Hei Hei v R

[2009] NSWCCA 87

New South Wales
Court of Criminal Appeal

CITATION:

HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

HEARING DATE(S):

23 March 2009

 
JUDGMENT DATE: 

2 April 2009

JUDGMENT OF:

McClellan CJatCL at 1; Buddin J at 2; Rothman J at 3

DECISION:

(1) Leave to appeal be granted;

(2) The appeal against sentence by Mr Hei Hei be dismissed;

(3) The appeal by the Crown against the order of his Honour Judge Bennett DCJ, disqualifying Mr Hei Hei from driving, be allowed and in lieu thereof the following order issue:
"(i) Pursuant to the terms of section 188(2)(d)(ii) of the Road Transport (General) Act 2005, Mr Hei Hei be disqualified from driving for a longer period than 3 years, being for the period concluding 19 February 2014."

CATCHWORDS:	CRIMINAL LAW – sentencing – appeal – aggravating feature – inherent in elements of crime – no lesser sentence warranted – no manifest excess – disqualification from driving – term fixed by judge identical to automatic disqualification period but from future date – power to fix shorter or longer period – original intent given effect – longer period fixed expiring 3 years after conclusion of non-parole period - TRAFFIC LAW – offence – disqualification – method of fixing non-automatic period of disqualification – need to have shorter or longer period – method corrected
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Road Transport (General) Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Elyard v R [2006] NSWCCA 43 Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493; [1966] 2 NSWR 197 Gardner v R [2003] NSWCCA 199 Kutchera v R [2007] NSWCCA 121 R v Abboud [2005] NSWCCA 251 R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540 R v Finnie (No 2) [2004] NSWCCA 150 R v McMillan [2005] NSWCCA 28 R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164 R v Presard [2004] 147 A Crim R 385 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Stewart [2005] NSWCCA 290 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
PARTIES:	Marcus Joseph HEI HEI (Applicant/Respondent) Regina (Respondent/Applicant) Regina (Applicant) Marcus Joseph HEI HEI (Respondent)
FILE NUMBER(S):	CCA 2007/00015151
COUNSEL:	M Johnston (Applicant/Respondent) J Dwyer (Respondent/Applicant)
SOLICITORS:	Legal Aid Commission (Applicant/Respondent) Office of the Director of Public Prosecutions (Respondent/Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/0297
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	20 February 2008

2007/00015151

McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J

2 APRIL 2009

HEI HEI, Marcus v R; R v Marcus HEI HEI

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 BUDDIN J: I agree with Rothman J.

3 ROTHMAN J: Marcus Hei Hei seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by his Honour Judge Bennett SC. Mr Hei Hei had pleaded guilty to aggravated dangerous driving causing death. The aggravation, to which the offences related in Mr Hei Hei’s case, was a blood alcohol level of 0.162 g per 100 ml of blood. The Crown also appeals, but its appeal is confined to a measure aimed at protecting the intent of his Honour as to the period of disqualification from driving, should Mr Hei Hei be successful in that aspect of his appeal.

4 Mr Hei Hei was sentenced to imprisonment for a non-parole period of 3 years expiring on 19 February 2011 with a balance of term of a further 2 years. Further, Mr Hei Hei was disqualified from driving for “a period of three years commencing on 20 February 2011”.

Facts

5 Shortly stated, Mr Hei Hei drank for most, if not all, of the afternoon and evening of Sunday 4 March 2007. Just before 12.30am on Monday 5 March, he drove to the pub to buy more alcohol and play pool. He drove his stepdaughter and her boyfriend.

6 At 12.30am, while driving north along Olympic Drive at Lidcombe, Mr Hei Hei failed to negotiate a sweeping left-hand bend before a straight section of roadway, crossed the concrete median strip, entered the south-bound lanes (i.e. the opposite and wrong side of the road), skidded sideways and mounted the eastern curb of the roadway. The road was a major thoroughfare, with three lanes in each direction. The vehicle then impacted heavily with a paling and brick fence and came to rest on its roof on the wrong side of the road.

