Gardner v R - [2003] NSWCCA 199

No judgment structure available for this case.

CITATION: Gardner v Regina [2003] NSWCCA 199

HEARING DATE(S): 15/7/03

JUDGMENT DATE:
13 August 2003

JUDGMENT OF: Sheller JA at 1; James J at 7; O'Keefe J at 8

DECISION: (i) Leave to appeal granted; (ii) Appeal dismissed, except in relation to the disqualification of the applicant from holding a motor vehicle driver license for life; (iii) Order disqualifying the applicant from holding a motor vehicle driver license for life quashed; (iv) In lieu thereof the applicant is disqualified from holding a motor vehicle driver license until 2 January 2017.

CATCHWORDS: Criminal law - Appeal against sentence - Assault with intent to rob whilst armed with a dangerous weapon - Robbery whilst armed with a dangerous weapon - Plea of guilty - Assistance to authorities - Quality of assistance - Discount for utilitarian value of plea - Discount for assistance given to authorities - Disqualification from holding a motor vehicle driver license - No power to impose disqualification for life for other than habitual traffic offenders - Longer period of disqualification - Period

LEGISLATION CITED: Crimes Act 1900 - s 97(2)
Crimes (Sentencing Procedure) Act 1999 - s 34
Motor Traffic Act 1909-1937 - s 10(1)(c)
Road Transport (Driver Licensing) Act 1999 - ss 25, 25A(7)(b), 25A(1)(b),
Road Transport (General) Act - ss 5, 24, 25(1), 25(2)(d), 30(2)
Road Transport (Safety and Management) Act 1999 - ss 40, 42

CASES CITED: ASIC v Parkes [2001] NSWSC 377
Barbaro v DPP (1999) 49 NSWLR 68
Corporate Affairs Commission (SA) v Australian Central
Craig Williamson Pty Limited v Barrowcliff (1915) VLR 450
Credit Union (1985) 157 CLR 201
Ex parte Thomas re Arnold (1996) 84 WN (Pt 1) (NSW) 493
Lace v Chantler (1944) 1 KB 369
McLeish v FT Eastment & Sons Pty Limited (1970) 71 SR (NSW) 178
Ministry of Health v Fox (1950) 1 Ch 369
Re Lehrer and the Real Property Act (1961) SR (NSW) 365
Regina v Abbott (1964) 1 QB 489
Regina v Jolly (1993) 70 A Crim R 527
Regina v Simpson (2001) 53 NSWLR 704
Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383
Regina v Tunde-Olarinde (1967) 2 All ER 491
Regina v Wallace (1955) NIR 137
Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4
Rex v Fowler (1937) 26 Cr App R 80
Scott v Commercial Hotel Merbein Pty Limited (1930) VLR 25
Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342
Slazengers (Australia) Pty Ltd v Burnett (1951) AC 13

PARTIES :
Ricky Gardner v Regina

FILE NUMBER(S): CCA 60121/03

COUNSEL: Applicant: Mr H Dhanji
Respondent: Mr D Howard

SOLICITORS: Applicant: D J Humphreys (Legal Aid Commission of NSW)
Respondent: Director of Public Prosecutions (NSW)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0086

LOWER COURT
JUDICIAL OFFICER : Urquhart DCJ

- 1 -

60121/03

Sheller JA
James J
O’Keefe J

RICKY GARDNER v REGINA

Judgment

1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by O’Keefe J with the result of which I agree. On one matter I wish to make some further observations. His Honour has explained that by operation of s34 of the Crimes (Sentencing Procedure) Act 1999 it was open to the sentencing Judge to consider whether as an ancillary order the disqualification period prescribed by s25(2)(d) of the Road Transport (General) Act 1999 (the General Act) should be reduced or extended. I agree with O’Keefe J that the sentencing Judge ordered lifetime disqualification.

2 Section 24(1) of the General Act provides, so far as presently relevant, that subject to s25 of the General Act a Court that convicts a person of an offence under the Road Transport legislation, which includes the Road Transport (Driver Licensing) Act 1998 and the Road Transport (Safety and Traffic Management) Act 1999 (s5 of the General Act), 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. The only limitations that s25(2) of the General Act prescribes for the period of the disqualification are on the imposition of a shorter period than the prescribed period of automatic disqualification. Thus, in subs (2)(d) the automatic disqualification is for three years. The Court may order a shorter period “but not shorter than twelve months”. Alternatively, the Court may order a longer period of disqualification. But no statutory limitation is placed on that. As a matter of language it appears to be left entirely to the discretion of the Court, properly exercised, to determine what the longer period of disqualification should be and whether it be measured by calendar periods of time, such as months or years, or otherwise. The word “period” is indefinite and does not indicate how in the particular case it is to be determined. If the expression “longer period of disqualification” stood alone unqualified in s25(2), for reasons such as those given in R v Wallace [1955] NI 137, which O’Keefe J has cited, and bearing in mind the consequences of fettering an expression which in other legislation is regarded as unfettered (compare R v Jolly (1993) 70 A Crim R 527 which O’Keefe J has also cited), I would hold that the Act did permit the Court to order a lifetime period of disqualification.

3 I should observe in passing and with due respect that the conclusion in Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493 at 496 is for textual reasons distinguishable from this case.

