McCurley v Beath
[2017] ACTSC 196
•9 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McCurley v Beath |
Citation: | [2017] ACTSC 196 |
Hearing Dates: | 15 and 26 May 2017 |
Last Submissions Date: | 27 June 2017 |
DecisionDate: | 9 August 2017 |
Before: | Mossop J |
Decision: | See [77] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – multiple periods of disqualification under road transport legislation totalling 16.5 years – no order making periods concurrent – disqualification until further order – sentence manifestly excessive APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – competency of appeal – magistrate made orders disqualifying driver from holding licence for periods identical to periods automatically imposed by the legislation – appeal competent because of the orders made by the Court STATUTES – INTERPRETATION – Road transport legislation – relationship between licence disqualification provisions in ss 63(4) and 69 of the Road Transport (General) Act 1999 (ACT) and s 32(7) of the Road Transport (Driver Licensing) Act 1999 (ACT) – how provisions relating to existing disqualifications apply where multiple convictions recorded on a single day – circumstances in which the Court may order disqualifications take effect concurrently |
Legislation Cited: | Crimes Act 1900 (ACT), s 160 Criminal Code 2002 (ACT), ss 44, 318(2), 322A(1), 324(1) Supreme Court Act 1993 (ACT), s 20 |
Cases Cited: | Amos v McCarron (No 2) [2017] ACTSC 46 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Patrick McCurley (Appellant) Paul Gerard Beath (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Ms S Naidu (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 87 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 9 November 2016 Case Title: Beath v McCurley Court File Numbers: CC 4061 of 2016 CC 6661 of 2016 CC 6662 of 2016 CC 8746 of 2016 CC 8880 of 2016 CC 9152 of 2016 CC 9273 of 2016 CC 9274 of 2016 CC 9276 of 2016 CC 9281 of 2016 CC 10202 of 2016 CC 10203 of 2016 |
MOSSOP J:
Introduction
The appellant, Patrick McCurley, has appealed against sentences imposed by a special magistrate of the ACT Magistrates Court. The appeal is only in relation to orders imposing periods of disqualification in so far as those periods were allowed to be cumulative rather than being made concurrent. The total period of disqualification was 16.5 years. The appellant contended that this period of disqualification involves a sentence which is manifestly excessive and involved a failure to have regard to the principles of totality. The appellant also contended that her Honour failed to have regard to, or exercise, the discretion to make periods of disqualification concurrent and that she erred in making an order under s 65 of the Road Transport (General) Act 1999 (ACT) disqualifying the appellant until further order of the Court.
For the reasons which follow, I have concluded that there is a right of appeal in relation to the orders made by the special magistrate and that the sentence was manifestly excessive. I have set aside the disqualification orders and re-sentenced the appellant.
The decision below
The appellant pleaded guilty to 21 offences. Sentencing submissions were made before the special magistrate on 1 November 2016. Her Honour gave her decision on 9 November 2016.
The offences were described by the special magistrate as being divided into three discrete sets of offending conduct.
The first incident involved the appellant driving an unregistered and uninsured car into a service station, filling up the tank with petrol and driving off without payment. Relevantly, he was a disqualified driver. On 12 April 2016 police noticed the car driven by the offender and attempted to stop it but it accelerated away from them. On 13 April 2016 police located the appellant and arrested him, charging him with the four offences committed on 9 April 2016. He was released on bail.
The second series of offences related to 23 June 2016. Police were notified of a motor vehicle collision in Deakin. A witness described the driver of the car, which was a blue Mazda and had been stolen five days earlier. Police were told that the appellant appeared to be drug affected and that he attempted to push the car off the road after the collision before leaving in a taxi. Later that day police received information about a car being stolen from the Hughes preschool, a short distance away from where the blue Mazda had crashed. The owner of the car stolen from the preschool had left it running while he went in to collect his child. The car was located about an hour later approximately 200m from where it was stolen and the appellant was near the car. He was arrested but attempted to escape. The keys to the car were found in his possession. He was requested to provide a sample of breath, which was negative for the presence of alcohol. The appellant later that day consented to provide a blood sample for analysis pursuant to the Road Transport (Alcohol and Drugs) Act 1977 (ACT). Subsequent forensic medical laboratory tests confirmed the presence of methamphetamine in his system. Property suspected of being stolen was also found in the car. He was charged with several offences including driving a vehicle without consent, driving whilst disqualified, attempting to escape arrest, unlawful possession of property, driving dangerously, and driving with a prescribed drug in his blood. He was remanded in custody on that day.
The third series of offences relate to 3 and 4 September 2016. The appellant escaped from the Alexander Maconochie Centre (AMC) late in the evening of 3 September 2016. On the afternoon of 4 September 2016 he was identified by an
off-duty police officer at the Jamison Centre in Macquarie. Police saw him driving a Suzuki Swift and signalled him to stop but he did not. He crossed onto the wrong side of the road on a number of occasions in an attempt to evade police. Later that afternoon he was seen driving the vehicle on Hindmarsh Drive and was located by police at the Duffy shops. He was in the driver’s seat. He was told to get out of the car. He ignored the order and accelerated away.
The car was then observed on Stretton Drive in Rivett. Police signalled him to pull over. He again accelerated away. Later he was observed on the Tuggeranong Parkway. A police officer riding a motorcycle directed him to stop but he continued down the Parkway at high speed, crossing onto the wrong side of the road and travelling into oncoming traffic.
