Chan, Youlang v The Queen

[2009] NSWDC 242

Reported Decision: 9 DCLR (NSW) 336

District Court

CITATION:	Chan, Youlang v R [2009] NSWDC 242
JUDGMENT DATE:	17 August 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	C Armitage DCJ
DECISION:	The appeal is upheld and the disqualification order of the learned magistrate for twelve months is discharged.
CATCHWORDS:	Criminal Law - sentence appeal - whether driver disqualification can be imposed where S.10 of the Crimes (Sentencing Procedure) Act is applied
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Road Transport (Driver Licencing) Act 1998 Fines Act 1996 Victims Compensation Act 1996 Road Transport (General) Act 1998 Road Transport (Safety and Traffic Management) Act 1998
PARTIES:	Youlang Chan Regina
FILE NUMBER(S):	2009/10882
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1 This is an appeal against a disqualification order made by a magistrate at Burwood Local Court on 19 June 2009 following dismissal of a charge of driving while the appellant’s licence was suspended, the dismissal being under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The charge faced by the appellant was under s 25A of the Road Transport (Driver Licensing) Act 1998. The section provides in subs (2) that a person whose driver licence is suspended other than under s 66 of the Fines Act 1996, which does not apply to the present case, must not relevantly drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates. I thank the parties’ representatives for their detailed statutory arguments, which have enabled me to deliver ex tempore reasons immediately on this short but difficult point. I took the Crown to agree eventually in argument with the conclusion I have reached when I traced it for them.

2 That is what the appellant was found by the learned magistrate to have done in this case, because in order to apply s 10 of the Crimes (Sentencing Procedure) Act it was necessary for her to find the offence proven. That however was not a conviction. The reason is that s 10 of the Crimes (Sentencing Procedure) Act provides in subs (1) that without proceeding to conviction a court which finds a person guilty of an offence may make one of a number of orders. Those are firstly that the relevant charge be dismissed; secondly that the person be discharged on condition they enter into a good behaviour bond for a period not exceeding two years; or thirdly that the person be discharged on condition they enter into an agreement to participate in an intervention program and to comply with it. The relevant order made in the present case was that the charge be dismissed.

3 Such orders may be made with regard to the factors in subs (3) of s 10, which relate to such matters as the person’s character, antecedents, age, health and mental condition of the offender, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, or any other matter that the court thinks it proper to consider. I do not have a copy of the learned magistrate’s reasons so I do not know which of those factors she applied, but she must have applied one of them at least, in order to make an order directing that the relevant charge be dismissed under s 10(1) of the Crimes (Sentencing Procedure) Act.

4 After this step has been taken, subs (4) of s 10 aforesaid provides that an order under the section has the same effect as a conviction, for the purposes of any law relating to the revesting or restoring of stolen property, and for the purposes of enabling a court to give directions for compensation under part 4 of the Victims Compensation Act 1996, and for the purposes of enabling the court to give orders with respect to the restitution or delivery of property, or the payment of money in connection with the restitution or delivery of property. None of these situations applies here, so an order under s 10 of the present type does not have the same effect as a conviction within the terms of s 10(4).

5 When one passes back to s 25A of the Road Transport (Driver Licensing) Act to which I have referred above, one sees that subs (7) provides that if a person is convicted by a court of an offence inter alia under sub (2) of driving while a driver licence is suspended - which is applicable in the present case – that person is disqualified by the conviction and without specific order for the relevant disqualification period from the date of expiration of the existing disqualification or suspension, or from the date of conviction, whichever is the late, from holding a driver licence, and may also be disqualified for such additional period as the court may order.

6 The relevant disqualification period is in subs (10) of the section provided as being twelve months for a first offence, relevantly under subs (2), that is to say a conviction for driving while one’s driver licence is suspended.

7 It is to be noted that that disqualification period provided by subs (10) only operates under subs (7) if a person is convicted by a court of an offence, relevantly under subs (2) of the section. That is not this case, because the appellant, far from being convicted of an offence, was the subject of an order under s 10(1)(a) ordering that the relevant charge be dismissed under the section.

8 Thus it appears to me that the learned magistrate had no power to order disqualification, and neither has the Roads and Traffic Authority any power to impose one of its own motion, because within the meaning of s 25A (7) of the Road Transport (Driver Licensing) Act 1998, there has been no conviction.

9 For completeness I should refer also to s 187(1) of the Road Transport (General) Act 2005 which provides in subs (1) as follows:

“Subject to s 188 of this Act and s 40 of the Road Transport (Safety and Traffic Management) Act 1999 and ss 25 and 25A of the Road Transport (Driver Licensing) Act 1999, a court that convicts a person of an offence under the Road Transport Legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies.”

10 S 188 makes provision for automatic disqualifications, and the definition portion of it in subs (1) defines automatic disqualification as “a disqualification under this section for holding a driver licence without specific order of a court”, and “convicted person” is defined in subparas (a), (b), (c) and (d) of the subsection, and there is no reference in that subsection to offences under s 25A of the Road Transport (Driver Licensing) Act 1998, nor do subparas (a) and (b) of the subsection apply to the present case. That has the effect that the remainder of s 188 does not apply to the present case, because it proceeds on the definition of “convicted person” in subs (1), which does not include the present offender, firstly because an offence under s 95A is not mentioned in the definition section, and secondly because, within the meaning of the section, he has not been convicted of such an offence. Therefore s 188 does not extend the operation of s 187 in the present case.

11 I have already demonstrated that s 25A, which is relevant in the present case does not provide power to disqualify until there is a conviction, which there is not in the present case. S 25 of the Road Transport (Driver Licensing) Act 1998 to which s 187(1) is subject is not presently relevant, because it relates to driving while never licensed, and neither is s 40 of the Road Transport (Safety and Traffic Management) Act 1999, to which s 187 is also subject, because it relates to the keeping of photographs. Therefore it can be seen that s 187 conferred no power on the learned magistrate to disqualify the appellant apart from the other provisions to which I have referred.

12 The conclusion I have reached therefore is that the learned magistrate had no power to impose a disqualification, and the present appeal should be upheld and the disqualification order quashed. For the guidance of the Roads and Traffic Authority I indicate that by the legislative path I have traced, there is also no power in the Authority to impose a disqualification on the appellant of its own motion, for the simple reason that there has been no conviction under s 25A.

13 The appeal is upheld and the disqualification order of the learned magistrate for twelve months is discharged. I direct that a copy of my reasons be taken out and sent to the legal section of the Roads and Traffic Authority.

HIS HONOUR: I don’t know whether that will have the relevant effect, Ms Crown, but I hope so. Mr Chan, if you subsequently receive a letter from the Roads and Traffic Authority disqualifying you again, you should get legal advice about it and tell whatever adviser you engage to secure a copy of my reasons here today. Ms Crown, I was right in assuming that you agreed with my reasoning in that case?

PAWLIW: Your Honour as I said, I don’t have the practice in front of me but I understand that that is the case, certainly.

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