Edwards v Simpson
[2018] WASCA 177
•12 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EDWARDS -v- SIMPSON [2018] WASCA 177
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 SEPTEMBER 2018
DELIVERED : 12 OCTOBER 2018
FILE NO/S: CACR 81 of 2018
BETWEEN: LEIGH ANDREWS EDWARDS
Appellant
AND
DANIEL MOHAMMAD HASAN SIMPSON
MARTIN PAUL COLLINS
Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: JENKINS J
File Number : SJA 1009 of 2018
Catchwords:
Criminal law and procedure - Whether correction of sentence by deletion of a driving disqualification order rendered void any subsequent conviction that was dependent on the disqualification order
Legislation:
Sentencing Act 1995 (WA), s 37
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D S Hunter |
| Respondents | : | No appearance |
Solicitors:
| Appellant | : | Legal Aid Bunbury |
| Respondents | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Dreja v The State of Western Australia [2012] WASCA 151
Edwards v Collins [2018] WASC 119
Lawson v The State of Western Australia [2018] WASCA 129
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted of three driving offences, the second and third of which were offences of driving while suspended from doing so. He appealed against the two convictions for driving while under suspension. The primary judge upheld the appeal in relation to the first conviction for driving while under suspension, but dismissed the appeal concerning the second of these offences.[1]
[1] Edwards v Collins [2018] WASC 119 (primary decision).
The appellant seeks leave to appeal against the dismissal of his appeal concerning his conviction for the second of the offences of driving while under suspension. For the reasons that follow, there is no merit in the appeal, and leave to appeal must be refused.
The facts
On 27 May 2015, the appellant was convicted before two justices of the peace (JP) in the Magistrates Court at Collie (the Collie conviction) upon his pleas of guilty, on charges to the effect that on 25 February 2015 he drove a vehicle on a road:
i.that bore numbers plates other than the ones issued for that vehicle contrary to the Road Traffic Act 1974 (WA) (RTA) s 97(2)(f)(iii); and
ii.while there was not a valid vehicle licence granted or issued for the vehicle as required by the RTA s 15(1), contrary to the RTA s 15(3)(E).
The appellant was fined $100 for each offence. One of the JPs told the appellant that he was not allowed to drive home and 'you will lose your licence for three months under section 51'.[2] This was recorded on the Collie prosecution notice and in police records as a three‑month disqualification order which related to the offence of driving with a false number plate against RTA s 97.
[2] Collie Magistrates Court ts 4, primary decision [12].
On 17 September 2015, the appellant, who was not legally represented, was convicted, on his plea of guilty in the Magistrates Court at Albany, of driving a vehicle at Milpara (the Milpara conviction) on 12 August 2015 - within three months of the Collie conviction - while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended, contrary to the RTA s 49(1)(a) and s 49(3)(c). The appellant was placed on a six-month community-based order (CBO) with 80 hours community service work. He was also disqualified from holding or obtaining a driver's licence for nine months, cumulative.
On 23 December 2015, the appellant appeared in the Albany Magistrates Court where it was alleged that he had breached the CBO. The CBO was cancelled and he was fined $1,000.
On 14 December 2015, the appellant was convicted in his absence in the Magistrates Court at Donnybrook that on 16 November 2015 - during the nine-month suspension from the Milpara conviction - at Mumbalup (the Mumbalup conviction) he drove a motor vehicle while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended contrary to the RTA s 49(1)(a) and s 49(3)(c). He was fined $3,000 and disqualified from holding or obtaining a driver's licence, for 12 months cumulative.
On 22 June 2016, the appellant made an application for correction of the Collie sentence pursuant to s 37 of the Sentencing Act 1995 (WA) on the ground that the three-month sentence had been imposed on the basis that he was the holder of a provisional licence when he was in fact the holder of a full licence. The prosecutor acknowledged that s 51 of the RTA did not apply because the appellant had held a full licence. The magistrate noted that the JPs had power to make an order for disqualification under the Sentencing Act but said that it would be extraordinary for them to have exercised that power. Her Honour deleted, or purported to delete, the three-month disqualification order from the Collie sentence (the Collie correction of sentence).
On 30 September 2016, the appellant applied to the Magistrates Court to set aside the Milpara and Mumbalup convictions. It appears from the transcript that the magistrate adjourned the applications with a further charge of driving without a motor driver's licence.[3]
[3] Magistrates Court ts 3 - 6; primary decision [28].
Primary decision
The primary judge explained that the comment by one of the JPs at the time of the Collie conviction that the appellant would 'lose' his 'licence for three months under s 51' was founded on an erroneous view of the effect of the legislative scheme. It is not necessary to descend into the detail of her Honour's explanation. The JP evidently understood or assumed that the effect of s 51 of the RTA was that, as a result of the Collie conviction, the appellant's licence would be suspended for three months. In fact, that provision did not apply to the appellant's offence.[4]
[4] Primary decision [12] ‑ [18].