4 Section 30 of the General Act deals with the period of disqualification of habitual traffic offenders. Subsection (1) provides that if a person is declared by s28 to be an habitual traffic offender the person is disqualified by the declaration for a period of five years from holding a driver licence except as provided by Div 4. Subsection (2) provides:

“If the Court that convicts the person of the offence giving rise to the declaration thinks fit, the Court may order a longer period of disqualification (including disqualification for life).”

5 If the expression “a longer period of disqualification” in s25 enables the Court to order lifetime disqualification arguably the words in parenthesis in s30(2) might be regarded as otiose but intended to avoid possible uncertainty; compare Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201 at 207. However, ordinarily inclusive words are regarded as intended to enlarge the ordinary meaning of the word or phrase they qualify; see Pearce and Geddes, Statutory Interpretation in Australia, 5th ed, para 6.56; Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342 at 353. Their presence suggests that the legislature intended that the expression “a longer period of disqualification” when unqualified did not include disqualification for life. In short, the legislature intended that the power to order disqualification for life should be limited to the situation where a Court convicts a person of an offence in circumstances where that person is declared to be an habitual traffic offender. Only in those limited circumstances does such power exist. The structure of the legislation and the special attention given to habitual traffic offenders supports what the legislature must have considered to be a distinct and exclusive grant of power to order disqualification for life. Accordingly, in my opinion, by imposing a disqualification for life his Honour Judge Urquhart QC acted beyond power.

6 Otherwise for the reasons O’Keefe J has given I agree with the conclusion he has reached.

7 JAMES J: I have had the advantage of reading in draft the judgments of O’Keefe J and Sheller JA. I agree with the orders proposed by O’Keefe J and generally with his Honour’s reasons. As to the purported disqualification of the applicant from holding a driver licence for life, I agree with the conclusion that s 25(2)(d)(ii) of the Road Transport (General) Act does not authorise a court to disqualify a person from holding a driver licence for the period of the rest of the person’s life but I would base this conclusion, at least primarily, on the inference which I consider can be drawn, in interpreting s 25(2)(d)(ii), from the provisions of Div 4 of Pt 3 of the Act dealing with habitual traffic offenders and especially s 30(2).

8

9 This is an application by Ricky Gardner (the applicant) for leave to appeal against sentences imposed on him in the District Court on 16 August 2002 in respect of offences committed on 27 December 2001 at Forster. The applicant was born on 14 August 1978.

10 The applicant pleaded guilty before a Magistrate at the Taree Local Court on 19 March 2002 to the following offences:

(i) Assault with intent to rob whilst being armed with a dangerous weapon, namely a shortened .22 calibre rifle, in contravention of s 97(2) of the Crimes Act 1900 (the Act), for which the maximum penalty is imprisonment for 25 years.

11 The applicant also admitted to the commission of eight offences which were set out on a Form 1, and which he asked to be taken into account by the court when dealing with him for the offence of robbery whilst armed with a dangerous weapon. The eight offences set out in the Form 1 document were:

(ii) take and drive conveyance without consent of the owner on 27 December 2001;

(iii) assault occasioning actual bodily harm on 3 January 2002;

(iv) assault occasioning actual bodily harm on 3 January 2002;

(v) drive in a manner dangerous on 4 January 2002;

(vi) drive whilst unlicensed on 4 January 2002;

(vii) assault police officer on 4 January 2002;

12 In the District Court, the applicant adhered to his pleas and the Judge sentenced him to:

(a) six years imprisonment commencing on 4 January 2002 with a non-parole period of three years and nine months, expiring on 31 October 2005 in respect of the offence referred to in paragraph 10(i) above;

13 The applicant has sought leave to appeal on two grounds, namely:

(1) in imposing the sentences, the Judge erred in failing to adequately discount the applicant’s sentence as a result of the applicant’s pleas of guilty and his assistance to the authorities;

14 On 26 December 2001 the applicant went to a home unit occupied by one David Rosser, an acquaintance of his, and a co-offender by the name of Fittler, who was a long-time friend of the applicant. The applicant asked Rosser if he could leave his bags there. This was agreed to and he then left the premises, intending to return about 8pm. He did so, and shortly thereafter Fittler arrived. The version of events advanced by Rosser and Fittler was that all three were drinking, and the applicant appeared hyperactive – perhaps under the influence of a drug. During the course of the evening, the applicant took a sawn off .22 rifle out of one of his bags and a number of rounds of ammunition from another. Thereafter it is said that without warning he discharged first one bullet into the roof of the home unit and then, a short time later, a second bullet.

15 Between 12.30am and 1am on the morning of 27 December 2001, the applicant and his friend Fittler visited premises at Forster that were occupied by a Mr Hammer. One of the men spoke to Hammer and produced a gun which he pointed at Hammer’s face at a range of approximately 15cm (6 inches), asking “what drugs have you got?” Hammer took hold of the gun and pushed it downwards. The gun was discharged, the bullet lodging in a chair on the front veranda. After the gun had been discharged, the assailant turned and ran across the front lawn to the street. As Hammer was in the process of closing the window of the premises, he became aware of the presence of a second man. He emerged from the bushes in the front yard of the house and he too ran away, accompanying the man who was carrying the gun. Both men were seen heading in the general direction of McDonalds at Forster.

16 Subsequently, Hammer was shown a computer photo-board selection and identified Fittler as his assailant – ie, the man who had presented the gun at him and had discharged it.

