KOOPU v Lakay - [2006] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KOOPU -v- LAKAY [2006] WASC 120

CORAM: MILLER J

HEARD: 22 JUNE 2006

DELIVERED : 22 JUNE 2006

FILE NO/S: SJA 1029 of 2006

BETWEEN: HOERA DAVID KOOPU
Appellant
AND
COURTNEY DONALD LAKAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR R K BLACK SM
File No  :PE 32321 of 2005

Catchwords:

Criminal law - Traffic - Driving whilst legally disentitled to hold driver's licence - Section 49(1)(a) and s 49(2)(a)(iii) of Road Traffic Act 1974 (WA) - Whether driver's licence suspended pursuant to licence suspension order under s 19 of Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) or whether driving whilst legally disentitled to hold driver's licence by reason of s 103 of the Road Traffic Act and reg 11 of the Road Traffic (Drivers Licences) Regulations 1975 (WA) - Whether Magistrate correct in dismissing the charge - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 3(2)(b), s 68
Fines Penalties and Infringement Notices Enforcement Act 1994 (WA), s 19, s 19(9), s 43
Road Traffic (Drivers Licences) Regulations 1975 (WA), reg 11, reg 12, reg 12A

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(2)(a)(iii), s 49(2)(a)(iv), s 49(3), s 103, s 103(1), s 103(1)(a), s 103(1)(b) s 103(4), s 103(4)(a), s 103(4)(b) s 103(4a)

Result:

Appeal allowed
Matter remitted to Magistrates Court for rehearing according to law

Category: B

Representation:

Counsel:

Appellant: Ms D E Quinlan
Respondent: No appearance

Solicitors:

Appellant: State Solicitor
Respondent: No appearance

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

Sevelj v Roffey (2002) 35 MVR 504

Case(s) also cited:

Nil

MILLER J: This is an appeal from a decision of Mr R K Black SM delivered in the Magistrates Court at Perth on 9 March 2006 when the learned Magistrate dismissed a charge of driving a motor vehicle without being the holder of the appropriate valid driver's licence and whilst legally disentitled to hold a driver's licence, which had been preferred by the appellant against the respondent.
The respondent had been charged with two offences which were alleged to have arisen on 16 November 2005 at Cottesloe in the State of Western Australia. The first was a charge of wilfully misleading a member of the Western Australian Police Force to which the respondent pleaded guilty and in respect of which he was fined. That conviction is not the subject of appeal.
The second charge was that on 16 November 2005 at Cottesloe the respondent drove a motor vehicle, namely a Toyota Sedan, registration number 8SS‑138 on a road, namely Marine Parade, without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to the provisions of s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA) ("the Road Traffic Act").
The facts read to the Court were that at 12.21 am on 16 November 2005, the respondent was stopped whilst driving his motor vehicle in Marine Parade, Cottesloe. Prior to checking his motor vehicle driver's licence he was asked whether he had a current valid Western Australian driver's licence and he declared that he did, but did not have the licence with him as it was home. A later check revealed his statement to be false. He was alleged to have been legally disentitled to hold a driver's licence.
The respondent's licence had first been suspended pursuant to a licence suspension order as provided in s 19 of the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) ("the Fines Enforcement Act"), by reason of the fact that between 22 June 2005 and 29 August 2005 the respondent had failed to pay fines imposed upon him under the Fines Enforcement Act.
On 8 July 2005, the respondent was served with a notice of disqualification from holding a driver's licence pursuant to s 103 of the Road Traffic Act and reg 11 of the Road Traffic (Drivers Licences) Regulations 1975 (WA) ("the Regulations"), reg 12 of which provided that the period of disqualification was three months.
The matter first came before the learned Magistrate on 30 November 2005 when the prosecutor outlined the facts. The learned Magistrate immediately responded to the statement of facts by suggesting that the respondent was on "fines suspension" but the prosecutor argued that he was on "demerit point suspension" by reason of the notice which had been served upon him. The learned Magistrate said "I am not happy with that" and "I am not prepared to impose penalties on that basis". His Honour indicated that he was happy to listen to argument on the subject and the matter was adjourned until 12 January 2006.
Eventually the case came on for hearing on 27 January 2006 and the prosecutor put forward his argument that the respondent was on demerit point disqualification at the relevant time. The learned Magistrate reserved his decision on the matter and on 13 February 2006, after referring to the decision in Sevelj v Roffey (2002) 35 MVR 504, concluded that the respondent had been incorrectly charged under s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act. In his view the proper and appropriate charge should have been pursuant to s 49(1)(a) and s 49(2)(a)(iv) of the Road Traffic Act. For these reasons he considered the charge inappropriate and asked the learned prosecutor what he wanted to do about it. The learned prosecutor then indicated that he had no choice but to amend the complaint. This could not be done in the absence of the respondent and the matter was adjourned to enable the respondent to be brought before the Court on a summons. This occurred on 9 March 2006. On that date the prosecutor indicated that he did not wish to amend the complaint and the learned Magistrate indicated that in those circumstances he would dismiss it. He proceeded to do so.
As the appellant points out on this appeal, the dismissal was in fact an acquittal within the meaning of s 3(2)(b) of the Criminal Procedure Act 2004 (WA). There is no such thing as a dismissal provided for in that Act. The word dismissal is used in s 68 of the Criminal Procedure Act 2004, but only in relation to dismissal of a charge for want of prosecution.
The appellant was granted leave to appeal on 20 April 2006 on the following grounds:
"The learned Magistrate erred in acquitting the Respondent of Charge No 05 32321 in that he erred in law:
(a)in finding that the Respondent was not under demerit point disqualification on 16 November 2005 and that, therefore, he was not a person to whom section 49(2)(a)(iii) of the Road Traffic Act 1974 (WA) applied; and
(b)in failing to find that, by operation of section 103(4) and section 103(4a) of the Road Traffic Act 1974 (WA), the Respondent's 3‑month demerit point disqualification, notice of which was served on the Respondent on 8 July 2005, commenced after the licence suspension order under the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) was cancelled on 29 August 2005 and that, therefore, on 16 November 2005, the Respondent was a person to whom section 49(2)(a)(iii) of the Road Traffic Act 1974 (WA) applied."
The factual background in relation to the respondent's motor vehicle driver's licence, as outlined to the learned Magistrate, was that the respondent incurred a licence suspension order under s 19 of the Fines Enforcement Act by reason of unpaid fines relating to three convictions on 22 June 2005, 5 July 2005 and 26 July 2005 respectively. They were charges 05/628534, 05/538890 and 05/874481. The period of suspension began on 22 June 2005, 5 July 2005 and 26 July 2005 at 17.30 hours in relation to each of the respective charges and it expired on the same time on the same day for each. That date was 29 August 2005 at 14.00 hours. The certified copy of recorded fines suspensions of the respondent appears to have been before the learned Magistrate, and was before this Court.
Section 19 of the Fines Enforcement Act provides that the Registrar of the Fines Enforcement Registry may make a licence suspension order in certain circumstances, and there is no question that in this case a valid order was made.
On 8 July 2005, the respondent was served with a notice of disqualification from holding a driver's licence pursuant to s 103 of the Road Traffic Act. That section provides that, subject to various subsections, the Governor may make regulations providing for a prescribed number of points to be recorded against every person convicted of any offence against the Act prescribed for the purposes of s 103 and upon the points recorded pursuant to the regulations amounting to the prescribed aggregate, the person shall be disqualified from holding or obtaining a driver's licence for a period not exceeding three months.
The Regulations were made pursuant to the power given in s 103 of the Road Traffic Act. Regulation 11 of the Regulations provides that for the purposes of s 103(1) of the Road Traffic Act, the prescribed aggregate of points recorded against a person that will occasion his driver's licence to be suspended and occasion him to be disqualified from holding or obtaining a driver's licence, by operation of that section, is 12. Regulation 12 provides that for the purposes of s 103(1) of the Road Traffic Act the period for which a person's driver's licence is suspended and for which he is disqualified from holding or obtaining such a licence, upon the points recorded against him amounting to 12, is three months. Regulation 12A requires that a person be served personally or by mail (apparently registered mail) with a notice of disqualification.