A short time later police observed the vehicle drive past them, activated their lights and sirens and signalled to the driver to pull over. The vehicle travelled on the wrong side of the road on the Lady Denman Drive off-ramp and travelled north on the Tuggeranong Parkway and Gungahlin Drive extension against the flow of traffic.
The police next saw the vehicle on Dryandra Street in O’Connor. Sirens were activated in order to persuade the vehicle to pull over but it accelerated away, crossing onto the incorrect side of the road and travelling against the flow of traffic on Macarthur Avenue.
Police then followed the vehicle in unmarked vehicles as it travelled along Macarthur Avenue and turned north onto Northbourne Avenue where it crossed the road and travelled into oncoming traffic. After travelling further through Dickson and Watson, police deployed “stop sticks” when the vehicle was back on Antill Street. Notwithstanding that the left tyres of the vehicle were deflated, the appellant continued to drive his vehicle on the wrong side of the road colliding with a log fence and then still continuing on the wrong side of the road on the Federal Highway. He continued northwards until he turned on to the Majura Parkway, still driving dangerously. About 500m along the Majura Parkway, he drove on the median strip until his vehicle struck a deep stone culvert causing the car sufficient damage to bring it to a stop. He was then arrested.
After reciting these facts, the special magistrate referred to the contents of a
pre-sentence report and a CADAS report. Her Honour referred to the pleas of guilty. She found that it was difficult to judge whether or not he was remorseful. She found that he lacked insight into his offending behaviour. She referred to the fact that he had started to engage in some programs in the AMC but said that it was “early days”. She referred to the objective gravity of the offences and identified that he was at a high risk of reoffending. She found that “compelling considerations” in sentencing for all of the offences was general deterrence, specific deterrence, and punishment.
Her Honour then outlined the sentences on each of the charges.
During the course of that process, she indicated that she was minded to disqualify the appellant from holding a licence until the Court otherwise ordered. Further, in answer to a question asked by counsel for the appellant, her Honour indicated that the periods of disqualification were cumulative.
At the conclusion of the sentencing, her Honour indicated that all of the disqualification periods were cumulative. The period of disqualification was identified by counsel for the appellant as 16 and a half years. Her Honour said:
So be it [counsel for the appellant], if that’s what they amount to.
...
The way that he was driving and conducted himself on the road, it won’t be a loss to this community if Mr McCurley does not get back on the road. He can catch buses when he is released from custody. I appreciate that that is a crushing disqualification period, but he has really lost the right to drive on the road.
The appellant was sentenced on a total of 21 charges. The total sentence of imprisonment was three years with a non parole period of two years backdated to the date on which he was remanded in custody.
Sentences imposed
The charges and the periods of disqualification arising from the sentence are summarised in the following table. In the table, and the balance of these reasons, I use the following abbreviations:
(a)RTG Act: Road Transport (General) Act 1999 (ACT);
(b)RTVR Act: Road Transport (Vehicle Registration) Act 1999 (ACT);
(c)RTTPI Act: Road Transport (Third Party Insurance) Act 1999 (ACT);
(d)RTDL Act: Road Transport (Driver Licensing) Act 1999 (ACT);
(e)RTSTM Act: Road Transport (Safety and Traffic Management) Act 1999 (ACT);
(f)RTAD Act: Road Transport (Alcohol and Drugs) Act 1977 (ACT);
(g)Criminal Code: Criminal Code 2002 (ACT);
(h)Crimes Act: Crimes Act 1900 (ACT).
Series
Charge
Description
Summary of penalty and disqualification
9 April 2016
CC 16/4059
RTVR Act s 18(1): use an unregistered registrable vehicle.
Fine $100
9 April 2016
CC 16/4060
RTTPI Act s 17(1): use an uninsured motor vehicle.
Fine $100
9 April 2016
CC 16/4061
RTDL Act s 32(1)(a): drive while disqualified (repeat offender)
Imprisonment for six months. Disqualified for two years.
9 April 2016
CC 16/4062
Criminal Code s 322A(1): dishonestly make off without payment.
Fine $50
23 June 2016
CC 16/6659
Criminal Code s 318(2): dishonestly drive motor vehicle without consent.
Imprisonment for three months concurrent with CC 16/6661.
23 June 2016
CC 16/6660
Criminal Code s 318(2): dishonestly drive motor vehicle without consent.
Imprisonment for three months concurrent with CC 16/6661.
23 June 2016
CC 16/6661
RTDL Act s 32(1)(a): drive while disqualified (repeat offender).
Imprisonment for six month cumulative upon CC 16/4061. Disqualified for two years.
23 June 2016
CC 16/6662
RTDL Act s 32(1)(a): drive while disqualified (repeat offender).
Imprisonment for six months concurrent upon CC 16/6661. Disqualified for two years.
23 June 2016
CC 16/6664
Crimes Act s 160 and Criminal Code s 44: attempt to escape from lawful custody.
Imprisonment for three months concurrent with the CC 16/6661.
23 June 2016
CC 16/7296
Criminal Code s 324(1): possess property reasonably suspected of being stolen or unlawfully obtained.
Imprisonment for one month concurrent with CC 16/6661.
23 June 2016
CC 16/8746
RTSTM Act s 7(1): dangerous driving.
Imprisonment for one month concurrent with CC 16/6661. Disqualified for three months.
