Burow v Hoyer
[2015] ACTSC 21
•20 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Luke Burow v Damon Hoyer |
Citation: | [2015] ACTSC 21 |
Hearing Date(s): | 29 August 2014 |
DecisionDate: | 20 February 2015 |
Before: | Refshauge J |
Decision: | 1. The appeal is dismissed. 2. The parties be heard as to any consequential orders that should be made. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION – Appeal from the Magistrates Court — Driving offences — Driving with prescribed concentration of alcohol in the blood (PCA offence) — High range prescribed concentration of alcohol — Road Transport (General) Act 1999 (ACT) — Road Transport (Alcohol and Drugs) Act 1977 (ACT) Traffic Law — Licensing of drivers — Disqualification — On conviction — Automatic disqualification — Default disqualification period — Maximum penalties — Imposed by legislation — Imposed by court order Statutory interpretation — Explanatory statement — NSW Guideline Judgement — Statutory amendment — Crimes Legislation Amendment Act 2013 (ACT) |
Legislation Cited: | Australian Citizenship Act 2007 (Cth), s 34 Confiscation of Criminal Assets Act 2003 (ACT), s 58 Road Transport (Driver Licensing) Regulation 2000 (ACT), ss 91, 92, 101 Motor Traffic Ordinance 1926 (ACT), s 52(1) |
Cases Cited: | Achilleos v Housing Commission [1960] VR 164 Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedures) Act for a Guideline Judgment concerning the Offence of High Range Prescribed Concentration of Alcohol under section 9(4) of Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 |
Texts Cited: | The Explanatory Statement for the Crimes Legislation Amendment Bill 2013 Report by the Australian Law Reform Commission, Alcohol, Drugs and Driving (ALRC: Sydney, 1976). |
Parties: | Luke Burow (Appellant) Damon Hoyer (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Ms S McLaughlin (Respondent) |
| Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 33 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 1 May 2014 Case Title: Damon Hoyer v Luke Burow Citation: [2014] ACTMC 2 Court File Number(s): CC No 148 of 2014 |
Refshauge J:
On 28 November 2013, Luke Christian Burow, the appellant, was driving a motor vehicle along Northbourne Avenue, Canberra City, when he was stopped by police and subject to a roadside breath test, which proved positive for alcohol in his breath.
He was taken into custody to the City Police Station and was subject to a breath analysis which showed his blood alcohol content to be 0.154 grams of alcohol in 210 litres of breath, being a prescribed concentration of alcohol.
He was issued with an Immediate Suspension Notice under s 61B of the Road Transport (General) Act 1999 (ACT) (the ACT General Act) and charged with an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act) by summons, returnable on 15 January 2014.
He appeared in court and, after some adjournments, was sentenced to a fine of $900. No order was made as to his licence which meant that the disqualification for the default period under s 32 of the Alcohol and Drugs Act applied, as the automatic disqualification providing for him to be disqualified from obtaining or holding a driver licence for three years.
Mr Burow has appealed against the sentence. The Notice of Appeal makes it clear that he is challenging the period of licence disqualification.
License disqualification
It has long been the case that those who breach the rules about how properly to drive on the roads may have the privilege of holding or obtaining a driver licence withdrawn. A driver licence is a privilege, not a right, as I pointed out in Barac v Thexton [2008] ACTSC 137 at [44] and see the cases I cited there.
The disqualification of a person from obtaining or holding a licence is now a common part of the penalty for serious offences, such as driving without a driver licence (under s 31(3), Road Transport (Driver Licensing) Act 1999 (ACT)), culpable driving (under s 62, ACT General Act) and certain offences under the Road Transport (Safety and Traffic Management) Act 1999 (ACT) such as road racing (s 5A), burnouts (s 5B), negligent driving occasioning death or grievous bodily harm (s 6); furious, reckless or dangerous driving (s 7) or menacing driving (s 8) (under s 63 of the ACT General Act). These provisions provide for an automatic disqualification of the offender from holding or obtaining a driver licence. That is to say, the disqualification becomes effective as a consequence imposed by the legislation once a conviction is recorded (or, in some cases, where the person is found guilty), without any other order of the court, unless the court orders a longer period.
There are other provisions, such as s 64 of the ACT General Act where a court may, on conviction or a finding of guilt, also order a disqualification. These reasons are not concerned with that or similar provisions.
The automatic disqualification provisions with which I am concerned are those contained in the Alcohol and Drugs Act. Under ss 32, 33 and 34 of that Act, persons who are convicted of a relevant offence (respectively under s 19 as a first offender or as a repeat offender, or, other than s 19, under any other provision known as a disqualifying offence as defined in the Dictionary to that Act), are automatically disqualified from holding or obtaining a driver licence for the period specified in the section, unless the court orders that the disqualification is for a shorter period. This is contrasted to the provisions mentioned in [7] where the court can only order a longer period.
The disqualification is automatic, that is to say there is no discretion about the disqualification. There must be a disqualification. Indeed, the disqualification is imposed by virtue of the operation of the legislative provision itself; there is, apart from where the court orders a shorter period of disqualification under the relevant section, no role for the court other than, of course, creating the factum which causes the legislative provision to operate, namely by convicting the person.
I note that the tables to ss 32 and 33 of the Alcohol and Drugs Act refers to the upper length of period of the disqualification as the “default disqualification”.
Automatic default disqualification
It is appropriate to make some brief remarks about these provisions and how they are to be construed. In this context, it is important to note that, while many aspects of the Road Transport legislation is uniform throughout Australia, the provisions relating to driving while under the influence of alcohol and drugs have not been harmonised in respect of either the structure or penalty. Care needs to be taken to ensure that decisions in other jurisdictions, on which parties may wish to rely, are really addressing the same issues. The fact that uniformity has not been achieved in this area, unlike other related areas, strongly suggests that there is room for the influence of local factors and approaches, as made by the relevant State or Territory legislatures.
As I pointed out above (at [6]), the suspension or disqualification of drivers who breach road rules from holding or obtaining a driver licence has long been a part of the regulation of driving. The first ACT ordinance which made express provision for the offence of driving while intoxicated, the Motor Traffic Ordinance 1926 (ACT), provided in s 52(1) for the offence with a penalty of not less than five pounds nor more than thirty pounds or imprisonment for not less than fourteen days nor more than six months and in s 52(2) for automatic cancellation of the person’s licence and a prohibition on obtaining one unless and until the court otherwise ordered.
