Jason Fewel v D.P.P

[2010] NSWDC 195

CITATION:	Jason Fewel v D.P.P [2010] NSWDC 195
JUDGMENT DATE:	26 August 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	I decline to re-open the matter pursuant to s.43 of the Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Criminal Law - Severity appeal from Local Court - status of final orders of District Court when determining motor traffic appeal - denial of natural justice by Executive branch of government in failure to implement orders - nature of judicial discretion when setting period of disqualification - distinction between 'stay of execution' and 'voluntary surrender of licence' - relevant legislative provisions discussed.
LEGISLATION CITED:	s.68 Crimes (Appeal and Review) Act 2001 s187,s189 Road Transport (General) Act 2005 s.43 Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Driver Licensing) Act 1998
PARTIES:	Jason Val Fewel Director of Public Prosecutions
FILE NUMBER(S):	2010/00044148
COUNSEL:	Defence: A Conwell
SOLICITORS:	D.P.P.: Mr J Spoher

JUDGMENT

1. Jason Val Fewel appeared before the Kogarah Local Court on 4th May 2010 for driving with a low range PCA. That offence had occurred on 13th February 2010. He was fined $300, ordered to pay court costs of $76 and disqualified from driving for a period of 6 months to date from the 4th May 2010. That was the “automatic” disqualification period. The sentencing magistrate could have imposed a minimum period of 3 months disqualification.

2. Mr Val Fewel appealed against the severity of the sentence imposed by the learned Magistrate. He was granted a stay of execution of sentence pursuant to s.63 Crimes (Appeal and Review) Act 2001. Thus, in the circumstances of this case the execution of the fine and disqualification were stayed pending the final orders of the District Court.

3. On the 16th June 2010 Mr Val Fewel’s severity appeal was heard and determined by her Honour Judge Ainsllie-Wallace (as she then was). Her Honour disposed of the appeal by making the following orders:

Confirm the fine and the Court Costs imposed by the Local Court Magistrate. Reduce the period of disqualification from six months to three months to commence 4.5.2010.

4. Neither the appellant nor the respondent to this appeal sought to litigate the matter any further. Shortly put there was no appeal from her Honour’s decision by either party, nor any other litigation initiated by any other party before any other court challenging her Honour’s orders.

5. That being so, the orders made by her Honour are entitled to be regarded as lawfully made orders binding upon the parties and others effected by them. That has not occurred. It would seem the manager (or some person acting under the authority of the manager) of the Certifications and Court Convictions Unit of the RTA, a New South Wales Government department, takes a view her Honour’s orders were not in compliance with the law and refuses to restore Mr Val Fewel's licence to him.

6. So far as I am aware there is no statutory power that entitles the Manager of the Certifications and Court Convictions Unit of the RTA or the Manager’s delegate to override the determination of a judicial officer. It is of grave concern that any officer of the Executive arm of government would, without lawful authority, arbitrarily override or countermand any lawfully made Court order. This is a matter of significant constitutional import.

7. The Registrar listed the appeal before the Court yesterday, because of a letter addressed to him and received on 27th July 2010. That letter was on NSW Government letterhead with an RTA logo and dated the 21st July last. I set it out in full:

RE JASON FEWELL (sic) – LICENCE NUMBER ******

Dear Registrar:

Mr Fewell (sic) was convicted on 4 May 2010, at Kogarah Local Court, for the offence ‘Dive with Low Range Concentration of Alcohol’ and disqualified from driving for a period of 6 months.

On 4 May 2010, he lodged an appeal to the Sydney District Court and pursuant to S63 of the Crimes (Appeal and Review) Act 2001, all orders including the period of disqualification were ‘stayed’ until such time as the matter was determined at the District Court. As a consequence of the ‘stay’, the law provides that Mr Fewell was entitled to drive while the period of ‘stay’ was in place.

On 16th June 2010, Sydney District Court dismissed the appeal and confirmed the conviction. The Court made the following order ‘ Confirm the fine and the court costs imposed by the local court (sic) Magistrate. Reduce the period of disqualification from six months to three months to commence from 4 May 2010’.