The appeal to the primary judge was argued on the basis that the issue for determination was whether the Milpara and Mumbalup convictions should be quashed because the appellant did have a valid driver's licence at the time the offences were committed, on the ground that the Collie correction of sentence purported to delete the three‑month suspension referred to by the JP in imposing the Collie sentence.[5]
[5] Primary decision [30].
However, the primary judge was of the view that the disqualification order did not form part of the Collie sentence. Her Honour gave four reasons for this conclusion:[6]
First, if the RTA s 51 had applied to the facts of this case, a three‑month disqualification period was, like the cancellation of the offender's licence, a consequence of the operation of the statute and would not have been an order made as part of sentence. Secondly, the JPs needed statutory power, independent of the RTA s 51 to impose a licence disqualification period of any length on the appellant as part of the sentence imposed for the offence against the RTA s 97. This is because s 51 did not grant such a power. It merely stated what the period of disqualification would be if a court imposed a disqualification order. Thirdly, although there was power in the Sentencing Act 1995 (WA) s 105(1) to impose a disqualification order as part of the sentence for the offence against the RTA s 97, the JPs did not purport to exercise that power. Fourthly, the JP's statement that the appellant would lose his licence under the RTA s 51 was an incorrect statement of the effect of the RTA s 51 and not the imposition of a three‑month disqualification order as part of the sentence.
[6] Primary decision [17].
Further, her Honour noted that, since s 51 had been deleted at the date of the Collie conviction and that a statutory criterion for its operation (i.e. that the appellant held a provisional licence) had not been satisfied, s 51 did not have application to disqualify the appellant's licence for three months.[7] The police records needed to be amended, but it was 'debatable' whether the Collie correction should have been made.[8] Because her Honour determined that the three-month disqualification was not part of the Collie sentence, she held that it was unnecessary to determine the scope of Sentencing Act s 37.[9]
[7] Primary decision [18].
[8] Primary decision [32].
[9] Primary decision, fn 13.
Her Honour identified that the issues for determination were whether:[10]
i.the Milpara conviction ought to be set aside because on the date alleged in the Milpara charge the appellant held a valid driver's licence; and
ii.the Mumbalup conviction ought to be set aside because, on the date alleged in the Mumbalup charge the appellant would have held a valid driver's licence were it not for the nine-month disqualification order imposed as part of the Milpara sentence, which itself was a miscarriage of justice.
[10] Primary decision [33].
The primary judge found that the Milpara conviction should be set aside because the appellant was induced to plead guilty by the misinformation that he had lost his licence for three months, which was communicated to him at the Collie hearing and recorded by the court and police.[11] At the time of the driving the subject of the Milpara conviction, the appellant had, in law, held a valid driver's licence.
[11] Primary decision [37].
The primary judge considered that the positions relating to the Milpara and Mumbalup convictions were distinguishable. Her Honour rejected the appellant's submissions that the case depended on the construction and operation of s 37 of the Sentencing Act. Rather, on her Honour's analysis, the status and effect of the Mumbalup sentence depends on the application of the law relating to the effect of convictions and sentences which are later 'set aside' on appeal.[12] As will be seen, we respectfully agree with her Honour that s 37 of the Sentencing Act does not sustain the appellant's case.
[12] Primary decision [39].
Her Honour reasoned in the following way. When a driver's licence is suspended under the RTA for driving without a licence, the licence is of 'no effect' during the period of disqualification.[13] Where a court gives leave to appeal a conviction in respect of which a disqualification order was imposed, the disqualification is suspended pending the outcome of the appeal.[14] At any time after an appeal is commenced, a court may suspend a disqualification order.[15] Neither the Milpara nor the Mumbalup disqualifications were suspended by force of statute or an order of the court, both having been concluded by the time the appeal to her Honour was commenced.[16] The primary judge was satisfied that the Milpara conviction was valid until set aside by her. The appellant was thus sentenced and convicted of the Mumbalup offence at a time when the Milpara conviction was valid.[17]
[13] Primary decision [41] citing RTA ss 49(1)(c) and 75(2).
[14] Primary decision [42] citing Criminal Appeals Act, s 11(3).
[15] Primary decision [43] citing Criminal Appeals Act, s 12.
[16] Primary decision [43].
[17] Primary decision [66].
Section 14(1)(c) of the Criminal Appeals Act 2004 (WA) empowers the Supreme Court to 'set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision'. The primary judge noted that the Court of Appeal in Dreja v The State of Western Australia, construed section 14(1) to authorise: [18]
the 'setting aside' of convictions as well as sentences. The meaning of the words may have the more 'drastic' meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.
Applying this, the primary judge held that the 'meaning of "set aside" depends on what is express or implicit in the particular order made'.[19]
[18] Primary decision [49], quoting Dreja v The State of Western Australia [2012] WASCA 151 [17].
[19] Primary decision [67].
