Christopher Mateta v Katherine McDONOUGH; And ANDREW McKENZIE - [2011] ACTSC 196

The appeal be allowed.

Insofar as the Magistrates Court purported to order on 19 March 2009 that Christopher Jason Mateta be disqualified from holding or obtaining a driver licence for a period longer than 12 months in respect of the offence of driving whilst disqualified on 19 April 2008, that order is set aside.

AND THE COURT DECLARES THAT:

The disqualification of Christopher Jason Mateta from holding or obtaining a driver licence under orders of the Magistrates court take effect as follows:

(a) in respect of the offence of driving whilst disqualified on 19 April 2008 (CC 2008/4712) from 23 July 2008 to 22 July 2009; and

(b) in respect of the offence of driving whilst disqualified on 19 February 2009 (CC 2009/1367) from 23 July 2009 to 9 February 2012, to take into account the statutory stay which commence on 6 May 2011 and was lifted on 24 November 2011.

For a young man, the appellant, Christopher Jason Mateta, has an unenviable criminal record, mainly of traffic offences including those of a more serious kind such as dangerous driving, drink driving and driving whilst disqualified.

Mr Mateta appeared before the ACT Magistrates Court on 19 March 2009 for a further charge of being a repeat offender driving whilst disqualified on 19 January 2009. He entered a plea of guilty. A conviction on that charge constituted a breach of a good behaviour order made on 9 June 2008 when he was sentenced to a two year good behaviour order with conditions, for an earlier charge of being a first offender driving whilst disqualified.

Mr Mateta was sentenced on 19 March 2009 to 3 months’ imprisonment for the repeat driving whilst disqualified, and it was directed to be served by periodic detention. He was re-sentenced in respect of the good behaviour order, apparently under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), although the Learned Sentencing Magistrate did not cancel the order, as required under the section; perhaps that could be implied. No point was taken about this. In any event, his Honour re‑sentenced Mr Mateta to 2 months’ imprisonment fully suspended and imposed what appears to have been a further good behaviour order, though articulated as if it were a recognizance under s 403 of the Crimes Act 1900 (ACT), a now repealed provision.

On 8 April 2011 Mr Mateta lodged an application for leave to appeal out of time from the orders of the Magistrates Court. Leave was granted on 29 April 2011, and on 6 May 2011, within the time limit in the order granting leave, a Notice of Appeal was lodged. The Notice of Appeal directs the appeal, really, only to challenge the period of licence disqualification.

To understand how this issue arises, it is necessary to set out some of the history of Mr Mateta’s licence. On 23 July 2007, Mr Mateta was convicted of dangerous driving and he was disqualified from holding or obtaining a licence for 12 months. That period would expire on 22 July 2008. On 19 June 2008, however, he was charged with a number of further offences, including dangerous driving, driving whilst disqualified and drink driving. For these offences he was disqualified from holding or obtaining a licence for 12 months, 12 months and six months, respectively, the latter two disqualifications being concurrent with the first. As, however, no other order was made, these disqualifications, which through concurrency totalled 12 months were, by operation of s 67 of the Road Transport (General) Act 1999 (ACT), cumulative on the earlier disqualification. Thus, at that date, Mr Mateta was disqualified until 22 July 2009.

When Mr Mateta was sentenced for the most recent offence, the subject of the appeal, the Learned Sentencing Magistrate said, “Your licence will be suspended for the statutory period of 12 months which is to be cumulative with those penalties already being served”. The reference to “the statutory period” appears to be a reference to the provisions of s 32 of the Road Transport (Driver Licensing) Act 1999 (ACT). The offence with which Mr Mateta was charged and of which he was convicted, was laid under s 32(1)(a) of that Act. Section 32(5) of that Act provides:

If a court convicts a person of an offence against subsection (1), (2) or (3), the person is automatically disqualified from holding or obtaining a driver licence -
(a)for a first offender - for 12 months or, if the court orders a longer period, the longer period; or
(b) for a repeat offender - for 24 months or, if the court orders a longer period, the longer period.

There was, regrettably, ambiguity in what his Honour said as to which sentence this related. If it was intended to refer to the automatic disqualification in respect of the 2009 offence the penalty was, in fact, 24 months not 12 months, for Mr Mateta was a repeat offender. His Honour had no power under s 32 to reduce the period of disqualification; it was simply a mistake on his Honour’s part in referring to 12 instead of 24 months if that interpretation is accepted. It was possible to interpret what his Honour said as that his Honour in re‑sentencing Mr Mateta for the first offence which he was doing because of the breach of the good behaviour order and extending the period of disqualification for that offence. There are, however, problems with this.

