Director of Public Prosecutions v Partridge - [2009] NSWCCA 75

No judgment structure available for this case.

Reported Decision: 74 NSWLR 6252 MVR 280194 A Crim R 309[2009] ALMD 4694

New South Wales

Court of Criminal Appeal

CITATION: Director of Public Prosecutions v Partridge [2009] NSWCCA 75
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 March 2009

JUDGMENT DATE:
25 March 2009

JUDGMENT OF: McColl JA at 1; Grove J at 70; Howie J at 71

DECISION: 1. The answer to the question posed by the stated case is yes. 2. Appellant to pay the respondent’s costs of the stated case.

CATCHWORDS: CRIMINAL LAW – particular offences – driving offences – practice and procedure – sentencing – automatic disqualification period – driving unlicensed contrary to s 25A(1)(a) of Road Transport (Driver Licensing) Act 1998 - prior conviction for contravention of s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 – whether a “second or subsequent offence” for the purposes of s 25A(10)(b), Road Transport (Driver Licensing) Act 1998 - STATUTES – acts of parliament – interpretation – meaning of “second or subsequent offence” under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 – whether the definition of “second or subsequent offence” in s 25A(6)(b) applies to “second or subsequent offence under subsection (1), (2) or (3) (a)” in s 25A(10)(b) - TRAFFIC LAW – licensing of drivers – New South Wales – disqualification, cancellation and suspension of licences – relevant automatic disqualification period under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 - WORDS & PHRASES – “second or subsequent offence” – “for the purposes of this section” – “in this section”

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Interpretation Act 1987
Road Transport (Driver Licensing) Act 1998
Road Transport (General) Act 2005
Road Transport (Safety and Traffic Management) Act
1999
Road Transport Legislation Amendment Act 1999
Traffic Act 1909
Acts Interpretation Act 1901 (Cth)
Road Traffic Act 1961 (SA)

CATEGORY: Principal judgment

CASES CITED: Bartlett v D’Rozario [1971] SASR 88
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Farrington v Thomson & Bridgland [1959] VR 286
Shane William Johnson [2008] NSWDC 47
O’Hara v Harrington [1962] Tas SR 165
Pointon v Police [2004] SASC 4; (2004) 143 A Crim R 416
Police (SA) v Whitehouse [2005] SASC 220; (2005) 92 SASR 81
Police v Nowak [2000] SASC 82; (2000) 76 SASR 551
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Sirocic [2000] NSWCCA 325; (2000) 32 MVR 165
Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
Reid v Rowbottam [2005] NTSC 7; (2005) 190 FLR 17
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
The King v The Licensing Justices for the County Borough of South Shields [1911] 2 KB 1
Wheeler [2008] NSWDC 165; (2008) 7 DCLR (NSW) 271

TEXTS CITED: Coke’s Institutes of Law

PARTIES: Director of Public Prosecutions (NSW) - Appellant
Dennis Raymond Partridge - Respondent

FILE NUMBER(S): CCA 2008/11833

COUNSEL: D U Arnott SC - Appellant
H Dhanji - Respondent

SOLICITORS: S C Kavanagh - Appellant
O'Brien and Hudson - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/12/1017

LOWER COURT JUDICIAL OFFICER: Hosking SC DCJ

LOWER COURT DATE OF DECISION: 4 September 2008

CCA 2008/11833

McCOLL JA
GROVE J
HOWIE J
Date

Director of Public Prosecutions v Dennis John Partridge

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 July 2008 the respondent, Dennis Raymond Partridge, was convicted in the Local Court of New South Wales of driving whilst disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998. His traffic record disclosed that on 17 January 2008 he had been convicted of the offence of high range prescribed concentration of alcohol, being a contravention of s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999, and had been sentenced to a fine and had been disqualified from driving for 12 months, that disqualification having commenced on 5 December 2007. For the driving while disqualified offence, he was dealt with by the Magistrate by way of a bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999. He was also disqualified from holding a licence for two years, the disqualification to commence on 5 December 2008.

The respondent appealed to the District Court against the severity of the sentence, specifically the length of the disqualification period the Magistrate had imposed. The issue before the primary judge was whether the Magistrate erred in disqualifying the respondent for driving for two years. The primary judge stated the following case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912:

Road Transport (Driver Licensing) Act

Held, answering the question posed by the stated case in the affirmative (per McColl JA, Grove and Howie JJ agreeing):

1 Section 25A uses the concept of “a second or subsequent offence” for two purposes: it operates hierarchically to address firstly the penalty for the s 25A offence and, secondly, the period of disqualification flowing from a conviction for such an offence: (at [55]).