23 June 2016
CC 16/8880
RTAD Act s 20(1): drive with prescribed drug in blood (repeat offender).
Imprisonment for one month concurrent with CC 16/6661. Disqualified for three years.
3 September 2016
CC 16/9151
Crimes Act s 160: escape from lawful custody.
Imprisonment for 18 months cumulative upon CC 16/6661.
4 September 2016
CC 16/9152
RTSTM Act s 7(1): dangerous driving (repeat offender) (aggravated).
Imprisonment for two months concurrent upon CC 16/9151. Disqualified for one year.
4 September 2016
CC 16/9153
Criminal Code s 318(2): dishonestly drive motor vehicle without consent.
Imprisonment for three months concurrent with CC 16/9151.
4 September 2016
CC 16/9273
RTSTM Act s 5C: fail to comply with police request or signal to stop.
Imprisonment for one month concurrent with CC 16/9281. Disqualified for three months.
4 September 2016
CC 16/9274
RTSTM Act s 5C: fail to comply with police request or signal to stop.
Imprisonment for one month concurrent with CC 16/9281. Disqualified for one year.
4 September 2016
CC 16/9276
RTSTM Act s 5C: fail to comply with police request or signal to stop.
Imprisonment for one month concurrent upon CC 16/9281. Disqualified for one year.
4 September 2016
CC 16/9281
RTDL Act s 32(1)(a): drive while disqualified (repeat offender).
Imprisonment for six months cumulative with CC 16/9151. Disqualified for two years. Disqualified until further court order.
4 September 2016
CC 16/10202
RTSTM Act s 7(1): dangerous driving (repeat offender) (aggravated).
Imprisonment for three months concurrent with CC 16/9281. Disqualified for 12 months.
4 September 2016
CC 16/10203
RTSTM Act s 7(1): dangerous driving (repeat offender) (aggravated).
Imprisonment for three months concurrent with CC 16/9281. Disqualified for one year.
The total period of imprisonment was 36 months with a non parole period of 24 months.
Because the making of orders in relation to disqualification periods and the terms of those orders are of significance in this case, I will return to that issue later in these reasons.
Appeal
The appellant has appealed only from:
Periods of disqualification from holding or obtaining a driver licence imposed by [the special magistrate] 9 November 2016.
The grounds of appeal are:
(a) That the total period of disqualification from holding or obtaining a driver licence, imposed by [the special magistrate] on 9 November 2016 was manifestly excessive.
(b) Her Honour failed to have regard to principles of totality in ordering that all periods of disqualification imposed be served cumulatively and in imposing the total period of disqualification that she did.
(c) Her Honour failed to have regard to or exercise the discretion open to her under the provisions of section 69 [of the] Road Transport (General) Act 1999 to order that the periods of disqualification be served cumulatively [the reference to “cumulatively” should be “concurrently”]
(d) Her Honour erred in making an order under Section 65 of the Road Transport (General) Act 1999 in addition to imposing cumulative periods of disqualification.
(e) Her Honour erred in making an order under Section 65 of the Road Transport (General) Act 1999 without having regard to the criteria for making such an order prescribed by subsection 65 (2) and 65 (7).
The orders sought on the appeal are that the periods of disqualification be set aside and that new periods of disqualification be imposed.
The respondent to the appeal submitted that there is no entitlement to appeal from periods of disqualification that were automatically imposed by the legislation because no right of appeal is granted by s 208 of the Magistrates Court Act 1930 (ACT).
Issues
The issues raised by the grounds of appeal are:
(a)Is there an entitlement to appeal in relation to the disqualification periods?
(b)If there is an entitlement to appeal:
(i)Does the total period of disqualification give rise to a sentence which is manifestly excessive? (grounds (a) and (b))
(ii)Did the special magistrate fail to have regard to or exercise the discretion in s 69 of the RTG Act to order the periods to be served concurrently? (ground (c))
(iii)Did the special magistrate err in making an order under s 65 of the RTG Act? (grounds (d) and (e))
However before turning to these issues it is first necessary to identify the relevant statutory provisions.
Relevant statutory provisions
The entitlement to appeal is provided by s 208 of the Magistrates Court Act which provides:
208 Appeals to which div 3.10.2 applies
(1) Each of the following appeals is an appeal to which this division applies:
...
(b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375;
(d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 374 or section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed;
(e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
(iii) part 3.4 (Non-association and place restriction orders);
(iv) part 3.5 (Deferred sentence orders);
(v) part 3.6 (Combination sentences);
Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are
taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence
Administration) Act 2005, ch 16).
...
(g) an appeal from an order of the court to disqualify a person from holding or obtaining a driver licence under an automatic disqualification provision under the Road Transport (General) Act 1999, division 4.2 (Licence suspension, disqualification and related matters), if the order is for a longer period than the minimum.
Note Automatic disqualification provision – see the Road Transport (General) Act 1999, s 61A.
(2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.
The relevant provisions of the RTG Act are as follows:
61A Definitions – div 4.2
In this division:
automatic disqualification provision means any of the following provisions:
...
(c) section 63 (Automatic disqualification for certain other driving offences);
...
(f) Road Transport (Alcohol and Drugs) Act 1977, section 34 (which is about automatic disqualification for other offences against that Act);
...
63 Automatic disqualification for certain other driving offences
(1) This section applies to the following offences:
...
