Horton v Burton

[1999] WASCA 82

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   HORTON -v- BURTON [1999] WASCA 82

CORAM:   PIDGEON J

IPP J
ANDERSON J

HEARD:   21 JUNE 1999

DELIVERED          :   21 JUNE 1999

PUBLISHED           :  25 JUNE 1999

FILE NO/S:   SJA 1172 of 1998

BETWEEN:   ALAN JAMES HORTON

Appellant

AND

MARK ANDREW BURTON
Respondent

Catchwords:

Traffic law - Licensing of drivers - Permanent disqualification from driving - Whether further disqualification can be made cumulative on an existing permanent disqualification

Legislation:

Road Traffic Act 1974 s 49(1)(a), s 49(3), s 63(1), s 63(2)(c), s 78(3)(c)

Result:

Appeal Dismissed

Representation:

Counsel:

Appellant:     Mr A J Klein

Respondent:     Mr N C Monahan

Solicitors:

Appellant:     Stephen Browne & Co

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

Henriksen v The Grafton Hotel Ltd [1942] 2 KB 184

Lee Vanit v The Queen (1997) 190 CLR 378

R v Farlow [1980] 2 NSWLR 166

R v Taikmaskis (1986) 19 A Crim R 383

Case(s) also cited:

Chen v Minister for Immigration (1992) 37 FCR 501

Davis v Commissioner of Police (1990) 12 MVR 297

McLelland v Northern Ireland General Health Services Board [1957] 1 WLR 594

Re Marryat [1948] 1 Ch 298

Tan Te Lam v Tai A Chau Detention Centre [1996] 2 WLR 863

Thompson v His Honour Judge Byrne [1999] HCA 16; (1999) 73 ALJR 642

Traffic Board v Rigg, unreported; FCt SCt of WA; Library No 960480; 29 August 1996

1. PIDGEON J: On 28 December 1993 the appellant, in the Court of Petty Sessions at Norseman, pleaded guilty to a charge of driving a motor vehicle without being the holder of a driver's licence. Prior to his committing this offence he had been permanently disqualified from holding or obtaining a driver's licence and this was the position when he appeared in the Court of Petty Sessions. The presiding Justice of the Peace imposed a fine of $200 and ordered that his motor driver's licence be suspended "Nine months cumulative to current suspension". This order was made pursuant to s 49(3) of the Road Traffic Act 1974, the relevant portion of which reads:

   "…the period of disqualification so imposed shall be cumulative upon any other period of disqualification to which the person may then be subject or upon any period for which the operation of his driver's licence may currently be suspended."

2. The appellant is appealing against the order of cumulative suspension on the basis that, as a matter of construction, s 49(3) could have no operation, as it is not possible to impose a cumulative suspension on a person subject to a permanent disqualification for life.

3. The circumstances in which the question has become relevant are, that following his conviction in the Court of Petty Sessions, the appellant applied to a Judge of the District Court pursuant to s 78 for the removal of the permanent disqualification and he was successful in obtaining such an order. It was not possible for him to apply simultaneously for an order for removal of the second and purportedly cumulative disqualification as the necessary time limits specified in s 78 had not then run. The appellant is claiming that this latter disqualification can only run concurrently and accordingly it would now have expired leaving him free to drive. He obtained an extension of time in which to appeal and then obtained leave to appeal to a single Judge. The matter was heard by McKechnie J and the appeal dismissed. The appellant is now appealing against this dismissal.

4. Mr Klein, in his submissions in support of the appeal, referred to the general principle relating to sentencing that if a person is serving a term of life imprisonment, any further term of years should be imposed concurrently and an example of this principle was discussed in the case of R v Taikmaskis (1985) 19 A Crim R 383. However, the legislature in this situation, has directed, specifically, that the further period of suspension must be imposed cumulatively. Mr Klein's submission in respect of this is that as a matter of statutory construction, where a person is previously permanently disqualified from holding or obtaining a driver's licence, s 49(3) would have no application. The argument in support of this proposition can be found in the reasoning of the Court of Criminal Appeal in New South Wales in the case of R v Farlow [1980] 2 NSWLR 166. In that case a person serving a sentence of penal servitude for life following his conviction of murder escaped from prison and was recaptured. Section 34 of the Prisons Act provided that the sentence imposed for an escape is to be served cumulative on the sentence being served at the time of escape.  The Court held that section had no application when the sentence being served is a life sentence.  Nagle CJ at CL said at p 169:

   "Unaided by any authority, I find compelling reasons to conclude that s 34 of the Prisons Act cannot possibly contemplate the imposition of a term of imprisonment which, to use the words of the section is 'to be served after' a term of penal servitude for life.  The expression 'penal servitude' has a different connotation now from when it was first introduced into the criminal legislation of this State and, at the present time, from a practical point of view, there is little, if any, difference between 'penal servitude' and 'imprisonment'.  Be that as it may, the fact is that the duration of the term of the sentence has not been altered and the period prescribed is 'life'.  As it is obviously impossible to serve a term of imprisonment cumulatively on a life sentence, any attempt to apply s 34 to the circumstances of the appellant results in an absurdity.