7 Mr Hei Hei’s stepdaughter died as a result of the injuries she sustained in the collision. Those injuries were a massive head wound to the rear of the deceased’s head. When ambulance and police officers arrived at the scene, each of Mr Hei Hei and the two passengers were trapped in the vehicle, which was still on its roof. Mr Hei Hei sought to insist that the rescue workers attend to his stepdaughter first. He was abusive and clearly affected by alcohol. He declined to be removed from the vehicle and eventually, after approximately one hour, he was coaxed out of the vehicle. At that time he was the subject of a roadside blood test, which provided an alcohol reading of 0.186 g per 100 ml of blood. He was conveyed to Westmead Hospital (as was his stepdaughter’s boyfriend) and given a further blood test. This blood test (taken approximately two-and-a-half hours after the collision) showed a blood alcohol concentration of 0.162 g per 100 ml.

8 The above facts were largely the subject of agreement and tendered before his Honour at sentencing.

9 At the sentence hearing, the prosecution tendered the criminal and driving records of Mr Hei Hei from both New South Wales and New Zealand.

10 Mr Hei Hei and his stepdaughter had a close relationship, confirmed by the deceased’s boyfriend and the deceased’s mother. Further the deceased’s mother confirmed the changed attitude of Mr Hei Hei to drinking (and drinking and driving) brought about by the incident. Mr Hei Hei had made a solemn promise to his dead stepchild not to drink again (which has a particularly cultural significance) and has, thus far, kept that promise. Further, he had attended the deceased’s former high school and spoken to a group of over 100 students on the topic on the dangers of drink driving. A number of references and reports were tendered on behalf of Mr Hei Hei and a Pre Sentence Report was available to the sentencing judge.

Grounds of Appeal

11 The grounds of appeal against the sentence of imprisonment raise two matters and further there is a ground of appeal against the period of disqualification from driving. The issues raised in the grounds of appeal from imprisonment are:

(i) The sentencing judge erred in taking into account s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (disregard for public safety) as an aggravating feature of the offence in circumstances where it is a matter inherent in the offence itself;

(ii) The sentence was manifestly excessive.

12 Further the issue raised on the question of a disqualification from licence relates to the commencing date for the disqualification period. His Honour disqualified Mr Hei Hei from driving for a period of 3 years commencing at the conclusion of the non-parole period, which his Honour had otherwise set. Mr Hei Hei has appealed that commencing date and submits that it was an error to commence the sentence from a date other than the date of conviction.

Ground 1: Error in taking into account disregard for public safety as an aggravating feature when it is an element of the offence

13 The provisions of s 21A of the Crimes (Sentencing Procedure) Act make clear that the Court must not have additional regard to any aggravating factor that is, itself, an element of the offence: see s 21A(2) of the Crimes (Sentencing Procedure) Act.

14 Many judgments of this Court have made clear that to take account of a factor in aggravation of an offence, which factor is an element of the offence itself, is to double count the effect of the factor: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [172]; R v McMillan [2005] NSWCCA 28 at [38]; Elyard v R [2006] NSWCCA 43 at [13]-[17] and at [40], [43]-[45].

15 In Elyard, supra, the Court said:

“There can be no doubt that the inclusion of the circumstances of aggravation identified in s 52A(7) of the Crimes Act are intended to prohibit conduct which may well occur in disregard of public safety, because the conscious creation of a drug-affected state, combined with the act of driving a motor vehicle, will usually satisfy that description. Accordingly, acting without regard for public safety should not, in such a case, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition.” ( Elyard , supra, per Basten JA at [10] and see also [45] per Howie J.)

