Habib v Blums - [2003] NTSC 40

Habib v Blums [2003] NTSC 40
PARTIES:SAMIH HABIB

v
DONNA ANN BLUMS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA71/02 (20214494)
DELIVERED:  17 April 2003
HEARING DATES:  27 March 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

CRIMINAL LAW - driving offences - judgment and punishment - successful appeal against the recording of a conviction after guilty plea to charges relating to failure to insure and register a taxi cab.
REPRESENTATION:
Counsel:
Appellant:R Morley
Respondent:  S Geary
Solicitors:
Appellant:Morgan Buckley
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200320
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Habib v Blums [2003] NTSC 40
No. JA71/02 (20214494)

BETWEEN:
SAMIH HABIB

Appellant
AND:
DONNA ANN BLUMS

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 17 April 2003)

This is an appeal against conviction for an offence of drive unregistered and uninsured motor vehicle on a public street, namely, Wills Terrace, Alice Springs.
On 12 November 2002, the appellant entered a plea of guilty to the following two charges:
On 28 August 2002 at Alice Springs in the Northern Territory of Australia
1.permitted another, namely Onver Ceylan Finci, to drive an unregistered vehicle, namely, Ford Falcon, on a public street, namely, Wills Terrace.
Contrary to s 33(1)(b) of the Traffic Act.
And Further
On 28 August 2002 at Alice Springs in the Northern Territory of Australia
2.permitted another, namely Onver Ceylan Finci, to drive a vehicle, namely, Ford Falcon, that did not have a current compensation contribution, on a public street, namely, Wills Terrace.
Contrary to s 34(1) of the Traffic Act.
The maximum penalty under the provisions of the Traffic Act in respect of the first charge is $2000 or imprisonment for 12 months and in respect of the second charge a fine of $10,000.
The second charge requires a minimum fine of $500 be imposed for the commission of the offence being a first offence under the Act.
The Deputy Chief Magistrate recorded a conviction for each offence. She imposed the minimum fine of $500 in respect of the charge of drive uninsured (or as stated in the charge, did not have a current compensation contribution) together with two $40 court fees making a total of $580. There was no fine imposed for the offence of drive unregistered.
The facts in support of the charge were as follows (tp 2):
“The facts of the matter are that at about 1420 hours on Wednesday, 28 August 2002 a Ford Falcon sedan, registration number NT Taxi 102 was travelling on Wills Terrace, which is a public street open to and used by the public. The vehicle is owned by Samih Habib of Alice Springs.
A subsequent check of Motor Vehicle Registry records showed that the Ford Falcon sedan the registration had expired on 24 August 2002. Those are the facts, Your Worship. The defendant has no prior convictions and I’m not seeking costs.”
It was further established that the vehicle being driven by another person was a taxi.
The appellant lodged a Notice of Appeal in which he listed the following grounds of appeal.
“1. The Appellant did not understand the effect of a plea of guilty.
2.Did not know that a conviction would be recorded and the effect that may have on his future application for various licenses he holds.
3.Did not seek nor was given advice from the learned Magistrate as to the effect of a plea of guilty and subsequent conviction.
4.That in all the circumstances the conviction be set aside.”
The Notice of Appeal was accompanied by an affidavit in which the appellant, Samih Habib, attests to a number of matters.
He refers to his appearance in the Court of Summary Jurisdiction and states that he did not seek legal representation as he assumed that the penalty would be a fine which he was willing to pay. He further states he did not know the plea of guilty for the offences would carry a penalty of conviction. The affidavit sets out that Mr Habib is the owner of the vehicle and relied on his driver who had forgotten to tell him about the registration expiring. He heard the magistrate say unfortunately there is a minimum fine of $500 and a conviction. Mr Habib states that had he been aware that a conviction would be imposed, he would have pleaded guilty but asked that no conviction be recorded. Mr Habib states that because of the conviction his reputation is stained and that his honour and reputation are important to him. That had he understood a conviction would be recorded he would have told the court the following (affidavit of Samih Habib sworn 25 March 2003):
“12. …
(i)That the conviction under the Traffic Act is the first conviction I hold in any jurisdiction.
(ii)That I am the operator of the taxicab license number T102.
(iii)Onver Ceylan Finci drives the taxicab. As the operator I receive 50% of the taxi fares collected by Mr. Finci.
(iv)As an operator, I am required by the Commercial Passenger (Road) Transport Act (NT) to ensure the taxicab is registered and insured.
(v)The taxicab was required to have been registered on or about August 24, 2002.
(vi)The offence took place on August 28, 2002 and the registration was overdue not by months but by 4 days.
(vii)The registration was overdue because my client overlooked the date it was due.
(viii)I overlooked the date the registration was due because although he had received the notice requiring registration I had put it temporarily to one side intending at all times to renew the registration.
(ix)At no time did I instruct Mr. Finci to drive the car unregistered and uninsured.