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied.

Shane William Johnson [2008] NSWDC 47 approved.

Wheeler

R v Sirocic

2 The concept of “a second or subsequent offence” in s 25A(6) is used to determine the maximum penalty as set out in subs 25A(1) – (3): (at [56]).

3 Subsections 25A(7) – (10) address the consequences of a person having been convicted of an offence under subs 25A(1) – (3)(a): either automatic disqualification by virtue of the conviction for the “relevant disqualification period” (s 25A(7)(a)) or automatic disqualification for the “relevant disqualification period” and such additional period as the court may order (s 25A(7)(b)): (at [57]-[58]).

4 For the purpose of automatic disqualification, the concept of “a second or subsequent offence” is determined only by reference to whether the offender has previously committed an offence under subs 25A(1), (2) or (3)(a): (at [59]-[62]).

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129; Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 referred to .

(1) The answer to the question posed by the stated case is yes.
(2) Appellant to pay the respondent’s costs of the stated case.

*********************

CCA 2008/11833

McCOLL JA
GROVE J
HOWIE J
Wednesday 25 March 2009

Director of Public Prosecutions v Dennis John Partridge

Judgment

1 McCOLL JA: On 16 July 2008 Dennis Raymond Partridge, the respondent in this Court, was convicted in the Local Court of New South Wales of driving whilst disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 (the “Driver Licensing Act”). He was dealt with by the Magistrate by way of a bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999, the bond to date from 16 July 2008 and ordered to pay court costs of $73. He was also disqualified from holding a licence for two years, the disqualification to commence on 5 December 2008.

2 The respondent appealed to the District Court against the severity of the sentence, specifically the length of the disqualification period the Magistrate had imposed.

3 The appeal was heard by Judge Hosking SC. It was common ground before his Honour that the respondent had not hitherto been convicted of an offence pursuant to s 25A. His traffic record disclosed, however, that on 17 January 2008 he had been convicted of the offence of high range prescribed concentration of alcohol (the “first offence”), being a contravention of s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (the “Safety and Traffic Management Act”), had been sentenced to a fine and had been disqualified from driving for 12 months, that disqualification having commenced on 5 December 2007.

4 The issue before the primary judge was whether the Magistrate erred in disqualifying the respondent for driving for two years.

5 The Director of Public Prosecutions (NSW), the appellant in this Court, submitted before the primary judge that by virtue of ss 25A(6) and 25A(10) of the Driver Licensing Act, the relevant automatic licence disqualification period was two years. The respondent argued that it was one year. He relied on the decision of his Honour Judge Berman SC in Shane William Johnson [2008] NSWDC 47.

6 The primary judge formed a preliminary view that the appropriate disqualification period was two years. He noted that Judge Murrell SC had not followed Johnson and had construed s 25A(10) in the way he favoured: Wheeler [2008] NSWDC 165; (2008) 7 DCLR (NSW) 271.

7 Having regard to the difference of views within the District Court concerning the interpretation of s 25A(10) the primary judge stated a case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912. The question of law identified for the purposes of the stated case is:

Road Transport (Driver Licensing) Act

Legislative framework

8 The Driver Licensing Act was passed in 1998 as a part of a group of statutes referred to in s 5 of the Road Transport (General) Act 2005 (the “General Act”) as “road transport legislation”, each Act in the package dealing with a separate aspect of the control of motor vehicles on public roads: Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (at [19]) per Howie J (Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreeing). The Safety and Traffic Management Act forms part of the road transport legislation.

9 The objects of the Driver Licensing Act, set out in s 3, relevantly include:

National Road Transport Commission Act

(ii) uniform attendant eligibility criteria for those licence classes, and

…

(d) to facilitate the regulation of drivers of motor vehicles in the interests of safety and efficiency and law enforcement generally, and
…

(h) to improve road safety and transport efficiency and reduce the costs of administering road transport.”

