Nabhan v Wood

Case [2009] WASC 66


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   NABHAN -v- WOOD [2009] WASC 66

CORAM:   HASLUCK J

HEARD:   27 FEBRUARY 2009

DELIVERED          :   25 MARCH 2009

FILE NO/S:   SJA 1093 of 2008

BETWEEN:   CHOUKRY NABHAN

Appellant

AND

MATTHEW JAMES WOOD
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :JUSTICES OF THE PEACE AT PERTH

File No  :PE 57447 of 2008, PE 57448 of 2008

Catchwords:

Criminal law - Appeal against order for motor driver's licence suspension periods to be cumulative - Two offences on same day of driving without a valid motor driver's licence - Consecutive charges dealt with together - Whether suspension on second charge of no motor driver's licence should be cumulative upon first suspension - Whether a mandatory obligation exists with regard to discrete offences of driving whilst under suspension to order that periods of disqualification be cumulative - Whether provision in s 105(2) Sentencing Act 1995 (WA) that periods of disqualification be served concurrently applies to s 49(3)(c) and s 49(8) Road Traffic Act 1974 (WA) - Held that s 49(8) Road Traffic Act provisions impose a mandatory obligation in respect of discrete offences to make periods of disqualification cumulative - Mandatory provision excludes discretionary power with regard to concurrence or cumulation of disqualification periods - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Road Traffic Act 1974 (WA), s 41, s 49(3)(c), s 49(8)
Sentencing Act 1995 (WA), s 105

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms A S Rogers

Respondent:     Ms K A T Pedersen

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Cooke v Ginby (1994) 21 MVR 351

Di Camillo v Wilcox [1964] WAR 44

Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32

Horton v Burton (1999) 28 MVR 415

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Pearce v The Queen (1998) 194 CLR 610

Pickett v State of Western Australia [2004] WASCA 291

Postiglione v The Queen (1997) 189 CLR 295

Sevelj v Roffey [2002] WASCA 20

Skerritt v O'Keefe [1999] WASCA 183

State of Western Australia v Viskari [2008] WASCA 143

Vasallo v Allison [2006] WASC 147

HASLUCK J: 

Introduction

  1. The appellant, Choukry Nabhan, appeared before Justices of the Peace in the Perth Magistrates Court on Tuesday 14 October 2008. 

  2. He was charged with two offences of driving a motor vehicle, namely, Ford Falcon station sedan, registered number TAXI 528, on a road whilst not being a person authorised to do so by reason of his licence being disqualified contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA).

  3. Section 49(1) of the Road Traffic Act provides that a person who drives a motor vehicle on a road while not authorised to do so commits an offence. By s 49(1)(c) it is said that if s 49(3)(c) applies the penalty for a subsequent offence…

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Nabhan v Wood [2009] WASC 66
Case
[2009] WASC 66
Decision Date

CaseChat Overview and Summary

Nabhan v Wood is an appeal against an order for motor driver's licence suspension periods to be cumulative, following two offences of driving without a valid motor driver's licence on the same day. The appellant, Nabhan, argued that the suspension periods should not be cumulative, while the respondent, Wood, asserted that they should be. The Court of Appeal was tasked with determining whether the periods of disqualification should be served consecutively or concurrently.

The legal issues before the Court of Appeal revolved around the interpretation of the relevant statutory provisions, specifically s 105(2) of the Sentencing Act 1995 (WA) and s 49(3)(c) and s 49(8) of the Road Traffic Act 1974 (WA). The Court had to decide whether the provision in s 105(2) that periods of disqualification be served concurrently applied to s 49(3)(c) and s 49(8) of the Road Traffic Act, or if there was a mandatory obligation for the periods of disqualification to be cumulative.

In reaching its decision, the Court of Appeal noted that s 49(8) of the Road Traffic Act imposed a mandatory obligation to make periods of disqualification cumulative for discrete offences. This mandatory provision excluded the discretionary power of the court with regard to the concurrence or cumulation of disqualification periods. The Court held that the mandatory provision turned on its own facts and that the appellant's appeal was accordingly dismissed.

The final orders of the Court of Appeal were to dismiss the appeal, upholding the original decision that the periods of disqualification should be cumulative. This decision emphasised the importance of interpreting statutory provisions in their specific context and the need to adhere to mandatory obligations when they are present.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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