Section 189(6) of the Road Transport (General) Act 2005, provides that a period of ‘stay’ is not to be taken into account when calculating the length of a period of disqualification. This means that the 3 month period of disqualification ordered by Sydney District Court is not inclusive of the time period 4 May 2010 to 16 June 2010.

Accordingly, to remedy this situation and align the disqualification to the statutory required period of time, the RTA request the court, as the applicant, arrange to have this matter re-opened under Section 43 of the Crimes (Sentencing Procedure) Act for the purpose of having the sentencing error corrected? (sic).

Yours Sincerely

Manager
Certifications and Court Convictions Unit

8. A person whose name I cannot decipher signed the letter “per” Manager.

9. Neither party to the hearing before her Honour seeks to have the proceeding re-opened. It will be seen in the last paragraph of its letter the Manager, Certifications and Court Convictions Unit seeks on behalf of the RTA as applicant to have the matter re-opened. The RTA has no locus standi in these proceedings. That proposition is reinforced by the legislative provisions the Manager relies upon, namely s.43 Crimes (Sentencing Procedure) Act 1999, which I set out below.

43 Court may reopen proceedings to correct sentencing errors
(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:
(a) imposed a penalty that is contrary to law, or
(b) failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:
(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order.

….
(6) In this section:
“ impose a penalty ” includes:

(a) impose a sentence of imprisonment or a fine, or
….
(e) make an order or direction with respect to …disqualification or loss or suspension of a licence or privilege.

10. It will be seen from the terms of s.43 Crimes (Sentencing Procedure) Act 1999 the capacity to reopen proceedings in respect of an order of disqualification is confined to the parties or to the court. To state the obvious, the RTA was never a party to the proceedings in this Court or the Local Court. The description of the RTA as an “applicant” to these proceedings is hollow, or without substance because it lacks locus standi in them.

11. In determining whether the Court would reopen the proceedings on its own initiative I have taken several matters into consideration. Firstly, neither party to the proceedings claims error, nor, in the light of the assertions of the RTA has either sought an amendment to Judge Ainslie-Wallace’s orders. Indeed, both parties are content to accept her orders were made without error.

12. Secondly, I am decidedly unpersuaded of the correctness of the RTA’s conclusion as to the effect of Section 189(6) Road Transport (General) Act 2005.which, together with s. 187 I set out below.

Division 1 Licence disqualification
187 Court may impose penalty and disqualify driver on conviction
(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.
(2) If the court makes an order disqualifying the person, the person is disqualified from holding a driver licence for the period specified by the court.
(3) Any disqualification under this section is in addition to any penalty imposed for the offence.
….
189 Effect of disqualification
(1) If, as a consequence of being convicted of an offence by a court, a person is disqualified under the road transport legislation (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification.
….
(3) A person who is so disqualified must:
(a) if present at the court (being a court in this State) and in possession of his or her driver licence—surrender the licence to the court immediately after being convicted, or
(b) if present at the court (being a court in this State) but not in possession of the licence or if not present at the court—surrender the licence to the Authority as soon as practicable after being convicted, or

(c) ….

(6) Any period for which a stay of execution is in force under section 63 of the Crimes (Local Courts Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division.

13. When reading the provisions of s.189 (1) above, it seems to me the word “permanently” must be understood as having the words “for the specified period of disqualification” or words to that effect as qualifying the word “permanently”.

14. But that is not a matter that impacts upon the application of s.189 (6). It appears to me this subsection is a statutory direction impacting upon material impermissible to be considered, when determining the length of a period of disqualification. Setting the length of a period of disqualification is a discretionary matter, subject to statutory requirements governing the automatic length and the minimum length of periods of disqualification applicable in respect of specific offences or circumstances of re-offending. As such, the discretion is to be exercised subject to principles established in the case law. The length of a period of disqualification is not to be confused with the setting of a date upon which that period of disqualification is to commence.