(d) an offence against the Road Transport (Safety and Traffic Management) Act 1999,
section 5C (which is about failing to stop a motor vehicle when asked or signalled
to do so by a police officer);
...
(f) an offence (including an aggravated offence) against the Road Transport (Safety
and Traffic Management) Act 1999, section 7 (1) (which is about furious, reckless
or dangerous driving);
...
(2) If a court convicts a person, or finds a person guilty, of an offence to which this section applies, the person is automatically disqualified from holding or obtaining a driver licence –
(a) for a first offender – for 3 months or, if the court orders a longer period, the
longer period; or(b) for a repeat offender – for 12 months or, if the court orders a longer period, the
longer period.(3) However, if a court convicts a person, or finds a person guilty, of an aggravated offence mentioned in subsection (1) (f), the person is automatically disqualified from holding or obtaining a driver licence for 12 months or, if the court orders a longer period, the longer period.
(4) If the person is already disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended, the disqualification under this section takes effect at the end of the existing disqualification or suspension.
(5) A disqualification under this section is in addition to any penalty imposed for the offence.
64 Court may order disqualification for other offences
(1) A court that convicts a person, or finds a person guilty, of an offence against the road transport legislation may disqualify the person from holding or obtaining a driver licence for the period the court considers appropriate.
(2) However, if the offence is an offence against an automatic disqualification provision, any order under subsection (1) is subject to the automatic disqualification period for the offence.
(3) If the court disqualifies the person, the person is disqualified from holding or obtaining a driver licence for the period ordered by the court.
(4) A disqualification under this section is in addition to any penalty imposed for the offence.
...
65 Disqualification until court order
(1) This section applies if –
(a) a person is disqualified (whether or not by court order) from holding or obtaining a
driver licence because of being convicted, or found guilty, of an offence, or
offences, against the road transport legislation or any other territory law; and(b) the total period of disqualification (the compulsory disqualification period) is 12
months or more.(2) If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3).
(3) If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside.
...
(7) For subsection (2) or (3), the court must consider the following matters:
(a) the total period for which the person concerned is, or has been, disqualified from
holding or obtaining a driver licence;(b) the person’s history of offences (including offences for which infringement notices
were served on the person) –(i) against the road transport legislation or a law of another jurisdiction
corresponding to it (or to part of it); or(ii) against another law of any jurisdiction in relation to the use of motor vehicles;
(c) any relevant rehabilitation or remedial action undertaken, or to be undertaken, by
the person;(d) the risk to the safety of other road users.
...
69 Multiple disqualifications cumulative unless court orders otherwise
If –
(a) a person is disqualified (whether or not by court order) from holding or obtaining an
Australian driver licence because of being convicted or found guilty by a court in
Australia of an offence against the law of any jurisdiction; and(b) before the period of disqualification has ended, the person is again so disqualified;
the periods of disqualification are cumulative unless a court in Australia orders otherwise.
The following provisions are those which provide for automatic periods of disqualification for the offences of which the offender was convicted.
(a)In relation to the offences against the RTDL Act s 32(1)(a): drive while disqualified as a repeat offender (charges CC16/4061, CC16/6661, CC16/6662, CC16/9281) ss 32(5) and (7) of the RTDL Act provides:
32(5) If a court convicts a person of an offence against subsection (1) or (3), the person is automatically disqualified from holding or obtaining a driver licence –
(a) for a first offender – for 12 months or, if the court orders a longer
period, the longer period; or(b) for a repeat offender – for 24 months or, if the court orders a
longer period, the longer period.
...
(7)If a person is already disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended, the disqualification takes effect at the end of the disqualification or suspension.
(b)In relation to an offence against s 20(1) of the RTAD Act: drive with prescribed drug in blood (repeat offender) (charge CC16/8880) s 34 of the RTAD Act provides.
34 Automatic driver licence disqualification – offences other than s 19
(1) If a court convicts a first offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19(1), the person is automatically disqualified from holding or obtaining a driver licence for –
(a) 3 years; or
(b) if the court orders a shorter period of disqualification that is at least 6 months – the shorter period.
(2) If a court convicts a repeat offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19(1), the person is automatically disqualified from holding or obtaining a driver licence for –
(a) 5 years; or
(b) if the court orders a shorter period of disqualification that is at least 12 months – the shorter period.
Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.
(3) For the Magistrates Court Act 1930, section 208(1)(g), an automatic disqualification from holding or obtaining a driver licence under this section is taken to be an order of the court to disqualify a person from holding or obtaining a driver licence.
(c)In relation to offences against ss 5C and 7(1) of the RTSTM Act (charges CC16/9273, CC16/9274, CC16/9276 and CC16/8746, CC16/9152, CC16/10202, CC16/10203 respectively), s 63(2) of the RTG Act (which is set out above) provides the relevant periods of disqualification.
Is there an entitlement to appeal?
The respondent contended that, in so far as the appeal related to periods of disqualification, there was no entitlement to appeal. That was because the periods of disqualification were imposed by statute rather than by an order of the Court and hence did not fall within the scope of s 208 of the Magistrates Court Act.
The respondent relied, in support of that contention, upon the decision of the Court of Appeal in Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157. That case related to an offence against s 19 of the RTAD Act – having the prescribed concentration of alcohol in the person’s blood or breath. The automatic disqualification provisions of the RTAD Act are somewhat differently structured from those applicable in the present case. For an offence against s 19, the legislation provided for a default period of disqualification which applied automatically upon conviction. A shorter period of disqualification could be imposed by an order of the Court but not so as to reduce it below a specified minimum period. The magistrate at first instance in that case had made it express that she was not making any order, saying: “I make no order in respect to the period of disqualification, being satisfied that the case falls within what can be properly described as the usual case”.