16 In McMillan, supra, the Court also considered these issues and said:

“If the respondent had been charged with an offence based upon the fact that he was driving in a manner dangerous to the public, it seems clear that a court could not take into account that the offence was committed without regard to public safety because that fact is an element of the offence. An offence based upon the fact that the driver was under the influence of liquor does not explicitly contain as an element of the offence that the driving was without regard to public safety. But the offence of driving under the influence, particularly where it is alleged that the driver has a blood alcohol reading over 0.15, is premised on the fact that to drive in such a condition is dangerous to other persons on the road. It seems to me that there would be an element of double counting in finding that the offence was aggravated by those factors mentioned in Jurisic and Whyte , which are generally concerned with the danger posed to members of the public by the driving, and then to find that the offence is also aggravated because the driving was without regard to public safety.

I do not believe her Honour was in error in not finding the offence was aggravated by item (i) in s 21A(2) because that factor is reflected in the elements of an offence under s 52A and in the aggravating factors to which a court is to have regard specifically when sentencing for such an offence.” ( McMillan , supra, per Howie J at [38], [39].)

17 The sentencing judge made, in this respect, the following comment:

“Section 21A(2)(i) – disregard of public safety – is a matter, I believe, to be taken into account. To have driven the vehicle with this blood alcohol level was to commit the offence without regard for the safety of the members of the public who might have come into proximity with the offender as he was driving in that state.”

18 On one view of the comments of his Honour, he might have been referring to the fact that the disregard of public safety is a matter already taken into account in the nature of the offence. However, it seems that the better view is that his Honour took it into account as a source of aggravation of the offence.

19 In some circumstances, there can be aggravation as a result of the disregard of public safety in an offence of this kind. If the sentencing judge were in a position to be able to determine that there were sources of aggravation, beyond the factors inherent in the charge, then s 21A(2)(i) would operate as a statutory embodiment or source of aggravation. His Honour made clear, however, that there was no evidence sufficient to make findings of fact beyond reasonable doubt that the offender was driving at excessive speed or in some manner dangerous to the other road users, other than the factor of aggravation associated with his alcohol consumption, which is the element of the offence in question.

20 The provisions of s 21A(2) prohibit “double-counting” of a feature that is an element of the offence for which a prisoner is being sentenced: Elyard, supra.

21 Given the inability of his Honour to find any other factor, which is conduct in disregard of public safety, the comment (at page 11 of the Remarks on Sentence) that s 21A(2)(i) “is a matter … to be taken into account” was to “double count” the effect of the aggravation giving rise to this offence.

Is a lesser sentence warranted?

22 I find error and I am required to deal with the provisions of s 6(3) of the Criminal Appeal Act 1912.

23 In order to have this Court intervene on a sentence, it is necessary but not sufficient for an appellant to show an error. Over and above the existence of error, the Court must form the opinion that “some other sentence, whether more or less severe, is warranted.”

24 Once there is error, manifest or identifiable, such that the jurisdiction of the Court to overturn an exercise of discretion is enlivened, the statutory requirement imposed by s 6(3) must be satisfied: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]; R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540 at [34]; Kutchera v R [2007] NSWCCA 121; R v Stewart [2005] NSWCCA 290.

25 In Boulghourgian, supra, Spigelman CJ said at [34]:

“Even though there is error detected in the reasoning process of a trial judge, s.6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed.”

26 His Honour the Chief Justice, in or to the same effect, said in Simpson, supra, at [79]:

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘If it is of the opinion that error has occurred in the sentencing process.’ That is not the statutory formulation. By s6(3) this Court must form a positive opinion that ‘some other sentence ... is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.”

27 There are added difficulties when dealing with the sentence imposed by his Honour. His Honour allowed, apparently, a discount of 30% for the plea of guilty. It may be that his Honour was including in that discount other factors, but the terms of his Honour’s remarks at page 19 of the Remarks on Sentence suggest otherwise. A discount of 30% for the plea of guilty is inconsistent with principle, and qualifies the impact of a commencement point of 7 years’ imprisonment, about which complaint is made.