17 Shortly after 1am on 27 December 2001, a young male employee at the McDonalds store in Forster was loading some boxes into his car in the delivery section of the store. As he was doing so he saw a male some five to eight meters away from him, moving in his direction. The man was carrying a gun. He pointed it at the employee, telling him to get down. The employee crouched down beside his car and the man, pointing the gun at the young employee’s head, pushed him to the ground. The armed man then attempted to close the rear door of the car, but was unable to do so because of the boxes that were in it. In order to overcome this problem, he threw the boxes out of the car, closed the rear door, got into the drivers’ seat and reversed the car into the drive-thru lane of the store. The armed assailant called out to the young employee: “Stay down, don’t fucking move, or someone will shoot you.” Needless to say, the young employee did as he was told. Later, he gave a description of his assailant to the police.

18 At about 1.10am, a 16 year old male employee of McDonalds, who was waiting at the front of the store to get a lift home from the employee referred to in paragraph 17 above, saw two men walk towards the McDonalds store. He gave a description of both. One of the men was carrying a gun. The adolescent employee was witness to the events involving the firstmentioned employee. The young employee, who was clearly terrified, went to ground and was not seen by the man with the gun. However he heard a man call out: “Don’t get up or I’ll shoot you!” and later: “Fuck’n move, you’re dead, cunt.”

19 On 28 December 2001, the young man saw one of the men he had seen on the night of the robbery. He identified the man as Fittler, and subsequently again identified him from computer photo-boards shown to him by police.

20 The manager of McDonalds, a female, saw the two men at a time when one of them was in the driving seat of the firstmentioned employee’s car. He was seen to urge his co-offender to get into the car. When he had done so the car was driven out of the premises and off down the road. The manager then discovered what had happened and called the police. She gave a good description of the man who had been driving the car and when, on 8 January 2002, she was shown a computer photo-board selection, she identified the driver of the car as the applicant.

21 On 27 December 2001 a number of items of property that had been in the firstmentioned employee’s car were pawned at Taree in the name of the applicant.

22 On 4 January 2002, the applicant was arrested and participated in a number of recorded interviews. Initially he maintained that he had participated in the attempted robbery of Hammer not knowing, until it was produced, that Fittler had a gun. However in a second interview he admitted to handling the gun, but denied that he had discharged it at Hammer’s house. In yet another interview, he gave yet another version of what had occurred at Hammer’s house, but he did acknowledge his involvement in the events at McDonalds, stating in the course of doing so that Fittler had also been involved.

23 The various offences on the Form 1 document are detailed in the Judge’s Remarks on Sentence. Those involving assaults occasioning actual bodily harm were quite serious. One involved a male; the others involved a female. The driving offences were extremely serious. Speeds of up to 120 km/h in an 80 km zone, and speeds of up to 160 km/h on the Pacific Highway were recorded. There was a good deal of traffic on the roads at the material times, and overtaking at high speed in restricted speed zones were features of the offences. In the end, however, the applicant was delayed by heavy traffic. He sought to avoid this by mounting the footpath and driving along it. However his progress was arrested by a telegraph pole, whereupon a number of police vehicles surrounded him, and he too was arrested and conveyed to the Forster Police Station.

24 The saga did not end on his arrival at the Police Station. There the applicant assaulted the Custody Manager, a Police Sergeant, then struggled violently, broke free, jumped the enquiry counter, and ran out of the Police Station. He was pursued by police through a carpark, over two fences, through a block of units and into a unit that was occupied by Fittler. A number of police came to the unit and the applicant was again arrested.

25 As can be seen from the foregoing, the offences included on the Form 1 document were serious in themselves and involved a significant threat to the lives and safety of innocent road users and pedestrians. When considered against the background of a record of serious traffic offences from February 1998, it is clear that a substantial period of disqualification from holding a driver’s licence would be appropriate, in addition to the imposition of the custodial sentences referred to above.

26 One of the offences included on the Form 1 document was driving in a manner dangerous to the public, contrary to s 42(2) of the Road Transport (Safety and Management) Act 1999 (the Safety and Traffic Management Act). The maximum penalty for such an offence is 20 penalty units or imprisonment for nine months or both in the case of a first offence, or 30 penalty units or imprisonment for twelve months or both in the case of a second or subsequent offence. Another of the offences included on such form was driving whilst disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 (the Driver Licensing Act). The penalty for this offence is 30 penalty units or imprisonment for 18 months or both in the case of a first offence, or 50 penalty units or imprisonment for two years or both in the case of a second or subsequent offence. In addition to any other penalty imposed, an automatic disqualification of licence is imposed for a period of 12 months for a first offence, and for two years in the case of a second or subsequent offence. Under the Driver Licensing Act a person convicted of driving whilst disqualified may have imposed upon him a disqualification “for such additional period as the court may order” (s 25A(7)(b)).

27 The Judge did not convict the applicant in respect of either of the offences referred to in paragraphs 11(v) and (vi) above, but stated in the last sentence in his Remarks on Sentence that:

“The offender is so disqualified that he is never to be issued with a licence to drive any motor vehicle.”

28 This order was made presumably pursuant to s 34 of the Crimes (Sentencing Procedure) Act 1999, which provides that if a court takes a further offence into account under Division 3 of Part 3 of that Act “the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.”

