Beath v McCurley

Case [2018] ACTCA 48


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Beath v McCurley

Citation:

[2018] ACTCA 48

Hearing Date:

8 May 2018

DecisionDate:

23 October 2018

Before:

Burns ACJ, Loukas-Karlsson and Bromwich JJ

Decision:

1.   The appeal be allowed.

2.   Orders 1, 2 and 3 made by the primary judge on 9 August 2017, as amended by further orders made on 22 August 2017, be set aside.

3.   The parties submit agreed or competing draft orders within 14 days to give effect to this decision, to preserve the effect of additional order 3A made by the primary judge on 22 August 2017 and to preserve the effect of order 4 made by the primary judge on 9 August 2017.

Catchwords:

APPEAL – CRIMINAL LAW – Appeal from ACT Supreme Court – licence disqualification - where appellant challenges jurisdiction of primary judge to entertain appeal from Magistrates Court proceedings – whether licence disqualification order is a sentence or penalty in terms of s 208(1)(d) of Magistrates Court Act 1930 (ACT) – whether magistrate has power to impose disqualification period that is the same as automatic period of disqualification – whether appeal lies under s 208(1)(d) of Magistrates Court Act 1930 (ACT) for an order beyond power – held: primary judge erred in finding jurisdiction to hear appeal from 11 out of 12 disqualification periods – held: primary judge did not have such jurisdiction – held: primary judge erred in setting aside those 11 disqualification periods – appeal allowed

Legislation Cited:

Legislation Act 2001 (ACT) ss 134, 135, 146(1)

Magistrates Court Act 1930 (ACT) ss 207, 208
Road Transport (Alcohol and Drugs) Act 1999 (ACT) ss 20, 32, 33, 34
Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)
Road Transport (Driver Licensing) Act 1999 (ACT) s 32
Road Transport (General) Act 1999 (ACT) ss 61A, 63, 64, 65, 69, 70, Div 4.2
Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7(1)

Supreme Court Act 1933 (ACT) s 20

Cases Cited:

Altmore v Milner [2016] ACTSC 20

Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; 61 NSWLR 305
Barac v Thexton [2008] ACTSC 137
Bishop v Houlahan [2016] ACTSC 384
Bloxham v Wyte [2013] ACTSC 151
Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) ALR 307
Director of Public Prosecutions (NSW) v Armstrong [2015] NSWSC 873
Hall v Jones (1942) 42 SR (NSW) 203
Kelly v Apps [2000] FCA 667; 98 FCR 101
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713
Notaras v Earle [2016] ACTSC 146
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v…

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AGLC
Beath v McCurley [2018] ACTCA 48
Case
[2018] ACTCA 48
Decision Date

CaseChat Overview and Summary

The appeal concerned Mr Beath's challenge to the jurisdiction of the Supreme Court of the Australian Capital Territory to hear an appeal from the Magistrates Court. The dispute centred on whether a licence disqualification order constituted a "sentence or penalty" for the purposes of section 208(1)(d) of the *Magistrates Court Act 1930* (ACT), which governs appeals from the Magistrates Court. Mr Beath argued that licence disqualifications, particularly those imposed automatically by statute, were not sentences or penalties and therefore not appealable under that section.

The primary legal issues before the ACT Court of Appeal were: (1) whether a licence disqualification order is a "sentence or penalty" within the meaning of section 208(1)(d) of the *Magistrates Court Act 1930* (ACT); (2) whether a magistrate has the power to impose a disqualification period that is the same as the automatic period of disqualification; and (3) whether an appeal lies under section 208(1)(d) for an order that is beyond the magistrate's power.

The Court of Appeal found that the primary judge had erred in asserting jurisdiction to hear appeals concerning eleven out of twelve licence disqualification periods. The Court reasoned that section 208(1)(g) of the *Magistrates Court Act 1930* (ACT) expressly limits the right of appeal from automatic licence disqualifications to those orders where the disqualification period is longer than the statutory minimum. This deliberate legislative choice indicated that there is no right of appeal for disqualifications set at the minimum statutory period. Consequently, the primary judge did not possess the jurisdiction to hear appeals against those eleven disqualification periods.

The appeal was allowed, and the orders made by the primary judge on 9 August 2017, as amended on 22 August 2017, were set aside. The parties were directed to submit agreed or competing draft orders within 14 days to give effect to this decision, preserving the effect of certain additional orders made by the primary judge.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1, 2 and 3 made by the primary judge on 9 August 2017, as amended by further orders made on 22 August 2017, be set aside.

3. The parties submit agreed or competing draft orders within 14 days to give effect to this decision, to preserve the effect of additional order 3A made by the primary judge on 22 August 2017 and to preserve the effect of order 4 made by the primary judge on 9 August 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Beath also submits that a driver licence is granted by the executive, such that its suspension, whether by a court or by operation of a statute, does not constitute a penalty within the meaning of that word in s 208(1)(d). He submits that in (using a shortened version of the case name) Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; 61 NSWLR 305 (drink driving guideline judgment case), Howie J, with whom the other four members of the New South Wales Court of Criminal Appeal agreed, at [110]-[117] rejected a submission that licence disqualification was irrelevant to sentence, characterising it as being a circumstance that could be taken into account on the punishment to be imposed in much the same way as extra-curial punishment, rather than being any part of the sentence itself. Mr Beath submits that the later decision of Higgins CJ in Scott v Wynants [2009] 4 ACTSC 62 at [23], which expressed a conclusion by Howie J that licence disqualification was part of the sentence to be imposed, did not allow for the greater subtlety in Howie J’s reasoning. Finally, Mr Beath submits that not only is licence disqualification not in the nature of a sentence or penalty when imposed by a court, but the 11 disqualifications that were the subject of the purported appeal before the primary judge were imposed by the relevant statutes and not by the magistrate, citing the passage from Travini reproduced at [27(a)] above. He submits that the magistrate was doing no more than causing the automatic disqualification periods to be noted, and was not imposing them. Mr McCurley accepts that, following Burow, an automatic disqualification is not a sentence or penalty in terms of s 208(1)(d). However, he submits that it is a sentence or penalty within that provision when the disqualification is imposed by a court. To reach that conclusion, he relies upon: It is not necessary to attempt to resolve the differing views outlined above as to whether, in any general sense, licence disqualification may be considered to be either part of the process of sentencing or penalty imposition or separate from that process. Licence disqualification is at least a relevant consideration to be taken into account in arriving at any fine or term of imprisonment, or other lesser consequence arising directly from the offending. What matters for present purposes is not the scope of the abstract concepts of sentence or penalty, but, rather, whether the words “sentence or penalty” as they appear in s 208(1)(d) can be interpreted to include licence disqualification in light of the restrictive right of appeal from licence disqualification contained in s 208(1)(g). Section 208(1)(g) expressly deals with appeals from an order of the Magistrates Court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under Div 4.2 of the General Act, but only if the disqualification order made is for “a longer period than the minimum”. That limited right of appeal can be seen to be a quite deliberate legislative choice, depriving a person who has been disqualified from driving for the statutory minimum period from having any right of appeal. It operates to reinforce the ordinary meaning of “minimum”, being “the least quantity or amount possible”: Macquarie Dictionary, Seventh Edition, 2017; “The smallest amount or quantity that is possible, usual, attainable etc”: Shorter Oxford English Dictionary, Sixth Edition, 2007.

Ratio Decidendi

Legal Principle Established

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