Hebbard v Letchford
[2007] WASC 257
•1 NOVEMBER 2007
HEBBARD -v- LETCHFORD [2007] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 257 | |
| Case No: | SJA:1071/2007 | 23 OCTOBER 2007 | |
| Coram: | McKECHNIE J | 31/10/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Respondent resentenced | ||
| A | |||
| PDF Version |
| Parties: | BENJAMIN PAUL HEBBARD CLINTON JOHN LETCHFORD |
Catchwords: | Road traffic Period of fines suspension Cumulative suspension imposed Whether legally disentitled to hold or obtain licence Sevelj v Roffey followed |
Legislation: | Road Traffic Act 1974 (WA), s 49 |
Case References: | Sevelj v Roffey [2002] WASCA 20; 35 MVR 504 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CLINTON JOHN LETCHFORD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L H JONES
File No : AR 6515 of 2007
Catchwords:
Road traffic - Period of fines suspension - Cumulative suspension imposed - Whether legally disentitled to hold or obtain licence - Sevelj v Roffey followed
Legislation:
Road Traffic Act 1974 (WA), s 49
(Page 2)
Result:
Appeal allowed
Respondent resentenced
Category: A
Representation:
Counsel:
Appellant : Mr A Shuy
Respondent : In person
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : In person
Case(s) referred to in judgment(s):
Sevelj v Roffey [2002] WASCA 20; 35 MVR 504
(Page 3)
1 McKECHNIE J: The respondent was charged as follows:
That on 07/05/2007 at Gosnells he drove a motor vehicle namely a Holden Commodore, registered number 1AUA 307 on a road, namely Southern River Road, without being the holder of the appropriate valid drivers licence for that class of vehicle and while legally disentitled to hold a driver's licence, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under section 19 or 43 of the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA).
2 There was an application by the prosecution to amend the notice to remove the fact that the respondent had been disqualified under the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) on the basis that this would expose the respondent to a higher penalty. The magistrate refused the amendment and fined the respondent $200 with no order for suspension, the magistrate commenting that the matter may need clearing up by way of appeal.
3 The prosecution grounds of appeal are as follows:
The learned Magistrate erred in convicting and sentencing the Respondent under section 49(1)(a) of the RTA, in the circumstances specified in section 49(2)(a)(iv) when:
(a) the Respondent's Motor Driver's Licence (MDL) was suspended for non-payment of fines on 10 November 2004 and the Respondent received a cumulative court imposed suspension on 13 January 2006;
(b) the Respondent's MDL suspension for non-payment of fines was still operative; and
(c) the Prosecutor applied to amend the charge to plead the circumstance of aggravation under section 49(2)(a)(iii);
and that he
(i) erred in law in finding that, at the time of the commission of the offence, the Respondent had served his court imposed suspension and therefore was not a person to whom section 49(2)(a)(iii) of the RTA applied;
(ii) erred in refusing to amend the charge to include the circumstances of aggravation;
(iii) erred in law in not imposing a penalty in accordance with section 49(3)(a)(i) and (3)(b) of the RTA.
(Page 4)
4 In order to understand the matter some chronology is necessary. I take this from the appellant's submissions:
|
|
|
|
|
|
|
|
Disqualification: 3 months cumulative |
|
|
Disqualification: 3 months concurrent |
|
|
Disqualification: 3 months concurrent |
|
|
|
|
|
Disqualification: 7 months concurrent |
The question in the case
5 The issue in this case is the proper construction of s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA) which relevantly provides:
Having been disqualified from holding or obtaining a driver's licence, other than under a licence suspension order referred to in subparagraph (iv) (fines suspension)
- commits, whilst still legally disentitled to hold a driver's licence, an offence against subsection (1)(a); or
6 The question is: Does the respondent fall within its provisions? If so, then pursuant to s 49(3)(a)(ii) and s 49(3a) the minimum penalty for a first
(Page 5)
- offence is a fine of not less than $400 and a disqualification for a period of not less than nine months nor more than three years.
7 The magistrate's reasons are as follow:
My view is that the driving under court ordered suspension [imposed pursuant to s 49(3b) of the RTA] takes precedence over the administrative suspension imposed under the Fines, Penalties and Infringement Notices Enforcement Act. When the court orders a suspension it takes place from that particular point. If there is any cumulative effect, it is a cumulative effect on a court ordered suspension and then at the end of that, and at my reading, Mr Letchford would have had his licence back some time in the late - towards the end of 2006.
8 There are two points to make. Unlike the Sentence Administration 1995 (WA) in respect of the terms of imprisonment, the Road Traffic Act does not specify the order in which periods of suspension will be served. In simple terms, a fine suspension remains in force until the fine is paid or the suspension is cancelled. Because the 3 months suspension for driving without a licence imposed on 13 January 2006 was cumulative, it cannot commence to take effect until the fine suspension has come to an end. At the time of sentence the respondent was still serving the fines suspension and had not commenced to serve any part of the cumulative suspension.
9 However, the issue in this case is not resolved by reference to the cumulative or concurrent nature of orders of suspension but by reference to the words of s 49(2)(a)(iii). At the time of sentence the respondent was a person who met the description of s 49(2)(a)(iii). He had been disqualified from holding or obtaining a drivers licence other than for fines suspension (although he was also a person who fitted that description).
10 He was also, at the time he committed the offence, a person 'still legally disentitled to hold a drivers licence'. It does not matter whether he was legally disentitled by virtue of the fines suspension or the court ordered suspension because on either basis he was legally disentitled.
11 Section 49(2)(a)(iii) having been satisfied, he was a person who was liable to the greater penalties under s 49(3) and s 49(3a). This construction accords with the reasoning of McLure J in Sevelj v Roffey [2002] WASCA 20; 35 MVR 504, a case which I follow.
(Page 6)
Conclusion and orders
12 The appeal is allowed. The amendment to the prosecution notice is granted, the penalty imposed by the magistrate set aside. In lieu I impose a fine of $400 and a cumulative period of suspension of 9 months.
2