29 Under s 25 of the Road Transport (General) Act 1999 (the General Act), provision is made for the disqualification of a person from holding a driver licence should that person be convicted of driving in a manner dangerous (s25(1)(c) and (2)(d)). The terms of the relevant penalty provision are as follows:

“(i) the person is automatically disqualified for a period of three years from holding a driver licence; or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification – the person is disqualified from holding a driver licence for such period as may be specified in the order.”

30 Two arguments were advanced on behalf of the applicant. The first was that the order made by the Judge should not be construed as an order disqualifying the applicant from holding a driver licence for life. This argument turned on the structure of the last sentence in the Remarks on Sentence. However the intent of the Judge is clear and, in my opinion, so too are his words. It was his intention to prevent the applicant from ever driving again. This is apparent from the passage in the Remarks on Sentence that precedes the order made, namely:

“I consider further that the offender should never, ever, have a licence to drive a motor vehicle, and, accordingly, I should impose a disqualification that brings that about.

31 The actual form of words used by the Judge when implementing his intention referred to the issuing of a licence, whereas the words of s 25(2)(d)(ii) of the General Act are words of disqualification, namely “order a … longer period of disqualification.” The words of s 25A(7) of the Driver Licencing Act also focus on disqualification. The words used are: “may also be disqualified for such additional period …”

32 Whilst both sections look at the imposition of a disqualification from the point of view of the convicted person, the effect is that such person may not lawfully obtain a licence during the period of disqualification. Furthermore, it is an offence for a person who has been disqualified to make an application for a driver licence during the period of disqualification and omit to mention the disqualification in such application (s 25A(1)(b) of Driver Licensing Act).

33 Whether one looks at the situation from the point of view of the convicted person or from the point of view of the licensing authority, the effect is that the person the subject of disqualification cannot lawfully obtain or be issued with a licence during the period of such disqualification.

34 In my opinion, the words used to convey the intent of the Judge – although not phrased in the precise words of the statutes – are nonetheless adequate to give rise to the applicant being disqualified from holding a licence for the term of his natural life, if this is within power. Accordingly, the first submission in support of this aspect of the applicant’s case fails.

35 The second argument advanced was that, even if the form of words used by the Judge was apt to convey an intent, and purport to have the effect of a lifetime disqualification, there was no power in the Court to impose such a disqualification.

36 The General Act, the Safety and Traffic Management Act and the Driver Licensing Act are all part of the road transport legislation of New South Wales, as that term is defined in s 5 of the General Act. Provision is made for road transport legislation to prevail over any other Act or statutory rule. The clear intent of the statutory scheme is that each of the Acts that forms part of such scheme should be construed so as to be in harmony with the other Acts.

37 The submission advanced on behalf of the applicant is that the word “period” as used in s 25(2)(d)(ii), and elsewhere where unqualified, in the General Act, has a finite connotation – that is, it connotes a duration that is specific in days, years or months. In such circumstances it is capable of being calculated, so that as at the date on which the event occurs, or the order is made, that gives rise to a disqualification, the actual date on which the disqualification will come to an end can be nominated. As a consequence, so the argument runs, it does not connote a duration that is indefinite i.e. which, although ascertainable at some time in the future, is not ascertainable at the time the disqualification commences. Thus, a disqualification for life is said to be outside the ambit of the statutory power conferred by s 25(1)(d) of the General Act.

38 The ambit of the power conferred by the relevant word and phrases used in the statute raises a question of construction, namely the meaning to be given to the word “period” and to the phrase “or longer period of disqualification” (in s 25(2)(d)(ii) of the General Act. The proper construction will depend on the ordinary English meaning of the word and phrase, and where there is more than one possible meaning or application of such word and phrase, on the legislative intent as revealed by the statutory context.

39 Ordinarily the word “period” connotes an interval, length, or portion of time (Barbaro v DPP (1999) 49 NSWLR 68 at 75; affirmed in this respect at (2001) 51 NSWLR 419). It is the measurement of that interval, length or portion of time that is the issue in the present case. Is that measurement to be such that the precise finishing date is ascertainable as at the date of commencement of the disqualification? Or does it include an interval, length or portion of time the duration of which can be measured by reference to a future event, the date of occurrence of which is uncertain? The answer will depend on the legislative intent to be ascertained from the context. In some contexts the word “period” may be construed so as to include an interval, length or portion of time that is measured by the life of a person. Thus in the field of property law a lease for life is a lease for a time certain. The same result may flow in relation to a statute that looks to a time certain (Regina v Tunde-Olarinde (1967) 2 All ER 491). On the other hand a lease “for the duration of the war,” as was not uncommon in some leases entered into in the early days of World War II was held not to be for a period certain. (Lace v Chantler (1944) 1 KB 369 at 371 per Lord Greene MR, with whom McKinnon and Luxmoore LJJ agreed; applied by Jacobs J in Re Lehrer and the Real Property Act (1961) SR (NSW) 365 at 377) The answer to the question of construction will depend on the word or phrase in the context of the statute in question.