The Court of Appeal upheld the primary judge’s conclusion that there was no jurisdiction to hear the appeal because:
(a)there was no jurisdiction under s 208(1)(b) of the Magistrates Court Act because there was no “sentence or penalty imposed by the magistrates court”: [31]-[32];
(b)section 208(1)(g) did not provide the relevant jurisdiction because it referred to “an order of the court to disqualify a person” and there was no such order;
(c)the decision in Kelly v Apps [[2000] FCA 687; 98 FCR 101] was wrong and s 20 of the Supreme Court Act 1933 (ACT) did not provide statutory basis for an appeal.
The reasoning in Burow is not directly applicable here because the special magistrate did in fact make, or purport to make, in relation to each relevant charge, an order in relation to disqualification. The perfected orders relating to disqualification were as follows:
Charge
Terms of Order
CC 16/4061
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 2 years.
CC 16/6661
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 2 years.
Cumulative with other disqualifications.
CC 16/6662
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 2 years.
Cumulative with other disqualifications.
CC 16/8746
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 3 months.
Cumulative with other disqualifications.
CC 16/8880
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 3 years.
Cumulative with other disqualifications.
CC 16/9152
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 1 year.
Cumulative upon other disqualifications.
CC 16/9273
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 3 months.
CC 16/9274
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 1 year.
CC 16/9276
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 1 year.
CC 16/9281
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 2 years.
Further order pursuant to Section 65 of the Road Transport (General) Act disqualified from holding or obtaining a drivers licence from the end of the compulsory disqualification period until the disqualification period is set aside.
CC 16/10202
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 1 year.
Cumulative with other disqualifications.
CC 16/10203
Patrick McCurley [date of birth] be disqualified from holding or obtaining a drivers licence for a period of 1 year.
Cumulative with all other disqualifications.
Neither party contended that the perfected orders did not accurately reflect the orders made by the Court.
Having regard to the fact that in each case the period of disqualification specified in the order was the automatic period of disqualification, there was no need to make any such order as the period of disqualification was that which would be automatically imposed by the legislation in any event.
There may be reasons why it is perceived as desirable to record an order equivalent to the automatic disqualification. Unless an order is made or the existence of the automatic period of disqualification is formally noted by the Court, the perfected orders which record the outcome of the case will not record the disqualification and there is a risk, particularly in the common case where the convicted person is unrepresented, that the existence of the disqualification is not made clear by the formal documentation that the convicted person receives from the Court. However, while from a practical point of view, there is utility in ensuring that the Court records disclose the disqualification that is not required by the legislation. In New South Wales, the making of court orders where the statute provides for an automatic period of disqualification has been described as “unnecessary and liable to be confusing”: Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; 77 NSWLR 189 at [84]. It has been identified that an alternative is to note on the record that an automatic disqualification by statute has taken effect: Director of Public Prosecutions (NSW) v Armstrong [2015] NSWSC 873 at [13].
Section 32(1)(a) of the RTDL Act and ss 5C and 7(1) of the RTSTM impose automatic periods of disqualification or longer periods if the court orders. In other words, the only court order permitted by the sections is one ordering a period of disqualification longer than the automatic period. There is no statutory power given to the court by those sections to impose, by order, the period of disqualification that would be imposed automatically by the statute.
Section 20 of the RTAD Act is subject to s 34 of the same Act which, in a fashion more like the provision considered in Burow, provides an automatic period which will apply subject to a court order imposing a lesser period that is at least a statutory minimum. The power of the court is only to order a shorter period of disqualification. There is no statutory power given to order the period of disqualification that the statute imposes automatically.
In my view, therefore, these various statutory provisions did not empower the Court to make an order which imposed the automatic period of disqualification.
However, s 64 of the RTG Act provides a power to impose a period of disqualification that is the same as an automatic period of disqualification. The reasons for that conclusion require some explanation:
(a)The heading to the section makes it clear that the section is dealing with offences other than those dealt with in ss 63 and 64.
(b)Subsection (1) is in general terms, both in terms of the offences to which it applies, and the period of disqualification.
(c)However sub-s (2) qualifies the generality of sub-s (1) by providing, in relation to “automatic disqualification provisions” that any order under sub-s (1) is “subject to the automatic disqualification period for the offence”. What is meant by the words “subject to” is not obvious. In my view this expression should be interpreted as meaning that the exercise of power under sub-s (1) may not result in a period less than the automatic disqualification period.
(d)Notwithstanding the fact that this general power can be seen as overlapping with the more specific provisions relating to disqualification, the fact that the legislature has seen fit to expressly address the circumstance where an order is made under the provision where there are other more specific disqualification provisions that might also apply indicates that this is not a situation where the operation of the general provision should be seen as wholly excluded by a more specific one: cf. Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Saraswati v The Queen (1991) 172 CLR 1.