28 Leaving aside the issue of discount, his Honour was faced with a sentencing exercise of a person who had a long and significant history of criminal and driving offences similar in many ways to that which gave rise to the aggravation in this offence. These include offences for driving whilst disqualified, driving a motor vehicle in a dangerous manner, driving with an alcohol level over the prescribed limits, and driving without a drivers’ licence.

29 In one instance of driving whilst disqualified, Mr Hei Hei was also charged and convicted of careless driving and failing to ascertain an injury as a result of that driving. He has been disqualified from driving on a number of occasions. These offences span his time in New Zealand and in New South Wales. As a consequence of that history, personal deterrence is a major consideration.

30 A 3-year non-parole period is, according to the statistics available, precisely at mid-range for an offence. Similarly, a 5-year total sentence is at mid-range, according to those statistics. While care must be taken in the application of statistics, they can, in circumstances such as this, be a useful guide to the range of sentences that have been imposed by the courts for sentences of this kind.

31 In the circumstances of this case, and bearing in mind the statutory test in s 6(3) of the Criminal Appeal Act, I am not of the opinion that some other sentence, less severe than that imposed by his Honour below, is warranted in law and should have been passed. In those circumstances, I am not entitled to quash the sentence and pass another in substitution for it.

Ground 2: Manifest error

32 The previous discussion on the operation of s 6(3) of the Criminal Appeal Act, is relevant to the determination of this ground of appeal. In order to satisfy s 6(3) of the Criminal Appeal Act, it is unnecessary to show manifest error. A sentence can be in range and still be more or less severe than is warranted in law or than should have been passed. However the reverse is not true. If no lesser sentence should have been passed, then, by definition, the sentence is not excessive. A fortiori the sentence is not manifestly excessive. For the reasons already provided, this ground of appeal is rejected.

Ground 3: Commencement date of period of disqualification from driving

33 The third ground of appeal relates to a submission that in imposing a period of disqualification from driving, the sentencing judge was required to commence the period of disqualification from the date of conviction. This is a submission that depends, solely, on a proper construction of the provisions of the governing Act.

34 The relevant provisions of the Road Transport (General) Act 2005 (“the Act”) provide:

“187(1) Subject to section 188 of this Act, section 40 of the Road Transport (Safety and Traffic Management) Act 1999 and sections 25 and 25A of the Road Transport (Driver Licensing) Act 1998 , a court that convicts a person of an offence under the road transport legislation 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.”

35 Further the provisions of s 188(2) of the Act are in the following terms:

“188(2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind):



...

(d) where the conviction is for any other offence:

(i) the person is automatically disqualified for a period of 3 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.”

(The offence here committed is an “other offence” for the purpose of this subsection.)

36 At the time his Honour convicted Mr Hei Hei of the offence, his Honour disqualified Mr Hei Hei from driving for a period of 3 years commencing on the date on which Mr Hei Hei’s non-parole period would expire. This ground of appeal urges the Court to adopt a construction of the provisions of s 188(2)(d), cited above, that does not permit the commencement date of the period of disqualification to be set, or to be set at a time other than the date of conviction.

37 The plain purpose of the Act is to establish a national system of the regulation of certain aspects of road transport, including the disqualification of persons from driving in circumstances where it is established those persons have not shown the requisite degree of responsibility necessary to drive. In that regard, the legislative scheme, relevantly, is for the protection of the public from persons with a known risk of dangerous driving. The provisions of s 188 of the Act implement that purpose and, additionally, impose a penalty upon those persons with established driving records of a particular kind. The provisions of s 187 allow the courts to implement such a purpose by disqualifying offending drivers, subject only to s 188 of the Act.

38 It would defeat the purpose of the Act, and render otiose orders for disqualification, if the period of disqualification was wholly concurrent with a period of incarceration, during which, by definition, the disqualified driver would not usually be free to drive. Yet this is the effect or outcome for which Mr Hei Hei submits.

