Licciardello v McPherson

[2012] ACTSC 31

ALFIO LICCIARDELLO v CRAIG MCPHERSON
[2012] ACTSC 31 (13 February 2012)

CRIMINAL LAW – appeal against conviction where plea of guilty – appeal by rehearing – driver licence suspension – driver licence disqualification – offence unable to be proved – facts may have sustained different offence – R v Forde [1923] 2 KB 400 applied – convictions and sentence set aside

Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, ss 207, 208(1), 214
Road Transport (Driver Licensing) Act 1999 (ACT), ss 31, 32, 41
Motor Traffic Act 1936 (ACT)
Legislation Act 2001 (ACT), s 192(2)

Campbell v Fortey (1987) 24 A Crim R 386
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Travini v Starczewski (2009) 169 ACTR 1
R v Forde [1923] 2 KB 400
R v Coffey (2003) 6 VR 543
DPP v Greene (2003) 58 NSWLR 252
Wade v Evans (2003) 180 FLR 290
Lynch v Hargrave [1971] VR 99

EX TEMPORE JUDGMENT

ON APPEAL FROM A MAGISTRATE OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 85 of 2010

Judge:             Refshauge J
Supreme Court of the ACT

Date:              13 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 85 of 2011
AUSTRALIAN CAPITAL TERRITORY           ) 

ON APPEAL FROM A MAGISTRATE OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ALFIO LICCIARDELLO

Appellant

AND:CRAIG MCPHERSON

Respondent

ORDER

Judge:  Refshauge J
Date:  13 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The conviction and sentence imposed in the Magistrates Court on 11 October 2006 for the charge of driving whilst Mr Licciardello’s driver licence was suspended be set aside.

1. The disqualification from obtaining or holding a driver licence for two years made on 11 October 2006 be set aside.

1. The conviction and sentence imposed on 22 June 2007 for driving whilst disqualified from obtaining or holding a licence for two years from that date be set aside.

1. The breach of the Good Behaviour Order made on 11 October 2006 (incorrectly stated in the record as a breach of the recognizance), and the resentencing that was occasioned on that case be set aside.

1. The convictions and sentence imposed, on 8 November 2007, for driving whilst disqualified from obtaining or holding a licence, including the disqualification from holding and obtaining a licence for two years cumulative upon the earlier disqualification (set aside above) be set aside.

1. The finding of breach of Good Behaviour Order and the resentencing for that Good Behaviour Order on 8 November 2007 be set aside.

AND THE COURT DECLARES THAT:

1. Mr Licciardello’s licence suspension on 11 May 1990 ended when his licence expired on 6 July 1994, and as at 13 February 2012, Mr Licciardello is neither a person whose driver licence has been suspended nor a person whose driver licence has been disqualified.

1. In this unusual appeal, the appellant, Alfio Licciardello, seeks to appeal against three convictions and sentences;  the first entered and imposed on 11 October 2006.  Although he is well outside the time during which such an appeal could ordinarily be brought, he has secured leave to appeal by order of Master Harper made on 7 October 2011.

1. The other two sentences involved similar offences to the offence for which the 2006 sentence was imposed and, as a consequence, need to be revisited.  The situation is relatively straightforward, though there are some complications, especially in how the results of the appeal should be ordered.

Appeal from the Magistrates Court. 

1. Part 3.10 of the Magistrates Court Act 1930 (ACT) (the Act) regulates appeals to the Supreme Court from decisions of a Magistrate, being, of course, a decision of the Magistrates Court. Section 207 of the Act gives this court jurisdiction to entertain appeals to which, relevantly, div 3.10.2 applies. This is now an appeal under s 208(1)(b) of the Act, which occurs in div 3.10.2.

1. Although the sentences are also challenged, if the convictions are set aside then the sentences also fall. Section 214 sets out the provisions relating to such appeals; it is not necessary for me to set out that section in full here.

1. Such an appeal is by way of a rehearing:  Campbell v Fortey (1987) 24 A Crim R 386 at 388–90. An appeal by way of rehearing, as I said in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78],

is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.

1. In effect, Mr Licciardello is appealing against convictions and sentences imposed when he pleaded guilty.  A person who pleads guilty in the Magistrates Court may appeal against the conviction.  I set out the authorities from the United Kingdom and each State and Territory in Australia in Travini v Starczewski (2009) 169 ACTR 1 at 9; [38].

1. The courts have followed what Avory J said in R v Forde [1923] 2 KB 400 at 403, where his Lordship said:

A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.

1. In R v Coffey (2003) 6 VR 543 at 545–6, the Victorian Court of Appeal added to that:

Those alternatives have not, in this State, been regarded as exhaustive.  The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice. ... There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.

1. In this case, the second alternative in R v Forde is what Mr Licciardello pleads:  namely that he could not have been convicted of the offence as to which he pleaded guilty.

The facts

1. The facts are that Mr Licciardello had a driver licence which was suspended for fine default on 11 May 1990.  He did not pay all those fines and the suspension was never lifted, but his licence expired on 6 July 1994.  Thereafter he was unlicensed, but his licence was no longer suspended.

1. On 12 June 2006 he drove along Southern Cross Drive and was intercepted by police, who had measured his speed on a radar speed measuring instrument at 79 kilometres per hour in a 60 kilometre per hour speed zone, so he was speeding in excess of the speed limit. When he was spoken to, he admitted that he did not have a licence, as it was suspended for unpaid fines. He was then charged with driving whilst his licence was suspended, an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act).

