Hollick v Police - [2012] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HOLLICK v POLICE
[2012] SASC 11
Judgment of The Honourable Justice Nyland
1 February 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appeal against conviction - appellant charged with two counts of drive disqualified and one count of breach bail - issue at trial and on appeal related to validity of notice of disqualification - onus of proof under s 140(1) Motor Vehicles Act 1959 - whether notice of disqualification was issued by Registrar - right of review - proper reasons for re-issue of notice in accordance with s 139BD(10) Motor Vehicles Act 1959.
Held: Appeal dismissed - appellant failed to discharge onus of proof as to invalidity of notice of disqualification - evidence established appellant was disqualified at time of commission of subject offences.
Appeal against sentence - appellant sentenced to six months imprisonment, three months of which were suspended on condition appellant enter into good behaviour bond - whether sentence imposed was manifestly excessive - prior history of convictions for drive disqualified - appellant's conduct deliberate and contumacious.
Held: Appeal dismissed - no error demonstrated in exercise of sentencing discretion.
Motor Vehicles Act 1959 (SA) ss 5, 7, 81, 81B, 85, 91, 98Z, 139BD, 140, 141; Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1929 (SA) s 45A; Road Traffic Act 1961 (SA) ss 47, 79B, 144, 175, referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Evans v Benson (1986) 46 SASR 317; Police v Cadd and Ors (1997) 69 SASR 150, applied.
Golding v Liddy (1983) 33 SASR 116; Police v Wimshurst [2008] SASC 215; Police v Dodd [2004] SASC 91; Llewellyn v Police [2005] SASC 160; Police v Bulgin [2010] SASC 143, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""proof to the contrary""

HOLLICK v POLICE
[2012] SASC 11
Appeal against conviction

The appellant was charged on complaint that on 6 April 2010 he drove a motor vehicle on a road whilst disqualified from holding or obtaining a Driver’s Licence, contrary to s 91 of the Motor Vehicles Act 1959 (“MVA”). Secondly, the appellant was charged on complaint that on 26 April 2010 he drove a motor vehicle on a road whilst disqualified from holding or obtaining a Driver’s Licence, contrary to s 91 MVA and, thirdly, that on the same date without reasonable excuse he contravened a term or condition of a Bail Agreement, contrary to s 17 of the Bail Act 1985. The appellant appeared before a Stipendiary Magistrate in the Holden Hill Magistrates Court and pleaded not guilty to all three charges. By consent the three charges were heard together.
On 19 April 2011 the learned Magistrate recorded convictions with respect to each count. On 24 October 2011, pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988, the Magistrate imposed one sentence with respect to all offences, namely a sentence of six months imprisonment, of which three months was suspended on condition that the appellant enter into a good behaviour bond in the amount of $500 for the period of the suspended sentence, together with court and other fees and levies.
Factual background
On 6 April 2010 the appellant was driving a motor vehicle in a northerly direction on Main North Road at Prospect when he was stopped by police to conduct a mobile driver test. Checks undertaken on the appellant’s licence revealed that he had been disqualified from driving for provisional reasons for the period 22 December 2009 to 21 June 2010. The appellant was arrested and thereafter entered into a Bail Agreement which included a provision that he not be seated in the driver’s seat of a motor vehicle unless he was a holder of a current licence for that class of vehicle.
On 26 April 2010 the appellant was again stopped by a police patrol when he was driving along Torrens Road at Cheltenham. He was requested to produce his licence and produced a Provisional Licence. Subsequent checks undertaken by the police once more revealed that the appellant had been disqualified from driving for the period 22 December 2009 to 21 June 2010.
Prosecution case at trial
The prosecution at trial alleged that on 24 November 2009 the appellant had acknowledged the service of a Notice of Disqualification which had been issued on 26 October 2009 pursuant to what was then s 81B(2) MVA. That Notice stipulated that the appellant had incurred a total of four or more demerit points for offences committed on 2 October 2008. Accordingly he was disqualified from holding or obtaining a Driver’s Licence or Learner’s Permit for a period of six months, commencing on the day on which the Notice was to take effect, that is 22 December 2009.
