File No : PM 51 of 2005, BR 1097 of 2005

Road Traffic Act 1974 (WA) - Multiple infringements for driving while licence disqualified - Whether further periods of disqualification cumulative on each other - Correction of sentence - Whether compliant with Sentencing Act and Sentencing Regulations

Criminal Appeals Act 2004 (WA), s 14

Road Traffic Act 1974 (WA), s 49, s 60

Sentencing Act 1995 (WA), s 14, s 37, s 105, s 148

Sentencing Regulations, reg 5

Cooke v Ginby (1994) 21 MVR 351

Sevelj v Roffey [2002] WASCA 20

Whitby v Williams (1987) 5 MVR 268

Cotton v Walker (1992) 11 WAR 55

Hart v Rankin [1979] WAR 144

Logan v Weary [1984] WAR 41

Sparks v Bellotti [1981] WAR 65

Stojkovski v Fitzgerald [1989] WAR 328

Traegar v de Albuquerque (1997) 18 WAR 432

Walsh v Giumelli [1975] WAR 114

1 LE MIERE J: On 23 June 2005 the Manjimup Magistrates Court ordered that the appellant be disqualified from holding a motor vehicle driver's licence for six months pursuant to s 60 of the Road Traffic Act 1974 (WA) ("RTA"). The appellant, who was then aged 19 years, had committed an offence by driving at a speed of 130 kilometres per hour in an 80 kilometre per hour zone at Manjimup on 19 May 2005.

2 On 28 July 2005 the appellant committed an offence against s 49 of the Act by driving a motor vehicle at Pemberton whilst he was disqualified from holding a motor driver's licence.

3 On 5 August 2005 the appellant committed an offence against s 49 of the Act by driving a vehicle at Greenbushes whilst he was disqualified from holding a motor driver's licence.

4 On 18 August 2005 the appellant was granted an extraordinary driver's licence for a period to 23 December 2005 to drive a vehicle as an apprentice mechanical fitter to and from his workplaces and to the Bunbury TAFE College.

5 On 30 August 2005 the appellant appeared before Justices of the Peace at the Magistrates Court in Pemberton on charge PM 51/05 in relation to the offence committed on 28 July 2005 of driving at Pemberton whilst disqualified from holding a motor driver's licence. The Justices fined the appellant $400 and ordered that his extraordinary driver's licence be cancelled. The Justices did not order that the appellant be disqualified from holding a motor vehicle driver's licence.

6 On 7 September 2005 Senior Constable Louden made an application under s 37 of the Sentencing Act 1995 (WA) that the order imposing the sentence made by the Justices in Pemberton on 30 August 2005 be recalled and the appellant be re-sentenced on the ground that the sentence imposed by the Court was not in accordance with the RTA because they had not imposed the minimum period of 9 months disqualification of the appellant's motor vehicle driver's licence required by s 49 of the RTA. The application was accepted by the Deputy Registrar of the Magistrates Court at Pemberton and forwarded to the Magistrates Court in Bridgetown as the hearing of the application was to be before a Magistrate at that Court.

7 After Senior Constable Louden had lodged the application at the Pemberton Magistrates Court he approached the appellant in the street in Pemberton and explained that he had made an application for correction of sentence in relation to charge no PM 51/05 in order to correct the mistake of the Justices of the Peace in failing to impose the minimum period of disqualification from holding a motor vehicle driver's licence required by the RTA. Senior Constable Louden informed the appellant that the application would be heard by a Magistrate at the Magistrates Court in Bridgetown on 15 September 2005 because the appellant was already appearing at that Court on that date on charge no BR 140/05 in relation to the offence committed by the appellant by driving a vehicle at Greenbushes on 5 August 2005. Senior Constable Louden did not serve the appellant with a copy of the application because it had already been forwarded to the Bridgetown Magistrates Court and he was aware that the appellant no longer resided at the address listed for him on police records.

8 On 15 September 2005 the appellant appeared before Magistrate Heaney at the Bridgetown Magistrates Court on the hearing of the application under s 37 of the Sentencing Act and charge BR 140/05 relating to the offence committed by the appellant on 5 August 2005 at Greenbushes.

