Al Joubory v WA Police
[2024] WASC 36
•15 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AL JOUBORY -v- WA POLICE [2024] WASC 36
CORAM: MCGRATH J
HEARD: 15 FEBRUARY 2024
DELIVERED : 15 FEBRUARY 2024
FILE NO/S: SJA 1102 of 2023
BETWEEN: AHMED SHAKER AL JOUBORY
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1102 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G BENN
File Number : MI 7666 of 2023
Catchwords:
Criminal law - Application to suspend drivers licence disqualification pending determination of appeal - Appeal against conviction - Driving motor vehicle at excessive speed - Appellant convicted upon own plea of guilty - Fine imposed - Setting aside conviction for driving vehicle at excessive speed - Licence suspended pursuant to order under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Legislation:
Criminal Appeals Act 2004 (WA) s 8(2), s 11, s 12, s 12(6)
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 19, s 18(1), s 44, s 101B
Road Traffic Code 2000 (WA) s 11(3)
Result:
Application to suspend driver's licence disqualification under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) pending determination of appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms I N Darch |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Anderson v Pankurst [2012] WASC 287
Borsa v The Queen [2003] WASCA 254
Gibson v The State of Western Australia [2017] WASCA 141
Gillespie v The State of Western Australia [2016] WASCA 216
Glover v Reyne [2001] WASCA 305
Liberti v The Queen (1991) 55 A Crim R 120
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Samuels v The State of Western Australia [2005] WACSA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Vella v The State of Western Australia [2006] WASCA 129
MCGRATH J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
On 13 November 2023, the appellant was convicted on his own plea of guilty of driving a motor vehicle on a road within a speed zone of 100 km per hour, at a speed in excess of that speed, namely 125 km per hour, contrary to s 11(3) of the Road Traffic Code 2000 (WA).[1]
[1] Charge number MI 7666/2023.
The appellant, who was self-represented, informed the learned Magistrate that he was driving a passenger and lost his way. The learned Magistrate asked the appellant whether he was guilty or not guilty, to which the appellant answered that 'for speeding of course guilty because I'm under pressure'.[2] The appellant was sentenced to a fine of $400 and ordered to pay the respondent's costs of $272.70.[3]
[2] ts 2 (13/11/2023).
[3] ts 2 (13/11/2023).
On 18 December 2023, the appellant filed an appeal against conviction. The appellant contends that he was driving the vehicle at an excessive speed because he was threatened by a passenger who possessed a knife.[4]
[4] Affidavit of the appellant sworn but not dated filed 18 December 2023.
On 19 January 2024, the appellant filed an application which states, 'the fines enforcement registry case 355 178/2023 totalling $727.00 which has suspended my driver's license'.[5] Properly understood, the appellant seeks the suspension of enforcement action under the Fines, Penalties and Infringement Notices Enforcement Act 1998 (WA) until the appeal is determined. The Fines, Penalties and Infringement Notices Enforcement Act provides for the enforcement of the payment of fines and other penalties, and for the enforcement of infringement notices. The appellant's licence has been suspended pursuant to a licence suspension order as provided in s 19 of the Act by reason of the fact that the appellant has failed to pay the fine imposed by the learned Magistrate.
[5] Application in an Appeal filed 19 January 2024.
During the hearing of this application, the appellant confirmed that he was served with a notice of disqualification from holding a driver's licence pursuant to s 103 of the Act. The appellant submitted that he needs his driver's licence in order to work as a taxi driver to pay his mortgage and support his family. During discourse with the appellant he appeared to be now willing to pay his fine. However, he has not done so to date.
For the following reasons, I have determined that the Court cannot make the order sought and therefore, the application is dismissed. The matter will now proceed to the substantive hearing of the merits of the ground of appeal.
Relevant law
I now turn to the relevant statutory provisions.
Section 11 of the Criminal Appeals Act 2004 (WA) provides as follows:
11.Sentences etc., effect of appeal on
(1)This section applies when the Supreme Court gives leave to appeal against a decision unless and to the extent that an order made under section 12 provides otherwise.