It was the prosecution case that notwithstanding those matters the appellant had driven on two separate occasions whilst disqualified from so doing, namely on 6 April 2010 at Prospect and 26 April 2010 at Cheltenham. By the commission of the Cheltenham offence the appellant had also breached the term of the Bail Agreement entered into on 6 April 2010, which precluded him from sitting in the driver’s seat of a motor vehicle without a current appropriate licence. Although the appellant put all matters in issue by his pleas of not guilty, there was no real dispute at trial or on appeal as to the factual matters which gave rise to the charges. The preliminary findings as to those matters made by the learned Magistrate[1] were not in dispute on appeal.
[1] Magistrate’s preliminary findings at [41].
The only issue at trial and on appeal related to the validity of the Notice of Disqualification. On the defence case, the purported Notice was invalid and on that basis, it had not been proved that the appellant was disqualified from holding or obtaining a Driver’s Licence at the time of each of the alleged offences.
Disqualification Notices
Evidence was given at the trial that three Notices of Disqualification had been issued by the Registrar, namely:
(1)A Notice pursuant to s 139BD(2) MVA dated 7 January 2009 (Exhibit P6) (the first Notice). That Notice was posted to the appellant at 58 Aldinga Beach Road, Aldinga Beach, South Australia 5173 but was subsequently returned marked “Return to Sender” on 19 January 2009.
(2)A Notice pursuant to s 139BD(4)(b) dated 6 February 2009 (Exhibit P7) (the second Notice). On 16 February 2009 a Sheriff’s officer attempted to serve the second Notice personally upon the appellant at the Aldinga Beach address but he subsequently advised that he had not been able to effect service as the listed address was a vacant block.
(3)A third Notice dated 26 October 2009 (Exhibit P8). This Notice was served personally upon the appellant. The appellant signed an acknowledgment of receipt of that document on 24 November 2009 (“the Disqualification Notice”).
The three Notices were admitted into evidence by consent as business records[2] of the Department of Transport, Energy & Infrastructure (“the Department”) through Mr Cameron, an Information Officer employed by the Department. Mr Cameron was called by the prosecution to give evidence in the Magistrate’s Court. The appellant did not give evidence nor did he call any witnesses.
[2] See s 45A Evidence Act 1929.
Finding by Magistrate as to onus of proof pursuant to s 140(1) MVA
The prosecution also tendered a further bundle of documents which comprised two pages. Page 1 was an extract from an entry in the Register of Licences certified on 26 April 2010 by Martin Small, Registrar of Motor Vehicles. That stipulated that the appellant’s Provisional P1 Licence issued on 14 October 2008 had been disqualified from 22 December 2009 to 21 June 2010. Page 2 was a certificate dated 14 January 2011 pursuant to s 141 MVA, which stated:
Dale Hollick, date of birth 2 December 1970, South Australian Licence Number F24233 had a recorded residential address for licensing and registration of 58 Aldinga Road, Aldinga Beach SA 5173, from 26 September 2008 to 26 October 2009.
Those documents were admitted as Exhibit P9 against the objection of the appellant. In so doing the learned Magistrate referred to s 140(1) MVA which states:
A document purporting to be an extract from, or a copy of, an entry contained in any register kept pursuant to this Act and purporting to be certified as such an extract or copy by the Registrar is, in all legal proceedings and arbitrations, admissible as evidence, and is, in the absence of proof to the contrary, proof of the matters stated without the production of any register, licence, notice or other document upon which any entry may be founded.
The Magistrate considered that page 1 of Exhibit P9 was such a document in accordance with s 140(1) MVA and, in view of the stipulation contained therein with respect to the period of disqualification, found that it was proved beyond reasonable doubt that the appellant’s Provisional Licence had been disqualified for the relevant period. She did not consider that the appellant, on the balance of probabilities, had discharged the onus of proof to the contrary. As a result the Magistrate recorded convictions with respect to the three offences.
Issues on appeal
The issues which now arise for determination essentially mirror those which were rejected by the learned Magistrate when convicting the appellant of these offences. On the hearing of the appeal those issues were helpfully outlined by counsel for the appellant in a document which, for convenience, I reproduce hereafter:
First, the proper construction of s 140 Motor Vehicles Act
1. On the proper construction of s 140 Motor Vehicles Act, does the tender of an extract from the Register:
1.1have the effect of reversing the legal onus of proof in respect of the fact of “disqualification” thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed; OR
1.2place upon an accused an evidential onus only, i.e., of raising some evidence to the contrary but with the prosecution continuing to have the onus of establishing the disqualification beyond reasonable doubt?