1. When he appeared in court he pleaded guilty.  The learned Magistrate accepted the plea and proceeded to sentence.  His Honour, having heard the total amount of the fines owed by Mr Licciardello, remarked, “I can’t see much point in loading him up with more fines”, and released him on a Good Behaviour Order for twelve months.  He also disqualified Mr Licciardello from holding or obtaining a licence for two years. 

The offence

1. The offence, however, could not be proved for as at 12 June 2006 Mr Licciardello was not a driver whose licence had been suspended as the section provides. He was simply a person who was not the holder of a licence and who had driven; a different offence under s 31 of the Driver Licensing Act.

1. I adopt the reasoning of James J in DPP v Greene (2003) 58 NSWLR 252, where his Honour said (at 256):

I see no absurdity, or even difficulty, in saying of a licence which has been cancelled that, if it had not been cancelled, it would have expired on a particular date, being the date recorded in the driver licence register as the licence expiry date. If before the licence expiry date the licence is cancelled, then for the remainder of the period up to the licence expiry date recorded in the driver licence register the person who held the licence can appropriately be described as a person ‘whose driver licence is cancelled’ and section 25A(3) of the Road Transport (Driver Licensing) Act can be applicable. However, after the licence expiry date, being the date on which the licence would in any event have ceased to have effect, the person who held the cancelled licence can no longer appropriately be described as ‘a person whose driver licence is cancelled’ and section 25A(3) can no longer be applicable. After the licence expiry date the person who held the licence is simply an unlicensed driver.

While the terms are slightly different, it seems to me that this is precisely applicable here. 

1. Further, the two offences, driving whilst disqualified and driving while an unlicensed driver, are different offences.  Following Wade v Evans (2003) 180 FLR 290, that must be so. An amendment of one to the other, despite their similarities and the substratum of similarity or equivalence between the two, cannot be permitted even were it possible to do so after this long distance from the hearings: Wade v Evans at 293. That might be said to be a lacuna in the law and I note that s 41 of the Driver Licensing Act provides that a suspension survives the expiry of a licence and deems the licence to be suspended after expiry until the suspended period itself expires.  That provision, however, only became a law of the Territory on 1 March 2000 and was not in force on 11 May 1990.  There was no such provision in the Motor Traffic Act 1936 (ACT), which was in force as at 6 July 1994, when his licence expired.

1. Mr Licciardello could not have been convicted of the offence under s 32(2)(a) of the Driver Licensing Act, though he may have been able to be convicted of a different offence.  That is the basis on which, under the rubric in R v Forde, he has applied.

1. I do not have to decide the latter, whether he could have been convicted of another offence, but the former means that the conviction and sentence in that matter must be set aside.  I do so.  That also requires the disqualification then entered to be set aside.

The later offences

1. The other two offences arose from Mr Licciardello’s driving on 26 March 2007 on Yamba Drive, Garran, and then on 12 August 2007 on Monaro Highway, Hume. He appeared in both cases before the Magistrates Court charged with an offence under s 32(1)(a) of the Driver Licensing Act, namely, driving whilst disqualified; the disqualification having been that imposed on 11 October 2006.

1. In this case, that offence would have been made good had the disqualification made for the offence of which he was convicted on 11 October 2006 stood.  As, however, it had to be set aside (as noted above), there was no disqualification that he had breached by his driving on 26 March and 12 August 2007.  See Lynch v Hargrave [1971] VR 99.

1. Accordingly, convictions and sentences for the charges of driving whilst disqualified on 26 March and 12 August 2007 will also have to be set aside, including the disqualifications. 

1. Whether appropriate charges can still be laid is problematic. The penalty for an offence of driving without a licence is a 20 penalty unit fine; at the time, a fine of $2000. Under s 192(2) of the Legislation Act 2001 (ACT), an offence alleged to have been committed by an individual and punishable by any penalty other than imprisonment for longer than six months must be commenced not later than one year after the day of commission of the offence. This is, however, not a matter on which I have to decide.

1. I note that Mr Licciardello has now served the sentences that were imposed and in any event it would not be in the public interest to prosecute him for those matters. 

Conclusion

1. Accordingly, I will make the following orders: 

1.I uphold the appeal.

2.I set aside the conviction and sentence imposed in the Magistrates Court on 11 October 2006 for the charge of driving whilst Mr Licciardello’s driver licence was suspended.

3.I set aside the disqualification from obtaining or holding a driver licence for two years made on 11 October 2006.

4.I set aside the conviction and sentence imposed on 22 June 2007 for driving whilst disqualified from obtaining or holding a licence for two years from that date. 

5.I set aside what is stated in his record to be a breach of the recognizance, though it is in fact a breach of the Good Behaviour Order made on 11 October 2006, and the resentencing that was occasioned on that case.

6.I set aside the convictions and sentence imposed, on 8 November 2007, for driving whilst disqualified from obtaining or holding a licence, including the disqualification from holding and obtaining a licence for two years cumulative upon the earlier disqualification, which I have set aside.

7.I set aside the finding of breach of Good Behaviour Order and the resentencing for that Good Behaviour Order on 8 November 2007. 

8.I declare that Mr Licciardello’s licence suspension on 11 May 1990 ended when his licence expired on 6 July 1994, and as at 13 February 2012, Mr Licciardello is neither a person whose driver licence has been suspended nor a person whose driver licence has been disqualified.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:                  1 March 2012             

Counsel for the appellant:  Mr P Edmonds
Solicitor for appellant:  Paul Edmonds and Associates
Counsel for the respondent:   Mr T Jackson
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  13 February 2012
Date of judgment:  13 February 2012