9 Mr Heaney exercised the powers conferred on him by s 37 of the Sentencing Act, recalled the order made by the Pemberton Justices on 30 August 2005 and imposed a fresh sentence. His Honour imposed a fine of $400 and ordered that the appellant be disqualified from holding a motor vehicle driver's licence for nine months. The Magistrate ordered that the disqualification was backdated to commence on 30 August 2005.

10 In relation to the offence committed at Greenbushes on 5 August 2005 the appellant was fined $600 and disqualified from holding a motor vehicle driver's licence for nine months. The disqualification was made cumulative upon the disqualification for the offence committed at Pemberton on 28 July 2005 (charge PM 51/05).

11 The appellant has brought two appeals. In SJA 1097 of 2005 the appellant appeals against the order imposed upon him in PM 51/05 (the Pemberton offence) by leave on the following grounds:

1. In making the licence suspension cumulative on that imposed on BR 140/05 (the Greenbushes matter) the Magistrate:

(a) given the provisions of Sentencing Act, s 105 erred in not giving any reasons, or giving insufficient reasons, as to making the two suspensions cumulative with each other;

(b) in any event erred in the exercise of a discretion as to whether or not to make the two suspensions cumulative:-

(i) by not identifying any or any sufficient reasons for doing so;

(ii) by not taking into account at all or sufficiently the benign and technical nature of the offence in PM 51/05, the appellant's youth and lack of knowledge of the offence in PM 51/05 and the appellant's co-operation and early pleas of guilty.

2. The Magistrate erred in dealing with this matter at all in Bridgetown on 15 September, 2005 because:

(a) the s 37 application was not lodged with the Magistrates Court at Pemberton; contrary to reg 5(2) of the Sentencing Act Regulations;

(b) he never satisfied himself that the appellant had been served with a summons; contrary to reg 5(5) of the Sentencing Act Regulations. The appellant was in fact not served with any summons.

3. Further and in any event the Magistrate had no power to backdate the disqualification; alternatively if he had a discretion to do so then he erred in the exercise of that discretion:-

(i) by not identifying any or any sufficient reasons for doing so;

(ii) by not taking into account at all or sufficiently the benign and technical nature of the offence in PM 51/05, the appellant's youth and lack of knowledge of the offence in PM 51/05 and the appellant's co-operation and early pleas of guilty.

12 In SJA 1098 of 2005 the appellant appeals against the order imposed in matter BR 140/05 (driving at Greenbushes) on the following grounds:

1. In making the licence suspension cumulative on that imposed on PM 51/05 the Magistrate:

(a) given the provisions of Sentencing Act, s 105 erred in not giving any reasons, or giving insufficient reasons, as to making the two suspensions cumulative with each other;

(b) in any event erred in the exercise of a discretion as to whether or not to make the two suspensions cumulative:

(i) by not identifying any or any insufficient reasons for doing so;

(ii) by not taking into account at all or sufficiently the benign and technical nature of the offence in PM 51/05, the appellant's youth and lack of knowledge of the offence in PM 51/05 and the appellant's co-operation and early pleas of guilty.

13 The appellant accepts that the two disqualifications imposed on 15 September 2005 must be cumulative on the disqualification imposed on 23 June 2005. That is because s 49(3c) of the RTA provides that a period of disqualification ordered under s (3a) or s (3b), which those offences were, is cumulative upon any other period of disqualification to which the person may then be subject. The primary issue is whether the Magistrate erred in making the disqualifications imposed on 15 September 2005 cumulative with each other. I will first consider the grounds of appeal in SJA 1097 of 2005 against the sentence imposed on charge PM 51/05 (the Pemberton offence).

14 Ground 1 is that the Magistrate erred in the exercise of his discretion in making the two suspensions cumulative.

15 Subsection 49(3a) of the RTA provides that a court convicting a person of an offence committed in the circumstances mentioned in subpar 49(2)(a)(iii) must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months. Subsection 49(3c) provides that a period of disqualification ordered under s 49(3a) is cumulative upon any other period of disqualification to which the person may then be subject.