40 Part 3 of the General Act deals, inter alia, with licence disqualification. Section 24 empowers the Court to impose penalties for a number of offences, and to impose a disqualification in respect of a conviction for an offence under the road transport legislation. The disqualification that may be imposed pursuant to s 24(1) is for “such period as the court specifies”. However s 24 is expressed to be subject to s 25 of the General Act, to s 40 of the Safety and Traffic Management Act and to ss 25 and 25A of the Driver Licensing Act. In this regard it should be noted that s 40 of the Safety and Traffic Management Act provides for automatic disqualification for 12 months of a person who takes part in, organises or promotes any race, or speed, or competitive trial without approval. A court is empowered by s 40(4)(b) of such Act to “order a shorter or longer period of disqualification” (s 40(4)(b)). The range of offences that falls within the ambit of s 24 of the General Act is wide, indeed wide enough to comprehend minor infringements of the road transport legislation. It would be curious if it were to be the intention of the legislature that the form of words in s 24 should be construed in such a way as to empower a court to impose a disqualification for life on a driver for a minor infringement of the road transport legislation.

41 Section 25 of the General Act deals with more serious offences. They are described as “major offences”. They include such serious offences as manslaughter arising out of the use of a motor vehicle, driving a motor vehicle negligently and occasioning death or grievous bodily harm, and driving a motor vehicle in a manner which is dangerous to the public (s 25(1)). A disqualification may be imposed on conviction for a major offence. The duration of such disqualification varies according to whether the person convicted has or has not been convicted of a previous major offence and the nature of the offence the subject of consideration. Where the convicted person has not been convicted of a previous major offence, the automatic disqualification is for periods of six months (s 25(2)(a)(i)), or 12 months (s 25(2)(b)(i)) or three years (s 25(2)(c)(i) and (2)(d)(i)) depending on the circumstances. The court is empowered to shorten those periods, but the extent of the shortening varies according to the nature of the offence.

42 No power is conferred by s 25(2)(a)(ii) to extend the duration of the disqualification. The phrase used in this subsection is: “is disqualified … for such period as may be specified in the order.” The word “period” in this subsection clearly has a finite connotation. It is the difference between the automatic disqualification of six months on the one hand, and the minimum period of disqualification of three months on the other. The same reasoning applies to the equivalent provisions in s 25(2)(b)(ii) and 25(2)(c)(ii). However, in both those subsections the court is also given power “to order a … longer period of disqualification”. It would not, in my opinion, be sensible to construe this provision in such a way as to give a finite connotation to the noun “period” when qualified by the adjective “shorter”, but not to do so in respect of the same noun in the same subsection when qualified by the adjective “longer”.

43 The provisions of s 25(2)(d)(ii) are in all material respects the same as those of the three preceding subparagraphs of subsection (2) of s 25. The usual rule of construction that should be applied in such circumstances is that expressed in Slazengers (Australia) Pty Ltd v Burnett (1951) AC 13 at 21, namely that it is improbable that the legislature would have intended different meanings to be given to the same word or phrase that is used in successive paragraphs of a particular piece of legislation. Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 is to a like effect. Mason J, with whom Barwick CJ and Jacobs J agreed, said :

“It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is a reason to do otherwise” (at 6).

44 On such an approach to construction, the word “period” as used in s 25(2)(d)(ii) of the General Act would connote a finite time that is able to be calculated so that, at the time at which the disqualification takes effect, the date on which the disqualification is to come to an end is able to be determined. Such a construction would not include a disqualification for life.

45 Such a provisional conclusion can be tested against other provisions in the General Act and previous authority.

46 Division 4 of Part 3 of the General Act deals with habitual traffic offenders. It applies to “relevant offences” as defined. They are defined to include “a major traffic offence” (s 27(1)(a)(i)) as well as an offence under s 25A(1) of the Driver Licensing Act. Thus, one of the offences against the road transport legislation that was included on they Form 1 in the instant case was a relevant offence. The period of disqualification that may be imposed on an habitual traffic offender is prima facie five years. However the court is empowered to extend the duration of the disqualification. The words of empowerment are that “the court may order a longer period of disqualification (including disqualification for life)” (s 30(2)). However before a person can be declared to be an habitual traffic offender, so as to fall within the ambit of s 30(2), the procedures prescribed in Division 4 must be complied with. They include:

(i) conviction of a relevant offence;

(ii) at least two other relevant offences having been committed on different occasions in the preceding five years;

(iii) the receipt by the licence holder of a written warning that he or she is liable to be declared to be an habitual offender if convicted of another relevant offence;

(iv) the declaration of such person as an habitual traffic offender.

47 The legislative regime that has been brought into existence as a precondition to the application of s 30(2), with its consequent possibility of disqualification for life, is to be contrasted with the provisions of s 25. It would be a curious construction of the General Act to regard the words “including disqualification for life” in s 30(2) as surplusage or inserted merely for more abundant caution, as would be the case if the phrase which those words qualify, namely “a longer period of disqualification”, already included a lifetime disqualification. The use of inclusive words in the parenthetical phrase in s 30(2) of the General Act would ordinarily be regarded as an indication of a legislative intent to extend the ordinary meaning of the words they qualify (Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342 at 353-354 per McInerney J; Pearce and Geddes Statutory Interpretation in Australia 5th ed 6.56).

48 The inclusion of the parenthetical phrase “including disqualification for life” in s 30(2), in my opinion, has such an effect in the legislative provision under consideration. The fact that it is different in form from s 25(2)(d)(ii), indicates that the legislature intended a different range of possible outcomes under s 30(2) on the one hand and s 25(2)(d)(ii) on the other – the former comprehending the possibility of a disqualification for life; the latter, not.

49 Thus, the contrast between the provisions of Division 3, and in particular s 25 on the one hand, with the provisions of Division 4,and in particular s 30(2) on the other, supports the provisional conclusion arrived at in paragraph 44 above.