National Transport Commission Act

Inter-Governmental Agreement for Regulatory and Operational Reform in Road, Rail and Intermodal Transport

10 The provisions of the Acts Interpretation Act 1901 (Cth) apply to the interpretation of the Driver Licensing Act and the regulations: s 5(1). The Interpretation Act 1987 (NSW) also applies to the Driver Licensing Act and the regulations to the extent that it can do so consistently with the application of Commonwealth Act: s 5(2).

11 Section 25A of the Driver Licensing Act, as in force at the time the respondent was convicted provided:

“ 25A Offences committed by disqualified drivers or drivers whose licences are suspended or cancelled

(b) make an application for a driver licence during the period of disqualification and in respect of the application state his or her name falsely or incorrectly or omit to mention the disqualification.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(b) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application state his or her name falsely or incorrectly or omit to mention the suspension.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(b) make an application for a driver licence for a motor vehicle of the class to which the cancelled licence or the refused application related and in respect of the application state his or her name falsely or incorrectly or omit to mention the cancellation or refusal.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(5) Subsections (1) and (3) (a) do not apply to the driving of a motor vehicle in circumstances prescribed by the regulations.

(6) An offence under this section is a second or subsequent offence for the purposes of this section if:

(b) within the period of 5 years immediately before the person is convicted of the offence, the person was convicted of:

Road Transport (General) Act

(ii) an offence under section 6 (1C) or 7A of the Traffic Act 1909 (as in force before its repeal), or

(iii) an offence under section 25 (2).

(b) may also be disqualified, for such additional period as the court may order, from holding a driver licence.

Note. Section 26 of the Road Transport (General) Act 1999 provides for the effect of a disqualification (whether or not by order of a court). **

(9) Subsections (1)–(3) apply to a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this State or another State or Territory.

(10) In this section, the relevant disqualification period is:

(b) in the case of a second or subsequent offence under subsection (1), (2) or (3) (a)—2 years.” (emphasis in original)

Road Transport (General) Act

12 “Major offence” is defined in s 3 of the General Act to mean:

“(a) a crime or offence referred to in the definition of ‘convicted person’ in section 188(1)…..”

13 “Convicted person” is defined in s 188 as follows:

(a) a person who is, in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the person at the time of the occurrence out of which the death of or harm to the other person arose, convicted of:

(ii) an offence under section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, or

Crimes Act

(c) a person who is convicted of an offence under any of the following provisions:

Road Transport (Safety and Traffic Management) Act

(ii) section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),

(iii) section 43 of the Road Transport (Safety and Traffic Management) Act 1999,

(iv) section 9 (1A), (1), (2) (a) or (b), (3) (a) or (b), (4) (a) or (b) or section 15 (4) or 16 of the Road Transport (Safety and Traffic Management) Act 1999,

(v) section 22 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

(vi) section 12 (1) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(vii) section 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

(viii) section 70 of the Road Transport (Safety and Traffic Management) Act 1999,

(ix) section 11B, 18D (2), 18E (9), 18G (1) or 24D (1) of the Road Transport (Safety and Traffic Management) Act 1999, or

14 It was common ground that the first offence fell within the definition of “major offence”, having been a contravention of s 9(4) of the Safety and Traffic Management Act.

15 The objects of the Safety and Traffic Management Act include “improv[ing] safety … of transport on roads and road related areas”: s 3.

16 The Crimes (Sentencing Procedure) 1999 relevantly provides:

“18 Interpretation of provisions imposing penalties

…

(b) specified at the end of a subsection of a section of an Act, but not at the end of the section

…

Submissions

17 The competing contentions can be briefly stated without, I hope, doing disservice to the detailed and helpful submissions prepared by counsel for both the appellant and the respondent.

18 The appellant submits that the definition of “second or subsequent offence” in s 25A(6), assuming a circumstance which falls into either subs 25A(6)(a) or subs (6)(b), applies both to the penalty provisions in s 25A(1) (and, presumably, subs 25A(2) and (3)) and to the disqualification provisions in s 25A(10).

19 Accordingly the appellant argues where, as here, prior to committing the offence of driving whilst disqualified contrary to s 25A(1)(a) of the Driver Licensing Act, the respondent had been convicted of a major offence within the meaning of the General Act – being his conviction pursuant to s 9(4) of the Safety and Traffic Management Act, the relevant automatic disqualification period under s 25A(1) was two years. In support of this construction the appellant points to the fact that s 25A(6) makes an offence a “second or subsequent offence for the purposes of this section” (emphasis added), a phrase the appellant contends means for the purposes of s 25A as a whole.