This Ordinance was repealed by the Motor Traffic Ordinance 1932 (ACT) in which s 56 was in identical terms to s 52 in the earlier ordinance. The 1932 Ordinance (to which I refer as the 1932 MT Ordinance) was in turn repealed by the Motor Traffic Ordinance 1936 (ACT) (the 1936 MT Ordinance) which was the relevant ordinance regulating traffic in the Territory until 1999 and the enactment of a more extensive suite of legislation to implement the agreement of the Australian Transport Council designed to introduce nationally uniform road rules and regulatory legislation. The 1936 MT Ordinance also provided in s 67(1) for the identical offence provision and s 67(2) provided for the same consequence of conviction, namely automatic cancellation of the person’s driver’s licence as had been provided for in the 1932 MT Ordinance.
The 1936 MT Ordinance (which, of course, became the Motor Traffic Act 1936 (ACT) on self-government) was frequently amended – 141 direct amendments up to 1999 are listed in the Road Transport Legislation Amendment Act 1999 (ACT) – but the relevantly significant amendment was made in 1977 when the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (ACT) (as the Alcohol and Drugs Act was then called) removed the regulation of drink driving from the 1936 MT Ordinance and made separate provisions. I shall refer to this legislation, whether as an Ordinance or an Act, as the Alcohol and Drugs Act.
The enactment of the Alcohol and Drugs Act followed criticism by this Court of provisions of the 1936 MT Ordinance in Juddery v Lindsay (1976) 8 ACTR 1 and the subsequent Report by the Australian Law Reform Commission, Alcohol, Drugs and Driving (ALRC: Sydney, 1976).
As enacted, the Alcohol and Drugs Act introduced a regime for removing a person’s right to drive and disqualifying them from holding or obtaining a licence. The regime differentiated between first offenders and previous offenders. The former were subject to a range of fines (s 26) or a maximum period of imprisonment, made available in addition to, as well as being an alternative to, a fine (s 28) and to a suspension of the person’s licence for up to three months, unless the court considered the licence should be cancelled until the court otherwise ordered (s 31). The latter, on the other hand, were subject to a higher range of fine (s 27), a higher maximum period of imprisonment as an alternative, or as an addition, to the fine (s 28) and the person’s licence was to be cancelled (s 32).
Though the court was required by ss 31 and 32 of the Alcohol and Drugs Act, as enacted, to deal with the person’s licence in the manner specified, by suspension or cancellation, such action was by order of the court; it was a court order that effected the suspension or cancellation and not, as under the earlier Ordinances, by virtue of the conviction for which the legislation then provided the automatic consequence to the offender’s licence.
Many changes have also been made to the Alcohol and Drugs Act since it was enacted. Two are presently relevant: the first was made by the Motor Traffic (Alcohol and Drugs) (Amendment) Act 1997 (ACT) (which I will call the 1997 Amendments) and the second was made by the Road Transport Legislation Amendment Act (which I will call the 1999 Amendments).
The 1997 Amendments introduced a four-level range of intoxication for the relevant offence, very close to that now found in s 4E of the Alcohol and Drugs Act. It then provided for graduated penalties for each level, with different maxima for the different levels.
For disqualification upon conviction, provided for in ss 32 (first offender) and 33 (repeat offender) of the Alcohol and Drugs Act, it still required the court to make the relevant order, but it provided tables which set out what was expressly described as the maximum periods of disqualification. The tables were as follows:
Table to s 32
Item Blood alcohol
Concentration levelMaximum
disqualification1 Level 1 3 months 2 Level 2 6 months 3 Level 3 12 months 4 Level 4 3 years
Table to s 33
Item Blood alcohol
Concentration levelMaximum
disqualification1 Level 1 12 months 2 Level 2 12 months 3 Level 3 3 years 4 Level 4 5 years
Both sections referred to the power of the court as follows:
The Court may disqualify the person from holding a driving licence for a period not exceeding the period specified in the third column of the table opposite that level.
The 1999 Amendments, however, were made at the same time as the general reform of Road Transport legislation. So far as these provisions were concerned, the Road Transport Legislation Amendment Act replaced both ss 32 and 33, including the tables, by substituting the following provisions:
32 Automatic driver licence disqualification—first offenders, s 19
(1) This section applies only to first offenders.
(2) If a court convicts a special driver, or finds a special driver guilty, of an offence against subsection 19 (1) and finds that the concentration of alcohol in the person’s blood or breath was at a level mentioned in column 2 of an item of the table in this section, the person is automatically disqualified from holding or obtaining a driver licence for—
(a) the period mentioned in column 4 of that item; or
(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item—the shorter period.
(3) If a court convicts a person other than a special driver, or finds a person other than a special driver guilty, of an offence against subsection 19(1) and finds that the concentration of alcohol in the person’s blood was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for—
(a) the period mentioned in column 4 of the item applying to that level in the table in this section; or
(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item – the shorter period.
column 1
item
column 2
blood alcohol
concentration levelcolumn 3
minimum
disqualificationcolumn 4
default
disqualification1
level 1
1 month
3 months
2
level 2
2 months
6 months
3
level 3
3 months
12 months
4
level 4
6 months
3 years
Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.
33 Automatic driver licence disqualification—repeat offenders, s 19
(1) This section applies only to repeat offenders.
(2) If a court convicts a special driver, or finds a special driver guilty, of an offence against subsection 19 (1) and finds that the concentration of alcohol in the person’s blood was at a level mentioned in column 2 of an item of the table in this section, the person is automatically disqualified from holding and obtaining a driver licence for—
(a) the period mentioned in column 4 of that item; or
(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item—the shorter period.
(3) If a court convicts a person other than a special driver, or finds a person other than a special driver guilty, of an offence against subsection 19 (1) and finds that the concentration of alcohol in the person’s blood was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for—
(a) the period mentioned in column 4 of the item applying to that level in the table in this section; or
(b)if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item—the shorter period.
column 1
item
column 2
blood alcohol
concentration levelcolumn 3
minimum
disqualificationcolumn 4
default
disqualification1
level 1
3 months
12 months
2
level 2
3 months
12 months
3
level 3
6 months
3 years
4
level 4
12 months
5 years
Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.