50 On turning to authority, the provisional conclusion arrived at in paragraph 44 is, in my opinion, further reinforced.

51 In Ex parte Thomas re Arnold (1996) 84 WN (Pt 1) (NSW) 493, the Court of Appeal considered a provision in the then Motor Traffic Act 1909–1937 that is cognate to the provisions presently under consideration. It is a statute in pari materia. Section 10(1)(c) of that Act provided that in the event of a conviction in particular circumstances, “the court may declare (the defendant) disqualified from obtaining a licence for such time as the court thinks fit.” The word “time” in such section was construed “so as to mean a finite period.” (supra at 496 per Wallace P, with whom Jacobs and Asprey JJA agreed). In arriving at this conclusion, the court was of the opinion that the word “time”, as used in a preceding subsection, was clearly directed at a finite time, and that in the light of Slazengers (Australia) Pty Ltd v Burnett (1951) AC 13 at 21 and the dictum of Wynn-Parry in Ministry of Health v Fox (1950) 1 Ch 369 and 378-379 the same meaning should be given to the same word in the subsection under consideration. Although the actual word used in that act and its statutory context were different from that presently under consideration, thus making the decision strictly distinguishable, it is in my opinion of some assistance in the present case in relation to the construction of the statutory provision under consideration.

52 Such an approach to construction gains support from Rex v Fowler (1937) 26 Cr App R 80. In that case, the appellant had been convicted of driving a motor vehicle when under the influence of alcohol contrary to s 51(1) of the Road Traffic Act 1930 (UK). A person who was convicted of an offence under that section was subject to a prima facie period of disqualification of 12 months. Such a disqualification was subject to a qualification as follows:

“… unless the court for special reasons thinks fit to order otherwise, and without prejudice to the power of the court to order a longer period of disqualification.”

53 The view expressed by the court in Rex v Fowler (supra) was echoed by Lord Parker CJ in Regina v Abbott (1964) 1 QB 489 in which he expressed the view that:

“The court has had very grave doubts … whether … a sentence for life can properly be described as a period specified.” (at 494)

54 To the contrary is the decision in Regina v Wallace (1955) NIR 137 In that case the court considered certain motor vehicle legislation of Northern Ireland that empowered the court to disqualify a convicted person “for (sic) obtaining such licence for such further time after the expiration of the licence as the court thinks fit”. In overruling the decision of Lord Chief Justice Macdermott in the court below and declining to apply Regina v Fowler (supra), the court said:

“We are of opinion that disqualification for the life of a person convicted is disqualification for a certain and definite period and is authorised by the section. This court would be slow to hold that the legislature intended that a disqualification for 60, 70 or 80 years could be imposed … but not disqualification for life.”

55 In my opinion, Regina v Wallace (supra) is distinguishable from the present case because of the absence of a controlling or limiting legislative context in the Northern Irish legislation. In this regard it should be noted that in Ex parte Thomas re Arnold (supra), the Court of Appeal was not persuaded to apply it to the provisions of the Motor Traffic Act 1909-1937 (NSW), in view of the legislative context of the provision under consideration in such case.

56 The Crown relied on Regina v Jolly (1993) 70 A Crim R 527 in support of its argument that s 25(2)(d)(ii) of the General Act should be construed so as to empower the court to impose a disqualification for life. In that case the Victorian Court of Criminal Appeal considered the provisions of s 93 of the Sentencing Act 1993 (Vic). It empowers the court to impose a hospital security order either in lieu of a sentence of imprisonment or by way of sentence. Section 93(1) applies to a situation in which there has been a verdict of not guilty, but the person in respect of whom such verdict has been found appears to be suffering from a mental illness that requires treatment that can be obtained by admission to and detention in a psychiatric in-patient service and the person in question should be admitted as a patient for his or her health or safety or for the protection of the members of the public (s 93(1)(a) and (1)(b)). In such circumstances the court may:

“(d) instead of passing sentence make an order (a hospital order) under which the person is admitted to and detained in a psychiatric in-patient service as an involuntary patient; or

a period specified

57 Brooking J with whom, Teague and Coldrey JJ agreed, considered whether the phrase “a period specified” as used in s 93(1)(e) authorised the making of an order for the term of a person’s natural life. Although the question had not been argued, Brooking J held that the relevant phrase did authorise the making of a hospital security order for the term of a person’s natural life. There is nothing in the legislation in which such phrase occurs that is to the contrary of the conclusion arrived at by the Court of Criminal Appeal. Indeed, the legislation contemplates that the duration of a hospital security order may be the same as the period of imprisonment to which the offender would have been sentenced had such order not been made (s 93(3)). Furthermore, the Act in which the phrase “a period specified” occurs is one that has application to the whole range of criminal offences and as a consequence to a range of penalties that includes imprisonment for life. A power to make a hospital security order for the duration of the life of the relevant offender may be an appropriate alternative to a sentence of life imprisonment or a substitute form of sentence for an offence for which the appropriate penalty would be imprisonment for life. The situation under the Sentencing Act 1991 (Vic) is in contrast with the situation in relation to s 25(2)(d)(ii) of the General Act. As a consequence I am of opinion that the decision in Regina v Jolly (supra) is distinguishable.

