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Nabhan v Wood

Nabhan v Wood

Case [2009] WASC 66 25 March 2009

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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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nabhan v Wood

Details

AGLC: Nabhan v Wood [2009] WASC 66
Case: [2009] WASC 66
Decision Date: 25 MARCH 2009

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Nabhan v Wood [2009] WASC 66

Most Recent Citation

Matthews v Whalley [2010] WASC 165

Cases citing this decision · 5 of 5 shown

Clements v Director of Public Prosecutions
[2025] WASC 222 Para 8

…3) (which was not materially different from the current s 49(8)) permitted the imposition of concurrent periods of disqualification. In Nabhan v Wood [2009] WASC 66 Hasluck J came to the opposite view, although it must be said that his Honour seems to have felt constrained by other authorities that touched on thi…
Knights v Ward
[2022] WASC 267 Para 2

…g magistrate had no discretion to order the concurrency of those periods. [35] Sevelj v Roffey [2002] WASCA 20; (2002) 35 MVR 504. [36] Nabhan v Wood [2009] WASC 66; (2009) 52 MVR 273.…
Kizon v Lee
[2013] WASC 221 Para 11

…In written submissions, the appellant placed some reliance on the decision of Blaxell J in Hands v Baker [2009] WASC 66. That decision does not assist the appellant's case. Hands v Baker dealt with a different question: whether the laser device that had been used to measure speed had been approved by the Minister…
Matthews v Whalley
[2010] WASC 165 Para 19

…The same view was taken in the same circumstances by Hasluck J in Nabhan v Wood [2009] WASC 66. By that time, s 49 was in its present form and the crucial provision was s 49(8) worded as it now is.…
Stone v The State of Western Australia
[2010] WASCA 80 Para 4

…3) (which was not materially different from the current s 49(8)) permitted the imposition of concurrent periods of disqualification. In Nabhan v Wood [2009] WASC 66 Hasluck J came to the opposite view, although it must be said that his Honour seems to have felt constrained by other authorities that touched on thi…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

The State of Western Australia v Viskari
[2008] WASCA 143 Para 9

…entence to be served is inappropriately long or too crushing: Postiglione v The Queen (1997) 189 CLR 295 at 307; State of Western Australia v Viskari [2008] WASCA 143. The key factor is proportionality with a view to ensuring that the aggregate of the sentence is appropriate for each offence and is a just and appro…
Vasallo v Allison
[2006] WASC 147 Para 15

…This view of the matter was subsequently approved by Le Miere J in Vasallo v Allison [2006] WASC 147 at [16].…
Pickett v The State of Western Australia
[2004] WASCA 291 Para 5

…was not considered. It is to be assumed that the decision‑maker has taken all relevant matters into account: Pickett v State of Western Australia [2004] WASCA 291 at [10].…
Sevelj v Roffey
[2002] WASCA 20 Para 13

…In Sevelj v Roffey [2002] WASCA 20 McLure J held that s 105(2) of the Sentencing Act , which makes the term of disqualification prima facie concurrent, was inconsistent with the more specific provision contained in s 49 of the Road Traffic Act (being at that time s 49(3c)) whereby a period of disqualification impo…
Horton v Burton
[1999] WASCA 82 Para 10

…he Road Traffic Act 1974 (WA) where provision is made for cumulative disqualification for the offence commonly known as 'driving while disqualified': Horton v Burton (1999) 28 MVR 415.…
Pearce v The Queen
[1998] HCA 57 Para 8

…fender twice with the result that concurrence is appropriate where there is essentially one transaction or commonality is evident: Pearce v The Queen (1998) 194 CLR 610 at 623.…
Postiglione v the Queen
[1997] HCA 26 Para 9

…te what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long or too crushing: Postiglione v The Queen (1997) 189 CLR 295 at 307; State of Western Australia v Viskari [2008] WASCA 143. The key factor is proportionality with a view to ensuring that the aggregate of the se…
Mill v The Queen
[1988] HCA 70 Para 9

…te result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63.…
Goodwin v Phillips
[1908] HCA 55 Para 14

…il over the general provision in s 105(2) of the Sentencing Act in relation to disqualifications under the RTA and Fines Act : see Goodwin v Phillips (1908) 7 CLR 1 at 7. [23]…
Skerritt v O'Keefe
[1999] WASCA 183 Para 4

…st find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion: Skerritt v O'Keefe [1999] WASCA 183 at 146.…
[1999] WASCA 32
[1999] WASCA 32 Para 3

…he reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32.…

Legislation cited in this decision · 3

Criminal Appeals Act 2004 (WA)
14 2 mentions (from Para 1)
Road Traffic Act 1974 (WA)
41 2 mentions (from Para 2)
Sentencing Act 1995 (WA)
105 2 mentions (from Para 7)