(e)
This may not have been the statutory intention but, having regard to the words used in sub-s (2), it is a conclusion compelled by the language actually used. When s 64 was first enacted, sub-s (2) contained a list of statutory provisions and provided that sub-s (1) was subject to those other sections. That form of language made it clear that the generally stated power in
sub-s (1) did not extend to the sections referred to in sub-s (2). The section was amended by the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT) which introduced the concept of an “automatic disqualification provision” which corresponded to the provisions listed in
sub-s (2) and hence permitted the removal of the list of provisions. The Explanatory Statement for the Bill provided: “This clause remakes the existing section 64 consequent on the list of provisions in existing section 64(2) being moved to the new definition of ‘automatic disqualifying provision’ in new section 61A.” However the new sub-s (2) did not merely say that sub-s (1) was subject to the automatic disqualification provisions. Rather than simply excluding from sub-s (1) the operation of the automatic disqualification provisions, the language used contemplated orders being made under
sub-s (1) with the only qualification that the order be “subject to the automatic disqualification period”. As a consequence the legislature achieved, maybe inadvertently, a substantive change in the scope of s 64.
Thus, because the imposition of the automatic period of disqualification by court order was supported by s 64 of the RTG Act, the making of the orders was within the statutory power of the Magistrates Court.
The fact that orders were in fact made means that the general appeal provision in s 208(1)(d) of the Magistrates Court Act is applicable. Even if s 64 did not support the making of the orders and hence, they had been made without power, there still would have been an order from which an appeal could be brought. Appellate jurisdiction is not denied merely because an order which was in fact made was beyond power. Because the Court made the orders that it did, there would be an entitlement to appeal against those orders under s 208(1)(d) even though, had the Court simply noted the operation of the automatic disqualification provisions without making an order, there would have been no entitlement to appeal except in relation to the offence under s 20 of the RTAD Act (where s 208(1)(g) would have applied).
My conclusion is, therefore, that the Court does have jurisdiction to entertain the appeal.
Does the total period of disqualification give rise to a sentence which is manifestly excessive?
The approach to be applied when addressing a ground of appeal alleging that a sentence is manifestly excessive is summarised in two recent decisions of the Court of Appeal. In Zdravkovic v The Queen [2016] ACTCA 53 at [51], the Court said:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
In O’Brien v The Queen [2015] ACTCA 47 at [25], the Court of Appeal said:
25. The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
(a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
(b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].
(c)In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].
(d)It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
In my view the effect of the orders made in relation to disqualification periods resulted in a sentence which was manifestly excessive. As stated above at [1], the total effect of the periods of disqualification was 16.5 years. On top of that was the disqualification until further order under s 65 of the RTG Act. The special magistrate recognised the crushing nature of the period of disqualification saying: “I appreciate that this is a crushing disqualification period, that he has really lost the right to drive on the road.”
The sentence is manifestly excessive because in the absence of any order making the periods of disqualification concurrent, the overall period of disqualification is manifestly too long. While each of the individual periods of disqualification is not manifestly excessive, because each period is to be cumulative upon each other, the totality of the period of disqualification is too long and, having regard to the alternatives that were available, serves no appropriate sentencing purpose.
There was no suggestion in the reasons that the custodial portion of the sentence was modified or made more lenient because of the very long period of disqualification imposed. Thus it is not a case where the relationship between the different aspects of the sentence provides an explanation for an apparently harsh component.
Although it is somewhat artificial to dissect out one part of the sentence and subject only that part of the sentence to an appeal, the respondent took no point about this, and in those circumstances and having regard to the separate nature of the driving disqualification from the other parts of the sentences, I consider it open to the Court to address the ground of appeal in the manner in which it has been framed.
Other issues
Because of my conclusion that the sentence was manifestly excessive, it is not necessary to address the other issues raised by the other grounds of appeal (summarised at [24] above).
Re-sentencing
Proceeding in a manner consistent with the approach of the parties identified at [48] above, I will therefore re-sentence the appellant in so far as his sentence involves periods of disqualification.
The offences were serious. They involved a course of driving conduct appropriately characterised by the special magistrate as having “no regard for the safety of others”, “a very big risk to people in the community”, “no respect for laws”, and “a serious risk and dangerous conduct”. The personal circumstances of the appellant are referred to by her Honour in the course of her reasons. The appellant has a poor criminal history. It includes convictions for supplying drugs, robbery, firearms, and breaking and entering. Of particular significance in relation to periods of disqualification, it involves 10 previous convictions for driving while disqualified in either the ACT or New South Wales resulting in, most recently, a sentence of imprisonment of 12 months imposed in March 2015. His offending conduct in relation to the present offences was associated with methamphetamine use.
I consider it appropriate that, in relation to each of the offences for which a period of disqualification was imposed by order, the automatic periods of disqualification apply. I therefore make no order that would have the effect of varying those periods.
The parties made submissions about the how the provisions relating to cumulation of periods of disqualification work. Section 32(7) of the RTDL Act and s 63(4) of the RTG Act provide for a rule that periods of disqualification are cumulative. Section 69 of the RTG provides that periods of disqualification are cumulative unless a court in Australia otherwise orders.
Section 32(7) applies to the offences against s 32(1)–(3) (in this case the charges referred to at [28](a) above). Section 63(4) applies to the offences listed in s 63(1), relevantly offences against ss 5C and 7(1) of the RTSTM Act (in this case the charges referred to at [28](c)).
Section 69 is a provision which, in its terms, is of general application.