As can be seen, the default periods are exactly the same periods as those that were described as maximum periods in the earlier tables.
The Minister for Urban Services who presented the Bill, which became this Act, authorised an Explanatory Memorandum. He explained the changes as follows:
The Road Transport Legislation Amendment Bill provides minimum, and therefore mandatory, licence disqualification periods for first and repeat drink driving offenders.
There was no reference to “maximum” penalties, to any intended change by omitting that word, or to what was meant by a “default disqualification”.
There was no second reading speech but the Opposition party in the Legislative Assembly sought to amend these sections by omitting ss 32(2)(b), 32(3)(b), 33(2)(b) and 33(3)(b) of the Alcohol and Drugs Act and substituting in each case:
(b) if the court orders another period of disqualification – the other period.
The proposed amendments would appear designed to permit the court to impose a shorter period of disqualification than that set out in column 3 or a longer period of disqualification than that set out in column 4. The proposed amendments were negatived by the Legislative Assembly.
There is nothing in this material that suggests to me that the amendment to the Alcohol and Drugs Act was converting the pre-amendment expressed “maximum” period of disqualification to an expected, usual or required period of disqualification. Indeed, the negativing of the proposed amendment suggests the contrary.
The amendments ultimately made did, however, describe the same disqualification period no longer as a “maximum”, but as a “default” period. In statutory construction, a court must have first regard to the plain words of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; [78].
The reference to “default” does not imply that the period is one which is ordinarily to be expected or required to be applied. “Default” is relevantly defined in the Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd: Sydney, 2009) 5th edition, p 443 as “failure to perform an act or obligation legally required”. That is, if the court under ss 32 or 33 of the Alcohol and Drugs Act did not make an order setting the period (shorter than the default period) of automatic disqualification, then there is a default and the default period applies.
As enacted, the automatic disqualification referred to either the shorter period in the order that the court may make or, if the court makes no order, the default period, as the case may be. Thus, the legislation provided that the default period is not the automatic disqualification period unless the court fails or declines to set another period.
The reference to the period to be set by the court being “shorter” is consistent with the pre-amendment reference to “maximum” in the tables to ss 32 and 33 of the Alcohol and Drugs Act. It may be thought that to change that, despite the clear words used, to an ordinarily expected or required period would have at least required some clearer explanation, such as a comment in the Explanatory Memorandum, particularly as there was no significant Second Reading Speech.
The change from “maximum” to “default” was otherwise unexplained in any extrinsic materials that I have been able to access. The structure of the amendment does not suggest that the nature of the period of disqualification has necessarily changed.
On the other hand, that it is now a “default” period rather than a “maximum” period may suggest that it is likely to be imposed somewhat more frequently; a “maximum” period is reserved for the worst category of offence (as explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478), a “default” period will be imposed when the court does not otherwise order.
Importantly, there is nothing in the words used in the newly introduced provisions to imply some particular restraint or constraint on the court when faced with the need to consider whether, under s 32(2)(b), 32(3)(b), 33(2)(b) or 33(3)(b) of the Alcohol and Drugs Act it should impose a shorter period of disqualification. If recourse to extrinsic materials is necessary, nothing is to be found there to suggest any such constraint or restraint.
Often reference is made to the similar New South Wales legislation and judicial decisions in that jurisdiction to elucidate the meaning of the Alcohol and Drugs Act.
It is instructive, however, to compare carefully the different structure of the NSW legislation operative at the time. It made clear that the period specified in the legislation had a particular status. The Road Transport (General) Act 1999 (NSW) (the NSW General Act) provided in s 25
where the conviction is for an offence under section 9(1) or (2) of the Road Transport (Safety and Traffic Management) Act 1999:
(i)the person is automatically disqualified for 6 months 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 3 months) of disqualification – the person is disqualified from holding a driver licence for such shorter period as may be specified in the order.
The reference to a conviction for an offence against s 9(1) is a reference to a conviction for driving with a special range prescribed blood alcohol concentration of 0.02 to 0.05 grams of alcohol to 100 millilitres of breath. A conviction against s 9(2) is a reference to the offence of driving with low range prescribed blood alcohol concentration of 0.05 to 0.08 of alcohol to breath. These are, in both cases, sections of the NSW Safety and Traffic Management) Act 1999 (NSW) (the NSW Safety and Management Act).
The NSW General Act further provides a similar provision, but with increasing periods of twelve months and three years, for convictions of driving with a mid-range and high range prescribed concentrations of blood alcohol under s 9(3) (mid-range) and s 9(4) (high range) of the Road Transport (Safety and Traffic Management) Act.
The difference in the structure of the provision to those in the Alcohol and Drugs Act is immediately obvious. There are also differences in the amounts of the fines and lengths of disqualification for similar offences.
Importantly, unlike the Alcohol and Drugs Act provision, the automatic disqualification in NSW does not include the court ordered disqualification set by the court for a shorter period; the automatic disqualification is only the statutorily imposed period.
Though, similar to the NSW provision, the ACT legislation sets out first in the section a reference to the default period, I do not consider it gives that period any primary or particular importance. It is grammatically necessary to give the “shorter period” in each of ss 32 2(b), 3(b) and 33 2(b), 3 (b) of the Alcohol and Drugs Act a reference point and to indicate a period than which the court ordered period of disqualification may be shorter.
The NSW provision has been the subject of consideration in a Guideline Judgment, Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedures) Act for a Guideline Judgment concerning the Offence of High Range Prescribed Concentration of Alcohol under section 9(4) of Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305. I shall refer to this decision as the “Guideline Judgment”.
The Guideline Judgment was made under s 37 of the Crimes (Sentencing Procedures) Act 1999 (NSW) which authorises the Court of Criminal Appeal of New South Wales, on application by the Attorney-General, to deliver a judgment that expresses guidelines to be taken into account by courts sentencing offenders. There is no equivalent in this Territory, though sentencing appeals to the Court of Appeal clearly give guidance to lower courts through the doctrine of precedent, especially in Crown appeals against sentence. French CJ, Kiefel and Crennan JJ said of the latter appeals in Green v The Queen (2011) 244 CLR 462 at 465-6; [1]:
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (‘Crown appeals’) under s 5D of the Criminal Appeal Act 1912 (NSW) (‘the Criminal Appeal Act’) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases.