(2)After leave to appeal against a decision is given and until the appeal is concluded, no warrant or order to enforce the decision shall be issued, and no action to enforce the decision shall be taken, except to enforce a sentence or order referred to in subsection (6).
(3)Any disqualification from holding or obtaining a licence to drive a vehicle under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, or under the Sentencing Act 1995 Part 15, in respect of a conviction that is the subject of an appeal is suspended until the appeal is concluded.
(4)Any period during which the disqualification is so suspended must not be taken into account in calculating the period of the disqualification.
(5)Subject to subsection (6) and the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 101B, any sentence imposed, or any other order made, under the Sentencing Act 1995, the Young Offenders Act 1994, or any other written law, is suspended until the appeal is concluded.
(6)Subsection (5) does not apply to -
(a)a sentence of imprisonment, whether or not it is suspended under the Sentencing Act 1995 Part 11 or is indefinite imprisonment imposed under Part 14 of that Act; and
(b)a sentence of detention under the Young Offenders Act 1994; and
(c)an order of forfeiture.
Section 11 of the Criminal Appeals Act has no application unless the Court grants leave to appeal. Further, s 11 is made subject to s 101B of the Fines, Penalties and Infringement Notices Act. Section 101B, which I outline below, provides for the suspension of the enforcement upon leave being granted to appeal.
Section 12 of the Criminal Appeals Act provides as follows:
12.Sentences etc., Supreme Court may suspend etc.
(1)At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded -
(a)the decision;
(b)any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;
(c)any statutory consequence of the decision.
(2)The Supreme Court may amend or cancel an order made under this section at any time.
(3)An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.
(4)If the Supreme Court makes, amends or cancels any such order, it must give a copy of the order -
(a)to the court of summary jurisdiction concerned; and
(b)if the order relates to the statutory consequence of the decision being appealed, to any person who under a written law is required to register the statutory consequence.
(5)Despite subsections (1) and (2), if an appellant or respondent is serving a sentence of imprisonment -
(a)the sentence must not be suspended unless he or she is granted bail under the Bail Act 1982; and
(b)he or she must not be released from custody until he or she becomes entitled to be released under that Act.
(6)If an appeal is commenced against a decision involving or giving rise to the imposition of a fine (as defined in the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 28(1)), an order cannot be made under this section.
(7)An order made under this section has effect despite section 11.
Accordingly, the Supreme Court may make any orders that suspends any sentence imposed by the court of summary jurisdiction. That order may be made in circumstances where leave to appeal has not be granted.[6] However, s 12(6) expressly excludes a decision involving or giving rise to the imposition of a fine. Relevantly, a 'fine' is defined in s 28(1) of the Fines, Penalties and Infringement Notices Enforcement Act as follows:
fine means a monetary penalty imposed on an offender by a court in criminal proceedings for an offence and includes -
(a)any costs ordered to be paid by the offender in connection with the proceedings; and
(b)any amount ordered to be paid in connection with or as a result of the offence, if the order is of a kind, and is made under an enactment, prescribed for the purposes of this definition,
but does not include any other amount of money ordered to be paid in connection with or as a result of the offence;
[6] Anderson v Pankurst [2012] WASC 287, [9].
Section 101B of the Fines, Penalties and Infringement Notices Enforcement Act relevantly provides:
101B.Enforcement suspended on appeal etc
(1)For the purposes of this section a person appeals against a fine, or a decision giving rise to a fine, imposed on the person when the person -
(a)applies under section 71 of the Criminal Procedure Act 2004 and pays any fee required; or
(b)is granted leave to appeal under Part 2 or 3 of the Criminal Appeals Act 2004.
(2)When the Registrar is notified that a person is appealing against a fine or the decision giving rise to a fine no action is to be taken under this Act except as provided by this section or the regulations.
(3)If when a person appeals against a fine or the decision giving rise to a fine -
(a)a time to pay order is in force, the order ceases to have effect;
(b)a notice of intention to enforce issued under section 42 in respect of the fine is current, the notice is to be taken as being cancelled as from that time;
(c)a licence suspension order made under section 43 is in force in respect of the fine, the order is to be taken as being cancelled as from that time;
Accordingly, a licence suspension order in force in respect to a fine is to be taken as suspended pursuant to s 101B of the Fines, Penalties and Infringement Notices Enforcement Act only if leave to appeal under Part 2 of the Criminal Appeals Act is granted.