   The learned author of Broom's Legal Maxims, 10th ed, at p 162, after discussing the maxim 'Lex non cogit ad impossibilia' (Co Litt 231b) - The law does not compel a man to do that which he cannot possibly perform - concludes, at p 169: 'To several maxims in some measure connected with that above considered, it may, in conclusion, be proper briefly to advert.  First, it is a rule, that lex spectat naturae ordinem:  Co Litt 197b, the law regards the order and course of nature, …Secondly, if is a maxim of our legal authors, as well a dictate of common sense, that the law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous - lex neminem cogit ad vana seu inutilia - the law will not force anyone to do a thing vain and fruitless: Laughter's Case, 5 Rep 21; Co Litt 127b, cited in Marson v Short, 2 Bing NC 118, at p 121; Wing Max, p 600, per Willes J, in Bell v Midland Ry Co, 10 CBNS 287 at p 306.' "

5. His Honour then referred to some authorities in support of his conclusions.

6. It is submitted that the proposition has support from the reasons of the High Court in Lee Vanit v The Queen (1997) 190 CLR 378. We were referred to the following observations of McHugh J at p 387:

   "Section 16G does not apply to life sentences

   The Northern Territory courts were correct in holding that s 16G of the Act does not apply to federal life sentences.  By its very nature a sentence of life imprisonment is indeterminate.  Apart from capital punishment, it is the most severe punishment that the law can impose.  It expires only on the death of the prisoner.  While death itself is certain, the period of life is not.  The prisoner, sentenced for life, may live for a few weeks or less or may live for fifty years or more.  Even where the prisoner is released on licence by Executive action, the sentence technically remains imposed on that person.  Because of the indeterminate nature of a life sentence, a further sentence cannot be imposed cumulatively on it.

   The indeterminate nature of a life sentence provides a compelling reason why s 16G does not apply to life sentences.  It provides the requisite 'contrary intention' that 'federal sentence' in s 16G does not include a life sentence.  A life sentence is inherently incapable of adjustment.  If s 16G applied to life sentences it would require the court to adjust a sentence that cannot be adjusted.  Parliament cannot have intended such a result.  As Patteson J once said, 'the law compels no impossibility'.  Any determinate sentence that resulted from the 'adjustment' of a life sentence in purported reliance on s 16G would be a substitution for, rather than an adjustment of, a life sentence."

7. In the present case there is, as I have mentioned, a positive direction by the legislature that the period of suspension is to operate cumulatively.  This must apply unless it could be said that, by implication, the section was not intended to have operation in the manner referred to in R v Farlow.  I consider that case can be distinguished on the basis that a sentence for life in the context of New South Wales law was a sentence which remained operative for life.  It is always open to The Governor, in the exercise of the prerogative of mercy, to release the prisoner but his

would not alter the fact that it is a term for life. As pointed out by McHugh J where the prisoner is released on licence by executive action, the sentence technically remains imposed on that person. However, in the present case under s 78 of the Road Traffic Act the District Court is empowered to remove completely the permanent disqualification.  It is possible in the terms of the legislation for it to come to an end.  This section was in place on the enactment of the Road Traffic Act in 1974 so that the Parliament in enacting s 49(3) was aware of the power of the District Court to remove the suspension. In these circumstances it is possible for a permanent disqualification to come to an end so that the operation of s 49(3) is capable of having practical effect and would not be an absurdity. I would not see an intention by the legislature for it not to operate when the earlier disqualification is a permanent one. There is no contrary intention to defeat the operation of the sub-section.

1. It was submitted that the cumulative order could not operate in those cases where the suspension is not removed.  This would not give rise to an absurdity or contrary intention.  In cases where the permanent disqualification is not removed, then the further disqualification, although expressed to be cumulative, would in fact operate concurrently.  The circumstances however, can arise when it is capable of operating cumulatively and there is, therefore practical effect in expressing it to be cumulative.

2. In these circumstances I do not consider that the learned Justice of the Peace was in error when imposing the type of disqualification provided for by the section.  Even if the word "cumulative" was not used in the order it would, by force of the section, operate cumulatively. 

3. It is for these reasons that I agreed with the order made at the hearing that the appeal be dismissed.

4. IPP J:  I have read the reasons to be published by Pidgeon J.  I agree with them and his Honour's conclusions.  I have nothing further to add.

5. ANDERSON J: The appellant was convicted in the Court of Petty Sessions at Rockingham on 15 June 1988 of the offence of driving a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The offence is created by s 63(1) of the Road Traffic Act 1974 and by s 63(2)(c) it is provided that a person convicted of an offence against the section for a third or subsequent time is to "be permanently disqualified from holding or obtaining a driver's licence". The offence in question was the

appellant's third offence and, amongst other things, a permanent disqualification was imposed.