Her Honour concluded that 'the setting aside of the Milpara conviction and sentence does not mean that the Mumbalup conviction and sentence were invalid from their imposition or that they constitute a substantial miscarriage of justice'.[20] Her Honour reasoned that there were strong policy reasons in favour of this conclusion, namely: that court orders should be complied with until set aside; that the appellant was aware of the disqualification imposed with the Milpara conviction but nonetheless chose to drive in breach of that order; that he pleaded guilty in respect of the Mumbalup offence; and, lastly, that the appeal against the Milpara conviction was not commenced for another 14 months.[21]
[20] Primary decision [67].
[21] Primary decision [68].
Grounds of appeal
The appellant seeks leave to appeal on two grounds, namely:
1.Justice Jenkins erred when she found that an incorrect and subsequently corrected and deleted three month driver's licence disqualification was never part of the sentence imposed, and therefore did not render the conviction of the appellant a nullity from the beginning and void ab initio; and
2.In the alternative to Ground 1, the conviction of the Appellant for driving under suspension [imposed in the Magistrates Court at] Donnybrook on 14 December 2015 constituted a miscarriage of justice, due to being dependent on the set aside conviction and sentence for driving under suspension imposed [in the Magistrates Court] at Albany on 17 September 2015.
The appellant's submissions
The appellant's submissions essentially involve two contentions:
1.the primary judge erred in finding that the three‑month disqualification did not form part of the sentence for the Collie conviction;[22]
2.the primary judge erred in not determining that, on a proper construction of s 37(3a) of the Sentencing Act, the effect of the correction of the Collie sentence was to render the Milpara conviction and, in turn, the Mumbalup conviction, a nullity and void ab initio.[23]
[22] Appellant's submissions [18], [23], [25]; appeal ts 9 ‑ 10.
[23] Appellant's submissions [18], [37], [46]; appeal ts 6 ‑ 8, 10 ‑ 11.
Disposition
In order to succeed in the appeal, the appellant must make good both of these contentions. For the reasons that follow, we do not accept either of the appellant's contentions.
The JPs dealing with the Collie conviction did not purport to make an order of disqualification. Rather, one of the JPs simply advised the appellant of what she understood (incorrectly) to be the effect of the operation of the relevant statutory provision upon his conviction. A statement of that kind is not part of the sentence. Moreover, as this court recently explained in Lawson v The State of Western Australia,[24] licence disqualifications that are not imposed pursuant to the Sentencing Act are not part of the sentence.
[24] Lawson v The State of Western Australia [2018] WASCA 129 [42] ‑ [54], [63].
Further, even if, contrary to our view, the appellant's first contention were accepted, we do not accept that s 37(3a) of the Sentencing Act operates in the manner asserted by the appellant in his second contention. Section 37(3a) states:
A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.
Assuming, contrary to our view, that the three‑month disqualification were part of the sentence imposed on the Collie conviction, the correction under s 37 of the Sentencing Act by the deletion of the three‑month disqualification would, by s 37(3a), be taken to have effect at the time of the original sentence for the Collie conviction. That much of the appellant's submissions may be accepted. However, that says nothing as to the effect that this may (or may not) have upon any other conviction. The appellant's submissions assert, but do not explain how, the correction of the sentence on the first conviction renders the third conviction void ab initio.[25] Nothing in the language, context or purpose of s 37 of the Sentencing Act supports the appellant's contention.
[25] Appeal ts 8, 10.
The text, effect and evident purpose of s 37 are confined to correcting a sentence that:
(a)has been imposed in a manner that is not in accordance with the Sentencing Act or the Act under which the offence is committed; or
(b)contains a clerical mistake or an error arising from an accidental slip or omission.
Nothing in s 37(3a), or in s 37 as a whole, is addressed to, or provides for, any consequence that the correction of the sentence may have for any other, subsequent, conviction. The fact that a subsequent conviction is or was 'dependent'[26] on the corrected sentence does not extend the reach of s 37 to the subsequent conviction. Any such dependence, and its consequences, is a matter to be asserted and determined in an appeal against the subsequent conviction.
[26] Appellant's submissions [50], appeal ts 8.
The appellant does not suggest, and it could not reasonably be suggested, that the magistrate acted without jurisdiction in entering the Milpara conviction. That being so, the Milpara conviction and the consequential sentence and disqualification order were, as the primary judge found, valid and enforceable unless and until set aside on appeal.
The primary judge set aside the Milpara conviction. The dependence of the Mumbalup conviction on the Collie disqualification is indirect. The Mumbalup conviction is founded on the Milpara conviction, which in turn had been founded on the Collie disqualification. For the reasons given by the primary judge, the relationship between the Collie disqualification and the Mumbalup conviction did not render the latter a miscarriage of justice.[27]
[27] Primary decision [67] ‑ [68], outlined in [19] above.
For these reasons, the appellant's grounds of appeal are without merit. Leave to appeal should be refused.
Conclusion
For the reasons we have given, we would make the following orders:
1.Leave to appeal on each ground is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH12 OCTOBER 2018
5
3
1