Nevertheless, the NSW Court of Criminal Appeal assembled a court of five senior judges who delivered the Guideline Judgment on 8 September 2004.
The reasons were delivered by Howie J, with whom the other members of the Court agreed. Due respect is, of course, to be given to such a decision.
The Court had before it (at 321; [56]-[62]), detailed expert evidence of the pattern of sentences imposed for offences of driving with a high range prescribed concentration of alcohol where it was asserted by the Attorney-General that there was “a systematic leniency in sentencing” for such offences. I observe that there is no such evidence in this Territory, nor am I aware of complaints to this effect by the Attorney-General or otherwise.
The NSW Attorney-General also submitted (at 325; [76]) that there was “an unduly lenient approach taken by the courts in respect of licence disqualification” and that this resulted from three “problems”:
· Magistrates are failing to impose minimum periods of disqualification where they are required;
· Magistrates are more often than not reducing automatic periods of disqualification;
· Magistrates have misconstrued the purpose of the disqualification provisions and misapply them.
The first problem that was identified is, of course, an error of law. The other two matters depend on other issues, for neither of which is there any evidence in this Territory and certainly none that has been placed before this Court, as there was in NSW.
In giving guidance on the approach to the “automatic periods of disqualification” Howie J said at 335-6; [126]-[127]:
126It should be noted that the automatic period of disqualification prescribed for a particular offence is not to be considered as if it were the maximum period of disqualification for that offence. The automatic period is merely the default period that operates on conviction unless some other order is made: that is in the usual case in which there is no need to vary the period one way or the other. There must be cases where the automatic disqualification period should be increased, although the available material does not indicate that this is so.
There is some suggestion that increased periods are occasionally ordered but only where the offender receives a gaol sentence and the court considers that there should be some period of disqualification after release.
127.It appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative. The failure of the courts to give sufficient regard to the automatic disqualification periods prescribed by Parliament is indicated by a finding that in only 11 percent of cases was the offender disqualified for as long as 2 years and 14 per cent for as long as 3 years: I MacKinnell, ‘Sentencing Drink-Driving Offenders’, (November 2003) 19 Sentencing Trends. There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament’s view that the automatic period is the period of disqualification to apply in the usual case.
His Honour clearly considered that the automatic disqualification was not applied as frequently as he considered it should be applied. His Honour also considered that longer periods from the automatic period should also be imposed more frequently.
The Alcohol and Drugs Act appears to have two differences from the description there given to the NSW Legislation: the default period was expressed in the prior legislation to be a maximum and there is no indication in the legislation, or any extrinsic materials, that this has been altered, other than to make it the default period, to an expected, usual or ordinarily applied period and there is very limited provision for the increase of a disqualification period.
It is also worth noting that, contrary to the position in the ACT with the Alcohol and Drugs Act, the disqualification provisions in NSW were found in a separate Act, the NSW General Act, not in the Act creating the offences themselves. There is also a general provision in the same NSW Act, s 24, for imposing longer periods. This is the only provision to which his Honour could have been referring when he suggested that longer periods could be ordered. Despite the reference in s 24 of the NSW General Act that it is subject to s 25, it is apparent that this reference does not limit the imposition of longer periods of disqualification.
Again, the Territory provisions are different. Thus s 64 of the ACT General Act provides for a general power for courts to disqualify a person from holding or obtaining a licence for the period the court considers appropriate. Under s 66, such a disqualification operates as the cancellation of any licence held by the person at the time of disqualification. The disqualification under s 64, however, is expressly limited by the automatic disqualification period, for example under ss 32 or 33 of the Alcohol and Drugs Act. This is another statutory difference to the NSW legislation.
Section 65 of the ACT General Act also permits a Court, but only where a person has already been disqualified from holding or obtaining a driver licence, to subject that person to an additional disqualification from holding or obtaining a driver licence at the end of the already imposed period of disqualification until the court sets aside that further period of disqualification. However, this provision is subject to a number of qualifications which include that it is only available where the person’s prior disqualification was for twelve months or more. It is accordingly only necessarily available for a repeat offender who has been convicted of the offence of driving with the prescribed concentration of alcohol at Level 4 (for there, the minimum disqualification is for twelve months) and is unavailable at all for those who are first offenders where the level of prescribed concentration of alcohol is Level 1 or Level 2 (for these, the default disqualification is not twelve months). It also significantly requires that the additional disqualification be in the public interest, having regard to matters set out in the section.
It is to be noted that the Territory’s courts are not bound by the Guideline Judgment, as Higgins CJ observed in Scott v Wynants (2009) 4 ACTLR 13 at 18; [35], though as his Honour also observed “much of the reasoning is applicable”. I respectfully disagree, however, that the scheme is, as his Honour suggested, a “common legislative scheme”.
To return to the Alcohol and Drugs Act, the court must decide how the courts are to approach their obligation to consider under ss 32(2)(b), 32(3)(b), 33(2)(b) and 33(3)(b) of that Act whether to order a shorter period of disqualification.
There must be relevant reasons (Scott v Wynants at 18; [35]) before a shorter period is ordered, but, of course, not below the minimum. This is an approach I have previously articulated: see Krewaz v Jordan [2012] ACTSC 84 at [76], though my expression of approach there may not have been as nuanced as I would now express it following this analysis and the authorities. In any event, as I pointed out in Shaw v Leach [2014] ACTSC 135 at [37], it is not necessary that reasons for ordering a shorter period of disqualification than the default period be special or exceptional. This would be to put a gloss on the legislation that is neither expressed nor apparently or necessarily implied.
It is proper to give the new terminology “default disqualification” its full meaning. That is to say, it is the disqualification where the court does not find a good reason to order a shorter period. Thus, though still a maximum, it is not simply a maximum in the sense of being reserved for the worst case of the offence.
On the other hand, I see nothing in the structure, words or history of the Alcohol and Drugs Act to show that the default disqualification is or is intended to be “the usual” period of disqualification as described in the Guideline Judgment or, indeed, how the usual case of the offence should be described.