20 The appellant also submits that the history of the legislation supports his interpretation. He draws attention to the Explanatory Note to the Traffic Amendment (Penalties and Disqualifications) Bill 1998 which amended the Traffic Act 1909, which in turn was repealed at the time the road transport legislation was introduced: s 3, Sch 1, Road Transport Legislation Amendment Act 1999. That Bill, as passed, amended, among other provisions, s 7A of the Traffic Act, a provision in substantially similar terms to s 25A. The Appendix to the Explanatory Note headed “Summary of Increased Penalties and Disqualifications” stated:

“(1) A period of disqualification is a period of automatic disqualification from driving that is imposed by the Act by virtue of the conviction for the offence concerned (and generally without any specific order of the court).

…

generally

21 The respondent argues that s 25A(6) applies to the expression “a second or subsequent offence” which appears in the maximum penalty provision at the end of subsections 25A(1), (2) and (3). The expression works, he contends, to increase the maximum penalty prescribed by each of those subsections where the offence is a second or subsequent offence within the meaning of s 25A(6). He accepts that his prior conviction of an offence under s 9(4) of the Safety and Traffic Management Act means he had committed a “second or subsequent offence” for the purpose of the penalty provision appearing at the end of subsection 25A(1).

22 The respondent submits however that s 25A deals with the “relevant disqualification period” for the purposes of s 25A(7) separately in s 25A(10). He points to the fact that s 25A(10) refers only to offences under ss 25A(1), (2) or (3). He argues that as he had not previously been convicted of an offence under s 25A of the Driver Licensing Act, the offence he committed on 16 July 2008 was “a first offence under subsection (1)…” for the purposes of the “relevant disqualification period” in s 25A(10)(a). A fortiori, he argues, his offence was not, and could not be, “a second or subsequent offence under subsection (1)…” within the meaning of s 25A(10)(b).

23 The respondent argues that the appellant’s construction of s 25A(6) produces the curious result that an offender in his position would fall within both “a first offence under subs (1), (2) or (3)(a)” and also “a second or subsequent offence under subs (1), (2) or (3)(a)”, a proposition he contended was so unreasonable as to underline its fallacy.

The District Court: differing approaches to s 25A

24 Judge Berman SC considered s 25A in the ex tempore decision of Johnson. Johnson had been convicted of driving on the road whilst suspended: s 25A(2)(a). He had been convicted of a drink driving matter within five years before. A magistrate fined Johnson and disqualified him from driving for two years.

25 Johnson appealed against his sentence. He sought, in lieu of the fine, an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. Berman SC DCJ declined that application.

26 Johnson also challenged the length of his disqualification. That issue turned on whether, by virtue of his conviction on the drink driving matter, he had committed a “a second or subsequent offence” for the purposes of the disqualification provisions of s 25A. The Crown relied upon s 25A(6). Of that submission his Honour said (at [8] – [9]):

“8. …However, even if it is a second or subsequent offence for the purposes of subsection 6, it is not all second or subsequent offences which are to be looked at in determining the relevant disqualification period under subsection 10. The section makes it, and I use the Crown’s term, as clear as crystal that it is only some second or subsequent offences which give rise to the extended relevant disqualification period.

9 I am satisfied that the proper interpretation of Section 25A in the circumstances of this case is that the relevant disqualification period is twelve months. …”

27 The second case, and as I have said, that which found favour with the primary judge, is Wheeler. Wheeler was also an appeal against the severity of penalties imposed by a magistrate, in this instance for offences of fail to submit to breath analysis and drive whilst suspended. The failure to submit to breath analysis offence occurred prior to the drive while licence suspended offence. The magistrate imposed a disqualification period of two years in relation to the drive while licence suspended matter, it being accepted, it appears, that by virtue of the conviction of fail to submit to breath analysis, Wheeler had committed a “major offence” for the purposes of s 188(c)(iv) of the General Act.

28 Wheeler argued that the automatic disqualification period was one year for reasons similar to the submissions advanced by the respondent in this case. He relied on Johnson.

29 Her Honour Judge Murrell SC DCJ rejected Wheeler’s submission. She disagreed with Johnson saying (at [7]) “on that interpretation of subsection (6), part (b) [sic, ‘par’] would have no work to do.”