Secondly, the Notice of Disqualification dated 26 October 2009 being issued by the Registrar
2.    Do the words “any person acting on behalf of the Registrar in accordance with this Act” mean:
2.1any person who may be acting at the direction of the Registrar, without an instrument of delegation under s 7 of the Act; OR
2.2the Registrar, the Deputy Registrar and persons who having delegated authority under s 7 of the Act?
3.    If the legal onus has been reversed, has the appellant proven on the balance of probabilities that the Notice was issued by a person who did not act on behalf of the Registrar?
4.    If there is merely an evidential onus, has the respondent proven beyond reasonable doubt that the Notice was issued by a person who did act on behalf of the Registrar?
Thirdly, the Notice and s 85 of the Act
5. Was there a “right of review” within the meaning of s 85(d) of the Act in respect of the Notice?
6. If so, was the Notice required to comply with s 85?
7.    If so, was the Notice invalid for not so complying?
Fourthly, the re-issue of the Notice and “proper reasons” under sub-section 139BD(10) of the Act.
8.    As a matter of construction of s 139BD of the Act, was the Registrar able to “re-issue” a notice under para 139BD(4)(b) of the Act, as distinct from subs 139BD(1) of the Act?
9. If the legal onus has been reversed, has the appellant proven on the balance of probabilities that there were not “proper reasons” under sub-section 139BD(10) for the re-issue of the Notice?
10. If there is merely an evidential onus, has the respondent proven beyond reasonable doubt that there were “proper reasons” under sub-section 139BD(10) for the re-issue of the Notice?
The fifth item referred to in the issues document relates to the question of sentence, but I will to deal with that matter separately.
The first issue –the proper construction of s 140 MVA
The learned Magistrate when considering s 140 MVA referred to the decision of the Full Court in Crawford Earthmovers Pty Ltd v Fitzsimmons[3] wherein Walters J said (at p 158) (with respect to the use of the phrase “in the absence of proof to the contrary” in what was then s 144(2) Road Traffic Act 1961):
… I do not think the expression “in the absence of proof to the contrary” can be read as “in the absence of evidence to the contrary”. It seems to me that in the present case, the word “proof” connotes something more than the production of evidence to meet the presumption created by the section, and that in its import the word “proof” signifies something “which serves, either immediately or mediately, to convince the mind of the truth or falsehood of [the] fact or proposition” in issue …
[3] (1972) 4 SASR 116.
Hogarth J similarly concluded (at p149):
When the section makes the allegation in the complaint proof of the fact alleged “in the absence of proof to the contrary”, I think that this requires something more than evidence which merely raises a reasonable doubt in the mind of the Court. Once the allegation is made in the complaint, then in relation to the fact alleged the onus is cast upon a defendant to prove, on the balance of probabilities, that the truth is different from the facts as alleged.
However, in Crawford Earthmovers Bray CJ dissented from the majority and said (at p.133):
… what is meant by proof to the contrary is evidence to the contrary capable of raising a reasonable doubt in the mind of the Tribunal and that once such evidence has been given the statutory presumption is displaced and the issue remains to be resolved on ordinary principles relating to the onus of proof.
In this case the learned Magistrate followed the majority decision in Crawford Earthmovers and found that the appellant had to do more than merely adduce or point to some evidence to the contrary in order to displace the operation of s 140(1) MVA or to deny the availability of the statutory aid to proof.
This issue was again by a Full Court consisting of five members in Evans v Benson.[4] That case was concerned with the interpretation of ss 47g(1) and (1a) of the Road Traffic Act 1961. Subsection (1) created a presumption that the concentration of alcohol present in a defendant’s blood, as indicated by a breath analysing instrument, was in fact the concentration actually present. Subsection (1a) provided that the only evidence allowable to rebut the presumption was evidence of a blood test and such presumption would take effect in the absence of proof to the contrary.
[4] (1986) 46 SASR 317.
