KEAN and DIRECTOR GENERAL FOR PLANNING AND INFRASTRUCTURE - [2006] WASAT 312

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC ACT 1974 (WA)

CITATION: KEAN and DIRECTOR GENERAL FOR PLANNING AND INFRASTRUCTURE [2006] WASAT 312

MEMBER: MS J HAWKINS (MEMBER)

HEARD: 29 SEPTEMBER 2006

DELIVERED : 19 OCTOBER 2006

FILE NO/S: CC 1253 of 2006

BETWEEN: TRAVIS ROLLA KEAN
Applicant
AND
DIRECTOR GENERAL FOR PLANNING AND INFRASTRUCTURE
Respondent

Catchwords:

Suspension of driver's licence - Application of s 11 of the Sentencing Act 1995 (WA)

Legislation:

Interpretation Act 1984 (WA), s 55
Road Traffic Act 1974 (WA), s 48, s 48(1)(d), s 48(4)
Sentencing Act 1995 (WA), s 11, s 11(2)

State Administrative Tribunal Act 2004 (WA), s 27, s 27(1), s 29

Result:

Decision to suspend licence affirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Commissioner of Police v Shane Robert Plumb, (Unreported, Supreme Court of WA; Library No 6009; 20 September 1985)
Director General for Planning and Infrastructure v Nealon [2003] WASCA 161

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant's Western Australian driver's licence was suspended by a notice issued by the respondent under s 48(1)(d) of the Road Traffic Act 1974 (WA). This was due to the applicant having been convicted of a speeding offence in Victoria on 16 May 2006 and, as a result, being disbarred from driving in Victoria until 15 November 2006. The applicant sought to have the decision to suspend his driver's licence in Western Australia reviewed under s 27 of the State Administrative Tribunal Act 2004 (WA). The applicant primarily argued that s 11 of the Sentencing Act 1995 (WA) applied to prevent the suspension of his driver's licence in Western Australia under s 48(1)(d) of the Road Traffic Act 1974.
The Tribunal did not consider that s 11 of the Sentencing Act 1995 applied, and further, did not consider there was any reason to interfere with the respondent's decision to suspend the applicant's driver's licence. The decision of the respondent was therefore affirmed.

Introduction

This is an application under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) for review of a decision of the Director General, Department for Planning and Infrastructure (respondent), made on 10 July 2006 and notified on 18 July 2006, to suspend the applicant's driver's licence until 15 November 2006 (decision). The decision was made under s 48(1)(d) of the RT Act as the respondent had reason to believe that the applicant had been debarred from driving under the law in force in Victoria until 15 November 2006. The decision was based on information received by the respondent from VicRoads on 13 June 2006 to the effect that the applicant had been found guilty of exceeding the speed limit by 40 kilometres per hour, on 17 April 2006, for which the penalty received was suspension of a car permit or licence for six months from 16 May 2006.
The applicant has raised several grounds for review of the decision to suspend his licence, the primary ground being that s 11 of the Sentencing Act 1995 (WA) (Sentencing Act) is applicable in this case. The applicant contends that, as he was sentenced in Victoria for traffic offences, and as it is those offences that the respondent relies on to suspend the applicant's licence, he is being sentenced twice for the same offence.
The respondent has filed a Statement of Issues, Facts and Contentions which simply confirms that the decision to suspend was based solely on the applicant being debarred in Victoria as a result of his traffic convictions.
This matter was the subject of a hearing on 25 September 2006. Following that hearing, the parties were given the opportunity to file any further written submissions, and thereafter the matter would be determined on the papers.
The Tribunal has received the further submissions from the parties as ordered. As a matter for the record, the Tribunal notes that the respondent, in its submissions, referred to decisions in matter numbers 3636 of 2005 and 3448 of 2005. Neither of those matters is recorded on the Tribunal's online database, and presumably they were the subject of extempore decisions of the Tribunal. As such, therefore, the applicant would not have access to those decisions, as extempore decisions are not recorded on the Tribunal's database unless the parties ask the Tribunal to publish the decision. As the applicant does not have ready access to those decisions, the Tribunal has not had regard to those matters and considers, in this case, that it was unnecessary to do so.