Assessment of application
Therefore, a suspension under s 11 of the Criminal Appeals Act may only be ordered if leave to appeal is granted. Section 12 of the Criminal Appeals Act has no application in the present circumstances given that this appeal is against a decision involving or giving rise to the imposition of a fine (as defined in the Fines, Penalties and Infringement Notices Enforcement Act s 28(1)). Further, s 101B of the Fines, Penalties and Infringement Notices Enforcement Act only has application if leave to appeal is granted.
This appeal is out of time and therefore, an extension of time will be required. That issue, and whether leave to appeal would be granted pursuant to s 9 of the Criminal Appeals Act, are matters for determination at the substantive hearing of the appeal. The Court must not grant leave to appeal unless the ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[7]
[7] Samuels v The State of Western Australia [2005] WACSA 193; (2005) 30 WAR 473, [56].
The appellant and respondent have not yet filed written submissions. I am not required to determine the merits of the appeal. I am able to make these observations on the appeal ground given that I have the transcript of the sentencing hearing in the Magistrates Court. The appellant pleaded guilty and therefore, admitted all the elements of the offence. An appellant, in endeavouring to set aside his conviction upon his own plea, has a significant hurdle to overcome. The circumstances in which an offender may set aside a conviction upon entering a plea of guilty is narrow.
Section 8(2) of the Criminal Appeals Act provides that an appeal may be commenced against a decision, 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'. An appellate court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[8]
[8] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Gibson v The State of Western Australia [2017] WASCA 141, [145] - [155].
Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty:[9]
(1)Where the appellant did not understand the nature of the charge or did not intend to admit guilt;
(2)If upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
(3)Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
[9] Vella v The State of Western Australia [2006] WASCA 129, [26]; Gillespie v The State of Western Australia [2016] WASCA 216, [34] ‑ [35]; Borsa v The Queen [2003] WASCA 254, [20].
A court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection'.[10] It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty.[11] That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty.[12]
[10] Snook v The State of Western Australia [No 2] [2015] WASCA 29, [104]; Liberti v The Queen (1991) 55 A Crim R 120, 122.
[11] Meissner v The Queen, 141,157; Gillespie v The State of Western Australia, [34].
[12] Meissner v The Queen, 157; Snook v The State of Western Australia [No 2], [106].
A conviction based on a plea of guilty may be set aside on the basis that an appellant satisfies the Court that he had an arguable defence with a reasonable prospect of success.[13]
[13] Glover v Reyne [2001] WASCA 305.
I am unable to determine, at the hearing of this application, whether leave to appeal will be granted.
At this stage, the effect of s 12(6) of the Criminal Appeals Act is that the Court cannot make an order under s 12 to suspend if the appeal is commenced against a decision involving or giving rise to the imposition of a fine as defined in s 28(1) of the Fines, Penalties and Infringement Notices Enforcement Act. Further, a licence suspension order in force in respect to a fine is to be taken as suspended pursuant to s 101B of the Fines, Penalties and Infringement Notices Enforcement Act only if leave to appeal under Part 2 of the Criminal Appeals Act is granted.
Conclusion
Accordingly, the application must be dismissed.
I will make programming orders for the expedited filing of written submissions to ensure that the appeal against conviction may be heard at the earliest opportunity. Whilst the application is dismissed, I observe that during oral submissions counsel for the respondent stated that the appellant may wish to contact the Fines Enforcement Registry to discuss his fine and personal circumstances. During discourse with the appellant it appeared that he not made contact with the Registry yet. There is strong merit in the submission of counsel for the respondent. Whilst the Court did not receive submissions addressing the powers of the Registrar of the Fines Enforcement Registry, I note that the Registrar does have the power to cancel a licence suspension order under s 44 of the Fines, Penalties and Infringement Notices Enforcement Act and further, an offender may request cancellation of a licence suspension order under s 44A. The appellant should make immediate contact with the Registrar explaining his circumstances and his willingness to pay his outstanding fine.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
16 FEBRUARY 2024
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