The court held (per King CJ, Jacobs, Bollen and Olsson JJs) that subsection (1) cast on a defendant a persuasive (not merely an evidentiary) onus to prove on the balance of probabilities the contrary of what was presumed. King CJ said (at p 319) after referring to an earlier decision of the Full Court in Golding v Liddy[5] (which suggested a contrary view):
It appears to have overlooked the established proposition that the words “presumed in the absence of proof to the contrary” have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed: Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116.
[5] (1983) 33 SASR 116.
King CJ commented that the Court in Golding had not reconsidered nor adverted to the decision in Crawford Earthmovers (which possibly had not been cited to them) and went on to say that Crawford Earthmovers represented the settled law in this Court on this point and that there was no need to depart from it. He further said that insofar as Golding v Liddy was to be interpreted as holding that subssection (1a) did not cast a persuasive onus of proof on the defendant to displace the presumption where the presumption applies, it must be regarded as in conflict per incuriam in the sense that it did not advert to the established binding authority with the law as settled in this court. It was therefore plainly wrong and should not be followed. However, Legoe J took a contrary view in Evans v Benson and in the course of his dissenting reasons appeared to prefer the reasoning of Bray CJ in Crawford Earthmovers.
On the hearing of this appeal, counsel for the appellant was prepared to accept that it was an established proposition in this court that the words “presumed in the absence of proof to the contrary” had the effect of casting the onus upon a defendant to displace the presumption on the balance of probabilities but he submitted that the absence of any reference to a presumption in s 140(1) distinguished it from the decisions in Crawford Earthmovers and Evans v Benson. Counsel therefore submitted they should not be regarded as binding authority as to the proper construction of s 140(1) MVA and urged the court to apply the view expressed by Bray CJ in Crawford Earthmovers, that is that in this case there was only an evidentiary onus upon the appellant, with the prosecution continuing to have the onus of proving his disqualification beyond reasonable doubt.
There is a paucity of authority with respect to the interpretation of s 140 MVA although s 140 was the subject of a decision of David J in Police v Wimshurst[6] in which the reasoning of the majority in Evans v Benson was applied.
[6] [2008] SASC 215
In Police v Dodd[7] and Llewellyn v Police,[8] Gray J considered other provisions of the Road Traffic Act in the course of which he expressed the view that the dissenting opinion of Bray CJ in Crawford Earthmovers was to be preferred and should be followed. This was subsequently raised in the course of argument before White J in Police v Bulgin.[9] Bulgin was concerned with statutory aids to proof tendered under ss 79B(10) and 175(3) of the Road Traffic Act 1961. In that case, White J said at [46-47]:
It will be apparent from these reasons that I have regarded the phrase “absence of proof to the contrary” appearing in s 79B(10) and s 175(3) as imposing on a defendant a persuasive onus of establishing on the balance of probabilities proof the contrary of the matter in question. That is, I have proceeded on the basis that a defendant must do more than merely adduce or point to some evidence to the contrary in order to displace the operation of the presumption, or to deny the availability of the statutory aid to proof. In doing so, I have followed the approach stated in Evans v Benson. King CJ (with whom Jacobs, Bollen and Olsson JJ agreed) referred to “the established proposition that the words “presumed in the absence of proof to the contrary” have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed”.
In each of Police v Dodd and Llewellyn v Police, a Judge of this court held that the words in s 175(1) of the RTA providing that an allegation of a specified matter in a complaint is “proof of the matters so alleged in the absence of proof to the contrary” place upon an accused an evidential onus only, ie, of raising some evidence to the contrary but with the prosecution continuing to have the onus of establishing the matters in question beyond reasonable doubt. Counsel for the Police on the present appeal submitted that I should hold that Police v Dodd and Llewellyn v Police were, in this respect, wrongly decided. I decline to do so. It is not necessary for the disposition of this appeal, as s 175(1) of the RTA has not been in issue. It may be that this aspect of Police v Dodd and Llewellyn v Police will have to be reconsidered, especially as no reference was made in the judgments in those cases to the Full Court decision in Evans v Benson, but it is a neither necessary nor appropriate for that to occur in relation to this appeal. (Footnotes omitted)
[7] [2004] SASC 91.
[8] [2005] SASC 160.
[9] [2010] SASC 143.