The facts

The applicant is the holder of a Western Australian driver's licence Number 3794692. On 16 May 2006, he was convicted in Victoria of exceeding the speed limit by 40 kilometres per hour or more, but less than 45 kilometres per hour. As a result, his driver's licence was suspended for six months from 16 May 2006. His suspension will cease as at 15 November 2006.
By letter dated 13 June 2006, a copy of the applicant's Victorian conviction was provided to the respondent. Thereafter, by letter dated 10 July 2006, the applicant was given a notice of suspension of his driver's licence under s 48(1)(d) of the RT Act (Notice). By that Notice, the applicant was advised that his driver's licence was suspended until 15 November 2006. The applicant was personally served with the Notice on 18 July 2006.
The applicant has stated that when he enquired of both the Victoria Police and the Western Australia Police, he was advised that the Victorian conviction would not affect his Western Australian driver's licence. This advice was not given in writing.
The notice was addressed to "Travis Rollo Kean" whereas the applicant's full name is "Travis Rolla Kean". The applicant does not, however, dispute that the convictions in Victoria were against him.

Consideration

Section 48(1)(d) of the RT Act provides that the respondent may suspend a person's driver's licence where the person is debarred from driving a motor vehicle under the law in force in any other State.
There is no guidance provided by the RT Act for the manner in which the Tribunal is to conduct the review of a decision of the respondent under s 48(4) of the RT Act. The State Administrative Tribunal Act 2004 (WA) (SAT Act) makes clear, under s 27(1), that the review is a hearing de novo and is not confined to material which existed at the time the original decision was made. The purpose of the review is therefore to come to the correct and preferable decision, and the Tribunal has the same functions and discretions exercisable by the decision-maker when making the decision to review. Under s 29 of the SAT Act, the Tribunal may make any order it considers appropriate, including to affirm the decision, vary the decision, or set it aside and substitute its own decision. It can even send the decision back to the decision-maker for reconsideration. Although the hearing before the Tribunal is de novo and therefore the decision as to whether the applicant's licence can be suspended is a decision made at the time of the hearing before the Tribunal, the Tribunal at the time of hearing must, nonetheless, determine whether the facts authorise the exercise of power as it was exercised: see Director General for Planning and Infrastructure v Nealon [2003] WASCA 161.
The applicant has firstly submitted that the Tribunal should have regard to s 11 of the Sentencing Act. Section 11 of the Sentencing Act provides as follows:
"11. Person not to be sentenced twice on same evidence
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
(2)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of an offence under the law of the Commonwealth, a Territory or another State ,and the person has been sentenced for the offence under the law of that other place ,the person is not to be sentenced for the offence under the law of this State.
…………………………………." (Reproduced as written.)
The applicant relies on s 11 of the Sentencing Act to suggest that, as the licence was suspended in Victoria for a period of six months, that penalty should not now be imposed on him in Western Australia. The applicant submits that he is being punished twice for the same offence. He relies on the definition of "offence" in the Criminal Code, which provides:
"Offence - an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence."
The applicant argues that a suspension imposed by s 48(1)(d) of the RT Act is a penalty as defined under the Interpretation Act 1984 (WA) (Interpretation Act). That definition states as follows:
"penalty - means a fine, imprisonment or other form of punishment, including the suspension or cancellation of a licence, registration or permit … "
The applicant argues, in reliance upon these definitions, that the suspension of his licence in Western Australia amounts to a further sentence, and therefore, s 11 of the Sentencing Act applies.
The respondent has submitted that suspensions imposed under s 48 of the RT Act are not punitive sentences, and refers to the reciprocal arrangements between the States to mirror debarring. The respondent suggests that the intent of the legislation is clear, and it is to prevent a person from avoiding the suspension imposed in one State by moving to another State.
In respect to the applicant's argument that the suspension under the RT Act is a form of punishment as referred to in the definition of "penalty" under the Interpretation Act, the respondent says that the definition of "penalty" is inclusive and not exhaustive. The respondent argues that s 48 of the RT Act does not give rise to criminal responsibility, and that s 48 of the RT Act is created for the administration of the licensing regime.