39 Clearly the purpose of the Act would be best served by construing the provision as granting, to any judicial officer, required to exercise the powers under s 188(2)(d)(ii), the discretion and flexibility to set appropriate commencement and conclusion dates for the period in question. Certainly the power in s 187(1) of the Act does not readily imply a restriction on the manner by which the courts may set the period, i.e. by setting the commencement and conclusion date or by some other method.

40 It is clear that the disqualification penalty imposed must be for a definite period: Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493; [1966] 2 NSWR 197; Gardner v R [2003] NSWCCA 199. In each of the foregoing judgments (the first of the Court of Appeal and the second of the Court of Criminal Appeal), it was held that an indeterminate disqualification could not be imposed and a disqualification “for life” was invalid.

41 In Gardner, supra, the Court of Criminal Appeal overturned the imposition of a life time disqualification as not being a disqualification “for a period”. Sheller JA said:

“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), … I would hold that the Act did permit the Court to order a lifetime period of disqualification.”

42 In Gardner, O’Keefe J (with whom Sheller JA and James J relevantly agreed) considered that the word ‘period’ connoted “an interval, length or portion of time”. The Court, however, did not consider directly the issue in the present proceedings. In discussing an appropriate period for the disqualification, O’Keefe J said:

“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.” ( Gardner , at [61].)

43 Notwithstanding the foregoing statement of reasons, the order of the Court in Gardner was, inter alia, to quash the disqualification for life imposed by the sentencing judge and “in lieu of the order … the applicant be disqualified from holding a motor vehicle driver licence until 2 January 2017.”

44 In other words, the Court did not impose an order which reflected a commencing date for the disqualification as the date proposed for the applicant’s release on parole. Indeed, the Court in Gardner did not specify a commencement date of the period of disqualification at all.

45 The difficulty with adopting a construction that implemented the above stated purpose and gave the flexibility for which the Crown contends (and which purpose ought, to the extent possible, be given effect) is that s 188(2)(d) is a sub-paragraph immediately following on a provision relating to automatic disqualification. Section 188(2)(d)(i) provides that the offender is “automatically disqualified for a period of 3 years from holding a driver licence”. It is axiomatic that, absent an order varying the period, the automatic disqualification would apply on and from the date of conviction. The jurisdiction and power conferred in the Court by the provisions of the next sub-paragraph, s 188(2)(d)(ii), is a capacity to order “a shorter period … or longer period of disqualification”. Further, it would seem that, once an order for disqualification issues from a court, the period of disqualification is no longer “automatic”.

46 The context of s 188(2)(d)(ii), following immediately upon the terms of sub-paragraph (i) seems to indicate that the “period” is a period that commences on the date of conviction. It is, for the reasons that follow, unnecessary to determine that issue finally.

47 The intention of the sentencing judge has not been, and cannot be, the subject of criticism. His Honour clearly intended that Mr Hei Hei be disqualified until 19 February 2014. The Crown appeal, as already stated, has been lodged for the sole purpose of correcting any technical defect in the manner that his Honour expressed the order implementing his intention.

48 His Honour’s jurisdiction, conferred pursuant to s 188(2)(d)(ii) of the Act, was, as stated above, to order a “shorter … or longer period” than 3 years’ disqualification. In fact, his Honour did neither.

49 His Honour fixed a 3-year disqualification, commencing from a different date than would have applied under s 188(2)(d)(i) of the Act. Section 187(1) of the Act may confer jurisdiction to fix the commencement and conclusion dates of the automatic period in s 188(2)(d)(i), but the jurisdiction in s 188(2)(d)(ii) certainly does not. Nor did his Honour purport to exercise the jurisdiction in either s 187(1) or in s 188(2)(d)(i) of the Act. Each of the parties to this appeal have assumed that his Honour was acting under s 188(2)(d)(ii) of the Act. The Court should act on that assumption.

50 The argument in favour of the power being able to be exercised, under s 187(i) of the Act, is that s 188(2)(d)(i) of the Act is not a limitation on the power to fix commencement and conclusion dates and, therefore, the subjection in s 187(i) of the Act is not operative.