R v Sirocic

30 The appellant also relied upon R v Sirocic [2000] NSWCCA 325; (2000) 32 MVR 165.

31 Sirocic had been convicted in July 1998 of driving in a manner dangerous to the public in breach of s 10A(1)(b) of the Traffic Act. This was a major offence: s 2(1), Traffic Act. In June 1999 he pleaded guilty to driving while disqualified in March 1999. The magistrate found the offence proved but dismissed the charge pursuant to s 556A of the Crimes Act 1900. The Crown appealed against the inadequacy of the sentence.

32 Christie DCJ upheld the appeal. He convicted and sentenced the respondent. He also disqualified Sirocic from driving a motor vehicle for 12 months from the day of the magistrate’s decision, having concluded he did not have to disqualify him from driving for the “statutory period of two years as specified by section 7A(3)(b)(a) [sic section 7A(3A)(b)] of the Traffic Act, 1909 …”.

33 Christie DCJ then stated a case for consideration by the Court of Criminal Appeal. The stated case raised two questions of law, both of which turned in substance on whether the disqualification periods specified in s 7A of the Traffic Act were automatic (as the Crown had contended) or discretionary (as he had held).

34 Priestley JA (with whom Foster AJA and Smart AJ agreed) concluded, in an ex tempore judgment, that Christie DCJ had erred. His Honour set out the relevant terms of s 7A of the Traffic Act. It is unnecessary to repeat those provisions. It is sufficient, in my view, to note that s 7A(2)(a) – (f) substantially corresponded to s 25A(1) – (3). Section 7A(2)(g) set out the penalty for a first offence against any of subsections 7A(2)(a) – (f), while s 7A(2)(h) set out the penalty for a second or subsequent offence.

35 Subsection 7A(2B) provided:

For the purposes of subsection (2)

(b) within that 5-year period, the person was convicted of a major offence …” (emphasis added)

36 Section 7A(3) provided:

“(3) Where a person is convicted of an offence under subsection (2) (a), (b), (c), (d) or (e), the person shall be disqualified by such conviction and without any specific order for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a driver licence and may also be disqualified, for such additional period as the court may order, from holding a driver licence.”

37 Section 7A(3A) was in substantially the same terms as s 25A(10), save that where the latter provision refers to “subsection (1), (2) or (3)(a)”, subs 7A(3A) referred to an offence “under subsection (2)”. Section 7A(4) was in like terms to s 25A(8).

38 Priestley JA prima facie concluded (at [14] - [15]) that the literal effect of s 7A(2), (2B), (3) and (3B) led to automatic disqualification of Sirocic for two years, leaving the Court with a discretion to increase the minimum period.

39 He then considered Sirocic’s submission that Christie DCJ’s approach had been correct. This submission turned on the application of s 10A of the Traffic Act, which was in substantially similar terms to s 188 of the General Act and permitted the court if it thought fit “to order a shorter period (but not shorter than 6 months) or longer period of disqualification” and s 10 which conferred a power on a court before which a person had been convicted of an offence against the Traffic Act or regulations, to disqualify a person from holding a driver licence “for such period as the court specifies”.

40 Priestley JA noted (at [17]) that s 10 was expressed to be subject, inter alia, to s 7A, leading (at [18]) to the result that s 7A was the “disqualifying regime … not affected by the more general power of disqualification conferred by section 10.” Accordingly he held that Christie DCJ had erred in not disqualifying Sirocic for 2 years.

41 The appellant submits that Sirocic provides “some support” for his argument. The respondent, on the other hand, contends that Sirocic should be confined to the point it determined, namely whether a general power to determine the disqualification period for an offence allowed the Court to override otherwise automatic disqualification periods: cf Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 (at [79]) per McHugh J.

Consideration

42 Statutory provisions imposing an increased penalty by virtue of a second or subsequent offence have a long lineage. Commentary upon such provisions appears in Coke’s Institutes of Law where, as Smith J explained in Farrington v Thomson & Bridgland [1959] VR 286 (at 288), the learned author observed that such provisions should be understood to operate only in circumstances where the alleged repeat offender has previously been convicted of the relevant offence. This proposition was explained by Lord Alverstone CJ in The King v The Licensing Justices for the County Borough of South Shields [1911] 2 KB 1 as demonstrating that such enactments aim at “a persistent breach of the law after a previous conviction”. That proposition is well accepted in Australian law: see O’Hara v Harrington [1962] Tas SR 165 (at 169) per Burbury CJ; Police v Nowak [2000] SASC 82; (2000) 76 SASR 551 (at [9] – [12]) per Doyle CJ (Debelle and Bleby JJ agreeing); Reid v Rowbottam [2005] NTSC 7; (2005) 190 FLR 17 (at [17] – [41]) per Martin (BR) CJ, Riley and Southwood JJ agreeing).