1. The appellant was convicted in the Court of Petty Sessions at Norseman on 28 December 1993 of driving without a licence. That offence is created by s 49(1)(a) of the Road Traffic Act and by s 49(3) it is provided that where the person has not got a licence because he has been disqualified from holding or obtaining a licence, the court convicting him must disqualify him from holding or obtaining a licence for a period of not less than 9 months. The subsection goes on to provide:

   " … and the period of disqualification so imposed shall be cumulative upon any other period of disqualification to which the person may then be subject … "

2. The order made by the Justice of the Peace in Norseman as it can be deciphered from his handwriting on the complaint was that the appellant's driver's licence be suspended and that the suspension be for "9 months cumulative to current suspension".

3. Now, of course, the appellant did not have a driver's licence.  There was nothing to suspend.  Nothing turns on this irregularity in the order.  The order made by the Justice of the Peace has been taken to mean an order of disqualification from obtaining a driver's licence.  However, the appellant contends that the Justice of the Peace had no power to order that the period of disqualification be cumulative upon the permanent disqualification to which the appellant was then subject.

4. I think there is a slight misconception involved in this approach. The cumulative nature of a disqualification imposed pursuant to s 49(3) does not depend on any curial act. If the Justice of the Peace had made no order for cumulation, the problem would remain. The essential question is whether s 49(3) is operative in a case where the current disqualification is a "permanent" disqualification. We are really dealing with the operative effect of the statutory provision rather than with the exercise of a judicial discretion in respect to cumulative sentences. The point is of no practical significance, as it happens. McKechnie J, before whom the appeal from the order of the Justice of the Peace was argued and from whose judgment this appeal is brought, plainly and correctly recognised that the issue raised by the appeal to him was not whether the Justice of the Peace erred in imposing the cumulative period of disqualification, but whether or not s 49(3) had the effect of making the period of disqualification cumulative upon the permanent disqualification.

5. The argument put on behalf of the appellant was that it was logically and practically impossible to accumulate upon a permanent disqualification. Therefore, it was argued, s 49(3) cannot be given its literal meaning as that would lead to a result which could not reasonably be supposed to have been intended by parliament. Counsel for the appellant drew on certain life sentence cases which lay down the general principle that no custodial term can sensibly be imposed cumulatively upon a life term: R v Farlow [1980] 2 NSWLR 166; Lee Vanit v The Queen (1997) 190 CLR 378; R v Taikmaskis (1985) 19 A Crim R 383.

6. In my opinion, there is a clear distinction between this case and the life sentence cases relied on by counsel for the appellant.  The essence of the life sentence cases is that a sentence of life imprisonment never expires except upon the death of the prisoner.  In the jurisdictions in question "life" meant "life".  Whether that is so in every jurisdiction and under every penal code may be a question, but in those cases to which counsel for the appellant referred, it was that proposition on which the judgments appear to be based.

7. As McKechnie J pointed out, s 63(2)(c) does not provide for disqualification for life. The concept of "life disqualification" is nowhere to be found in the Road Traffic Act.  What is provided for is permanent disqualification and there is no justification for assimilating the one concept with the other.

8. There is authority for the proposition that the word "permanent" is a relative term which takes its meaning from its context.  Counsel for the respondent, Mr Monahan, has referred us to a number of cases which are to that effect and his Honour referred to them also.  It is sufficient to mention Henriksen v The Grafton Hotel Ltd [1942] 2 KB 184. It was a revenue case and the question was whether certain outlays were deductible expenditure or were capital payments. The entitlement to deduct the payments from income for the purposes of income tax assessment depended on whether the payments were in the nature of rental or were to acquire an asset; and that question depended on whether the right acquired by the payments was a permanent right. It was argued on behalf of the taxpayer that as the payments only entitled the taxpayer to trade as a licensed victualler for a period of three years, the right which was acquired was not permanent. This argument was not accepted. du Parcq LJ said that, in the context of this area of the law, the word "permanent" in relation to rights is apt to describe rights which are long-lasting, although not necessarily everlasting. As he put it at 196:

   "'Permanent' is indeed a relative term, and is not synonymous with 'everlasting'."

9. In my opinion, the phrase "permanently disqualified" in the Road Traffic Act is not to be understood in the same sense in which the phrase "life term" or "life imprisonment" or "life sentence" is to be understood in the criminal statutes with which the cases referred to were concerned.  It takes its meaning from its context.  Under the Road Traffic Act itself, a permanent disqualification may be removed by a court after a period of 10 years has elapsed: s 78(3)(c). I see no reason why parliament could not have intended to provide for a cumulative disqualification on a "permanent" disqualification in such circumstances. Such a penalty regime could not be described as absurd or as something which could not reasonably be supposed to have been intended and there is, therefore, no warrant to construe s 49(3) otherwise than in accordance with the plain meaning of its terms.

10. It is for these reasons that I joined in the decision made at the hearing that the appeal should be dismissed.