15. When imposing sentences of imprisonment for multiple offences, for example, a judge is concerned with both the length of the sentence and the commencement date. What is frequently called “the head sentence” may constitute a number of accumulated or concurrent, or combinations of both kinds of imprisonment sentences of varying lengths. Likewise periods of disqualification will be measured in one way, and commencement and conclusion dates will be expressed in another way.

16. When selecting a period of disqualification of 3 months there is nothing to suggest her Honour impermissibly took into account any period that the stay of execution was in force. It is probable that her Honour did take into account a period during which the Mr Val Fewel voluntarily surrendered his licence. To state these facts highlights the difference between a voluntary surrender of licence and a period during which the execution of sentence is stayed. Coincidentally in this case they amounted to the same period of time, but they are different. There may be cases where a voluntary surrender of licence may be for a period greater or shorter than the period during which the execution of a stay of sentence applies.

17. Finally, the RTA appears to have failed to consider the impact of s. 68 Crimes (Appeal and Review) Act 2001. It is in these terms:

68 Court may confirm or vary conviction or sentence with effect from earlier day
(1) An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it:
(a) is to take effect (as confirmed or varied) on and from a day specified in the order, or
(b) in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order, being the day on which the order is made or an earlier day.
(1A) An appeal court may, for the purposes of making an order under subsection (1) in relation to a sentence that consists of, or includes, a disqualification from holding a driver licence (within the meaning of the Road Transport (Driver Licensing) Act 1998 ), take into account:
(a) any period during which the defendant’s driver licence was suspended under section 205 of the Road Transport (General) Act 2005 , and
(b) any other periods after committing the offence to which the sentence relates during which the defendant held, or did not hold, a driver licence that would have permitted the defendant to drive a motor vehicle.
(2) The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.

18. There are two matters arising from this section of significance. Before I move onto them, I should note the definition section of the Crimes (Appeal and Review) Act 2001 defines sentence to mean any order made by the Local Court in respect of a person as a consequence of its having convicted the person of an offence, including any order or direction with respect to disqualification or loss or suspension of a licence.

19. Firstly, the appeal court may take into account when making a sentencing order periods after committing the offence during which the “defendant” did not hold a drivers licence that would have permitted him to drive a motor vehicle. I take that to include the voluntary surrender of a licence to the Court. But even if s.68 (1A) (b) is limited to those who are unlicensed or licence has expired, I am satisfied, as I earlier observed, a judge exercising principled discretion is nonetheless permitted to take into account periods when a driver is not permitted to drive because he has voluntarily surrendered possession of the licence he holds to the court.

20. Secondly, s.68 (1) makes clear that the sentencing order is to take effect on and from the day specified in the order; and s.68 (2) makes clear the sentencing order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.

21. This case highlights the real dangers that may occur when the Executive branch of government arbitrarily override or countermand lawfully made Court orders. Mr Val Fewel was denied any semblance of natural justice when the RTA made determinations adverse to his interest by countermanding an order made by her Honour. What appear to be an erroneous interpretation of s. 189 (6) Road Transport (General) Act and a failure to have regard to provisions of the Crimes (Appeal and Review) Act have seen Mr Val Fewel deprived of his driver licence contrary to the specific orders and intentions of her Honour.

22. I have determined the Court will not reopen these proceedings on its own initiative pursuant to s 43 Crimes (Sentencing Procedure) Act. On this occasion I have taken the time and trouble to set out my reasons for so doing because I am aware the RTA, presumably through the Certifications and Court Convictions Unit, regularly overrides disqualification orders made by this Court in severity appeals. If the Manager of the Certifications and Court Convictions Unit is of a view a judge has erred in applying the road traffic legislation, he/she should seek to have that decision reviewed in a court superior to this – rather than ignoring orders that, until reversed on appeal, are lawfully made orders.

23. Had I the power I would have ordered costs against the RTA for both parties to the original severity appeal who have been courteous enough to appear in response to the Registrar’s listing of the matter and assist me in my determination.