The circumstances which led to the Guideline Judgment do not pertain here. In Scott v Wynants, Higgins CJ referred to the fact that there were regular reductions of the disqualification period made in the Magistrates Court. His Honour did not criticise the Magistrates Court for that; indeed, his Honour appeared to agree with the acceptance of this outcome in Hammond v Road Transport Authority [2006] ACTSC 125. It is also notable that his Honour held that “relevant reasons” are required for a reduction of the penalty, but “the usual sentencing consideration for imposing a lesser or greater level of penalty” will be relevant. This raises a whole range of relevant considerations, though they must be directed to the purpose of the period of disqualification.
In determining what is a relevant reason, the dual character of the disqualification provision, both as a penalty and as a protective provision, are relevant. See Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 146; [25].
There is nothing in the legislation to suggest that the reasons should be too rigidly limited. Thus, a period during which an offender has not driven a motor vehicle may be a good reason for reducing the period of disqualification as in Police v Waller [2011] SASC 232, which I followed in Sheather v Bishop [2012] ACTSC 77.
I referred earlier (at [57]) to considering that I should have expressed my views in a more nuanced way. I could be seen in Sheather v Bishop at [46]-[48] to have been suggesting a “two stage” approach to the consideration by the sentencing court as to whether to order a shorter period. That was questioned by Penfold J in Mwauluka v Turkich [2013] ACTSC 1 at [43].
Having carefully considered the matter, and having regard to the matters set out by the High Court in Rich v Australian Securities and Investments Commission, it seems to me that the real question for the court is what, having regard to all relevant factors and the reasons for whether a period shorter than the default period should be imposed, is the appropriate period to punish the offender and to protect the public. If it is a shorter period than the default period, then it should be imposed.
The default period is the period applicable when there are no reasons by which the court, which must first consider whether the appropriate period is shorter than the default period, can justify setting a shorter period. To approach the default period as a usual, expected or required period of disqualification would be to put a gloss on the legislation that is neither warranted by evidence nor justified by the words of the legislation, the Act as a whole or its legislative history.
In the same way, the legislated minimum cannot be regarded as only available where there are special or exceptional circumstances. Again, there is no justification in evidence in legislative language or history for such a judicial gloss on the plain words and structure of the relevant provisions.
I am not sure that this approach is different from that of Burns J in Tindall v Spalding [2014] ACTSC 253 but, insofar as it may be seen to be so, it seems to be that the legislative history and statutory construction lead to the conclusions at which I have arrived and which seem to me require the approach I have articulated.
Jurisdiction
I turn then to the substance of this appeal.
Appeals are a creature of statue, as stated in Nevard v Harley (1980) 31 ACTR 13 at 15. In order to understand the nature and extent of the appeal that is available, it is necessary to have careful regard to the statute which creates the right. See Achilleos v Housing Commission [1960] VR 164 at 166; CDJ v VAJ (1998) 197 CLR 172 at 197; [95].
Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including sentences imposed by it.
In particular, s 207 of that Act sets out the jurisdiction of this Court to hear appeals. It provides:
207 Jurisdiction of Supreme Court
(1) The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others:
(a) appeals to which division 3.10.2 (Appeals in criminal matters) applies;
(b) reference appeals under division 3.10.2A (Reference appeals in criminal matters);
(c) review appeals under division 3.10.3 (Review appeals in criminal matters).
(2) This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.
For this matter, the relevant provision is s 207(1)(a). That refers to Div 3.10.2. In that Division, s 208 sets out the appeals to which that Division applies. It is as follows:
208 Appeals to which div 3.10.2 applies
(1) Each of the following appeals is an appeal to which this division applies:
(a) an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):
(i) the person whose fitness to plead was decided;
(ii) anyone who appeared at the proceeding in which the decision was made;
(iii) anyone else with the leave of the court;
(b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375;
(d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 374 or section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed;
(e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
(iii) part 3.4 (Non-association and place restriction orders);
(iv) part 3.5 (Deferred sentence orders);
(v) part 3.6 (Combination sentences);
Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
(f) an appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge);
(g) an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum.
Note Automatic disqualification provision—see the Road Transport (General) Act 1999, s 61A.
(2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.
This appeal is concerned with paragraph (g) of s 208 of the Magistrates Court Act.
Appeal from licence disqualification
Given the specificity with which the Magistrates Court Act identifies matters which may be the subject of an appeal, the question of whether the disqualification of a person from holding or obtaining a driver licence is included in those matters has proved problematic.
Until 24 April 2013, s 208(1) of the Magistrates Court Act did not include paragraph (g). This meant that there was no specific provision that authorised an appeal against the disqualification of an offender from holding or obtaining a driver licence, whether as an automatic or discretionary disqualification.
I raised that matter in Barac v Thexton at [15]-[23]. While, rather tentatively, deciding that where the automatic disqualification involved the court setting a shorter period of disqualification than the default period for offences punishable by imprisonment, I expressed the view that this did not apply where no court had made such an order and the default period was then imposed by the legislation itself, as in s 33(2)(a) of the Alcohol and Drugs Act .
I considered the matter again in Travini v Starczewski (2009) 169 ACTR 1 and (at 11; [60]) confirmed my view that, where the automatic disqualification was for the default period because the court made no order setting a shorter period of disqualification, the disqualification was effected by the legislation, not by court order, and so no appeal lay to this Court.
Thus, until 24 April 2013, it has been held on at least two occasions that there is no appeal from an automatic disqualification which was for the default period because it was effected by legislation. The question in this appeal is whether the amendment to s 208 of the Magistrates Court Act altered this position.
Statutory amendment
Section 39 of the Crimes Legislation Amendment Act 2013 (ACT) inserted paragraph 208(1)(g) into the Magistrates Court Act as now appears above (at [13]).
The Explanatory Statement for the Crimes Legislation Amendment Bill 2013 clearly suggested that the amendment was designed to address the issues I have outlined above. It states:
Clause 39 Appeals to which div 3.10.2 applies
New section 208(1)(g)
This clause amends section 208(1) of the Magistrates Court Act 1930 to clarify that it is possible for a defendant to appeal an order to disqualify a person from holding a driver licence under an automatic disqualification as defined by section 61A of the Road Transport (General) Act 1999.
The purpose of this amendment is to provide that a person subject to a default disqualification period is not in a different position with regards to appeal rights than a person who has had a greater/lesser period of disqualification imposed and that the disqualification can be appealed in both cases.