As the conviction had been entered in 2008, the automatic disqualification would then have applied. It does not seem to me that the order for a longer period can be made a substantial period after the conviction was entered, but I am not asked finally to decide that. It is, however, a reason not to accept this interpretation. In addition, the words his Honour used do not seem apt to making an order for a longer period, as one would expect; his Honour should have said “24 months”, as this is what the section appears to require.

The Magistrates Court and the Australian Capital Territory Road Transport Authority (established under s 16 of the Road Transport (General) Act) seemed to have taken the approach that his Honour was ordering an additional 12 months’ disqualification that was cumulative on the other periods of disqualification in respect of the re-sentencing for the earlier offence.

The evidence before the Master when he extended time for the appeal was that these agencies, at least so far as the Magistrates Court is concerned, only initially considered that this meant Mr Mateta was disqualified until 22 January 2013. How that date was calculated is entirely unclear and neither counsel could explain it.

Thus, the position is:

i. Disqualification on 23 July 2007 (first disqualification) 23 July 2007 to 22 July2008;

ii. Disqualification on 19 June 2008 (second disqualification) 23 July 2008 to 22 July 2009; and

iii. Disqualification on 19 March 2009 (third disqualification) 23 July 2009 to 22 July 2011.

Had the second interpretation applied that would have extended the period only to 22 July 2012.

There may have been a problem with the appeal, however, were Mr Mateta complaining about either automatic disqualification under s 32. The disqualification, unless it is extended by the court, is not imposed by the court, but by virtue of the provisions of the Act itself. This means it cannot be the subject of an appeal. See Travini v Starczewski [2009] ACTSC 123 (at [13] to [35]).

After some consideration I am prepared to hold that the appeal is well commenced, as the only issue is that the Magistrates Court order and the Road Transport Authority appear to be acting upon the second interpretation which would have amounted to accepting that his Honour had extended the period of the second disqualification, an order of the court which I held in Travini v Starczewski can be the subject of an appeal.

Having considered the matter carefully, I am satisfied that his Honour intended to proceed in the way I have described as the first interpretation and not the second interpretation, and that the action taken by the authorities to implement the second interpretation gives me power to deal with the appeal. With due respect to his Honour, it appears his Honour simply made a mistake.

It seems to me that, further, were his Honour to have decided in re‑sentencing that he was going to increase the disqualification period, if he had power to do so, about which I have some doubts, he was required to advise counsel for Mr Mateta of his intention to do so before he imposed that additional disqualification. Not to do so would amount to procedural unfairness. See Wilkins v Hague & Anor [2011] ACTSC 189.

There are, therefore, two reasons for upholding the appeal, namely that the orders of the court do not reflect the true intention of the court on sentencing and that, if this is not so, there was a failure of process.

It was suggested that the problem could be rectified by an application under s 61 of the Crimes (Sentencing) Act 2005 (ACT). That is a possibility if it is accepted that his Honour was attempting to impose “a longer period” under s 32(5)(b) of the Road Transport (Driver Licensing) Act, if my preliminary view about the power in that respect on re-sentencing, namely that it cannot be an occasion for making an order for a longer period, is correct. In any event, application could have been made under r 6906 of the Court Procedures Rules 2006. See R v Gorman [2009] ACTSC 7.

Nevertheless, it does not appear to me appropriate to send the matter back to the Magistrates Court. All the parties are here, the problem is clear, I should make the necessary orders.

I have, however, been asked to go a little further than simply upholding the appeal and to make, in effect, declarations about the effect of the sentences. That would ensure that the problem of communication with and between the Magistrates Court and the Road Transport Authority would be obviated. I am not entirely sure how far the court has power to do so. It does seem to me, however, that there is some power to declare the length of time for which a sentence is effective, particularly if this requires construction of a statute. See, for example, Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134. That case is not entirely in this class but it does seem to me to be sufficiently similar.

I am concerned also that the Road Transport Authority, or perhaps the Australian Capital Territory, is not a party, but given that I am dealing with the appeal I do not consider that this detracts from my power to make an appropriate declaration.

When Mr Mateta lodged the Notice of Appeal on 6 May 2011, s 216 of the Magistrates Court Act 1930 (ACT) stayed the disqualification he challenged in the appeal.

As the disqualification would have expired on 22 July 2011, that was a period of 78 days. The stay is lifted upon my disposal of the appeal. That will require an additional period of 78 days from today while the disqualification still applies. On my calculation that is to 9 February 2012.

I will make orders to give effect to my views on the appeal.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 4 January 2012

Counsel for the appellant:  Mr S Whybrow
Solicitors for the appellant:  KJB Law
Counsel for the respondent:   Mr T Jackson
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:   24 November 2011
Date of judgment:  24 November 2011

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Christopher Mateta v Katherine McDONOUGH; And ANDREW McKENZIE [2011] ACTSC 196

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