The submissions of the appellant were concerned to avoid the proposition that cumulation under ss 32(7) and 63(4) was mandatory where a number of periods of disqualification arose from convictions on one occasion and hence not susceptible to the Court ordering otherwise under s 69. The respondent was concerned to preserve the general rule that periods of disqualification were, even when imposed on a single day, prima facie cumulative, but did not contend that the cumulation rule in ss 32(7) and 63(4) could not be altered by an order under s 69.
Thus although the parties made extensive submissions on these issues, their positions were reconcilable so long as an order under s 69 could qualify the cumulation rules in ss 32(7) and 63(4). In my view, that is the case but, for reasons which I will explain, not in the way that the submissions of the parties appeared to contemplate.
Sections 32(7) and 63(4) each provide what on their face are inflexible rules about the cumulation of disqualification periods. However they exist, in the case of s 63(4) within the same Act and, in the case of s 32(7) within the same suite of legislation that contains s 69. Section 69 is a generally worded provision which also provides a cumulation rule but one which is subject to the capacity of a court to otherwise order. Two factors would suggest that s 69 should not apply where ss 32(7) and 63(4) apply: first, the latter are more specific provisions and second, the fact that it is redundant to apply two cumulation rules in relation to the same disqualification. On the other hand, other than the fact that each is a more specific provision, there is no other statutory indication that s 69 is not intended to apply generally.
In past decisions of the Court it has been assumed that the general provision in s 69 which permits the Court to displace the default cumulation rule can apply: see Slawson v Kinnane [2013] ACTSC 3; 274 FLR 186 at [31]; Reardon v Dzido [2013] ACTSC 197 at [55]-[57]; R v Ogilvie [2015] ACTSC 296 at [48]. However these decisions have not given any detailed consideration to the relationship between the provisions.
Some insight into the relationship between the provisions is given by their legislative history. That is indicated by notes within the heading to the sections as originally enacted which indicate the provision from which the section is derived. Those section headings and the relevant parts of the Explanatory Memorandum for the Road Transport (General) Bill 1999 and Road Transport (Driver Licensing) Bill 1999 disclose:
(a)s 69 was based upon and partially re-enacted s 191G of the Motor Traffic Act 1936 (ACT);
(b)s 63 was based upon an substantially re-enacted s 191C of the Motor Traffic Act;
(c)s 32 of the RTDL Act was based upon s 25A of the Road Transport (Driver Licensing) Act 1998 (NSW) (the New South Wales Act).
The specific provision in s 32 as to when a period of disqualification starts (which was derived from s 25A of the New South Wales Act) was then introduced into s 63 as there was no equivalent provision in the precursor to that provision, namely s 191C of the Motor Traffic Act. Constructing the legislation in this fashion carried with it the risk that some of the detailed provisions adopted from different statutes may not operate in an integrated fashion.
In my view, a reasonable operation consistent with the language of the provisions can be arrived at by starting with the specific provision in s 32 for which the precursor is readily identifiable. That provision relates to conduct which includes the conduct referred to in s 32(1) of driving or applying for a licence during a period of disqualification as well as conduct referred to in s 32(2) during a period of licence suspension. The words of s 32(7) are given a reasonable operation if the reference to “already disqualified” or “suspended” is confined to a disqualification which existed at the time at which the offence was committed and which continues in existence at the time of conviction for the further offence. It means that as between the existing disqualification or suspension and the new disqualification arising from the conviction, there is no concurrency. That means that the offender receives the full period of disqualification on top of whatever existing disqualification or suspension the offender was subject to. This interpretation of the provision is consistent with the interpretation given to the precursor provision, namely s 25A(7) of the the New South Wales Act: Director of Public Prosecutions (NSW) v Armstrong at [10]-[11]. Adopting this interpretation, this section does not compel cumulation as between a number of further periods of disqualification imposed on a single occasion subsequently.
Applied to the present circumstances it would mean that the periods of disqualification imposed by s 32(5) were required to be cumulative upon any period of disqualification that was both in existence at the time of the offences and continued to be in existence at the time of the conviction. However, s 32(7) would say nothing about the relationship between the disqualification periods arising from the various convictions on 9 November 2016. The written submissions of the appellant identify that on
18 February 2015 he was convicted of driving whilst disqualified and disqualified for a period of two years from 18 February 2015. That would mean that the periods of disqualification arising from a conviction for offences against s 32 on 9 November 2016 would only commence from 18 February 2017 because of the operation of s 32(7).
A similar interpretation can be given to s 63(4). That is the case even though none of the offences themselves involve driving whilst disqualified or suspended. It can be justified because the drafter has picked up the language used in s 32(7), it gives effect to the words of the section which are unqualified by any capacity for a court to otherwise order and yet it does not have the draconian consequence that would arise if the subsection compelled all periods of disqualification to be cumulative.
That would then permit s 69 to be read as qualified by the operation of ss 32 and 63 so that s 69 would not operate to permit concurrency as between periods of disqualification in existence at the time of the offending conduct and which continued as at the date of conviction but would permit an order rendering concurrent a number of periods of disqualification arising from convictions on a single occasion. Reading s 69 in this manner is appropriate because of the specific nature of the provisions in s 32 and s 63.
Applied to the re-sentencing exercise, this interpretation means that it is possible to make an order under s 69 rendering wholly or partially concurrent the periods of disqualification automatically imposed as a result of the convictions. However they may not be rendered concurrent with the period of disqualification that was in effect at the date of the convictions and hence, must run from no earlier than the end of that period.