43 Another line of authority considers whether the term “subsequent offence” can include a conviction for an earlier offence committed under a subsequently repealed or amended statute. The underlying principle which has been applied in such cases is that where the offence remains substantively the same, offences committed under a previous legislative scheme will constitute subsequent offences under the new legislation: Pointon v Police [2004] SASC 4; (2004) 143 A Crim R 416 (at [24] – [29]); Police (SA) v Whitehouse [2005] SASC 220; (2005) 92 SASR 81 (at [45] ff) per Layton J (Duggan and Besanko JJ agreeing).

44 Conversely, Bray CJ held in Bartlett v D’Rozario [1971] SASR 88 that a second offence could not be a “subsequent offence” within the meaning of s 47(1) of the Road Traffic Act 1961 (SA) as the offences with which the case was concerned were different in nature.

45 Section 25A reflects these fundamental principles, albeit not entirely consistently.

46 First, s 25A(6) provides that an offence is only a “second or subsequent offence” if the person has previously been “convicted”.

47 Secondly, s 25A(6)(b)(ii) expressly provides that “an offence under ss 6(1C) or 7A of the Traffic Act (as in force before its repeal)” constitutes a “second or subsequent offence”, thus avoiding any argument as to whether, for example, an offence under subsections 25A(1) – (3) is substantively the same as was an offence under s 7A.

48 Thirdly, s 25A(6)(b)(i), (ii) (insofar as it refers to s 6(1C) of the Traffic Act) and (iii) extends the reach of s 25A to offences which are different in nature to those in s 25A(1) – (3).

49 The inconsistency to which I referred (at [45]) is that s 25A(10) refers to “offence” rather than conviction. It is consistent, however, with the authorities to which I have referred (at [42]) that s 25A(10)(b) would only be attracted in the case of an earlier conviction, not merely the commission of an offence.

50 In examining the terms of s 25A, it is useful to bear in mind the following statement in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355:

“70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions . Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

The Commonwealth v Baume

R v Berchet

51 Section 25A uses the concept of “a second or subsequent offence” at three points. It is first used in the maximum penalty provision subscribed to each of subsections (1) – (3). Subscribing the maximum penalty to the end of each subsection indicates that a contravention of the subsection is an offence against the Driver Licensing Act, punishable on conviction by a penalty not exceeding the penalty so specified: s 18, Crimes (Sentencing Procedure) Act.

52 The concept next appears in s 25A(6) to determine whether “[a]n offence under this section” is “a second or subsequent offence for the purposes of this section”.

53 Finally, the concept of “a second or subsequent offence” appears in s 25A(10)(b) as one determinant of the “relevant disqualification period”, a phrase which first appears in the section in s 25A(7).

54 It must be acknowledged that s 25A contains some confusing, and potentially conflicting, signposts. Both subs 25A(6) and 25A(10) are expressed to apply to s 25A generally, in the sense that subs 25A (6) defines a “second or subsequent offence for the purposes of this section...”, while subs 25A(10) provides that “[i]n this section …”. (emphasis added)

55 It is necessary, accordingly, to determine whether this conflict can be resolved. In my view it can. When s 25A is analysed, it can be seen that it operates in the hierarchical sense to which the joint judgment in Project Blue Sky referred, first to deal with the penalty for the s 25A offence and, secondly, to deal with the period of disqualification flowing from a conviction for such an offence.

56 The maximum penalty provision to each of subs 25A(1) – (3) provides one penalty for a first offence and a greater penalty for a second or subsequent offence. Subsection 25A(6) defines a “second or subsequent offence” first, by reference to whether it is the second or subsequent occasion on which the person is convicted of “any offence under subsection (1), (2) or (3)(a)” within the relevant antecedent period and secondly if, again within the relevant antecedent period, the person had been convicted of one of the offences referred to in s 25A(6)(b)(i)–(iii).