58 The Crown also relied on a statement of Austin J in ASIC v Parkes [2001] NSWSC 377. That case concerned s 230 of the Corporations Law by which the court is empowered to prohibit a person who has committed breaches of relevant legislation on at least two occasions when the person was an officer of a body corporate from managing a corporation “for such period as is specified in the order”. Austin J determined that a prohibition for 25 years was appropriate, and then remarked that a prohibition for such period would “effectively prevent the defendant from managing a corporation for the rest of his life.” This is argued by the Crown to support the proposition advanced in respect of the meaning to be given to the phrase “longer period of disqualification” in s 25(2)(d)(ii) of the General Act. I do not agree for the following reasons:

(i) Austin J was not called upon to consider and did not consider whether the section empowered the court to impose a prohibition for life.

(ii) The words quoted are merely a reference to the practical effect of the 25 year prohibition that had been imposed.

Corporations Law

General Act

General Act.

59 As a result of the foregoing analysis, I am of opinion that the meaning to be given to the phrase “longer period of disqualification” in s 25(2)(d)(ii) should be one that refers to a finite duration, the precise date of the ending of which is known as at the date of the imposition of the disqualification. The power conferred by the section does not include a power to disqualify a person from holding a licence for life, and in making such an order, the Judge erred. This part of his sentence must therefore be quashed.

60 Having determined that there is no power to impose a disqualification for life, it is necessary to fix a period of disqualification that is within the ambit of the power conferred by the legislation.

61 The driving record of the applicant is bad. The circumstances of the traffic offences included on the Form 1 were indicative of a total lack of regard for the rules of the road and the safety of road users and pedestrians. There may be more serious cases, but the events in which the applicant was involved were, in my opinion, very high in the order of seriousness and culpability. He has demonstrated a total disregard for the laws of the road. He has shown himself to be a menace on the road. This is, in essence, the same as the view that was taken by the Judge. In these circumstances, what period of disqualification is condign? The applicant will not be eligible for release on parole until 3 January 2007. The full term of the principal sentence extends until 3 January 2010. In the light of his driving history and the offences of which he has been convicted, he is unlikely to be driving on a public road during the period of his incarceration. A disqualification for a period of ten years from the date on which he becomes eligible for parole would, in my opinion, be appropriate. That being so, I am of opinion that the period of his disqualification should be until 2 January 2017.

62 Counsel for the applicant argued that the Judge erred in failing to give an adequate discount to the applicant based on his pleas of guilty and assistance given to the authorities. He pointed in particular to the passage in the Remarks on Sentence in which he noted:

(i) the early pleas of guilty by the applicant;

‘Having regard to the pleas of guilty and the willingness to give evidence against Fittler, I consider that a discount of one third is appropriate, which means that the sentences for the offences will be six years and eight years.”

63 Even an early plea of guilty does not necessarily attract a utilitarian value discount of 25 percent Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383 at 418-419 para 159). The range fixed in Regina v Thomson; Regina v Houlton (supra) is 10 – 25 percent. True it is that a plea of guilty at an early stage may attract a discount at the top of the range, but no single figure is fixed on for the appropriate discount in a given case nor for the appropriate ordinary sentence; ranges are stated. Both such aspects of sentencing involve matters of judgment. In the present case, a discount of less than 25 percent could fall within the parameters of acceptable discretion. A discount of 20 percent, for example, would by no means be inadequate or appellable in the present case.

64 Whilst the applicant’s admissions assisted the Crown case and accepted his involvement in the robbery at McDonalds, his assistance was, at least to a substantial extent, directed at minimising the seriousness of his role and maximising that of Fittler. Furthermore, the extent of the truthfulness of his assistance is open to question. For example, his assertion that he did not know that Fittler was armed (if it was Fittler who had the gun that had been taken out of the applicant’s baggage) does not sit comfortably with the evidence of Mr Hammer concerning the discharge of the gun at his residence at a time when the applicant was in close proximity. Moreover, the denials of specific parts of Fittler’s statement that were put to the applicant are, at least in some respects, also open to question. In a practical sense the value of the assistance given by his indication that he was prepared to give evidence against Fittler was qualified by three considerations. The first is the fact that he was an accomplice. As a consequence, at a trial at which the applicant gave evidence against Fittler, the trial Judge would have been required to give a direction in accordance with s 165 of the Evidence Act 1995 that the applicant’s evidence was of a kind that may be unreliable. The second is the usefulness of any evidence he may have given, in view of the effects of drugs on him at the relevant time. Indeed the Judge referred to this in his Remarks on Sentence. The third consideration is that there is an under current that may suggest that the applicant was prepared to give evidence against Fittler because Fittler had already made a statement adverse to the applicant. Such undercurrent is strengthened by the behaviour of the applicant towards Fittler in the cells complex at Taree on 7 January 2002. On that date the applicant was being escorted past Fittler’s cell and on the applicant sighting Fittler he said “You cunt you are going to die for what you have done.” To which Fittler replied, “I did fuckin nothin. You gave statements against me. You did it not me.” Over an above the foregoing considerations is the fact that the applicant’s memory was open to question by virtue of the effect of drugs on him at the relevant time. As the judge remarked that, “That will be a very significant qualification on the reliability (his) evidence.”

65 From the foregoing, it can be seen that there was ample basis for the Judge, whilst having regard to assistance that was given by the applicant, not to give a substantial discount to him in respect of such assistance.