This amendment will not affect the requirement of the appeal court to comply with the statutory minimum disqualification provided for by automatic disqualification provisions.
The precise terms of the amendment, however, do not seem to achieve what this explanation suggests. The new paragraph clearly refers to “an order of the court”. If anything, this seems to make explicit the distinction I had drawn between disqualifications imposed by a court order and those imposed by force of the legislation.
Mr P Edmonds, who appeared for Mr Burow, contended that the amendment did cover the situation of Mr Burow’s appeal. Mr S McLaughlin, who appeared for the respondent, contended to the contrary.
Mr Edmonds raised a number of arguments, which I will address.
The paragraph should be read consistently with the Explanatory Statement
Mr Edmonds submitted that the Explanatory Statement made it clear that the intention of para 208(1)(g) of the Magistrates Court Act was to permit an appeal from the disqualification for the default period imposed by, in this case, s 33 of the Alcohol and Drugs Act.
This, however, puts the interpretive process the wrong way around. It is clear that the first consideration of the court when construing legislation is to consider the words of the relevant statute. As the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority at 384; [78]:
... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always.
Their Honours, however, went on to say:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
The context, of course, can be gleaned from, inter alia, the Explanatory Statement but the Explanatory Statement does not override the plain words of the statute. The question is what the words mean, not what any drafter, Minister or member of parliament says that they mean. See Nolan v Clifford (1904) 1 CLR 429 at 449-50; Harrison v Melhem (2008) 72 NSWLR 380 at 384; [14].
Thus, a statement in an Explanatory Statement cannot override the statutory text. As the High Court said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519; [39]:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’ [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Indeed, here the context points in the other direction. The issue raised has been that the legislation effected the disqualification where the automatic disqualification was for the default period, not for the period set by court order. The difference between the two methods of setting the period of automatic disqualification was an essential point. The use of the reference to “order of the court” in the amending statute makes it clear that the default disqualification was not in contemplation.
Accordingly, I do not consider that this argument justifies the statutory construction for which Mr Edmonds contends and does not justify me assuming jurisdiction in this appeal.
Consequences of an order of the court
Mr Edmonds submitted that, if I were not disposed to resolve the issue by reference to the Explanatory Statement, then ordinary canons of statutory construction could be called on to show that the appeal was within the terms of s 208(1)(g) of the Magistrates Court Act.
He submitted that the order of the court imposing the conviction was the causative act that resulted in the disqualification. Accordingly, when the court orders that a person is convicted, this necessarily results in a disqualification, whether the default disqualification or that ordered by the court for a shorter period.
While this may be accepted, it is not sufficient in itself to bring the consequence into the statutory terms of “order of the court”. The court does not make an order of disqualification if the default period is applied. The legislation itself imposes that consequence. There are a number of consequences of convictions in various pieces of legislation, some automatic and inevitable, some not so.
For example, the appointment of a member of a governing board of a Territory authority may be ended if the person is convicted of an offence punishable by imprisonment of one year or more: s 81 of the Financial Management Act 1996 (ACT). A person is a registrable offender with significant obligations and disabilities if he or she is sentenced (and, therefore, convicted) of a registrable offence under the Crimes (Child Sex Offender) Act 2005 (ACT) (s 8).
Some consequences depend on the circumstances or nature of the offence but still provide automatic consequences. For example, where an assets restraining order has been made, the conviction of the offender results in the automatic forfeiture of the property: s 58 of the Confiscation of Criminal Assets Act 2003 (ACT).
A person convicted of a disqualifying offence cannot become interested in a commercial brothel or escort agency: s 15 of the Prostitution Act 1992 (ACT). A person convicted of certain offences is automatically deprived of citizenship granted to them: s 34 of the Australian Citizenship Act 2007 (Cth). There are many more examples.
It is simply not maintainable to suggest that an appeal against an order of the Magistrates Court which convicts a person could encompass an appeal against such consequential effects, even if the existence of such a disability or consequence may assist the court in coming to a view about the proportionality of the sentence, as in R v CV [2013] ACTCA 22.
I accept, of course, that, if a defendant appeals against his or her conviction and that appeal is upheld, the consequence is revoked or set aside. That may, in appropriate cases, be the consequence of a sentence appeal where a conviction is replaced by a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
That, however, is not the situation to which Mr Edmonds is referring. He is not seeking an order under s 17 of the Crimes (Sentencing) Act and, in the circumstances of this case, Mr Burow would not be likely to have been so sentenced. Mr Edmonds accepts the conviction but wishes to challenge the consequential order; he wants me to find that the failure of the Magistrates Court to order a shorter period of disqualification was an error.
I do not accept that the consequences of the conviction, though automatic, are within the meaning of s 208(1)(g) of the Magistrates Court Act “order of the court” because it has entered the conviction.
Judicial amendment of the legislation
Mr Edmonds next submitted that I would be able to insert into the legislation words which would allow the paragraph to be consistent with the Explanatory Statement.
He actually suggested that the words “an order of the court to disqualify a person from holding a licence under an automatic disqualification provision” in s 208(1)(g) of the Magistrates Court Act should be read as if the words “resulting from the Court recording a conviction” were added at the end of that phrase.
He submitted that the condition for such implication of words in a section was justified by the three preconditions for such an approach to inserting words in legislation set out by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105, namely
First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.
This approach has been adopted by the High Court in Taylor v Owners – Strata Plan No 11564 (2014) 306 ALR 547 at 557; [39], though the Court did not consider that it was always necessary to meet all three conditions.
Mr Edmonds submitted that not to read the suggested words into the paragraph would defeat the clear legislative intent behind the amendment and the inserted s 208(1)(g) of the Magistrates Court Act.
Unfortunately, I cannot accept the submissions Mr Edmonds has made. In the first place, I do not accept that a failure to add words such as those proposed would “defeat the clear legislative intention”. It would likely defeat the intention expressed in the Explanatory Statement but that is not the legislative intention; that is the intention of the drafters, the Ministers or the policy advisers. The intention is to be gleaned from the words used, together with available and authorised statutory construction techniques.
