Lyon v Read [No 2]
[2012] WASC 123
•5 APRIL 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LYON -v- READ [No 2] [2012] WASC 123
CORAM: EM HEENAN J
HEARD: 27 MARCH 2012
DELIVERED : 27 MARCH 2012
PUBLISHED : 5 APRIL 2012
FILE NO/S: SJA 1061 of 2011
BETWEEN: CHRISTOPHER JOHN LYON
Appellant
AND
ROBERT STANLEY READ
NATHANIEL JOSEPH KETT
Respondents
ON APPEAL FROM:
For File No : SJA 1061 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V C EDWARDS
File No :MJ 77 of 2011, BU 1340 of 2011
Catchwords:
Correction of sentence - Driving a motor vehicle while subject to suspension - Periods of disqualification - Cumulative not concurrent - Effect of s 105(2) of the Sentencing Act and s 49(3)(c) of the Road Traffic Act
Legislation:
Sentencing Act 1995 (WA)
Road Traffic Act 1974 (WA)
Result:
Resentence recalled and corrected
Periods of suspension of driver's licence to be cumulative and not concurrent
Category: B
Representation:
Counsel:
Appellant: Mr D S Hunter
Respondents : Mr A K Sharpe
Solicitors:
Appellant: Legal Aid (WA)
Respondents : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Barnes v Cooper [2011] WASC 5
Hoad v Nationwide News (1997) 37 IPR 407
Lyon v Read [2012] WASC 96
Matthews v Whalley [2010] WASC 165
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Norman v Norman (1992) 6 WAR 372
EM HEENAN J: In granting leave to appeal and allowing these appeals in Lyon v Read [2012] WASC 96 on 21 March 2012 it became necessary to resentence the appellant for the two convictions following his pleas of guilty in the Magistrates Court at Bunbury where he was originally sentenced on 16 May 2011. Each resentence also involved the imposition of a further period of suspension or disqualification of the appellant from holding a motor driver's licence.
The resentencing and disqualifications following the appeal ordered on 21 March were:
(a)On charge MJ 77 of 2011:
(i)the appellant be sentenced to a period of 6 months plus 1 day of imprisonment to commence on 21 March 2012 but that that sentence of imprisonment should be wholly suspended for a period of 12 months commencing on 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 12 months commencing on 16 May 2011.
(b)On charge BU 1340 of 2011:
(i)the appellant be sentenced to a period of 4 months' imprisonment to be served concurrently with the term of imprisonment imposed under (a) above but such term of imprisonment take effect from 21 March 2012, but be wholly suspended for a period of 12 months dating from 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 9 months dating from 16 [sic] May 2011 such suspension to be concurrent with the period of suspension imposed under (a)(ii) above.
Following the delivery of that decision and the making of the orders counsel for the respondents sought to have the order relating to the second period of licence disqualification under (b)(ii) above recalled to correct what it was submitted was an order not in accordance with the Sentencing Act or the written law under which the offence is committed in that, as it was submitted, the periods of disqualification are required under the provisions of the written law, Road Traffic Act 1974 s 49(3), to be cumulative and not concurrent. Notice of the application was given to the respondents and the matter was relisted for hearing to deal with the submissions made in support.
As explained in my earlier reasons for decision in this case, Lyon v Read [2012] WASC 96 [79], the reason for ordering the terms of disqualification to be concurrent relied on s 105(2) of the Sentencing Act which provides that periods of disqualification should be concurrent unless the court orders that such term should be cumulative on other terms. Counsel for the respondent has submitted that disqualifications imposed in respect of offences for driving whilst under suspension contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act should be imposed under s 49 of that Act rather than s 105 of the Sentencing Act. In this respect, counsel for the respondent referred to the decision of Murray J in Matthews v Whalley [2010] WASC 165 where his Honour said [47] ‑ [48]:
… s 105(1) [of the Sentencing Act] provides a general power of disqualification from holding or obtaining a driver's licence when the court is sentencing an offender 'for a motor vehicle offence', as that term is defined in subs (5). As to that definition, it will be noticed that the types of offence may, and probably will be offences in respect of which the penalty provisions applicable upon conviction will not include an express power to order a motor driver's licence disqualification. This section provides a general power, but in my opinion, s 105(4)(a) makes it clear that s 105 does not have effect to qualify the ambit of a power, whether mandatory or not, provided to a sentencing court, to disqualify a person from holding or obtaining a driver's licence under the Road Traffic Act.
