Menelaou v Petrou (No. 2)

[2017] VCC 936

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. AP-15-1998

Peter Menelaou	Appellant
v
Senior Constable Robert Petrou	Respondent

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JUDGE:	Campton
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2017
DATE OF RULING:	20 June 2017
CASE MAY BE CITED AS:	Menelaou v Petrou (No. 2)
MEDIUM NEUTRAL CITATION:	[2017] VCC 936

REASONS FOR RULING
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Subject:Refuse breath test; request to accompany to testing facility for evidentiary breath test; Appeal against sentence

Catchwords:            Traffic Infringement Notice

Legislation Cited:     The Road Safety Act 1986; Infringement Act 2006, the Infringements (Reporting and Prescribed details and Forms) Regulations 2006 , the Instruments Act and the Interpretation of Legislation Act (Vic) 1984

Cases Cited:Roads Corporation v The Magistrates’ Court of Victoria (2005) 43 MVR 455; DPP v Korybutiak [2004] VSC 3; DPP v Croaker [2001] VSC 342;

Ruling:  4 year licence cancellation/disqualification upheld

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Warwick Walsh-Buckley
For the Respondent	Peter Pickering

HER HONOUR:

The Appeal

1       On 20 August 2015, at the Heidelberg Magistrates’ Court the appellant was convicted of refusing to undergo a breath test. Pursuant to the Road Safety Act 1986 (the Act) on convicting a person or finding a person guilty of an offence under section 49 (1) (a),(c),(d),or (e) of the Act the court must cancel the license and disqualify the offender from obtaining one for such time as the court thinks fit, not being less than;

(a) in the case of a first offence, 2 years; and

(b) in the case of subsequent offence, 4 years.

2       As the appellant had a conviction by way of a Traffic Infringement Notice (TIN) within 10 years for such an offence, the Magistrate ordered that his license be cancelled and that he be disqualified from driving in the State of Victoria for a period of four years.[1]

[1] The appellant had a relevant conviction dating back to 8 December 2012

3       The appellant appealed both the conviction and sentence for refusing to undergo a breath test. The appeal against conviction was unsuccessful and the reasons for the decision have been published. This decision deals with the appeal against the sentence that included a four year license cancellation/disqualification.

Case for the Appellant

4       Both the appellant and respondent provided detailed written submissions regarding this matter. I have read and considered these submissions and I do not intend to repeat them all here. Simply put, the case for the appellant is there was no valid conviction or finding of guilt for a section 49(1)(e) offence within 10 years of the present offence. Alternatively, the TIN itself was void ab initio. Consequently the minimum mandatory license disqualification which applied for the offence of refusing to accompany was two years and not the four years imposed by the Magistrate.

5       In making this submission the appellant relied on the legislation with respect to TINs including the Infringement Act 2006, the Infringements (Reporting and Prescribed details and Forms) Regulations 2006, the Instruments Act and the Interpretation of Legislation Act (Vic) 1984. In addition, a number of authorities concerning the principles of statutory interpretation with respect to TINs and certificates required pursuant to breath test legislation were relied upon.

6       It was submitted for the appellant that the consequences of a TIN issued in respect of a drink-driving infringement are severe as an individual receives a statutory finding of guilt for the crime and conviction with a significant fine and lengthy disqualification period by virtue of the relevant provisions of the Act. The presumed intention of Parliament was that if all the prescribed details which a TIN must contain in respect of a drink-driving infringement were not present than it was invalid.

7       In this case the TIN which was issued on 9 November 2012 did not create a valid conviction as it contained the following defects:

·    it did not give a brief description of the alleged traffic infringement;

·    the drink-driving box on the TIN was not ticked;

·    as the offences of drink-driving, drug driving and excessive speed were not crossed out on the face of it the TIN alleged that the appellant had committed these offences. This potentially gave him a criminal record for these generalised descriptions of traffic offences.

Reasons for decision

8       I do not accept the submissions on behalf of the appellant. Even if the TIN was defective in some way, the appellant had 28 days to object to it and take his chances in court back in 2012. I am satisfied that it is not the intention of the legislature to allow a challenge to the TIN five years later, following a subsequent conviction under the Act.

9       In this respect I note that in Roads Corporation v The Magistrates’ Court of Victoria[2] a similar argument to that of the appellant was rejected by Hargrave J. At paragraphs [34]-[35] His Honour said:

“Mr Haag submitted that, if an infringement notice was misleading in any respect, or did not contain all the information upon which the recipient might require to make an informed decision, that it would be an “invalid” notice which would not constitute a traffic infringement notice for the purposes of the Act-- In my view, the submissions of behalf of Vicroads are to be preferred. The legislation has expressly limited, in a very narrow way, the grounds of appeal available to a driver whose driver’s licence is suspended... Parliament has done so in plain and unambiguous language"

[2] (2005) 43 MVR 455

10      The appellant submitted that the case was not binding and distinguishable from the present as “it related to the Magistrates’ Court administrative law jurisdiction and not the criminal law jurisdiction as in the instant case”.[3]

[3] Para 4 of the Appellants Further Submissions

11      However, I accept that the same reasoning as adopted by Hargrave J can be applied to appealing infringement notices in section 89A of the Act issued with respect to offences under s49(1) of the Act. Further, I consider that the decision in on DPP v Korybutiak[4] supports this conclusion.

[4] [2004] VSC 3

12      In Korybutiak the Court of Appeal overturned the decision of the Magistrate and of Nathan J of the Supreme Court. This decision stated that the traffic infringement notice, purporting to suspend the respondent’s licence, was invalid as it did not set out certain information required and that the consequence of the invalidity was that the charge of driving whilst disqualified was to be dismissed.

13      The Court of Appeal found that the purpose of the legislature to requirements on the form of the notice-and in particular the address of where to send the notice of objection-was to provide the motorist with information necessary to allow the motorist to make an informed decision on whether to elect to go to Court to object. The Court held that on a common sense reading of the whole of the notice, the form of the notice provided sufficient information to enable a motorist to make a decision whether or not to object to the notice. As such the notice in the case was valid.

14      I accept the submission by the prosecution that the TIN contained sufficient information to enable the appellant at the time to make an election to go to Court or not. The appellant chose not to make this election back in 2012. Section 89(A)(6) of the Act provides that the effect of giving notice of objection to the TIN has the effect that the TIN is cancelled and the person to whom the notice was issued may only be proceeded against by charging the alleged offender by the filing of a charge sheet.

15      The appellant did not object to the TIN in accordance with the section. Accordingly you the TIN takes effect as a conviction for the purpose of establishing a prior offence. In DPP v Croaker,[5] Bonjorno J held that a finding of guilt is implicit in a statutory conviction.

[5] [2001] VSC 342

16      I am satisfied on the evidence in this case that the TIN is a relevant prior conviction. Given this finding, it is mandatory that the appellants licence be cancelled and that he be disqualified from driving in the State of Victoria for a period of four years.