Director of Public Prosecutions (NSW) v Kmetyk (No 2)

The Director of Public Prosecutions (NSW) appealed against the sentence imposed on Mr Kmetyk in the District Court of NSW. The dispute concerned the application of a statutory disqualification period following Mr Kmetyk's conviction for driving while disqualified, and whether an automatic stay of execution applied to this disqualification consequence despite the conviction itself being unchallenged. The appeal was heard by Meagher and Leeming JJA and Sackville AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether section 63 of the Crimes (Appeal and Review) Act 2001 operated to stay the automatic disqualification period imposed by section 54 of the Road Transport Act 2013, where the conviction for driving while disqualified was not appealed. The court had to determine if the statutory disqualification was a "sentence" for the purposes of section 63, or a consequence of the conviction that fell outside the scope of the stay provision.

The Court of Appeal held that the statutory disqualification under section 54 of the Road Transport Act 2013 was not a "sentence" within the meaning of section 63 of the Crimes (Appeal and Review) Act 2001. Their Honours reasoned that section 63 provides for a stay of execution of a sentence pending an appeal against the conviction or sentence. However, the disqualification in this instance arose automatically by operation of law upon conviction, rather than being imposed as a specific sentence by the court. Therefore, section 63 did not apply to stay the disqualification period.

The Court of Appeal granted leave to the applicant to be heard in support of further orders but otherwise dismissed the notice of motion filed on 8 August 2018. No order was made as to costs, with the intention that the parties bear their own costs.