Although the wording of s 140(1) MVA is in different terms to the wording of those provisions of the Road Traffic Act which were the subject of the decisions in Crawford Earthmovers and Evans v Benson in that there is no reference to a ‘presumption’ I consider that the import of the words used in s 140(1) is to create such a presumption. The relevant document is therefore “in absence of proof to the contrary proof of the matters stated therein”. The Magistrate was correct in reaching her decision as to the onus of proof. In this case, the effect of s 140(1) MVA was to reverse the onus of proof in respect of the fact of disqualification, thereby imposing a persuasive onus on the appellant to prove, on the balance of probabilities, the contrary of what was presumed and he failed to discharge that onus.
The second issue: Notice not issued by Registrar or his delegate
At the time of the commission of the subject offences, s 81B(2) MVA provided that upon the occurrence of any of three relevant events the Registrar of Motor Vehicles was required to give written notice to a person who had contravened the provisions of s 81B(2) that he/she would be disqualified from holding or obtaining a permit or licence for a period of six months. A Notice under s 81B(2) was required to be given in accordance with the provisions of s 139BD.[10] The method of service and consequences therefrom are set out in s 139BD (1) to (10) as follows:[11]
[10] See s 139BD(11) Motor Vehicles Act 1959.
[11] Note: These provisions appear unchanged in the current Act.
(1)     A notice of disqualification authorised or required to be given under this Act must be given in accordance with this section.
(2)     A notice of disqualification must in the first instance be sent by post, addressed to the person to whom it is required to be given, at his or her last known postal address.
(3)     The Registrar must, in the notice—
(a)     require the person—
(i)to attend, within the period specified in the notice, at a specified place of a kind prescribed by the regulations to personally acknowledge receipt of the notice in accordance with the notice; and
(ii)to pay to the Registrar, in accordance with the notice, the administration fee prescribed by the regulations; and
(b)    inform the person that if he or she fails to comply with the requirements of the notice—
(i)another notice of disqualification will be issued and served on the person personally; and
(ii)the person will be liable to pay a service fee of the amount prescribed by the regulations; and
(iii)the Registrar may refuse to enter into any transaction with the person until the person pays the service fee; and
(c)    inform the person that if another notice of disqualification is issued and an attempt to serve the notice personally is unsuccessful, the Registrar may refuse to enter into any transaction with the person until the person pays the service fee and personally acknowledges receipt of the notice in accordance with the notice.
(4)    If a person to whom a notice of disqualification is posted fails to comply with a requirement made under subsection (3) within the period specified in the notice—
(a)the notice is to be taken for the purposes of this Act not to have been given to the person; and
(b)the Registrar must issue another notice of disqualification and cause it to be served on the person personally.
(5)     If an attempt is made to effect personal service of a notice of disqualification—
(a)    the Registrar may, if the attempt is successful, refuse to enter into any transaction with the person to whom the notice was given until the person pays the service fee prescribed by the regulations; or
(b)    the Registrar may, if the attempt is unsuccessful, refuse to enter into any transaction with the person to whom the notice is required to be given until—
(i)the person personally acknowledges receipt of the notice in accordance with the notice; and
(ii)the person pays the service fee prescribed by the regulations.
(6)    For the purposes of this Act, a notice of disqualification is to be taken to have been given to a person—
(a)in the case of a notice receipt of which is personally acknowledged by the person as required by the notice—on the day on which receipt of the notice is so acknowledged; or
(b)in the case of a notice that is served on the person personally—on the day on which the notice is so served.
(7)    A notice of disqualification must specify when the notice will take effect in accordance with this section.
(8)     Subject to subsection (9), a notice of disqualification takes effect as follows:
(a)    in the case of a notice receipt of which is personally acknowledged by a person as required by the notice—28 days after the day specified in the notice;
(b)    in the case of a notice that is served on a person personally—28 days after the day on which the notice is so served.
(9)    If, at the time that a notice of disqualification is due to take effect, the person is already disqualified from holding or obtaining a licence or permit, the notice of disqualification will instead take effect on the termination of that prior disqualification.
(10) If the Registrar considers that there are proper reasons for doing so, the Registrar may, at any time before a notice of disqualification takes effect, reissue the notice.