Secondly, the words suggested to be added will not achieve the objective Mr Edmonds seeks. It is not clear what precisely the phrase, he suggests should be added, is intended to qualify. As an adjectival phrase, it must qualify a noun but it cannot qualify “order” or “court” for that makes no sense, since neither result from the recording of a conviction. None of the other nouns in the paragraph could helpfully be qualified by it. Clearly, he intends to have it qualify “disqualification” but the only use of that word in the paragraph is “automatic disqualification provision” where the word “disqualification” is an adjective itself and not a noun. In any event the provision (as opposed to its effect) does not result from the recording of a conviction.
In order not to be overborne with semantics, one could convert the phrase into an adverbial clause “as a result of the Court recording a conviction” and insert it after “disqualify a person from holding a driver licence” in the paragraph.
This will not, however, achieve the object Mr Edmonds seeks to achieve either, for the appeal authorised by the paragraph is, after such an insertion, still, grammatically, one from an order of the court (and, in the relevant circumstances, there is not one), and, thus, not a power that covers this appeal.
Thirdly, it does not seem to me that the proposed addition would pass the three pre-conditions propounded by Lord Diplock. It does not meet the first condition, for “a consideration of the provisions of the Act read as a whole” does not identify any mischief that the Act was designed to remedy that will help Mr Edmonds. It is only by reference to the Explanatory Statement that this becomes clear.
Even if the amending Act, the Crimes Legislation Amendment Act, does not provide a purpose of the kind suggested, it is just as likely that the legislature was putting beyond doubt the jurisdiction of the court that had caused me concern in Barac v Thexton. Thus, the first criterion is not met.
Given what is contained in the Explanatory Statement (and assuming that it was in accordance with the drafting instructions that had been given by Parliamentary Counsel), I can infer that there may have been inadvertence in the drafter omitting a provision for an appeal from a non-court-ordered disqualification, but that does not come from the Act itself and so the second criterion is not met.
Finally, for the reasons set out above (at [102]-[107]), I cannot say that the words proposed by Mr Edmonds (or even my re-structure of them (at [108]-[109]) are words that I can “state with certainty” are the additional words that “would have been inserted by” the drafter. The third criterion is not met.
Re-visiting Travini v Starczewski
Mr Edmonds suggested several ways in which I might re-visit the decision I made in Travini v Starczewski that the non-court-ordered automatic disqualification for the default period is not encompassed in the provisions for appeal.
This was put in three ways. The first was that, as the disqualification was part of the penalty, it was “an integral part of the overall sentence”. The express powers, then, under s 208(1)(d) and (e) of the Magistrates Court Act would provide jurisdiction for the appeal.
As he pointed out, decisions such as the Guideline Judgment and Scott v Wynants and, indeed, Travini v Starczewski, all make the point that the disqualification is a penalty or partly a penalty and partly protective. That, however, is not the point; the question is whether the court has imposed it or it is made by an order of the court. In my view, the imposition of the default disqualification is not “a sentence or penalty imposed by the Magistrates Court” (s 208(1)(d)) and is not “an order of the court” under any provision of the Crimes (Sentencing) Act (s 208(1)(e)). The powers under s 208 of the Magistrates Court Act do not, in my view, presently permit an appeal from the automatic disqualification for the default period imposed, not by the court, but by the Alcohol and Drugs Act.
Mr Edmonds submitted next that the result was an absurdity for, as pointed out by Ross J in Nikro v O’Sullivan [2014] ACTCA 12 at [15], the consequence of the automatic disqualification for the default period may make the total penalty manifestly excessive. While I agree that the period of disqualification may make the total penalty excessive and while the limitation on appeals that I have found does strain the approach that a court can take to an appeal against the alleged manifest excess of a sentence, I do not find that absurd. It is a challenge. It is a matter that should be reviewed. It is a matter that, if the Explanatory Statement is an accurate statement of what the government considers the correct approach should be, then warrants legislative intervention.
There are other ways in which the courts can deal with such issues as, indeed, did the court in Nikro v O’Sullivan. See also R v CV. I further note that even a minimum disqualification may result in a certain penalty being manifestly excessive in particular circumstances, but (as with any mandatory sentencing regime) the court cannot change that.
Finally, Mr Edmonds suggested that I could deal with the appeal by reliance on Kelly v Apps (2008) 98 FCR 101.
In Kelly v Apps, the Full Court of the Federal Court of Australia held that s 20(1)(a) of the Supreme Court Act 1933 (ACT), which provides
(1)The court has the following jurisdiction:
(a)all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b)jurisdiction conferred by a Commonwealth Act or a law of the Territory.
gave the Supreme Court jurisdiction to hear and determine an appeal as to costs from the Magistrates Court, even though the relevant provision of the Magistrates Court Act did not provide for appeals as to costs, and also provided:
(1)The appellate jurisdiction of the Supreme Court with respect to decisions of the Magistrates Court under this Act (other than a decision under Part 10) extends to the hearing and determination of the following appeals and to no others, namely:
(a)appeals to which Division 2 applies; and
(b)appeals from decisions of the Magistrates Court by way of orders to review made in accordance with Division 3.
(2)Nothing in this Part limits the operation of any other Act that makes provisions with respect to the appellate jurisdiction of the Supreme Court.
In Kelly v Apps, Wilcox J, with whom Gallop and Marshall JJ agreed, said of this provision (at 105; [21]-[23]):
Subsection (2) is important in the present context because it specifically states that nothing in Part XI limits the operation of any other Act. This of course, must include the Supreme Court Act, which makes provisions with respect to the appellate jurisdiction of the Supreme Court.
Division 2 goes on to itemise the matter that may go to the Supreme Court by way of appeal and Div 3, which contains s 219B already mentioned, deals with orders to review. The important point for present purposes, it seems to me, is that there is a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act and the Magistrates Court Act specifically states that nothing in Part XI is to cut down jurisdiction conferred under other legislation. I see no reason for the Court to construe s 20(1)(a) in a narrow way. It is obviously intended as a salutary provision to enable justice to be done by the Supreme Court.
If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act, in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of s 20(1)(a) of the Supreme Court Act. In my view, the Court should hold that the Chief Justice did have jurisdiction in this matter in relation to costs
That decision has received much criticism, especially more recently. I have expressed my view in Sleiman v Murray (2009) FLR 224 at 230; [32]-[34] that it should not be followed.