In the present case the respondent was served on 8 July 2005 with a notice of disqualification for a period of three months. The appellant argues that the period of disqualification, pursuant to the notice so served, did not commence until his licence suspension order under the Fines Enforcement Act was cancelled on 29 August 2005. The appellant thus contends that the respondent was correctly charged under s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act, which provides that every person who drives a motor vehicle of a class for which he is not the holder of the appropriate valid driver's licence on a road commits an offence and where a person having been disqualified from holding or obtaining a driver's licence, other than a licence suspension order, commits, whilst legally disentitled to hold a driver's licence, an offence against s 49(1)(a), that person may be arrested without warrant and is liable to the penalties provided in s 49(3) of the Road Traffic Act.
The learned Magistrate's view of the matter was that the charge should have been preferred under s 49(2)(a)(iv) which provides that where a person having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under s 19 or s 43 of the Fines Enforcement Act commits, whilst legally disentitled to hold a driver's licence an offence against s 49(1)(a), that person may be arrested without warrant and is liable to the penalties provided under s 49(3) of the Road Traffic Act.
The appellant contends that the decision in Sevelj v Roffey (supra) supports its contention that the respondent's disqualification arose upon the service on him of a notice of disqualification and not at the time at which he accumulated 12 demerit points.
Section 103 of the Road Traffic Act is prefaced in s 103(1) with the word "Subject to the succeeding provisions of this section". The appellant argues that the effect of these words, in conjunction with s 103(4) is that disqualification from holding or obtaining a driver's licence does not arise immediately upon the accumulation of 12 demerit points being recorded against a person, but only when notice of disqualification has been served on that person. This seems abundantly clear from the provision of s 103(4)(a).
The appellant argues that although s 103(1) provides that regulations may be made (as they have been) to the effect that upon points recorded against a person amounting to the prescribed aggregate (12), the person shall be disqualified from holding or obtaining a driver's licence for a period not exceeding three months, that provision is to be read subject to the provision of s 103(4). With this submission I agree. Section 103(1) does begin with the words "Subject to the succeeding provision of this section". The disqualification provided for under s 103(1)(a) and s 103(1)(b) is therefore subject to notice of disqualification being served under s 103(4) of the Road Traffic Act.
The appellant points out that the learned Magistrate construed the provisions of the Road Traffic Act and the Regulations as having the effect that immediately upon a person accumulating 12 demerit points he was disqualified from holding a motor vehicle driver's licence. That would be correct if s 103(1)(a) and s 103(1)(b) of the Road Traffic Act stood alone and without the opening words "Subject to the succeeding provisions of this section". I accept that s 103(4)(a) has the clear effect that disqualification of licence does not take effect until notice of disqualification has been served on the person concerned, irrespective of the fact that he may have accumulated 12 demerit points.
It is clear that the effect of s 103(1) when read with s 103(4) of the Road Traffic Act is that disqualification does not arise immediately upon the accumulation by a person of 12 demerit points, but rather only when notice has been served pursuant to s 103(4). The learned Magistrate was thus in error in concluding in this case that the disqualification of the respondent had occurred immediately upon the 12 demerit points being recorded against him.
The learned Magistrate also appears to have concluded that the demerit point disqualification displaced the fines suspension from the date of service of the disqualification until the period of disqualification had ended.
I accept the appellant's submission that under s 19(9) of the Fines Enforcement Act a licence suspension order takes effect on the date and at the time specified in the order; is enforced from the time it takes effect to the time when it is cancelled; and is concurrent with any other period for which the alleged offender is disqualified from holding or obtaining a driver's licence. It does not therefore appear that it can be displaced as the learned Magistrate found.
I accept the argument of the appellant that s 103(4)(a) of the Road Traffic Act has the effect that a period of disqualification does not commence until any existing licence suspension order has either been cancelled or has ended. Section 103(4)(a) and s 103(4)(b) of the Road Traffic Act are "subject to this Act" and therefore are subject to s 103(4a). That section reads as follows:
"(4a)Where under this or any other Act a person –
(a)is or becomes disqualified from holding or obtaining a driver's licence or has the operation of his driver's licence suspended; and
(b)pursuant to this section becomes subject to a further period of disqualification.
the further period of disqualification to which he becomes subject shall be cumulative upon any earlier period of disqualification to which he is or becomes subject or upon any period for which the operation of his driver's licence is or may be suspended."
A plain reading of s 103(4a) therefore is that when a person has had his licence suspended under the Fines Enforcement Act, but pursuant to s 103(4) has become subject to a further period of disqualification, that further period of disqualification is cumulative upon any earlier period for which the operation of this driver's licence is suspended.
The result is that in the present case the period of disqualification of three months, notice of which was served pursuant to s 103(4) on 8 July 2005, did not commence until 29 August 2005 when the licence suspension order was cancelled.
The respondent was thus correctly charged with an offence under s 49(1)(a) and s 49(2)(a)(iii), namely driving a motor vehicle whilst not being the holder of an appropriate valid driver's licence because of disqualification from holding or obtaining a driver's licence otherwise than under a licence suspension order.
In my view it is unnecessary to deal in detail with the reasoning of McLure J in Sevelj v Roffey (supra). The decision is consistent with my interpretation of the relevant sections of the Road Traffic Act.
I therefore consider that the grounds of appeal, which contend that the learned Magistrate erred in acquitting the respondent of the charge preferred under s 49(2)(a)(iii) of the Road Traffic Act, are made out. On 16 November 2005 when the respondent was apprehended in Marine Parade, Cottesloe he was a person under disqualification of licence pursuant to the provisions of s 103(4) and s 103(4a) of the Road Traffic Act because his three month demerit point disqualification commenced after his licence suspension order under the Fines Enforcement Act was cancelled on 29 August 2005. The 16 November 2005 was within that three month period.
I would therefore allow this appeal, quash the decision of the learned Magistrate acquitting the respondent and remit the matter to the learned Magistrate for determination according to these reasons.