In this case, the first Notice was sent by post on 7 January 2009 but was returned to the sender. The second Notice was issued on 6 February 2009 but was unable to be served personally. A third Notice was then issued on 26 October 2009. That was the Notice which was subsequently acknowledged by the appellant and which I earlier referred to as the Notice of Disqualification as it superceded the earlier two. Although technically this was the third Notice issued by the Registrar, it is described on its face as “Second Notice” and it appears to be a re-issue of the second Notice which was issued in February and which was unable to be served personally.
Section 139BD refers to the various Notices being sent by ‘the Registrar’. However, the appellant submitted in reliance on the evidence of Mr Cameron, that to the extent that any human agency was involved at all, the notice, although bearing the electronic signature of the Registrar,[12] had been sent by an unknown person in the Licence Services section and not the Registrar.   Mr Cameron’s evidence was (at pp 9-10 of the trial transcript):
[12] The signature of the Registrar on the Notices sent to the appellant was in electronic form, but that aspect of the matter was not in issue either at the trial or on appeal.
Q.     It’s correct to say though that these documents are generated by an employee of the department through a computer.
A.    Whether it’s actually done by an employee or not I can’t confirm that.
Q.    Well who else is it possible it would be done by.
A.     It’s done through our licence services section which is located on Grenfell Street as part of the department who deal with these disqualification notices but any particular staff member who actually does it, I’m not actually aware of that fact.
Q.     But it’s a staff member then from part of your department on Grenfell Street.
A.     Yeah, I can’t confirm that.
Q.     Well you said that’s where they’re generated from, is that correct.
A.     Yeah, that’s right.
Q.     They would – whoever generates it would be using the computer and providing information and then that document would be produced by that process.
A.     Yeah, what I can’t confirm is when the disqualification hits our system, whether our system triggers the Notice to be printed itself without anyone actually physically needing to adjust the file, I can’t actually confirm that.
Q.     In either event though it’s an employee of the office who actually produces the document via the computer.
A.     I can’t confirm that, I can’t confirm whether it’s physically an employee that actually does anything to the system to generate the notice. …
Section 5 MVA defines “the Registrar” as:
The Registrar of Motor Vehicles and includes any person acting on behalf of the Registrar in accordance with this Act. (emphasis added)
In her reasons the learned Magistrate interpreted the words “any person acting on behalf of the Registrar” to effectively mean any other person, which would include the person who was responsible for issuing the Notice to the appellant. However the appellant argued that the reference to “a person acting on behalf of the Registrar in accordance with the Act” was to a deputy Registrar or a person with delegated authority, as set out in s 7 MVA. Sections 7(1) and 7(2) MVA provide for the appointment of deputy registrars to act in the absence of the Registrar or at any time on any matters allotted to them by the Registrar. Sections 7(4) and 7(5) provide for to the Registrar to delegate any of his or her powers or functions under the Act to:
(a) a person for the time being occupying a specified office or position; or
(b) a specified person or specified body of persons that, in the opinion of the Registrar, has appropriate qualifications or experience to exercise the relevant powers or functions.
The appellant submitted that the Disqualification Notice in this case had not been issued by the Registrar nor anyone appointed pursuant to s 7. The notice was therefore invalid and so there was no evidence before the Court of the appellant’s disqualification.
However there does not appear to be any requirement in s 81B that the Registrar personally sign or issue a Notice under s 139BD. It simply requires written notice to be given to the person affected in accordance with the terms of s 139BD. In my opinion, it could not have been the intent of Parliament that a notice such as this would only be valid if all the steps set out in s 139BD were undertaken by the Registrar personally or at his specific direction.
I therefore agree with the observation made by the learned Magistrate that the reference to “ any person acting on behalf of the Registrar” in s 5 MVA must include persons other than those appointed pursuant to s 7 MVA as otherwise the reference to them would be superfluous. I also agree with the submission of counsel for the Respondent that, having regard to its statutory context, s 7 MVA is aimed at allowing the delegation of those powers under the Act that may properly be regarded as exercisable only by the Registrar personally, whereas s 5 provides a mechanism by which persons (beyond those with a delegation under s 7) can undertake actions on behalf of the Registrar. Despite the unsatisfactory nature of Mr Cameron’s evidence about the issue of the Notice in this case, the appellant bore the onus of proving, on the balance of probabilities, that the Notice was issued by a person who did not act on behalf of the Registrar. In my opinion he failed to discharge that onus.
