatic 6 month period, running concurrently from today.