Roads and Traffic Authority of New South Wales v Tamara O'Sullivan and others

Judgment 1These proceedings were brought by the Roads and Traffic Authority of New South Wales ('the RTA") against three defendants, Tamara O'Sullivan (the first defendant), Robert Young a police officer (the second defendant) and the Local Court of New South Wales (the third defendant). 2An appearance was filed on behalf of the first defendant. Submitting appearances were filed on behalf of the second defendant and the third defendant. 3At the hearing the RTA was represented by counsel. A solicitor from the Crown Solicitor's Office appeared for the second and third defendants and confirmed that those defendants were submitting to the making of the orders sought by the RTA. There was no appearance by or on behalf of the first defendant. I proceeded to hear the matter ex parte. 4In the summons the RTA sought orders setting aside parts of orders made by a magistrate in the Local Court on 1 April 2011. The summons was supported by two affidavits by a solicitor in the employ of the solicitors for the RTA. 5The relevant facts may be briefly stated as follows. 6At about 2 o'clock in the morning of 19 February 2011 the first defendant was driving a vehicle on a freeway. The first defendant was detected speeding by the second defendant and her vehicle was stopped. The first defendant had been driving at a speed of more than 45 kilometres per hour above the speed limit. A breath test was administered to the first defendant. The second defendant gave the first defendant a notice of suspension and demand for surrender of driver licence. 7Two court attendance notices were created by the second defendant and served on the first defendant. In one court attendance notice the first defendant was charged with driving a motor vehicle while there was present in her breath or blood a high range prescribed concentration of alcohol ("the PCA offence"). In the other court attendance notice she was charged with driving a vehicle on a road at a speed over the speed limit ("the speeding offence"). 8On 1 April 2011 the two court attendance notices were listed before a Local Court magistrate. The first defendant pleaded guilty to both charges and she was convicted of both offences. For the PCA offence the magistrate fined the first defendant and disqualified her from driving for a period of 12 months from 19 February 2011, expiring on 18 February 2012. For the speeding offence the magistrate fined the first defendant and disqualified her from driving for a period of six months from 19 February 2012, that is for a period cumulative on the period of disqualification for the PCA offence. The magistrate explained in a brief judgment that separate periods of disqualification were being deliberately imposed so as to reflect the separate offences. 9The RTA's legal counsel formed the view that the magistrate had not had power to backdate the commencement of the disqualification for the PCA offence to 19 February 2011. It is clear that counsel was of the view that the disqualification for each offence could be ordered to commence only from the date of the first defendant's conviction, that is 1 April 2011. 10Counsel sent a letter to the police prosecutors at the relevant police station, requesting the two matters be re-listed so that the sentences could be corrected. The head prosecutor replied to the effect that, after receiving advice, he did not propose to have the matters re-listed. 11Counsel then wrote a letter to the Local Court requesting that the matters be referred to the Court (for correction of sentence) pursuant to s 43 of the Crimes (Sentencing Procedure) Act . The registrar of the Local Court replied saying that the magistrate, having reviewed the papers, had concluded that there had not been any sentencing error. It was stated in the registrar's letter that the magistrate had reached that conclusion by having regard to s 205 of the Road Transport (General) Act . 12The RTA then instituted these proceedings, claiming that the Local Court magistrate had erred by purporting to backdate the commencement of the period of disqualification for the PCA offence and to post date the commencement of the period of disqualification for the speeding offence. The RTA sought orders setting aside the relevant parts of the magistrate's orders and remitting the matters to the Local Court for determination by law. 13An initial question is whether the RTA has standing to bring these proceedings. I am satisfied that the RTA has standing. The RTA is a body responsible for the issue of drivers licences in New South Wales under the Road Transport (Driver Licencing) Act 1998 and for maintaining the drivers licence register under the Road Transport (Driver Licencing) Regulation . That the RTA has standing to bring the proceedings is strongly supported by the judgments of members of the Court of Appeal in Roads and Traffic Authority of New South Wales v Higginson [2011] NSWCA 151 and especially per Basten JA at [51] to [63] and per Young JA at [85] and [86]. Disqualification for the speeding offence 14The New South Wales Road Rules 2008 include r 10-2 dealing with penalties and disqualifications for speeding offences. Parts of r 10-2 are as follows:- "(3) Exceeding speed limit by more than 45 kilometres per hour A driver who commits a speeding offence by exceeding a speed limit by more than 45 kilometres per hour is: (a) liable to a maximum penalty of 30 penalty units (in the case of a heavy motor vehicle or coach) or 20 penalty units (in any other case), and (b) disqualified from holding a driver licence by a conviction for the offence (and without any specific order) for 6 months from holding a driver licence or, if the court on the conviction thinks fit to order a different period of disqualification determined in accordance with subrule (4), is disqualified for the period specified in the order. (4) Court-ordered disqualification periods under subrule (3) In determining a different period of disqualification under subrule (3) for a driver who commits a speeding offence, the court may specify a period that is: (a) more than 6 months, or (b) less than 6 months, but only if: (i) the person's driver licence or authority to drive in New South Wales has been suspended for a period (the suspension period) under section 205 or 206 of the Road Transport (General) Act 2005 for that offence, and (ii) the specified disqualification period when added to the suspension period results in a total period of no less than 6 months. (9) Disqualification period commences on date of conviction A period of disqualification imposed by or under this rule commences on the date of conviction for the offence to which it relates." 