It would follow, in my view, that the way in which the power of disqualification must be exercised under s 105, cannot be applied directly to the interpretation of the provisions of the Road Traffic Act …
Counsel for the appellant accepted this contention and I must say, with respect, that upon this matter having been drawn to my attention I also accept and agree with the observations of Murray J in Matthews v Whalley. It follows from this that the resentencing which I ordered on 21 March was 'not in accordance with the Sentencing Act or the written law under which the offence was committed' ‑ Sentencing Act s 37. The question which then arises is whether the court can and should correct the resentencing in the events which have happened.
I am satisfied that this is a situation for which s 37 of the Sentencing Act is expressly apposite and that the court may recall the order imposing the resentence which was not in accordance with the Road Traffic Act and impose a sentence which is. Counsel for the respondent did not make any submissions to the contrary and submitted that that power did exist and could and should be exercised in this situation.
In the thorough and helpful written submissions prepared by counsel for the respondent it was submitted that such a power to correct an order existed independently of s 37 of the Sentencing Act by virtue of the powers of the court referred to in Norman v Norman (1992) 6 WAR 372, 374 ‑ 376 (Murray J) and pursuant to an inherent jurisdiction, quite apart from the slip rule, to rectify orders so as to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 522 (Malcolm CJ, Kennedy J agreeing). It was also submitted that prior to the perfection of a court's order a court may allow a party to reopen its case if an important point has not been the subject of full submissions: Hoad v Nationwide News (1997) 37 IPR 407, 409 (Anderson J) and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302 ‑ 304 (Mason CJ). In this present case, the question of whether disqualifications should be cumulative or concurrent and whether the choice was governed by s 105 of the Sentencing Act or by s 49 of the Road Traffic Act were not canvassed in any of the written or oral submissions at the original hearing. Counsel for the respondent also submitted, however, that the power of correction under s 37 of the Sentencing Act may not be available because a period of mandatory licence disqualification under the Road Traffic Act may not be a part of a 'sentence' imposed for the purposes of the Sentencing Act in reliance upon certain dicta of Jenkins J in Barnes v Cooper [2011] WASC 5 [74]. However, I accept the submissions of counsel for the respondent that there are distinguishing factors between the present case and the special situations which were being addressed by her Honour in Barnes v Cooper and that in the present cases where it was necessary for orders of disqualification to be pronounced by the court following the appellant's convictions for driving whilst under suspension, those orders were part of the sentences imposed and that when I resentenced the appellant for those offences following the success of his appeals the disqualification orders then pronounced became part of the resentences. It is to be noted that in the appeal against the second conviction this appellant directly appealed against the period of 15 months' disqualification imposed for that offence. There was no submission or contention that that order for disqualification was not a 'sentence' or could not be the subject of an appeal in the original proceedings and the appeal in that respect was allowed.
I am satisfied that the court has the power under s 37 of the Sentencing Act to recall the resentences pronounced on 21 March and to direct that they be served cumulatively in accordance with s 49(3) of the Road Traffic Act which I am satisfied applies. I am also satisfied that, independently of s 37 of the Sentencing Act that power exists and could be exercised under the inherent powers of the court which may be relied upon if, for any reason, s 37 did not apply. In this case, however, I am satisfied that there is a statutory power to recall that resentencing and to order that the periods of disqualification should be served cumulatively.
Accordingly, I ordered and directed that the appellant should have leave to apply to reopen this case in order to apply for the resentences pronounced on 21 March to 2012 to be rectified and that the periods of disqualification should be served cumulatively. In the result, the orders imposed on the appellant now after the completion of this process are:
(a)On charge MJ 77 of 2011:
(i)the appellant be sentenced to a period of 6 months plus 1 day of imprisonment to commence on 21 March 2012, but that sentence of imprisonment should be wholly suspended for a period of 12 months commencing on 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 12 months commencing on 16 May 2011.
(b)On charge BU 1340 of 2011:
(i)the appellant be sentenced to a period of 4 months' imprisonment to be served concurrently with the term of imprisonment imposed under (a) above but such term of imprisonment take effect from 21 March 2012, but be wholly suspended for a period of 12 months dating from 21 March 2012;
(ii)the appellant's motor driver's licence be suspended for a period of 9 months, such suspension to be cumulative upon the period of suspension imposed under (a)(ii) above.
0
8
2