16 The appellant relies upon s 105 of the Sentencing Act. The appellant submits that the Magistrate erred in the exercise of a discretion as to whether to make the two suspensions cumulative and in not giving adequate reasons for making them cumulative with each other. The Sentencing Act, s 105(1), provides that a court sentencing an offender for a motor vehicle offence may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's licence. Subsection 105(2) provides relevantly that the term is concurrent with any other term for which the offender's driver's licence is or may be disqualified unless the court orders that the term is to be cumulative on those terms. However, I respectfully agree with McLure J in Sevelj v Roffey [2002] WASCA 20 where her Honour held at [22] - [23] that the Sentencing Act, s 105(2), does not apply to s 49(3c) of the RTA. The Sentencing Act, s 105(4), provides that s 105 does not affect the right or duty of a court to disqualify a person from holding or obtaining a driver's licence under the RTA. The RTA, s 49(3a) and s 49(3c) confer no discretion on the court. Subsection 49(3a) provides that the court must, in the relevant circumstances, order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months. Subsection 49(3c) sets out the consequence of the court ordering that a person be disqualified from holding or obtaining a driver's licence under s 49(3a). There is no question of the court exercising any discretion.

17 The RTA, s 49(3c) requires that a period of disqualification ordered under s (3a) is cumulative upon any other period of disqualification to which the person may then be subject or upon any period for which the operation of the person's driver's licence may currently be suspended. The crucial issue is whether the words "may then be subject" refer to the time at which the court orders that the person be disqualified under s 49(3a) or to the time at which the offence was committed in respect of which the court orders that the person be disqualified.

18 In Whitby v Williams (1987) 5 MVR 268 Wallace J appears to have considered that the words "to which the person may then be subject" in s 49(3) of the RTA, as it then was, referred to the events which constituted the offence rather than the time at which the court made the order that the person be disqualified from holding or obtaining a driver's licence.

19 In Cooke v Ginby (1994) 21 MVR 351 the appellant was sentenced by a Magistrate in October 1994 in respect of two offences of driving whilst disqualified from holding or obtaining a driver's licence committed in July and August 1994 respectively. At the time of sentencing the appellant was already serving a period of disqualification in respect of an offence committed in May 1994. On appeal Walsh J said at 356:

"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."

20 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. Walsh J focussed on whether the period of disqualification was "currently being served" at the time the subsequent period of disqualification was imposed.

21 The RTA, s 49(3) refers to "a first offence" and "a subsequent offence". In commenting on s 49(3) of the RTA, the author of Criminal Law Western Australia notes that as with all driving offences where increased penalties apply for subsequent convictions, attention for sentencing purposes is focussed on the status of the driver at the time of committing the offence. However, the RTA, s 49(3c), does not refer to a first offence or subsequent offences. Some sections of the Act, for example, s 63, provide a system of graduated penalties based upon sequential convictions. However, that is not the policy of s 49(3a) or s 49(3c). Subsection 49(3a) provides in effect that a person convicted of driving whilst having been disqualified from holding a licence shall be disqualified from holding a licence for not less than 9 months regardless of whether it is a first, second or subsequent offence. Subsection 49(3c) provides that a period of disqualification ordered under s (3a) is cumulative upon any other period of disqualification to which a person may then be subject. The policy is to ensure that a person is disqualified from holding a driver's licence for additional periods of 9 months for each offence of driving whilst disqualified. That is, the policy is that all periods of disqualification in those circumstances should be cumulative upon each other.

22 In my view a fair and proper reading of s 49(3c) does not permit the words "may then be subject" to be construed to refer to the time at which the offence was committed. The words "may then be subject" refer to the time at which the period of disqualification is ordered under s 49(3a).

23 Whichever of the charges was dealt with first on 15 September 2005, the appellant was already subject to a period of disqualification that was imposed on 23 June 2005 and therefore the period of disqualification ordered with respect to the first charge dealt with was required to be made cumulative. Indeed, that is the effect of s 49(3c) even if the Magistrate had not expressly stated that the period of disqualification was cumulative. Upon dealing with the second of the charges, the appellant was then subject to the period of disqualification imposed on the first charge as well as that imposed on 23 June 2005. The court was required by s 49(3c) to order that the period of disqualification imposed be cumulative upon the two other periods of disqualification to which the appellant was then subject.

24 It may be different where the court imposes two periods of disqualification in respect of two offences where the sentences are imposed at the same time. That appears to have been the case in Cooke v Ginby. However, that is not this case. The periods of disqualification were not imposed at the same time. The second was imposed after the first, notwithstanding it was imposed immediately after the first matter had been dealt with. After the first period of disqualification had been imposed it took effect. When the Magistrate came to make the second order the first order had already taken effect and the appellant was then subject to the period of disqualification imposed by the first order.