The Third issue: Failure to state review rights
The appellant further submitted that the Notice was invalid due to the lack of any reference therein to a right of review. The appellant submitted that there was an obligation to advise a person issued with a Notice of Disqualification of his/her rights pursuant to s 85(d) MVA to apply for a review of that decision and the failure to include that advice in the Notice served on the appellant rendered the Notice invalid.
However, s 85 MVA is concerned with the “suspension, cancellation or variation of licence or permit”. There is no reference in s 85 to the procedures to be applied following “disqualification” of a licence or permit. The procedure and rights of appeal relating to the question of disqualification are dealt with separately in the Act. As to this issue I agree with the reasoning and findings of the learned Magistrate (at paras 71-78):
Section 85 makes no reference whatsoever to the procedures for “disqualification” of licences or permits.
The Notice of Disqualification (and the earlier notices of disqualification) were issued pursuant to what was then section 81B(2) of the Act. Section 139BD(11) of the Act made it clear that for the purposes of section 139BD, the phrase “notice of disqualification” was to mean, inter alia, a notice under section 81B(2) of the Act.
There is (and was) no requirement under Section 139BD of the Act for a notice of disqualification to contain any reference to a person’s appeal or review rights.
Further, at the relevant time, section 81B of the Act addressed the very limited circumstances in which a person who had been given a notice of disqualification under section 81(2) of the Act could appeal against the disqualification.
Section 81B(5) and (6) of the Act stipulated:
“(5) Subject to subsection (6), if a person has been or is liable to be given a notice of disqualification under subsection (2) as a consequence of an offence committed or allegedly committed while the holder of a provisional licence or probationary licence, the person may appeal to the Magistrates Court against the disqualification.
(6) A person is not entitled to appeal against a disqualification under this section if the Magistrates Court has, within the preceding 5 years, allowed an appeal by the person against a disqualification under this section.”
Those provisions can be contrasted with those at Section 98Z of the Act (to which counsel for the defendant alluded) which outline the procedure to enable a review with respect to certain decisions of the Registrar (and to which section 85(d) of the Act refers).
Accordingly, I am not satisfied that in the absence of any reference to review rights on the Notice of Disqualification renders it invalid and I make a similar finding with respect to the notice of disqualification generated on 6/2009 insofar as that may be necessary. As to the notice of disqualification generated on 7/1/2009, it clearly states “Not entitled to Appeal”.
The fourth issue: Re-issue of Notice and “proper reasons” under s 139BD(10) MVA
The appellant further submitted that on the proper construction of s 139BD(10) the Registrar was only permitted to re-issue the initial Notice, whereas the disqualification notice, which in this case was acknowledged by the appellant, appears to have been a re-issue of the second Notice under s 139BD(4) and that is supported by the evidence of Mr Cameron. However, if the re-issue of a notice under s 139BD is limited to the initial notice, that would mean that the Registrar would be required to repeat the steps which, in this case, had already been taken unsuccessfully. That would appear to be completely futile as the result would inevitably be the same. The intent of sending a notice under s 139BD must be to ensure that a proposed recipient is made aware that he/she is subject to a period of disqualification as a result of a breach of s 81B and to advise that person of the term of the disqualification. Absent that advice, a person in breach of s 81B would not be informed of the disqualification until such time as the Registrar refused to enter into a transaction with him/her such as the renewal of a licence or boat or vehicle registration.[13]
[13] See s 139BD(5).
However the power to re-issue a notice is circumscribed by the requirement in s 139BD(10) that there be proper reasons for so doing. In this case, the attempted personal service disclosed that the postal address held by the Registrar was a vacant block. Although there was no obligation upon the Registrar to re-issue a Notice, it was understandable that in this particular situation it was considered appropriate to do so. In accordance with my construction of s 140(1) MVA the onus was on the appellant to establish, on the balance of probabilities, that the Notice which he eventually received had been re-issued without proper reason. The appellant did not call any evidence in the Magistrates Court to establish that was the case. The appellant therefore failed to establish any breach of s 139BD(10).
In the circumstances, there was ample evidence before the learned Magistrate which enabled her to be satisfied that the appellant was disqualified at the time of the commission of these offences. Exhibit P8, is the Notice of Disqualification which was acknowledged by the appellant as having been received by him on 24 November 2009 and p 4 of Exhibit P7 is an entry from the Registrar’s computer system showing the relevant periods of disqualification. Each of those documents record that the appellant’s licence was disqualified from 22 November 2009 to 21 June 2010.