The appellant submitted that ss 32(7) and 63(4) did not require periods of disqualification to be cumulated where the periods of disqualification arose from convictions on the same day. That submission relied upon the common law presumption that a judicial act is taken to date from the earliest minute of the day upon which it was done: see Miller v Teale (1954) 92 CLR 406 at 411. As a consequence where two periods of disqualification arose from orders of the Magistrates Court made on the same day, the language of ss 32(7) and 63(4) (which refer to a person being “already disqualified”) would not require the cumulation of those periods of disqualification.
The respondent contended that the issue of when the period of disqualification commences should not be answered by a general common law rule or by reference to decisions made in different statutory contexts in other jurisdictions.
In the light of the conclusion that I have reached, it is not necessary to address this submission. That is because ss 32(7) and 63(4) operate only in relation to a period of disqualification or suspension that existed at the date of the offence and the date of the conviction. They do not operate in relation to each of the periods of disqualification imposed automatically on a single day as a result of a number of convictions.
It is not necessary to determine the other submission of the appellant, namely that the specific provisions do not apply because the disqualifications were imposed as a result of convictions on a single day.
Under s 69 I consider that it is appropriate to make the periods of disqualification concurrent to the extent that the total periods of disqualification arising from this set of convictions will be a period of five years.
I also consider it appropriate to make an order under s 65 of the RTG Act that the appellant be disqualified until further order of the Court. I consider that is necessary in the public interest to make such an order because of the gravity of the offending behaviour, the appellant’s history of previous driving offences, and the need to structure a sentence which will not impose a crushing period of disqualification upon the appellant and will provide an incentive for the appellant, upon the conclusion of his sentence of imprisonment, to conduct himself lawfully. In reaching that conclusion, I have had regard to each of the matters referred to in s 65(7).
The effect of these orders is to impose a period of disqualification that extends beyond the period of imprisonment to which he was subject. It also means that he may only get his licence back as a result of an application to the Magistrates Court. Clearly enough, the possession of a motor vehicle licence is very important ingredient in a person’s capacity to engage in employment and ordinary life: see R v Forrest (No 3) [2017] ACTSC 168 at [38]. While the conduct engaged in by the appellant was extremely serious and warrants disqualification of his licence for a substantial period, there is at least a possibility that, after serving the sentence of imprisonment which was imposed, the appellant may be able to lead what is referred to by some as a
“pro-social” life: see Amos v McCarron (No 2) [2017] ACTSC 46 at [54], [97]. The prospects of him doing so would be impeded if he is burdened with a period of disqualification which extends over the best part of his remaining working life. If there is the possibility of him regaining his licence by leading a law-abiding life and convincing the Magistrates Court that it is appropriate to have it returned to him, then that is at least some incentive for him to abide by the law. While, having regard to his criminal history, there must be considerable doubt about his capacity to live lawfully outside of prison, in the event that he is unable to clearly demonstrate a capacity to lead a law-abiding life outside prison, he is unlikely to be able to persuade the Magistrates Court to set aside the disqualification. As a result the community will be no worse off and may be better off as a result of the appellant’s disqualification being governed by such a regime than it would be if an inflexible and crushing disqualification remained in place for 16.5 years.
Orders
The terms of the orders which I will make refer to licence disqualification orders. These are the perfected orders of the Court on documents which bear the title “Licence disqualification order”, the substantive terms of which are set out in the table at [32] above.
The overall effect of my orders will be to allow the automatic periods of disqualification to operate, to make them concurrent in a manner which confines the overall mandatory period of disqualification arising from this set of disqualifications to five years but requires an application to the Magistrates Court after the end of that period before the appellant may regain his licence.
In Amos v McCarron (No 2) at [73]-[74] Refshauge J identified, but did not answer, the question of how s 216 of the Magistrates Court Act operates in relation to automatic periods of disqualification imposed, upon conviction, by statute. In case there is any issue in this case about when the disqualifications arising from the orders that I make or arising by reason of the conviction recorded by the special magistrate start or end I will grant liberty to either party to apply to have the proceedings relisted for any further orders that are needed in relation to the start or end date of the periods of disqualification.
The orders of the Court are:
1. On each of charges CC16/4061, CC16/6661, CC16/6662, CC16/8746, CC16/8880, CC16/9152, CC16/9273, CC16/9274, CC16/9276, CC16/9281, CC16/10202, CC16/10203 the licence disqualification order made on 9 November 2016 is set aside. 2. The period of disqualification arising from the conviction on CC16/6662 is to be concurrent with the period of disqualification on CC16/6661 to the extent of one year. 3. The periods of disqualification arising from the conviction on charges CC16/8746, CC16/8880, CC16/9152, CC16/9273, CC16/9274, CC16/9276, CC 16/9281, CC16/10202, CC16/10203 are to be concurrent with the period of disqualification arising from the conviction on charge CC16/4061. 4. The appellant is disqualified from holding or obtaining a driver licence from the end of the period of disqualification arising from the conviction on the charges referred to in order 1 and the operation of orders 2 and 3 above until the disqualification is set aside under s 65(3) of the Road Transport (General) Act 1999 (ACT). 5. Each party has liberty to have the proceedings relisted for the making of any further orders in relation to the start or end date of the disqualifications from holding or obtaining a driver licence that are necessary to properly dispose of the appeal. Such liberty may only be exercised within 14 days after the date of these orders and may be exercised by sending an email requesting re-listing to my associate copied to the other party. I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 9 August 2017
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