57 Subsections 25A(7) – (10) depend upon the person having been convicted of an offence under any of subs (1), (2) or (3)(a). Conviction assumes that a penalty has been imposed, and that the sentencing court has adverted to whether the conviction was for a first or second or subsequent offence so as to determine the appropriate penalty. The logic of the structure of s 25A is that the sentencing court looks to s 25A(6) to answer that question. Once it has used s 25A(6) for that purpose, the remaining provisions in s 25A address the consequences of the conviction in terms which indicate that the function of s 25A(6) has, subject to one matter to which I will come, been exhausted.

58 Subsection 25A(7) provides for the consequences of a person having been convicted of an offence under subs 25A(1) – (3)(a): either automatic disqualification by virtue of the conviction for the “relevant disqualification period” (s 25A(7)(a)) or automatic disqualification for the “relevant disqualification period” and such additional period as the court may order (s 25A(7)(b)). The disqualification referred to in subs 25A(7) is in addition to any penalty imposed for the offence (s 25A(8)), thus underlining the distinction between the matters with which subs 25A (7) – (10) deals and the preceding provisions.

59 The reference in subs 25A(7)(a) to the “relevant disqualification period” takes the reader to s 25A(10). That also defines a first and second or subsequent offence, but only by reference to an offence under subs 25A(1), (2) or (3)(a). Significantly, there is no reference in s 25A(10) to the extended concept of second or subsequent offence which appears in subs 25A(6)(b). That is a clear indication that the legislature intended to distinguish between the factors taken into consideration for the purposes of determining the penalty for an offence under subs 25A(1), (2) or (3)(a) and the automatic disqualification which flows from a conviction for such an offence.

60 That distinction, in my view, reflects the fact that persons who have committed an offence which falls within s 25A(6)(b) will already have suffered an automatic disqualification by virtue of, in order, s 188 of the General Act, s 6(1D) and s 7A(3) of the Traffic Act and s 25(3) of the Driver Licensing Act. When it is borne in mind that disqualification itself is a form of penalty (Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129) a legislative concern to impose automatic disqualification in a carefully discriminatory manner can be discerned. Adopting such a discriminatory approach reflects the devastating effect licence disqualification can have upon a person’s ability to derive income and to function appropriately within the community: see Re Application by Attorney-General (at [116]) per Howie J.

61 As I have explained a s 25A(6)(b) conviction can be taken into account in determining the maximum penalty for a s 25A offence. Section 25A(10) is confined to offences under s 25A(1) – (3)(a), however, to ensure a s 25A(6)(b) offender does not face two automatic licence disqualifications.

62 A second or subsequent offence under s 25A(1) – (3)(a) attracts a longer automatic disqualification because the offender has already been subject to an automatic disqualification of 12 months pursuant to s 25A(10)(a).

63 However s 25A does leave it to the discretion of the sentencing court pursuant to s 25A(7)(b) to decide whether to impose a longer period of disqualification than the automatic disqualification imposed pursuant to s 25A(7)(a). It would be open to the Court to take into account at that stage the fact that a person had previously been convicted of a s 25A(6)(b) offence and, too, the period of disqualification the person suffered by virtue of that conviction.

64 This construction gives meaning to every word of s 25A: Project Blue Sky (at [71]). On the appellant’s approach, conversely, there is a tension between s 25A(6) and the phrase “under subsection (1), (2) or (3)(a)” which appear in s 25A(10)(a) and (b). If “second or subsequent offence” is completely defined in s 25A(6), what is the purpose of including that phrase in s 25A(10)? The answer can only be, in my view that that phrase works in s 25A(10) for the purposes of disqualification, while the earlier definition works for the purposes of penalty.

65 Once it is accepted that s 25A operates hierarchically to address both the issue of penalty and the issue of disqualification, it can be seen that the potentially conflicting signposts to which I earlier referred can be given a harmonious meaning. Each provides the definition of a “second or subsequent offence” applicable to the issue it addresses.