66 To the extent that that the plea of guilty and the assistance given could be regarded as indicative of contrition on the part of the applicant, any such inference could properly be discounted by reference to his behaviour at the police station following his arrest and his further behaviour in relation to Fittler in the cells complex at Taree. Whilst some discount for contrition may have been appropriate, the overlapping of such consideration with the consideration of assistance could, in my opinion, properly be regarded as falling within the additional percentage discount allowed by the Judge for considerations over and above the utilitarian value of the applicant’s pleas of guilty.

67 This Court should not intervene in the sentencing process merely because it may have imposed a different sentence or fixed a different non-parole period. As was pointed out by Spigelman CJ in Regina v Simpson (2001) 53 NSWLR 704:

Criminal Appeal Act

68 In my opinion it has not been shown that the discount of one third that was allowed by the Judge was so low that this Court should intervene on appeal. Furthermore, I am not satisfied that a sentence less severe than that imposed is warranted in law and should have been passed.

69 In my opinion, the ground of appeal relating to the discount on sentence given by the Judge and to the sentence imposed fails.

70 I would propose that leave to appeal be granted but that the appeal be dismissed, except in relation to the disqualification of the applicant from holding a motor vehicle driver licence for life. I would propose that the order to this effect imposed by the Judge be quashed and that in lieu thereof the applicant be disqualified from holding a motor vehicle driver licence until 2 January 2017.

71 The orders of the Court are:

(i) leave to appeal granted;

(ii) the appeal is dismissed, except in relation to the disqualification of the applicant from holding a motor vehicle driver license for life;

(iii) the order disqualifying the applicant from holding a motor vehicle driver license for life imposed by the Judge is quashed;

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Last Modified: 08/18/2003

Citations

Gardner v R [2003] NSWCCA 199

Most Recent Citation

Cases Citing This Decision

59

Kiriwina Investment Company Pty Ltd v Green Lees Developments Pty Ltd [2018] NSWCA 210

Craigie v Champion Mortgage Services Pty. Ltd [2007] NSWCA 15

Cases Cited

8

Statutory Material Cited

6

R v Jolly [2002] QCA 306

Cody v J H Nelson Pty Ltd [1947] HCA 17

Wright v Queensland Police Service [2002] QSC 46

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CITATION:	Gardner v Regina [2003] NSWCCA 199
HEARING DATE(S):	15/7/03
JUDGMENT DATE:	13 August 2003
JUDGMENT OF:	Sheller JA at 1; James J at 7; O'Keefe J at 8
DECISION:	(i) Leave to appeal granted; (ii) Appeal dismissed, except in relation to the disqualification of the applicant from holding a motor vehicle driver license for life; (iii) Order disqualifying the applicant from holding a motor vehicle driver license for life quashed; (iv) In lieu thereof the applicant is disqualified from holding a motor vehicle driver license until 2 January 2017.
CATCHWORDS:	Criminal law - Appeal against sentence - Assault with intent to rob whilst armed with a dangerous weapon - Robbery whilst armed with a dangerous weapon - Plea of guilty - Assistance to authorities - Quality of assistance - Discount for utilitarian value of plea - Discount for assistance given to authorities - Disqualification from holding a motor vehicle driver license - No power to impose disqualification for life for other than habitual traffic offenders - Longer period of disqualification - Period
LEGISLATION CITED:	Crimes Act 1900 - s 97(2) Crimes (Sentencing Procedure) Act 1999 - s 34 Motor Traffic Act 1909-1937 - s 10(1)(c) Road Transport (Driver Licensing) Act 1999 - ss 25, 25A(7)(b), 25A(1)(b), Road Transport (General) Act - ss 5, 24, 25(1), 25(2)(d), 30(2) Road Transport (Safety and Management) Act 1999 - ss 40, 42
CASES CITED:	ASIC v Parkes [2001] NSWSC 377 Barbaro v DPP (1999) 49 NSWLR 68 Corporate Affairs Commission (SA) v Australian Central Craig Williamson Pty Limited v Barrowcliff (1915) VLR 450 Credit Union (1985) 157 CLR 201 Ex parte Thomas re Arnold (1996) 84 WN (Pt 1) (NSW) 493 Lace v Chantler (1944) 1 KB 369 McLeish v FT Eastment & Sons Pty Limited (1970) 71 SR (NSW) 178 Ministry of Health v Fox (1950) 1 Ch 369 Re Lehrer and the Real Property Act (1961) SR (NSW) 365 Regina v Abbott (1964) 1 QB 489 Regina v Jolly (1993) 70 A Crim R 527 Regina v Simpson (2001) 53 NSWLR 704 Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383 Regina v Tunde-Olarinde (1967) 2 All ER 491 Regina v Wallace (1955) NIR 137 Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 Rex v Fowler (1937) 26 Cr App R 80 Scott v Commercial Hotel Merbein Pty Limited (1930) VLR 25 Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342 Slazengers (Australia) Pty Ltd v Burnett (1951) AC 13
PARTIES :	Ricky Gardner v Regina
FILE NUMBER(S):	CCA 60121/03
COUNSEL:	Applicant: Mr H Dhanji Respondent: Mr D Howard
SOLICITORS:	Applicant: D J Humphreys (Legal Aid Commission of NSW) Respondent: Director of Public Prosecutions (NSW)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0086
LOWER COURT JUDICIAL OFFICER :	Urquhart DCJ