Magro v Police No. Scgrg-97-1538 Judgment No. S6480

[1997] SASC 6480

MAGRO  v  POLICE

Perry J  (ex tempore)

The appellant appeals against the penalties imposed upon him in the Magistrates Court sitting at Waikerie to a number of charges following his apprehension while driving a semitrailer on 24 July 1997 near Yamba.

On one complaint he pleaded guilty to possessing amphetamine contrary to s31(1)(a) of the Controlled Substances Act 1984; driving a motor vehicle whose gross vehicle mass exceeded four tonnes at a speed in excess of 100 kilometres an hour, namely, at a speed of 122 kilometres per hour, contrary s53 of the Road Traffic Act 1961; and having made a false entry in logbook contrary to s6 of the Commercial Motor Vehicles (Hours of Driving) Act 1973.

Following his plea of guilty to those three counts, separate counts on the same complaint, of having in his possession Ephedrine and driving a motor vehicle which did not comply with regulations for limiting the speed of it, were withdrawn.

The appellant pleaded guilty to a separate complaint which alleged one count only, namely, that on the same occasion the appellant had in his possession a prescription drug, namely, Ephedrine, which had not been lawfully prescribed or supplied, contrary to s18(3) of the Controlled Substances Act 1984.

The learned sentencing Magistrate imposed fines as to each of the counts, namely, for possession of amphetamine, $500; for speeding, $150; for making the false entry in the logbook, $200; and for possessing Ephedrine, $500.  The learned sentencing Magistrate proceeded to disqualify the appellant from holding or obtaining a driver's licence for a period of twelve months.  He did so at the conclusion of his remarks on penalty, which related to both complaints.

Two separate appeals were lodged in this court, one with respect to the penalty imposed on the Ephedrine count, and a separate notice of appeal with respect to the complaint which alleged the other counts.

The appeal relating to the complaint which alleged multiple counts was abandoned at the outset of the hearing before me.  In the result, an appeal proceeds only with respect to the sentence imposed on the Ephedrine count.

In his sentencing remarks the learned sentencing Magistrate, after pronouncing the fines, went on to say:

“Pursuant to s170 of the Road Traffic Act, the defendant is disqualified from holding or obtaining a driver's licence for a period of 12 months from 12.01 am., 1 November 1997.”

It should be noted that he did not indicate whether or not the sentence of disqualification was imposed on one or other, or all, of the convictions which he had recorded.

However, when it came to endorsing the sentences which he had pronounced, including his order for licence disqualification, the order for disqualification was endorsed on the complaint alleging the Ephedrine count only, and does not appear on the other complaint.

Mr Kerin, who appeared for the appellant, indicated that the only appeal which was proceeding, that is, the appeal on the Ephedrine count, was against the disqualification only and not against the fine.

He went on to argue that a licence disqualification could not be imposed with respect to the Ephedrine count, whether it was imposed pursuant to s170 or s168 of the Road Traffic Act. I mention the latter section because in the endorsement on the back of the complaint relating to the Ephedrine count and just before the order for disqualification is recorded, appears “S168 MVA”. This indicates an intention on someone's part to record that the disqualification was being imposed pursuant to that section of the Motor Vehicles Act.

That is a reference to the wrong Act, anyway.  The only relevant section giving a power to suspend and which is numbered 168 is in the Road Traffic Act.

Be that as it may, Ms Paulson for the respondent quite properly conceded that the Ephedrine count and the conviction upon it could not sustain an order for disqualification in the circumstances of this case, as there was no relevant use of a motor vehicle in connection with the possession of the Ephedrine.

Ms Paulson argued that having regard to the terms of the sentencing remarks, the learned sentencing Magistrate must be taken to have intended that the licence disqualification be imposed as a global penalty with respect to all of the convictions which he had recorded.  But I am unable to say what his intention might have been.  I am bound by the terms upon which the various orders have been recorded on the complaints and signed by him.  Magistrates Courts do not seal orders and the record of any order is the endorsement of the outcome on the complaint as signed by the Magistrate. In the particular circumstances of this case, I am bound by the record of the court as it appears on the complaints.

That record ties the order for disqualification only to the Ephedrine count.  In those circumstances, given the concession quite properly made by Ms Paulson, the order for disqualification cannot be sustained.

I allow the appeal with respect to the Ephedrine count and quash the order for disqualification.  The other orders pronounced following the conviction on that count, and in particular the order for payment of the fine and costs, will remain in full force and effect.

Ms Paulson has foreshadowed that a separate application may now be brought in the Magistrates Court for a disqualification to be pronounced under s170 on the basis of the convictions recorded on the other complaint.

While noting her intimation to that effect, that aspect of the matter does not call for either decision or comment by me.

As I have indicated, the appeal against the Ephedrine count is allowed in the terms which I have indicated.

There is no order as to costs.