66 So analysed the meaning of s 25A is clear. Its interpretation is not assisted by use of the Explanatory Note upon which the appellant relied: see s 15AB, Acts Interpretation Act (Cth). It might be noted, too, that the Explanatory Note purported only to convey a general understanding of what a reference to a “second or subsequent offence” might be, and then in relation to the Traffic Act. The appellant submitted that s 7A of that Act was of the same tenor as s 25A. I accept that that is so, however I would not construe s 7A in accordance with the statement in the Explanatory Note. In my view s 7A contained the same hierarchical structure as s 25A. In other words an offence was only a “second or subsequent offence” for the purposes of the disqualification period if the offender had previously been convicted of an offence under s 7A(2). To the extent Sirocic appears to have held otherwise, it was, with respect, wrongly decided.

67 In my view the question posed in the stated case should be answered yes.

Orders

68 In my view the primary judge will err in law if by virtue of the provisions of s 25A(6)(b) and s 25A(10)(b) of the Driver Licensing Act he characterises the automatic disqualification period in the circumstances of this matter as being two years.

69 Accordingly I propose the following orders:

(1) The answer to the question posed by the stated case is yes.

70 GROVE J: I agree with McColl JA

71 HOWIE J: I agree with McColl JA

**********

27/10/2009 - section 7A(3A)(b) corrected - Paragraph(s) par 32

Citations

Director of Public Prosecutions v Partridge [2009] NSWCCA 75

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R v Olbrich [1999] HCA 54

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R v El Kerhani [2021] NSWLC 14

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Statutory Material Cited

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Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

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CITATION:	Director of Public Prosecutions v Partridge [2009] NSWCCA 75 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 March 2009
JUDGMENT DATE:	25 March 2009
JUDGMENT OF:	McColl JA at 1; Grove J at 70; Howie J at 71
DECISION:	1. The answer to the question posed by the stated case is yes. 2. Appellant to pay the respondent’s costs of the stated case.
CATCHWORDS:	CRIMINAL LAW – particular offences – driving offences – practice and procedure – sentencing – automatic disqualification period – driving unlicensed contrary to s 25A(1)(a) of Road Transport (Driver Licensing) Act 1998 - prior conviction for contravention of s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 – whether a “second or subsequent offence” for the purposes of s 25A(10)(b), Road Transport (Driver Licensing) Act 1998 - STATUTES – acts of parliament – interpretation – meaning of “second or subsequent offence” under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 – whether the definition of “second or subsequent offence” in s 25A(6)(b) applies to “second or subsequent offence under subsection (1), (2) or (3) (a)” in s 25A(10)(b) - TRAFFIC LAW – licensing of drivers – New South Wales – disqualification, cancellation and suspension of licences – relevant automatic disqualification period under s 25A(10)(b) of the Road Transport (Driver Licensing) Act 1998 - WORDS & PHRASES – “second or subsequent offence” – “for the purposes of this section” – “in this section”
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Interpretation Act 1987 Road Transport (Driver Licensing) Act 1998 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999 Road Transport Legislation Amendment Act 1999 Traffic Act 1909 Acts Interpretation Act 1901 (Cth) Road Traffic Act 1961 (SA)
CATEGORY:	Principal judgment
CASES CITED:	Bartlett v D’Rozario [1971] SASR 88 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Farrington v Thomson & Bridgland [1959] VR 286 Shane William Johnson [2008] NSWDC 47 O’Hara v Harrington [1962] Tas SR 165 Pointon v Police [2004] SASC 4; (2004) 143 A Crim R 416 Police (SA) v Whitehouse [2005] SASC 220; (2005) 92 SASR 81 Police v Nowak [2000] SASC 82; (2000) 76 SASR 551 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Sirocic [2000] NSWCCA 325; (2000) 32 MVR 165 Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Reid v Rowbottam [2005] NTSC 7; (2005) 190 FLR 17 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 The King v The Licensing Justices for the County Borough of South Shields [1911] 2 KB 1 Wheeler [2008] NSWDC 165; (2008) 7 DCLR (NSW) 271
TEXTS CITED:	Coke’s Institutes of Law
PARTIES:	Director of Public Prosecutions (NSW) - Appellant Dennis Raymond Partridge - Respondent
FILE NUMBER(S):	CCA 2008/11833
COUNSEL:	D U Arnott SC - Appellant H Dhanji - Respondent
SOLICITORS:	S C Kavanagh - Appellant O'Brien and Hudson - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/12/1017
LOWER COURT JUDICIAL OFFICER:	Hosking SC DCJ
LOWER COURT DATE OF DECISION:	4 September 2008