26 This ground is that the Magistrate erred in dealing with the correction of sentence application on 15 September 2005 for two reasons. The first is that the s 37 application was not lodged with the Magistrates Court at Pemberton, contrary to reg 5(2) of the Sentencing Regulations 1996 (WA). The second is that the Magistrate did not satisfy himself that the appellant had been served with a summons contrary to reg 5(5) and that the appellant was in fact not served with any summons.

27 I am satisfied by the evidence of Senior Constable Louden and Senior Constable Davis that the s 37 application was lodged with the Magistrates Court at Pemberton, that is the Court that imposed the sentence concerned. That disposes of the argument that the application was not lodged in accordance with reg 5(2).

28 Regulation 5(5) provides that if satisfied that all parties concerned have been served with a summons issued under the regulation, the court may, subject to s 14 of the Act, exercise the powers in s 37(1) of the Act. The respondent submits that the requirement of that regulation cannot limit the provision of the Act under which those regulations are made, which gives power to a court to recall an order and to impose a sentence so long as the court has given all parties the opportunity to be heard as required by s 37 of the Sentencing Act. The Sentencing Act, s 37(2) provides that before the court may exercise the powers in s 37(1) to recall an order and impose a fresh sentence the court must give all parties the opportunity to be heard.

29 The appellant does not complain that he was not given an opportunity to be heard. The complaint is only that the appellant was not served with a summons as required by reg 5.

30 The power to recall an order and impose a fresh sentence conferred on a court by the Sentencing Act, s 37(1) is not conditioned upon the service of a summons as prescribed by the Regulations. The Sentencing Act, s 148 empowers the Governor to make regulations prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the Act. The regulation-making power does not extend to making regulations that limit the power conferred on a court by s 37(1) to recall an order. The exercise of the power is conditioned by the requirement that the defendant has been given an opportunity to be heard. In this case the appellant was given notice of the application by Senior Constable Louden. The appellant was in court and had an opportunity to make any submissions he wished to put.

32 Ground 3 is that the Magistrate had no power to backdate the disqualification.

33 The respondent concedes that there is no express power in the Sentencing Act or in the RTA allowing a Magistrate to backdate an order disqualifying a person from holding a driver's licence.

34 The Sentencing Act, s 37, provides for the recall of the order imposing a sentence and the imposition of a sentence that is in accordance with the law. The respondent submits that the section is ambiguous as to whether the imposition of a sentence that is in accordance with the law is to be done by way of correcting the original sentence, or the imposition of a new sentence as at the time the application for correction of sentence is dealt with. The respondent submits that the issue is not whether there is any power to backdate an order for disqualification but what is the date of the effect of a sentence imposed pursuant to the exercise of discretion in s 37.

35 The respondent submits that if the sentence imposed pursuant to s 37 takes effect only from the date of that imposition, this potentially has an unfairly harsh effect on the person being sentenced, at least with respect to orders of disqualification from holding or obtaining a driver's licence.

36 The Magistrate does not have power to backdate a sentence imposed after recalling an order. Further, the new order made by the Magistrate does not take effect as at the date of the order that has been recalled. After recalling the order the Magistrate imposes a new sentence. That new sentence takes effect from the date on which it is pronounced by the court.

37 Notwithstanding that the effect of s 37 is that the imposition of a sentence pursuant to that section takes effect as at that date, the fact that the imposition of a new sentence in relation to charge no PM 51/05 occurred moments before or after the order imposing a sentence in relation to charge no BR 140/05 does not affect the fact that once an order imposing a disqualification in relation to either charge was made, the appellant was subject to a period of disqualification and therefore pursuant to s 49(3c) of the RTA whichever order was made second had to be cumulative on the order made first.

38 Subsection 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if the ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the circumstances of this case, notwithstanding that the Magistrate did not have power to backdate the sentence, no substantial miscarriage of justice has occurred.

39 For the reasons stated appeal SJA 1097 of 2005 will be dismissed.

40 This appeal is brought on substantially the same ground as ground 1 in appeal SJA 1097 of 2005. The appeal fails for the same reasons as ground 1 in appeal SJA 1097 of 2005.

41 For the reasons stated both appeals are dismissed.