Johansen v NEUZERLING
[2003] WASCA 137
•11 JUNE 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JOHANSEN -v- NEUZERLING [2003] WASCA 137
CORAM: HASLUCK J
HEARD: 11 JUNE 2003
DELIVERED : 11 JUNE 2003
FILE NO/S: SJA 1055 of 2003
BETWEEN: ALLANA GERALDINE JOHANSEN
Appellant
AND
ROBERT ANTHONY NEUZERLING
Respondent
Catchwords:
Criminal law - Justices Act - Sentencing - Road traffic - Two previous convictions dealt with as first offences - Third conviction punishable as for second offence - Appropriate sentence - No new principle
Legislation:
Justices Act1902 (WA), s 184, s 196, s 199, s 206C
Road Traffic Act 1974 (WA), s 63(1), s 63(2)(b), s 63(2)(c)
Rules of the Supreme Court1971 (WA)
Result:
Leave to appeal allowed
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Ms K Dougall
Solicitors:
Appellant: Aboriginal Legal Service
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Carter v Denham [1984] WAR 123
Case(s) also cited:
Nil
HASLUCK J: The applicant, Allana Geraldine Johansen, applied for leave to appeal against a decision given in the Court of Petty Sessions at Geraldton on 5 February 1998 by Ms Lane SM. The learned Magistrate sentenced the applicant in relation to a charge of driving under the influence to a $1,500 fine plus disqualification for holding or obtaining a driver's licence for life.
Grounds of appeal
The grounds of appeal are that the learned Magistrate erred in law by treating the conviction as a third offence when it should have been characterised as a second offence. Particulars provided in support of the grounds of appeal are that the applicant was convicted on 11 February 1993 for two charges of driving under the influence which were both treated as a first offence.
The only subsequent conviction for driving under the influence was the conviction the subject of the appeal on 5 February 1998, which resulted in a life disqualification. A disqualification of that kind for driving under the influence is only prescribed for a third offence under s 63(2)(c) of the Road Traffic Act 1974 (WA). The applicant contends that as a matter of law the subject conviction was only a second offence. It is said in the grounds of appeal that the sentence of $1,500 fine and life disqualification is manifestly excessive.
The application for leave to appeal contemplates that the appeal will be heard by a single Judge of the Supreme Court. The application is supported by the affidavit of Christian Leith John Miocevich, sworn 21 May 2003, a solicitor of the Aboriginal Legal Service of WA who has the carriage of this matter on behalf of the applicant.
Evidentiary materials
Exhibited to the Miocevich affidavits are copies of complaints reflecting the conviction on 11 February 1993 for two offences of driving under the influence. The documents establish that such complaints were dealt with as a first offence on both charges. Also exhibited is a copy of a complaint which shows that the applicant was convicted of driving under the influence on 5 February 1998.
In addition, the affidavit exhibits a copy of the applicant's traffic record and a letter from the applicant dated 10 May 2003, explaining why she did not immediately appeal against her life disqualification.
The applicant's letter is to the effect that at the time of the disqualification of her licence she was unaware that she could appeal the decision in question. Reference is made to some trauma in her life and the fact that she was not aware that the Aboriginal Legal Service had an appeals lawyer.
Statutory provisions
The application comes before me pursuant to those provisions of the Justices Act (WA) concerning appeals. By s 184 of the Justices Act an appeal lies to the Court by leave from a decision of Justices. An application for leave to appeal may be made to a Judge in Chambers or in Court by a person who is aggrieved. The grounds of the application may be that the Justices made an error of law or fact or imposed a sentence that was inadequate or excessive.
I note also that by s 196 of the Justices Act 1902 (WA) the Court shall determine the appeal on the material that was before the Justices and on such further evidence, either oral or by affidavit, as the Court thinks fit to receive.
Section 199 of the Justices Act deals with the powers of the Court upon the hearing of an appeal and allows for the decision the subject of the appeal to be set aside, quashed or varied and for a decision that ought to have been made to be substituted. Accordingly, there is clearly power to substitute a corrected sentence if the circumstances so permit.
It is also important to note that by s 206C of the Justices Act the Court may on such terms as it thinks fit, extend or shorten the time allowed under this part or by Rules of the Supreme Court 1971 (WA) for doing any act.
It is against that background that I return to the facts of this particular matter.
The present case
The Crown is represented before me and it seems that there is a recognition on both sides that the conviction in question should have been characterised as a second offence. It seems to have been wrongly assumed that the applicant had been the subject of two prior convictions. It was pursuant to that assumption that the sentence of life disqualification was imposed.
As the Road Traffic Act 1974 stood at the material time, s 63(2)(b) was in these terms:
"A person convicted of an offence against this section is liable for a second offence to a fine of not less than $1,000 or more than $1,800 or to imprisonment for 6 months and in any event the Court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years."
Counsel for the applicant relies principally upon the previously decided case of Carter v Denham [1984] WAR 123.
In that case the respondent had previously pleaded guilty to two complaints of driving a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having control of such vehicle, contrary to s 63(1) of the Road Traffic Act.
Both offences were treated as first offences for the reason that the offence committed later in time was not committed after the respondent had been convicted of the earlier offence. On a third complaint laid under the same section the Magistrate held that the respondent should be sentenced as a second offender.
On appeal, it was contended on behalf of the appellant that the Magistrate had erred in that he ought to have regarded this conviction as the third offence for the purpose of applying the penalties laid down by s 63(2) of the Road Traffic Act. It was held, dismissing the appeal, that the respondent, having committed only one offence after his conviction for his first offence, had been rightly punished as for a second offence.
Conclusion
Having regard to Carter v Denham (supra), there appears to be a recognition on both sides in the present case that the appropriate basis for punishment against the background I have described is to be found in s 63(2)(b) of the Road Traffic Act, that is to say, a punishment referable to a conviction for a second offence.
Counsel for the applicant has urged me to grant leave, and to allow the appeal, having regard to a minute of consent orders dated 11 June 2003, which has been signed on behalf of the parties. Further, I have been invited to undertake the re‑sentencing process against the background I have described.
There is persuasive evidence before me explaining the delay in bringing the appeal. There is a comparatively narrow range of possible controversy between the parties as to the appropriate sentence. Counsel for the Crown has given consideration as to what is the proper sentence to be imposed. In these circumstances, I consider that orders in terms of the minute of consent orders should be made.
It follows that orders will be made in these terms, that is to say: (1) extension of time within which to appeal be extended to this date; (2) application for leave to appeal and the appeal be heard at the same time; (3) the appeal be allowed on the basis that a life disqualification for a second offence of driving under the influence was manifestly excessive; (4) the penalty of life disqualification from driving imposed on complaint 3437/97 be set aside and in lieu thereof a penalty of 2 years' disqualification from driving be imposed, such disqualification to begin on 5 February 1998.
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