15It is clear that the automatic period of disqualification provided for by r 10-2(3)(b) results from the conviction and must commence on the date of the conviction. 16If a court thinks fit to order a different period of disqualification, then the court may order a different period of disqualification, subject to the constraints in r 10-2(4), but the court is not given any power to order that the disqualification commence from a date other than the date of the conviction. 17Rule 10-2(9) expressly provides that a period of disqualification imposed by or under the rule, which must include a period of disqualification ordered under r 10-2(3)(b), commences on the date of the conviction for the offence to which it relates. 18Accordingly, as submitted by counsel for the RTA, the magistrate's order, insofar as it ordered that the period of disqualification for the speeding offence commence from a date other than the date of the conviction, was made without power and involved jurisdictional error. 19However, I consider that the entire order disqualifying the first defendant for the speeding offence was made without power and involved jurisdictional error. 20Under r 10-2(3)(b) the automatic period of disqualification is six months. A court is given power to make a disqualification order but only if it thinks fit to order a different period of disqualification from the automatic period of disqualification. However, the period of disqualification ordered by the magistrate was six months, which was not a different period from the automatic period of disqualification. The disqualification for the PCA offence 21The offence of driving with a high range prescribed concentration of alcohol is created by s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999. 22Division 1 of Pt 5.4 of the Road Transport (General) Act 2005 deals with licence disqualification and s 188 in Division 1 deals with disqualification for certain major offences. 23Section 188 provides in part as follows:- " 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 (1A), (1), (2) (a) or (b), (3) (a) or (b), (4) (a) or (b) or section 15 (4) or 16 of the Road Transport (Safety and Traffic Management) Act 1999, ............. ordered disqualification means disqualification under this section from holding a driver licence that is ordered by a court." 24Section 188(2) is headed "Disqualification if no previous major offence" and applied to the first defendant. The first defendant did not fall within any of paras (a), (b) or (c) of s 188(2) and, accordingly, fell within para (d), which provides:- " (d) where the conviction is for any other offence: (i) the person is automatically disqualified for a period of 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." 25Division 4 of Pt 5.4 of the Road Transport (General) Act provides for the suspension of licences. Section 205 in Div 4 provides in part as follows:- " (1) If a person is charged by a police officer with: ........... (b) an offence under section 9 (3) or (4), 15 (4), 16,22 (2),40 or 41 (2) of the Road Transport (Safety and Traffic Management) Act 1999, the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice. ......... (3) Any driver licence held by a person to whom a suspension notice is given is suspended in accordance with the terms of the notice. .......... (6) If, on the determination of the charge by a court, the person is disqualified from holding or obtaining a licence for a specified time: (a) the court must take into account the period of suspension under this section when deciding whether to make any order under section 188, and (b) to the extent (if any) that the court so orders, a suspension under this section may be regarded as satisfying all or part of any mandatory minimum period of disqualification required by that section to be imposed when the charge is proved." 26The suspension notice which was given to the first defendant by the second defendant on 19 February 2011 was given pursuant to s 205. 27An automatic disqualification for a period of three years pursuant to s 188(2)(d)(i), as a result of the conviction of a person, must commence from the date of the conviction. Under s 188(2)(d)(ii) a court is given power to order a shorter or longer period of disqualification but is not given any power to order that a period of disqualification commence from a different date from the date of the conviction. 28I do not consider that s 205(6) of the Road Transport (General) Act confers any power on a magistrate to make an order under s 188(2)(d)(ii) commence from a date other than the date of the relevant conviction. 29Under para (a) of s 205(6) a court is required to take into account a period of suspension when deciding whether to make an order under s 188. Under para (b) of s 205(6) a court may order that a suspension be regarded as satisfying all or part of a mandatory minimum period of disqualification. 