(x)I rely on the driver to alert me to any issues involving the cab constantly and I rarely see the cab. Mr. Finci did not alert me to the fact that the registration of the cab was about to expire.
(xi)That I am an Alderman with the Alice Springs Town Council and hold a public position. I take my role and duties as an Alderman seriously and consider that part of my duty and responsibility as a public figure is to avoid holding any convictions which my disaffect the public, whose confidence I hold. As an Alderman I am required to consider and comment to Council on a number of local issues, which include public safety and traffic control. I do not wish to find myself in the embarrassing position of having to provide comment on these issues whilst holding a conviction for a traffic offence.”
The appellant has paid the fine and does not appeal against the imposition of the fine which becomes payable on the offence on count 2 being proved irrespective of whether or not a conviction is imposed.
I accept the matters set out in the affidavit filed by Mr Habib.
The court was provided with a document titled “How to obtain a hire or reward (h) Endorsement”. This details the requirements for a person wishing to drive a vehicle for hire or reward. The application is subject to a criminal history check and traffic record check and that the applicant must be of good character. Whilst this does not establish that the effect of a conviction would result in Mr Habib being refused the necessary endorsement to drive taxis, it does explain his perception that it may have an effect on his application for such endorsement.
Counsel for the respondent, Mr Stephen Geary, submitted that the appeal was opposed. Mr Geary pointed to a number of relevant factors. These include the fact that there was no evidence Mr Habib would lose his endorsement to drive a taxi because of this conviction. Mr Geary referred to the fact that this conviction was not a conviction for an offence that would give rise to a conclusion that the appellant was of unsound character. It was submitted on behalf of the respondent that the Deputy Chief Magistrate imposed a conviction to remind the appellant he was required under the law to personally take responsibility for the proper registration and insurance of motor vehicles owned by him. On behalf of the respondent, Mr Geary submitted that the fact the appellant did not seek legal advice from the learned Deputy Chief Magistrate, nor was given advice is not an appropriate appeal point. It is not the role of a magistrate to provide legal advice to the appellant. It was open to the appellant to seek legal advice before he decided to represent himself and enter a plea of guilty.
I would agree with all of these submissions.
Mr Habib is very much the author of his own predicament. Mr Habib is the owner of the vehicle. He should not rely on his driver to tell him when the registration on his vehicles have expired. He is expected to keep adequate records himself so that he is not reliant on others to bring the issue of registration and insurance to his attention.
Mr Habib is an experienced business man and an alderman with the Alice Springs Council, a person who would be expected to know something of court processes and to have been able to seek legal advice.
At the hearing of the appeal, the appellant was represented by Ms Ruth Morley who prepared very detailed written submissions which she expanded upon at the hearing.
I do not propose to canvas all of these submissions. I do set out a number of matters which I have taken into account. I do accept that Mr Habib does take very seriously the fact that he now has a conviction against his name. Others may not regard a conviction for this offence as a stain on his character. I accept that he feels strongly this is so.
The facts of this matter having been established the Deputy Chief Magistrate made the following order:
“All right. Well, unfortunately, there is a minimum fine on the uninsured charge of $500, which I can do nothing about. So on each count you will be convicted. There’s a total fine of $500 plus two $40 court fees. So all up you’ve to pay $580. You’ll get a piece of paper which explains what you’ve got to do about organising to pay, okay.”
Mr Habib provided little, if any, assistance to the Deputy Chief Magistrate. He did not seek legal advice. He did not make any meaningful submissions to the court on his own behalf. The charges are straight forward and understandably were dealt with expeditiously.
The appellant is a man of 53 years of age. His age is apparent from his appearance and this together with the fact he has no prior convictions were made known to the magistrate.
Whilst the appellant provided very little assistance to the Deputy Chief Magistrate and did not seek that no conviction be recorded, I have come to the conclusion that in imposing a conviction, the magistrate did not attach sufficient weight to a number of factors. This includes the appellant’s age, the fact he was before the court without prior conviction, the fact that the registration and insurance had expired only four days prior to the date of the offence and the credit to be given for the plea of guilty at the first reasonable opportunity.
For these reasons I would allow the appeal.
Pursuant to s 177 of the Justices Act I quash the conviction on each offence.
I confirm the offences proved and the fine of $500 plus $80 Court fees imposed for the commission of the offences.
I grant leave to the parties to apply on the question of costs.

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