Section 11 of the Sentencing Act is to guard against a person being sentenced twice for the same offence in different States which arise out of the same set of facts.
In this case, the applicant has not been charged with an offence in Western Australia as a result of his actions in Victoria on 17 April 2006. In particular, he has not been charged with the same offence of exceeding the speed limit by more than 40 kilometres per hour as he was in Victoria. In this case, the applicant has simply had his licence suspended due to the reciprocal arrangements between States that prevent a person who is debarred from driving in one State to continue to drive in another. Although it might be open to suggest that the suspension of a person's driver's licence is a form of punishment as referred to in the meaning of "penalty" under the Interpretation Act, and therefore it is possible to argue that this constitutes an "offence" as defined under the Criminal Code of Western Australia, it is of no consequence in this matter, as s 11 appears only to apply where the person is charged with the same offence in two different States.
Further, the Tribunal is not satisfied that the suspension of the applicant's driver's licence under s 48(1)(d) of the RT Act is a sentence. The term "sentence" is not defined under the Sentencing Act. The Tribunal notes, however, that Black's Law Dictionary (8th ed, Thomson West, United States of American, 2004) defines "sentence" as follows:
"The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer."
In this case, the applicant has not been charged by the respondent with a further offence in Western Australia arising under the same set of facts relied upon for the Victorian offence. The suspension of his licence under s 48(1)(d) of the RT Act is not the result of criminal charges having been brought against the applicant for which he has been convicted and sentenced by a court in Western Australia.
The Tribunal, in this case, is therefore not satisfied that the suspension of the applicant's driver's licence by the respondent under s 48(1)(d) of the RT Act is a sentence as contemplated under s 11(2) of the Sentencing Act.
The applicant has also submitted that police in Victoria and Western Australia advised him that the Victorian conviction would be of no consequence to his Western Australian driver's licence. The Tribunal notes there is no documentary proof that this advice was given.
Although unfortunate, it does not raise any new material which could justify an interference with the application of s 48(1)(d) of the RT Act. The offence which resulted in the suspension in Victoria had been committed, and the penalty imposed was a suspension. The applicant has not sought, in any way, to suggest that he did not commit the offence. Obviously, if the advice given by the Western Australia Police or the Victoria Police led the applicant to make no plea in mitigation in respect to the Victorian offence, he may have cause to complain about the advice he received, but this is of no relevance to the question of whether or not the respondent should have exercised its discretion in the manner it did. Further, it is not open for this Tribunal to look to whether any other penalty could have been imposed by the Victorian courts for the traffic convictions. This has been made clear in the decision of Commissioner of Police v Shane Robert Plumb, (Unreported, Supreme Court of WA; Library No 6009; 20 September 1985).
The applicant has also raised the issue that the Notice to suspend was served on him three months after the Victorian convictions were applied. This does appear to be the case. As soon as the respondent became aware of the applicant's Victorian convictions, it acted promptly. The respondent received information from the Victorian police on or about 13 June 2006. The Notice to suspend was thereafter served on the applicant on 18 July 2006. Section 48 of the RT Act does not impose a time limit - it simply allows a suspension where a person is debarred from driving in another State or Territory.
Finally, the applicant takes issue with the fact that the Notice was issued in the name of Travis Rollo Kean, whereas his middle name is Rolla. The applicant does not dispute the Victorian offence was committed by him. The incorrect spelling of his name is of no consequence. Further, s 55 of the Interpretation Act allows any administrative error to be corrected at any time.
The applicant has therefore not provided any proper basis to justify this Tribunal interfering with the decision of the respondent to suspend the applicant's licence on the basis that he has been debarred from driving in Victoria.
The Tribunal is therefore satisfied that the decision of the respondent in this case must be affirmed.

Order

The decision of the respondent to suspend the applicant's licence until 15 November 2006 is affirmed.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER