Matheson v Director of Public Prosecutions (NSW)

[2008] NSWSC 550

Reported Decision: 185 A Crim R 83

New South Wales

Supreme Court

CITATION:	Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550
HEARING DATE(S):	26 May 2008
JUDGMENT DATE :	5 June 2008
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Appeal against conviction is dismissed. 2. Appeal against sentence allowed and the sentence, fine and costs order imposed in the Nyngan Local Court quashed. 3. In lieu thereof, an order is made under s.10(1)(a) Crimes (Sentencing Procedure) Act 1999 that, without proceeding to conviction, the charge under s.18(1) Road Transport (Vehicle Registration) Act 1997 is dismissed. 4. No order as to costs.
CATCHWORDS:	ROAD TRANSPORT - offence of using unregistered registrable vehicle on road or road-related area - whether vehicle was a pedal cycle to which was attached auxiliary propulsion motor or motors having combined maximum power output not exceeding 200 watts - finding by Magistrate that vehicle was primarily a motor cycle with foot pedals as secondary means of propulsion - appeal against conviction on question of law - meaning of "auxiliary" - finding open to Magistrate - no error of law - appeal against conviction dismissed - SENTENCING - Magistrate excludes consideration of s.10 Crimes (Sentencing Procedure) Act 1999 because of plea of not guilty - error of law established - sentence varied
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Road Transport (Vehicle Registration) Act 1997 Road Transport (Vehicle Registration) Regulation 1998 Road Transport (Vehicle Registration) Regulation 2007 Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Proudman v Dayman (1941) 67 CLR 536 Von Lieven v Stewart (1990) 21 NSWLR 52 Ostrowski v Palmer [2004] 218 CLR 493 Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 Beckwith v The Queen (1976) 135 CLR 569 Acuthan v Coates (1986) 6 NSWLR 472 Director of Public Prosecutions v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Siganto v The Queen (1998) 194 CLR 656 R v Thomson and Houlton (2000) 49 NSWLR 383
TEXTS CITED:	Pearce and Geddes, “Statutory Interpretation in Australia”, 6th edn, 2006
PARTIES:	Deborah Alicia Matheson (Plaintiff) Director of Public Prosecutions (NSW) (Defendant)
FILE NUMBER(S):	SC 2008/11098
COUNSEL:	Ms S Norton SC; Mr M Preece (Plaintiff) Ms A Mitchelmore (Defendant)
SOLICITORS:	Patey & Murphy (Plaintiff) SC Kavanagh - DPP (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	---
LOWER COURT JUDICIAL OFFICER :	Magistrate R Maiden
LOWER COURT DATE OF DECISION:	28 February 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

5 June 2008

11098/08 Deborah Alicia Matheson v Director of Public Prosecutions (NSW)

JUDGMENT

1 JOHNSON J: The Plaintiff, Deborah Alicia Matheson, appeals under s.52 Crimes (Appeal and Review) Act 2001 from her conviction at the Nyngan Local Court on 28 February 2008 for an offence of using an unregistered registrable motor vehicle contrary to s.18(1) Road Transport (Vehicle Registration) Act 1997. Following conviction, the Plaintiff was fined the sum of $500.00 together with court costs of $70.00.

2 An appeal under s.52(1) may be brought only on a ground that involves a question of law alone. The Plaintiff contends that the learned Magistrate erred in law with respect to both conviction and sentence.

The Local Court Hearing

3 Oral and documentary (including photographic) evidence was adduced in the Local Court. There was no factual dispute and the evidence may be recounted shortly.

4 At about 5.30 pm on Thursday, 10 May 2007, Senior Constable Fleming and Constable Davy were conducting a foot patrol in Tabratong Street, Nyngan. The Plaintiff was observed riding what police described as a yellow motorbike from the intersection of Pangee Street and Tabratong Street. She was wearing a pushbike helmet. Her vehicle was travelling at around 30 kms per hour under its own power. She did not have her feet on the foot pedals.

5 Senior Constable Fleming described the vehicle as an “E Bike”. It was fitted with a front clear headlight and red tail light with a small luggage compartment attached to the rear. Two foot pedals protruded from the sides of the bike. There was no registration plate or sticker on the vehicle.

6 Constable Davy observed that, from a distance, the vehicle looked “exactly like a petrol powered scooter, although a little smaller in width and height”.

7 Senior Constable Fleming motioned the Plaintiff to pull over and a conversation ensued in which the Plaintiff said that the vehicle was a “push bike” with pedals and that she had been informed by the Roads & Traffic Authority (“RTA”) that it was not necessary that the vehicle be registered nor that she have a motor cycle rider’s licence.

8 Police observed the Plaintiff ride away along Tabratong Street. At no time did the Plaintiff use the foot pedals and the Plaintiff accelerated to an estimated speed of 30 kms per hour within 30 metres and then turned left onto Bogan Street.

9 The Plaintiff gave evidence that she attended the Nyngan Ag Expo in about August or September 2006 and observed cycles displayed at a stand. An adjacent advertising sign stated that no licence was required to ride the cycle on sale. The Plaintiff said that she purchased the cycle and rode it usually to travel to work in Nyngan. She said that conversations she had with RTA personnel led her to believe that it was legal to use the cycle without a licence or registration because its electric engine did not exceed 200 watts.

10 The Plaintiff said that the cycle had pedals similar to an ordinary pushbike and that it was possible to use either the electric power or the pedals. She was asked in evidence in chief (T13-14, 28 February 2008):

“Q. And have you ridden it using the pedals?
A. Yes I have.
Q. Could you tell us under what circumstances you would have used it without the power?
A. Well usually if the battery is - because it’s operated by two batteries if they run low usually there’s not a great deal of power so you use your pedals to get you from A to B.
Q. So it would be possible to continue to use the bicycle indefinitely without the use of the electric power at all?
A. Yes it could be.
Q. And how would you describe the [sic] if I could put it this way the strength of the amount of power that you get from the electric motor - the auxiliary motor?
A. It’s not very powerful I suppose I probably might get up to 27, 30 kilometres an hour I really don’t know but I - it wouldn’t be any faster than that.
Q. And I presume that Nyngan being flat terrain you’ve never tried to climb hills with it?
A. No I think you’d struggle a bit.”

11 The Plaintiff said that her reasons for purchasing the vehicle included fuel efficiency and the fact that no licence was needed. She probably would not have purchased the vehicle if it had been necessary to register it (T14).

12 In cross-examination, the Plaintiff was asked (T14):

“Q. And M’am just clarify, that you said that you - when the battery goes low that’s when you would use the pedals?
A. Yes that’s right.
Q. So be fair to say that the pedals are in fact a back up to the motor?
A. Yeah you can use either way whatever yeah.”

13 A photograph of an Eazyride KHS model cycle was tendered at the Local Court hearing together with a list of its specifications (Exhibit 3). It was accepted as a fair representation of the Plaintiff’s vehicle. The specifications included the following:

- Wheel size: 18 inch

- Loading: 150 kg

- Seat above ground: 76 cm

- Nett weight (no battery): 32 kg
- Weight of battery: 26 kg
- Gross weight: 70 kg
- Run distance: 80-100 km
- Motor power: 200W, CPU motor
- Climbing angle: 15 degrees
- Speed: 22-32 km/h
- Charge time: 3-8 hours

14 At the hearing of the appeal, the photograph depicted below was accepted as an accurate representation of the type of vehicle which is the subject of the appeal:

The Magistrate’s Decision

15 Following addresses (which were not transcribed) and a short adjournment, the learned Magistrate gave ex tempore reasons for finding the offence proved. His Honour observed that the facts were extremely narrow and not in dispute. The Plaintiff’s legal representative had raised two issues at the hearing - firstly, whether the vehicle was exempt by virtue of Clause 15 of Schedule 1 Road Transport (Vehicle Registration) Regulation 1998 and, secondly, whether the Plaintiff had raised an honest and reasonable mistake of fact which had not been negatived by the prosecution in accordance with the principles in Proudman v Dayman (1941) 67 CLR 536.

16 After reciting Clause 15 of Schedule 1, his Honour said (T15.41):

“From the picture of an identical bike but not the same one, as identified by the accused, as contained in Exhibit 3, the details set out in that exhibit and the evidence of the accused I am satisfied that this is indeed a bike, which is intended to be used by way of the engine providing the propulsion. The pedals are secondary and it is my view that the pedals have been placed on the bike with a view to the bike then being marketed as not requiring registration. I am of the view that the motor is not an auxiliary propulsion motor. The motor is the primary and most often if not on all occasions, the sole means of propulsion. I am of the view that this vehicle is clearly one that requires registration.”

17 His Honour then turned to the Proudman v Dayman issue and concluded that reliance by the Plaintiff on matters put to her by the retailer and others including RTA persons, could give rise to a mistake in law, but not a mistake in fact.

18 Accordingly, the offence was found proved.

19 The prosecutor then tendered the Plaintiff’s traffic record and said “I don’t wish to be heard if your Honour wants to take a particular course which my friend suggested earlier” (T16.20). I take this to be a reference to disposal of the charge by way of an order, without proceeding to conviction, under s.10 Crimes (Sentencing Procedure) Act 1999. The following then ensued (T16.24):

“HIS HONOUR: If I took a particular course Sergeant I would fall foul of the proposition that there is no discount.
PROSECUTOR: That is correct sir.
COUNSEL ADDRESSED ON PENALTY
HIS HONOUR: You have put that very appropriately Mr McKay, I am of the view that I am entitled to have regard to the fact that this was not on her part a wilful and flagrant disobedience, she did not ride the thing knowing at all times at the time that it was a vehicle that should have been registered and that is a different matter altogether to someone in her position.
Nevertheless, the matter having been set for a hearing and the hearing having proceeded, there is no discount available and in those circumstances I am not of the view that I can dismiss the matter under section 10. Having regard to however the matters to which I have just referred I am prepared to reduce the fine.”

20 As mentioned earlier, the Plaintiff was fined the sum of $500.00 with court costs of $70.00. The maximum penalty was a fine of 20 penalty units ($2,200.00).

Grounds of Appeal

21 By an Amended Summons filed 26 May 2008, the Plaintiff relied on three grounds of appeal:

Ground 1 - that the learned Magistrate erred in law in holding that Clause 15 of Schedule 1 Road Transport (Vehicle Registration) Regulation 1998 did not apply to the Plaintiff’s cycle;

Ground 2 - alternatively, that the learned Magistrate erred in law in holding that the Plaintiff was not entitled to rely on the defence propounded in Proudman v Dayman ;

Ground 3 - alternatively, that the learned Magistrate erred in law in holding that the Plaintiff was not entitled to an order under s.10 Crimes (Sentencing Procedure) Act 1999 .

Provisions in Road Transport Legislation Concerning Registrable Vehicles

22 Section 18(1) Road Transport (Vehicle Registration) Act 1997 prohibits the use of an unregistered registrable vehicle on a road or road-related area. It was not in issue in this case that the Plaintiff was using an unregistered vehicle on a road or road-related area. The critical question here was whether the vehicle was a “registrable vehicle”.

23 The term “vehicle” is defined in s.4 Road Transport (Vehicle Registration) Act 1997 to mean:

“(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b) any other vehicle prescribed by the regulations.”

24 The term “motor vehicle” is defined in s.4 to mean “a vehicle that is built to be propelled by a motor that forms part of the vehicle”.

25 The term “registrable vehicle” is defined by s.4 to mean:

“(a) any heavy vehicle or other motor vehicle, or

(b) any trailer, or

(c) any other vehicle prescribed by the regulations for the purposes of this definition.”

26 Section 16(1) Road Transport (Vehicle Registration) Act 1997 states that the regulations may provide that the Act does not apply to a registrable vehicle, or registrable vehicles of a kind, identified in the regulations.

27 As at 10 May 2007, the Roads Transport (Vehicle Registration) Regulation 1998 was in force. That Regulation was repealed on 1 November 2007 and replaced by the Road Transport (Vehicle Registration) Regulation 2007.

28 Clause 4 Road Transport (Vehicle Registration) Regulation 1998 gave effect to the provisions contained in Schedule 1 to the Regulation. Clause 3 of Schedule 1 provided:

“3 Application of section 18 of Act to Part 2 vehicles

(1) The use of a vehicle to which the registration provisions do not apply by reason of any provision of Part 2 is permitted under this Regulation for the purposes of section 18 (2) (b) of the Act, but only while those provisions do not apply to the vehicle.

(2) Without limiting subclause (1), the use of a vehicle ceases to be permitted under this Regulation for the purposes of section 18 (2) (b) of the Act if at any time the registration provisions become applicable to the vehicle because the vehicle does not comply with an applicable condition or requirement of Part 2.”

29 The term “registration provisions” is defined in Clause 1 of Schedule 1 to mean “the provisions of this Regulation concerning the registration of registrable vehicles (including the issue and use of number-plates and the use of unregistered vehicles)”. Part 2 of Schedule 1 contains a series of provisions which identify vehicles which are not subject to the registration provisions. Clause 15 of Part 2, Schedule 1 provides:

“15 Pedal cycles
The registration provisions do not apply to any registrable vehicle comprising a pedal cycle to which is attached one or more auxiliary propulsion motors having a combined maximum power output not exceeding 200 watts.”

30 The question for the learned Magistrate was whether the Plaintiff’s vehicle came within the terms of Clause 15 of Part 2 Schedule 1 of the Regulation. If it did, then the vehicle was not subject to the registration provisions of the Regulation and its use on a road or road-related area was permitted in accordance with Clause 3 of Schedule 1, even though it was not registered. If it did not, then use of the vehicle on a road or road-related area was not permitted unless the vehicle was registered.

The Present Appeal

31 The Plaintiff appeals to this Court under s.52(1) Crimes (Appeal and Review) Act 2001 against conviction and sentence, relying upon grounds that are said to involve questions of law alone. In the event that the appeal against conviction succeeds, the Plaintiff submits that the Court should set aside the conviction under s.55(1)(a) Crimes (Appeal and Review) Act 2001. In the event that the Plaintiff succeeds upon her appeal against sentence only, it is submitted that the Court should vary the sentence by setting aside the conviction and finding the offence proved, but dismissing the charge under s.10(1)(a) Crimes (Sentencing Procedure) Act 1999.

Appeal Against Conviction

32 At the hearing of the appeal, the Plaintiff pressed the first ground only. Ms Norton SC, for the Plaintiff, abandoned the second ground, acknowledging that any mistake was one of law and not fact. This approach is undoubtedly correct. The Plaintiff knew that she was using an unregistered vehicle on a road. Any mistake on her part concerned the effect of s.18(2)(b) of the Act and Clause 15 of Schedule 1 of the Regulation, and thus amounted to a mistake of law and not fact. Accordingly, the principles in Proudman v Dayman would not assist the Plaintiff: Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67; Ostrowski v Palmer [2004] 218 CLR 493 at 513-515.

33 In support of the first ground, Ms Norton SC submitted that the learned Magistrate erred in law in his construction and application of Clause 15 of Schedule 1. It was submitted that, on the uncontested evidence, the Plaintiff’s vehicle fell within the exception contained in Clause 15 so that the Magistrate’s finding that the registration provisions applied to the vehicle was wrong in law. It was submitted that the facts arising from the evidence meant necessarily that the vehicle fell within the description contained in Clause 15 and thus the Magistrate’s contrary finding was wrong in law: Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 at 138.

34 Ms Norton SC submitted that the Plaintiff’s vehicle comprised a pedal cycle to which was attached one or more auxiliary propulsion motors having a combined maximum power output not exceeding 200 watts. She submitted that the word “auxiliary” here meant “additional” and not “secondary” or “subsidiary”. It was submitted that such a construction was clear and allowed the statutory question to be answered by reference to the purely objective circumstance as to whether the propulsion motor or motors had a combined maximum power output not exceeding 200 watts.

35 It was submitted that the learned Magistrate has misdirected himself by having regard to the manner and extent of use (electric power versus pedal power) of the Plaintiff’s vehicle. To base a conclusion on this consideration, it was submitted, involved an uncertain process which may produce different answers depending upon the manner and extent of use of particular owners and riders. Such an approach, it was submitted, would not be a sensible one for implementation of a scheme for vehicle registration that required consistency and certainty.

36 Further, it was submitted that the learned Magistrate had erred in having regard to the appearance of the vehicle as depicted in the photograph. It may be inferred that the learned Magistrate formed the view, and took into account, that the vehicle more resembled a motor scooter than a pedal cycle. The Plaintiff submitted that this was an irrelevant consideration to the determination of the question whether the vehicle was a “registrable vehicle”.

37 It was submitted that it was irrelevant for his Honour to consider whether the pedals were ”secondary” given that the vehicle comprised a pedal cycle to which was attached one or more propulsion motors with a combined maximum power output not exceeding 200 watts.

38 Finally, the Plaintiff submitted that error of law was demonstrated in the expression of the Magistrate’s view “that the pedals have been placed on the bike with a view to the bike then being marketed as not requiring registration”. It was submitted that there was no evidence to support such a finding which infected his Honour’s findings and conclusions.

39 To the extent that there was any doubt or ambiguity concerning the proper construction of the term “auxiliary” in Clause 15, Ms Norton SC submitted that such doubt or ambiguity ought be resolved in favour of the subject by refusing to extend the category of criminal offences: Beckwith v The Queen (1976) 135 CLR 569 at 576; Pearce and Geddes, “Statutory Interpretation in Australia”, 6th edn, 2006, paragraphs [9.8]ff.

40 Ms Mitchelmore, for the Defendant, submitted that it was necessary to keep in mind that his Honour’s reasons constituted an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate’s court: Acuthan v Coates (1986) 6 NSWLR 472 at 479, 485. She submitted that no error of law had been made by the learned Magistrate in concluding that the vehicle was a “registrable vehicle” to which the registration provisions applied and that the conclusions reached by the Magistrate were factual ones which were open on the evidence.

41 The Defendant submitted that the learned Magistrate adopted a meaning of the word “auxiliary” as “secondary” or “backup”.

42 Ms Mitchelmore submitted that it was open to the Magistrate to find that the ordinary meaning of “auxiliary” was “secondary” or “backup” and that the Plaintiff’s challenge to this conclusion was a challenge to a finding of fact: Australian Gas Light Company v Valuer-General at 137. It was submitted that the Plaintiff’s construction of the word “auxiliary” was not the ordinary meaning of the word. Having found that “auxiliary” meant “secondary” or “backup”, the Defendant submitted that it was open to his Honour, on the evidence, to conclude that the motor on the Plaintiff’s vehicle was not an auxiliary propulsion motor. The Defendant submits that this finding was one of fact that is not open to challenge on a s.52(1) appeal to this Court.

43 The Defendant submitted that even if the Magistrate had adopted the meaning of “auxiliary” contended for by the Plaintiff, in view of his Honour’s conclusion that the motor on the Plaintiff’s vehicle was the primary and usually sole means of propulsion, and that the pedals were only added for marketing purposes, his Honour would have reached the same result, namely that the motor on the Plaintiff’s vehicle was not an “extra” or “additional” propulsion motor.

44 Accordingly, the Defendant submits that the appeal against conviction ought be rejected.

Resolution of Appeal Against Conviction

45 An appeal under s.52(1) is confined to a ground that involves a question of law alone. There is no universally applicable test for distinguishing questions of law from questions of fact: Director of Public Prosecutions v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 at 411 [58].

46 A finding may reveal an error of law where it appears that the Magistrate has misdirected himself, that is, has defined otherwise that in accordance with law, the question of fact which he has to answer. An ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Australian Gas Light Company v Valuer-General at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.

47 In determining the appeal, it is appropriate to bear in mind that his Honour’s reasons constituted an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate’s court: Acuthan v Coates at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions v Illawarra Cashmart Pty Limited at 407-408 [15].

48 The closing addresses of the prosecutor and defence counsel in the Local Court were not transcribed. However, the critical question was identified by his Honour as being whether the Plaintiff’s vehicle fell within the terms of Clause 15 of Schedule 1 of the Regulation. The parties before me accepted that this was the correct question.

49 It is necessary to construe Clause 15 of Schedule 1 of the Regulation. The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 [115].

50 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

51 According to the Macquarie Dictionary, the potentially applicable meanings of the adjective “auxiliary” include “1. giving support; helping; aiding; assisting. 2. subsidiary; additional”. The Australian Oxford Dictionary states available meanings of the adjective “auxiliary” as “1. (of a person of thing) that gives help. 2. (of services or equipment) subsidiary, additional”. The Shorter Oxford English Dictionary includes as definitions for the adjective “auxiliary” the terms “1. helpful, assistant, giving support or succour” and “subsidiary to the ordinary”.

52 It is necessary to construe the word “auxiliary” in the context of Clause 15 and the Regulation generally. That provision applies to a pedal cycle to which is attached an auxiliary propulsion motor or motors with a maximum power output not exceeding 200 watts. In my view, the Plaintiff’s construction of Clause 15 would render the word “auxiliary” otiose. If it was intended that the mere addition or attachment to a pedal cycle of a motor or motors with a maximum power output not exceeding 200 watts would suffice to render the registration provisions inapplicable, the clause could have easily said so. The omission of the word “auxiliary” would have had this effect. However, the word “auxiliary” appears in the clause. It has statutory work to do.

53 The legislature intended the word to have a purpose and to perform a function in the provision. The use of the word “auxiliary” raises for consideration questions concerning the nature and purpose of propulsion motors attached to the relevant pedal cycle. If the legislature had intended to provide that registration provisions did not apply to pedal cycles to which were attached propulsion motors having a combined maximum power output not exceeding 200 watts, the provision could have stated that simply. Rather, the word “auxiliary” has been included and has a role to play.

54 Consideration of the question whether a vehicle falls within Clause 15 invites an enquiry as to whether the vehicle is in fact a “pedal cycle” to which is attached one or more subsidiary or supporting or secondary propulsion motors not exceeding 200 watts maximum power. If the vehicle is, in truth, a motor scooter intended to operate primarily under motor with a back-up pedalling facility, then it would not fall within the statutory formula. In my view, it is relevant to have regard to the size, shape, weight, run distance, motor power, climbing angle and speed in forming a conclusion as to whether the Plaintiff’s cycle was a pedal cycle with auxiliary propulsion motors attached. For this purpose, it was relevant to have regard to the structure and appearance of the cycle in question. If the vehicle has the appearance of a motor scooter and is utilised as a motor scooter with a facility for back-up pedal power, then the construction advanced by the Defendant is fortified.

55 During the course of submissions, I raised with Ms Norton SC the fact that, if the Plaintiff’s submission be correct, then unlicensed children could lawfully ride the Plaintiff’s cycle under motor power at speeds up to 30 kms per hour in traffic. Although it is undoubtedly the case that children may ride pedal cycles in traffic, it seems to me that the possible use by children (or any unlicensed person) of a cycle such as this on a road or road-related area fortifies a conclusion that the objects of the legislation are served by adoption of the construction advanced by the Defendant.

56 I am not satisfied that the Plaintiff has demonstrated error of law on the part of the Magistrate in the manner asserted in the first ground. I accept the Defendant’s construction concerning the meaning of the term “auxiliary propulsion motors” in Clause 15. In my view, the learned Magistrate did not err in the meaning giving to the word “auxiliary” in Clause 15 nor in the application of the clause to the Plaintiff’s vehicle. It was open to the learned Magistrate to interpret the word “auxiliary” in its statutory context as meaning “secondary” or “back-up”. Thereafter, it was a factual question for his Honour to apply that construction to the evidence adduced in the case.

57 There was no express evidence before the Local Court to the effect “that the pedals have been placed on the bike with a view to the bike then being marketed as not requiring registration”. There was evidence that the cycle was marketed as one not requiring a licence. In evidence, the Plaintiff said that she would probably not have purchased the cycle if the formalities of registration were required.

58 His Honour drew an inference from all the photographic, oral and documentary evidence that pedals had been placed on the Eazyride cycle with a view to it then being marketed as not requiring registration. The learned Magistrate’s observation concerning the marketing purpose for attaching pedals to the cycle was a conclusion of fact. I do not detect any error in his Honour’s conclusion. The appearance of the cycle and the evidence concerning its use tended to support such an inference. Even if this conclusion could be characterised as perverse (which I do not find), it would constitute an error of fact and not an error of law: Azzopardi v Tasman UEB Industries Limited (1985) at 156-157; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 282.

59 Even if this observation by the learned Magistrate could be characterised as an error of law (which is not the case), it does not seem to me, in any event, that such an error was dispositive so that the decision of the Local Court should be set aside. His Honour was correct in the construction of Clause 15 of Schedule 1. It was this construction, and the associated factual finding that the cycle was primarily a motor scooter with secondary pedals, that determined the outcome of the prosecution in the Local Court.

60 In my view, it was open to the learned Magistrate to construe Clause 15 in the manner applied, and it was open to him to make findings of fact based upon the Plaintiff’s vehicle being primarily motor driven with a secondary pedal function. No error of law is revealed in the learned Magistrate’s conclusion that the Plaintiff’s vehicle was a registrable vehicle to which the registration provisions applied.

61 I do not consider that this outcome gives rise to an uncertain or inconvenient result. This conclusion is the product of the application of the statutory test to the vehicle in question. When this task is performed, in my view, the answer to the statutory question is clear.

62 The Plaintiff’s appeal against conviction must fail.

Appeal Against Sentence

63 Ms Norton SC submitted that the learned Magistrate had fettered his sentencing discretion by excluding the Plaintiff from consideration for an order under s.10 Crimes (Sentencing Procedure) Act 1999 because she had pleaded not guilty and because of his Honour’s view that no discount was available in the circumstances. The Plaintiff submitted that such an approach involved error in law and was not warranted by an examination of ss.10 and 22 of the Act nor any applicable sentencing principle.

64 Ms Mitchelmore submitted that his Honour’s reasons, fairly read, disclosed the exercise of sentencing discretion adversely to the Plaintiff, but not in a way that disclosed error of law. It was noted that the maximum penalty for the offence was a fine of $2,200.00 and that a fine of $500.00 was imposed on the Plaintiff having regard to the factors advanced on her behalf on penalty.

Resolution of Submissions on Sentence Appeal

65 There is no statutory or common law principle which excludes an order under s.10 in circumstances where a defended hearing has taken place. In many cases, of which this case may be an example, the defended hearing may disclose extenuating circumstances in which the offence was committed to which the court should have regard in determining whether to apply the section: s.10(3)(c).

66 A court must have regard to all of the criteria in s.10(3) in determining whether a dismissal of the charge or a discharge of the offender is appropriate: Application by Attorney General under s.37 Crimes (Sentencing Procedure) Act 1999 for Guideline Judgment Concerning Offence of High Range PCA (2004) 61 NSWLR 305 at 336-337 [130]-[131]. There was no statutory restriction on the availability of a s.10 order in this case: cf s.187(6) Road Transport (General) Act 2005.

67 Section 22 requires a sentencing court to take into account the fact that an offender has pleaded guilty and may impose a lesser penalty than would otherwise have been imposed. A plea of guilty may properly be treated as a mitigating factor: s.21A(3)(k) Crimes (Sentencing Procedure) Act 1999. However, the defendant who contests the case, whilst not entitled to that mitigation, may not be penalised for the manner in which the defence was conducted: Siganto v The Queen (1998) 194 CLR 656 at 666-667. A sentencing court is punishing an offender for the crime, not for the conduct of the defence case: Siganto v The Queen at 666 [31].

68 In my view, a fair reading of his Honour’s reasons indicates that his Honour excluded consideration of a s.10 order and determined to convict and fine the Plaintiff solely because she had defended the matter and that there was “no discount available”. The learned Magistrate has misapplied the concept of discount for a plea of guilty as considered in cases such as R v Thomson and Houlton (2000) 49 NSWLR 383. The short defended hearing before his Honour involved principally the Plaintiff’s evidence (which his Honour accepted) that she had made some enquiries concerning the necessity for registration and had been advised in the negative.

69 The findings of the learned Magistrate acknowledged the existence of extenuating circumstances for the Plaintiff’s offence in that there was no “wilful and flagrant disobedience” on her part given her mistaken belief in law that registration was not required.

70 I do not consider that his Honour’s use of the words “in those circumstances I am not of the view that I can dismiss the matter under section 10” assists the Defendant’s argument. To the contrary, it serves to focus attention upon the sole reason for his Honour excluding a possible s.10 order, namely that the Plaintiff had pleaded not guilty and thus no discount was available. This approach involved error of law in the construction and application of s.10. This was not a case of the court taking account of all relevant matters and settling upon a discretionary sentencing decision. Rather, a sentencing alternative was placed to one side and not considered because the Plaintiff had pleaded not guilty.

71 I am satisfied that the Plaintiff has made good her appeal against sentence.

Conclusion and Orders

72 The Plaintiff has failed in her appeal against conviction but succeeded in demonstrating error of law with respect to sentence.

73 When determining a successful appeal against sentence, this Court may set aside the sentence, vary the sentence or set aside the sentence and remit the matter to the original Local Court for redetermination in relation to sentence in accordance with the Supreme Court’s directions: s.55(2). In the circumstances of this case, I do not consider that it is necessary or appropriate to remit the matter to the Local Court. The correction of the error with respect to the approach to s.10 would lead inevitably, in my view, to an order being made under s.10 in the Local Court. It would not be a sensible use of judicial resources, nor the time and cost of the parties, to remit the matter to the Local Court for a further hearing in that Court at a later time. Both the Plaintiff and the Defendant submitted that this was the appropriate course if this point was reached on the appeal. I propose to make orders to give effect to that conclusion.

74 This Court has power to vary the sentence under s.55(2)(b) of the Act. In my view, once error of law has been demonstrated in imposition of the original sentence, it is open to this Court to set aside the sentence imposed in the Local Court and to vary it by imposition of a substitute sentence.

75 I have had regard to the factors contained in s.10(3) and, in particular, the extenuating circumstances in which the offence was committed. I accept that the Plaintiff was acting under a mistaken belief as to the law in riding the cycle on a road without it first being registered. I am satisfied that the appropriate course is to proceed to dismiss the charge under s.10(1)(a) of the Act.

76 The Plaintiff has failed on the appeal against conviction, but has succeeded on her appeal against sentence. At the hearing, the parties agreed that, if this was the outcome of the appeal, then it would be appropriate to make no order as to costs. I am satisfied that this is the appropriate costs outcome, having regard to the issues raised by the appeal.

77 I make the following orders:

(a) the appeal against conviction is dismissed;

(b) the appeal against sentence is allowed and the sentence, fine and costs order imposed in the Nyngan Local Court are quashed;

(c) in lieu thereof, I make an order under s.10(1)(a) Crimes (Sentencing Procedure) Act 1999 that, without proceeding to conviction, the charge under s.18(1) Road Transport (Vehicle Registration) Act 1997 is dismissed;

(d) I make no order as to costs.

**********