30In the present case the mandatory minimum period of disqualification was 12 months. The magistrate could have utilised para (b) of s 205(6) so as to impose a period of disqualification which was less than 12 months (but not less by any more than the period of the suspension) but was not empowered by para (b) to make the period of disqualification commence from a date different from the date of the conviction. 31A similar issue about whether a disqualification order under s 188(2)(d)(ii) can commence from any date other than the date of conviction arose in Hei Hei v R (2009) 52 MVR 473, [2009] NSWCCA 87. 32In Hei Hei the offender pleaded guilty to a charge of aggravated dangerous driving causing death and was sentenced to a term of imprisonment of five years with a non-parole period of three years. The offender's conviction was a conviction for a major offence within s 188 of the Road Transport (General) Act . The offender had no previous major offence. The sentencing judge made an order disqualifying the offender from holding a licence for a period of three years but made the disqualification order commence from the date of the expiration of the non-parole period of the prisoner's sentence. 33On an application for leave to appeal against the sentence of imprisonment and the disqualification order the offender submitted that an order made under s 188(2)(d)(ii) had to commence from the date of the conviction. 34The principal judgment in the Court of Criminal Appeal in Hei Hei was given by Rothman J, with whom the other members of the Court agreed. 35In para [38] of his judgment Rothman J commented that, in the case of a driver who is sentenced to imprisonment, it would defeat the purpose of the Act and render otiose an order for disqualification, if the period of the disqualification was wholly concurrent with the period of imprisonment, during which the disqualified driver would not usually be free to drive. 36In para [39] of his judgment Rothman J said that the purpose of the Act would best be served by adopting a construction of the Act which would give a judicial officer the discretion and flexibility to set appropriate commencement and conclusion dates for a period of disqualification. 37However, Rothman J went on to say at paras [45] and [46] of his judgment:- " [45] The difficulty with adopting a construction that implemented the above stated purpose and gave the flexibility for which the Crown contends (and which purpose ought, to the extent possible, be given effect) is that s 188(2)(d) is a sub-paragraph immediately following on a provision relating to automatic disqualification. Section 188(2)(d)(i) provides that the offender is "automatically disqualified for a period of 3 years from holding a driver licence". It is axiomatic that, absent an order varying the period, the automatic disqualification would apply on and from the date of conviction. The jurisdiction and power conferred on the Court by the provisions of the next sub-paragraph, s 188(2)(d)(ii), is a capacity to order "a shorter period ... or longer period of disqualification". Further, it would seem that, once an order for disqualification issues from a court, the period of disqualification is no longer "automatic". [46] The context of s 188(2)(d)(ii), following immediately upon the terms of subpara (i) seems to indicate that the "period" is a period that commences on the date of conviction. It is, for the reasons that follow, unnecessary to determine that issue finally." 38His Honour proceeded to hold, on other grounds, that the disqualification order made by the primary judge should be quashed. 39Like Rothman J, I would accept that an interpretation of the power conferred by s 188(2)(d)(ii), that it does not include power to make a period of disqualification commence from a date other than the date of the offender's conviction for the major offence, can produce results which would frustrate the evident purpose of the Act. 40However, as Rothman J tended to suggest in paras [45] and [46] of his judgment in Hei Hei , I consider that the terms and the context of s 188(2)(d)(ii) require an interpretation of the provision such that a court ordered period of disqualification can commence only from the date of the conviction of the driver for the major offence. Orders 41At the hearing counsel for the RTA asked the Court to make the orders sought in the summons. The orders sought in the summons were limited to orders setting aside only so much of the disqualification orders as related as to the date of the commencement of the orders. 42I am conscious that the first defendant, having been served with the summons and having entered an appearance, did not appear at the hearing and may have decided not to appear because of the limited nature of the relief sought in the summons. 43However, for reasons I have already given, I consider that the entire order disqualifying the first defendant for the speeding offence was made without power. Furthermore, the magistrate's belief that she had power to make the disqualification orders commence from dates other than the date of the conviction was integral to the making of the cumulative disqualification orders. In the circumstances, I consider that I should set aside in full each of the two disqualification orders. 44I make the following orders:- 1.An order setting aside the order made by the Local Court of New South Wales sitting at Penrith on 1 April 2011 disqualifying Tamara O'Sullivan from holding a driver licence from 19 February 2011. 2.An order setting aside the order made by the Local Court of New South Wales sitting at Penrith on 1 April 2011 disqualifying Tamara O'Sullivan from holding a driver licence from 19 February 2012. 3.An order that the matters relating to the disqualification of Tamara O'Sullivan from holding a driver licence be remitted to the third defendant for determination according to law. No order for costs was sought at the hearing.