51 However, s 188(2)(d)(ii) is a limitation. It allows the fixing only of a shorter or longer period than 3 years. The fixing of a 3 year period is not permitted by s 188(2)(d)(ii) of the Act.

52 To the extent that his Honour had power and/or jurisdiction to fix a 3 year disqualification period from a commencement date in the future, which is what he did, that jurisdiction or power would have been under s 187(1) and s 188(2)(d)(i) of the Act. It was not a jurisdiction conferred by s 188(2)(d)(ii) of the Act. An exercise of jurisdiction, otherwise available, under the wrong provision does not necessarily render the exercise invalid: see R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164. Invalidity would depend on the tests to be used in each exercise of jurisdiction.

53 Nevertheless, reliance on s 188(2)(d)(ii) of the Act, for the fixing of a 3-year period of disqualification, was a mistake of law as to the provision under which his Honour was acting.

54 Given that it is unclear which provision under which his Honour was purporting to act, and that, on that basis, arguably, at least, the order was beyond power, it is appropriate to quash the order and re-assess and/or give effect to the disqualification period, ending 2014, that his Honour clearly desired.

55 For the reasons already given, relating inter alia to the purpose of the provisions and the disqualification period, and particularly the history of disobedience of the law that Mr Hei Hei has displayed, a longer period of disqualification than the mandatory term is appropriate and I accept the assessment of the sentencing judge that a period of disqualification concluding 3 years after his release on parole is an appropriate period of disqualification. However, Mr Hei Hei should also not be able to drive on the public roads for the duration of his incarceration e.g. for the purposes of the prison or if he were on day release for some reason.

56 Generally, there are restrictions relating to Crown appeals. In this instance, the Crown appeal should be granted, as to do so would simply implement, in accordance with the unarguably appropriate statutory procedure, the intention of the sentencing judge. In those circumstances, this Court, on appeal, is not interfering with the effect of the exercise of discretion below, but giving effect to it. Nothing in this case detracts from the oft-cited principles associated with Crown appeals: see R v Wall [2002] NSWCCA 42; R v Presard [2004] 147 A Crim R 385 at [27]; R v Abboud [2005] NSWCCA 251 at [20]-[23].

57 Neither the Crown nor Mr Hei Hei dealt with the issue as to whether an appeal lies to this Court from the order relating to disqualification. The order of disqualification is a penalty: see Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 at 325 [77]. Further it is a penalty imposed, and, if it is to be made, is required to be imposed, by an order by the court of trial on convicting a person of an offence and, as such, is a sentence within the meaning of the Criminal Appeal Act.

58 If the foregoing were incorrect, the penalty could be corrected by the application of s 43 of the Crimes (Sentencing Procedure) Act: see Application by the Attorney, supra, at [77]; R v Finnie (No 2) [2004] NSWCCA 150.

59 The submissions in this case do point to the desirability of clarifying the relationship between s 187 and s 188 of the Act and the power of a court to fix the commencement and conclusion dates of any disqualification period.

Conclusion

60 For the foregoing reasons, Mr Hei Hei has not established identifiable or manifest error in the sentence imposed and the appeal against sentence should be dismissed. On the issue of the construction of the provisions of s 188 of the Act, it is appropriate, in the circumstances of this case, to implement the effect of the exercise of discretion intended by the sentencing judge in a manner that indisputably conforms with the statutory regime, and, to that extent, to allow the Crown appeal.

61 I propose the following orders:

(1) Leave to appeal be granted;

(2) The appeal against sentence by Mr Hei Hei be dismissed;

(3) The appeal by the Crown against the order of his Honour Judge Bennett DCJ, disqualifying Mr Hei Hei from driving, be allowed and in lieu thereof the following order issue:

“(i) Pursuant to the terms of section 188(2)(d)(ii) of the Road Transport (General) Act 2005, Mr Hei Hei be disqualified from driving for a longer period than 3 years, being for the period concluding 19 February 2014.”

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