In Bloxham v Wyte (2013) 278 FLR 365 at 374; [49], Penfold J also expressed concern when her Honour said:
... having regard in particular to the comments of the High Court and earlier comments of other courts (noted at [9] above) about the need for a statutory basis for an appeal, and the repeated indications by the High Court and other courts that the nature of an appeal must, and can only, be determined by reference to the details of its statutory foundations (eg Lacey v Attorney-General of Queensland at [57]; Kostas v HIA Insurance Services Pty Ltd(2010) 241 CLR 390 at [27]; Turnbull v New South Wales Medical Board[1976] 2 NSWLR 281 at 297-8), a general conferral of ‘appellate jurisdiction’ (albeit an apparently statutory conferral), does not seem to me an adequate basis from which to infer the availability of a particular appeal.
It seems to me, also, that the decision is contrary to what the High Court has said about the issue of jurisdiction in Reid v Howard (1995) 184 CLR 1.
A number of judges of this Court have also expressed concern about the decision: Westbrook v The Queen (Unreported, Australian Capital Territory Supreme Court, Crispin J, SCA 23 of 2000, 18 July 2000) (Crispin J)); Rose v Snape [2000] ACTSC 115 (Higgins J); FAI Properties Pty Ltd v Apostolopoulos (2002) 169 FLR 232 (Spender J); Evans v Shiels (2004) 145 A Crim R 337 (Connolly J).
In any event, Kelly v Apps was an ex tempore decision which was directly inconsistent with the reserved decision of Spurr v Fishpool (1972) 20 FLR 174, a decision also of the Full Federal Court, to which Wilcox J made no reference in Kelly v Apps. It seems to have been decided per incuriam.
I maintain the view I have taken in respect of Kelly v Apps. It should be confined to its facts. I will not rely on it to find that this court has jurisdiction to hear an appeal from the automatic disqualification of an offender from holding or obtaining a licence for the default period.
The Facts
Although the conclusion I have reached is that the appeal must be dismissed, it is desirable that I set out some of the relevant facts for reasons that will become apparent.
On 28 November 2013, Mr Burow was driving south on Northbourne Avenue, Canberra City when he was stopped by police. He was driving in the northbound lane, perhaps because he was a newcomer to the Territory. When stopped by police, he produced a Queensland driver licence. He was subjected to a roadside screening test which proved positive to alcohol in his breath. He was taken into custody to City Police Station where he submitted to a breathalyser test which resulted in a reading of 0.854 grams of alcohol being found in 210 litres of his breath. That is a Level 4 reading, the highest level. He was issued with the Immediate Suspension Notice, as noted above (at [2]).
Mr Burow is thirty-two years old and has no prior convictions. He had been driving for fifteen years without apparent incident. Mr Burow moved from Queensland, where he grew up, to Canberra about eighteen months before the incident. He is a public servant, a single man with no children.
He had, on the evening in question, played soccer with a team which included his housemates. After the game, he went home and drank some beer – obviously a significant amount. His girlfriend then rang him from Civic and he made the stupid decision to drive into town as a result. He only drove one block on Northbourne Avenue on the wrong side of the road and there was no suggestion that there was any other driver or pedestrian put in danger; police stated that traffic was light.
He pleaded guilty at an early stage and character references, attesting to his good character, were tendered. He also undertook and satisfactorily completed a drink-driving course before being sentenced. That shows not only remorse but how seriously he took the offence and sought rehabilitation.
These matters were clearly relevant to the questions of disqualification, both in its penalty and protective aspects. It was submitted that the fact of completion of a drink-driving course was a relevant reason for setting a shorter period of disqualification. That and his driving record show, it would appear, that the protective and punitive aspects of the disqualification are of less significance.
It appears that the period of the suspension following the Immediate Suspension Notice was also not taken into account, though it is not clear whether the complaint is that it was not mentioned in court or has been denied subsequently by the Road Traffic Authority.
Conclusion
Ultimately, as a result of my finding on jurisdiction, the appeal must be dismissed.
On the basis of the approach to disqualification as part of the response by a court when sentencing a drink-driving offender that I have articulated, it seems to me that there was a real basis for setting a shorter period of disqualification in this case. It was also necessary to take account of the period when Mr Burow was subject to the notice under s 61B of the ACT General Act.
The counter argument that he should be denied this latter benefit because he failed to transfer his licence registration to Canberra and, therefore, is the author of his own misfortune does not seem to me to be a strong one. While s 11 of the Road Transport (Driver Licensing) Act 1999 (ACT) gives recognition to Mr Burow’s Queensland licence, this recognition only lasts for three months after the date when he commenced to reside in this Territory. As he continued to reside here after that time, there is an automatic disqualification of that recognition. See ss 91, 101 of the Road Transport (Driver Licensing) Regulation 2000 (ACT). His failure to obtain an ACT licence after that time means that, by driving he commits an offence under s 92 of the Road Transport (Driver Licensing) Regulation. That it does amount to such an offence may, in the circumstances, mean that to punish Mr Burow further by not taking into account the period during which he was not permitted to drive may breach the principles in R v De Simoni (1981) 147 CLR 383. See, also, Savvas v The Queen (1995) 183 CLR 1.
In any event, I can see no legislative intent in s 35 of the Alcohol and Drugs Act to restrict the imposition of a shorter period of disqualification to those persons who have a local licence. Indeed, given the national nature of the scheme, it would seem that the reduction would automatically apply.
Indeed, s 35 of the Alcohol and Drugs Act simply refers to “[t]he period for which the person is disqualified ... is reduced by the period” of suspension under s 61B of the ACT General Act. Mr Burow’s licence was suspended for such a period; s 35 requires that to be taken into account.
This issue, however, was not canvassed before me and I will invite counsel to make relevant submissions. This may be relevant to consequential orders I must make.
In the event, the appeal must be dismissed, I can, however, make appropriate consequential orders to take account of the effect of the stay under s 216 of the Magistrates Court Act. See Schwalm v The Queen [2012] ACTCA 43 at [16]; Hadba v The Queen (2004) 146 A Crim R 291 at 300; [36] and Re Osman (2010) 244 FLR 397 at 400; [17]-[19]. This may only amount to a declaration of the period for which the suspension of the licence is operative. See Mateta v McDonough [2011] ACTSC 196 at [20]-[22]. This can be dealt with in the further submissions I have invited.
I shall make orders appropriately.
| I certify that the preceding one hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2015 |
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