The appeal against conviction is therefore dismissed.
Appeal against sentence
The appellant has also appealed against the sentence imposed by the learned Magistrate on the ground that it was manifestly excessive. As earlier mentioned, the appellant was sentenced to six months imprisonment, of which three months was suspended. In her sentencing remarks, the learned Magistrate referred to the appellant’s record which disclosed a number of prior convictions for driving whilst disqualified, namely:
1998: drive disqualified, fine imposed;
August 2001 - drive disqualified together with other traffic matters, imprisonment for 14 days;
March 2002 – three counts of drive disqualified – imprisonment for two months;
April 2005 – two counts of drive disqualified – imprisonment for two months.
November 2009 – drive disqualified and other matters – imprisonment for 14 days.
The Magistrate went on to say:
That history suggests to me that you do not have regard for, nor do you abide by notices requiring you not to drive. In each case before me there is nothing to suggest there was any emergency or extraordinary reason why it was necessary for you to be driving. You knew you were disqualified from driving because you had been told by a police officer in February 2010 that you were and you chose to drive on both of these occasions knowing that you were disqualified. Accordingly, this was deliberate and contumacious offending.
The learned Magistrate therefore considered that imprisonment was warranted. However she took into account that there was an element of duplicity with respect to the two offences committed by the appellant on 26 April 2010 in that the breach of bail related to the appellant being in the driver’s seat of the motor vehicle on the occasion of the second drive disqualified offence. Having determined to impose a sentence of six months imprisonment, the Magistrate then turned to consider whether there was good reason to suspend that sentence. She finally concluded that there was no good reason to wholly suspend it but she was prepared to partially suspend it, having regard to the personal circumstances of the appellant and the fact that the majority of his prior offending had occurred about six years earlier.
In Police v Cadd and Ors[14] the Full Court of the Supreme Court considered the question of appropriate sentencing standards with respect to offences of driving disqualified. A number of the principles which emerge therefrom are relevant to the present case. I summarise them as follows:
(1)   Offences of this type nullify the effect of an order for disqualification and erode disqualification as a means punishment. The clear intention of Parliament is that disqualification from holding a licence be used in particular in the field of driving offences. Those who commit the offence tend to defeat Parliament’s intention.[15]
(2)   This is an offence for which deterrence must predominate in considering appropriate punishment.[16]
(3)   The offence is of a type which tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension will be unusual cases. (eg cases of genuine emergency; cases in which driving is really trivial). However, the circumstances of the offender must also be considered and may nevertheless warrant the giving of a last chance by means of a suspended sentence.[17]
(4)   A person who commits a second or subsequent offence will be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender.[18]
[14] (1997) 69 SASR 150.
[15] Ibid per Doyle CJ at p 162.
[16] Ibid.
[17] Ibid per Doyle CJ at p 168.
[18] Ibid per Lander J at p 201. See also remarks to a similar effect of Mullighan J at p 180 and Bleby J at p 209.

The appellant has a lengthy history of not abiding by orders for disqualification. In addition, it appears from the sentencing remarks that in February 2010 that is shortly before the commission of the charged offences, the appellant had been seen driving by a police officer at Torrensville. On that occasion he was stopped and warned that he was disqualified from driving and was told that if he continued to drive whilst disqualified he could be arrested. However, on that occasion he was treated with considerable leniency by not being charged with an offence. There is no evidence of any situation of emergency or any other reason to explain the appellant’s subsequent wilful disregard of the Notice of disqualification. In my opinion the learned Magistrate correctly described the appellant’s conduct as deliberate and contumacious, and found that such conduct warranted a term of imprisonment. She carefully considered all relevant matters in mitigation which resulted in her taking what might be regarded as a lenient view of the appellant’s conduct by partially suspending the sentence she ultimately imposed.
I consider it unnecessary to deal with any of the other issues raised by counsel for the appellant with respect to the sentence appeal as this was a case in which deterrence was the paramount consideration. No error has been demonstrated in the exercise of the sentencing discretion by the learned Magistrate. The appeal against sentence is therefore dismissed.