Peach v Heddles - [2001] NTSC 73

Peach v Heddles [2001] NTSC 73
PARTIES:PEACH, David Nicholas

v
HEDDLES, Kevin Leslie

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 19 of 2001
DELIVERED:  17 August 2001
HEARING DATES:  1 August 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPEAL
Justices – appeal against an order for disqualification from holding a driver’s licence – whether Magistrate erred in fixing a date for commencement of the period of disqualification.
Justices Act 1928 (NT), s 19, s 39 and s 40
Boeyen (1990) 50 A Crim R 482, approved
REPRESENTATION:
Counsel:
Appellant:R Noble
Respondent:  R Coates
Solicitors:
Appellant:DPP
Respondent:  NTLAC
Judgment category classification:      B
Judgment ID Number:  mar0127
Number of pages:  7

Mar0127
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Peach v Heddles [2001] NTSC 73
No. JA 19 of 2001

BETWEEN:
DAVID NICHOLAS PEACH

Appellant
AND:
KEVIN LESLIE HEDDLES

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 17 August 2001)

Appeal by complainant against an order disqualifying the respondent from holding a motor vehicle driver’s licence upon the grounds that the Magistrate erred in his fixing of the date for commencement of the period of disqualification.

The chronology of relevant events concerning the respondent follows:
Date  Event  Result
(a) 29 April 1998            Convicted, s 19(2)        Disqualified 11 months
Traffic Act and 20 days
(b) 4 February 2001        Drove contrary to
  s 19(2) (.203)
(c) 15 February 2001      Drove contrary to
  s 19(2) (.259)
23 March 2001                Convicted for (b)        (b) Disqualified 5 years
  & (c)  from 4 February 2001
  (c) Disqualified 5 years
  from 16 February 2001
Section 19(2) of the Act makes it an offence for a person to drive a motor vehicle on a public street if there is a concentration of alcohol in the person’s blood equal to 80mg or more of alcohol to per 100ml of blood.
The commencement date of the disqualification period in each of (b) and (c) above, the date of the offence in each case, was apparently set taking into account the disqualification from driving a motor vehicle pursuant to powers given to a member of the Police Force by s 20A(2) of the Act. Any licence to drive a motor vehicle is suspended until the charge is determined by a court consequent upon that disqualification (see s 39(3A)). The fixing of that commencement date was an error.
When s 39(3A) operates, the period of disqualification is to be reduced by the period for which a person was disqualified under s 20A. That is in conformity with the disqualification period running from the finding of guilt as provided in s 39(1). There does not appear to be any statutory warrant for ordering a disqualification period to take effect from the date earlier than the finding of guilt.
Where a court finds a person guilty of an offence against s 19(2) that person’s licence is cancelled, from the finding of guilt, and the person is disqualified from holding a licence, subject to presently irrelevant matters, for the period specified in Sch 1 or such longer period as the court thinks fit. If the person does not hold a licence, that person shall be disqualified from holding a licence for the period fixed by reference to s 39, or as otherwise ordered by the court in accordance with s 39 (s 40).
If the finding of guilt relates to an offence committed within three years after the committing of an offence against s 19(2), punishable as provided in s 19(3)(a)(ii) or (b), then the person’s licence is, by force of the finding, cancelled for such period, being not less than five years, as is fixed by the court (s 39(1)(e)). Section 40 also applies in those circumstances.
There was nothing in the material before his Worship as to the date upon which the offence for which the respondent was found guilty on 29 April 1998 was committed. If it was earlier than 4 February 1998, then it would be beyond the scope of s 39(1)(e). It was during the course of submissions in this Court that the omission was brought to light by counsel for the respondent. Counsel for the appellant rightly accepted that an error had occurred in that regard. His Worship had been led to believe that the minimum disqualification period for the offence of 4 February 2001 was five years (s 39(1)(e)).
The court’s power in relation to disqualification for the offence on 4 February 2001 was as provided for in s 39(1) and the Schedule, that is, for the prescribed period of 18 months or such longer period as the court saw fit.
Obviously, the finding of guilt for the offence on 15 February 2001 was within three years of the offence of 4 February 2001, resulting in a minimum disqualification of five years.
The issue which ultimately came to be considered on appeal is the powers of a court upon findings of guilt made on the same day for two offences against s 19(2), committed on different occasions, the first carrying disqualification for 18 months or longer and the second five years or longer.
It will be noted that his Worship’s disqualification orders were each for five years from the respective dates upon which the offences were committed, effectively resulting in concurrency for all but the 12 days. It may be assumed for these purposes that had his Worship not been in error he would have made appropriate disqualification orders operating from the findings of guilt which would also run concurrently.
The appellant maintains that his Worship erred in fixing the dates for commencement of the periods of disqualification, saying the second should have been ordered to commence upon the expiry of the first. I reject that submission.
The commencement of a disqualification period is fixed by reference to the finding of guilt and operates from that event (s 19(2)). Accordingly, in this case, the two disqualification periods, adjusted as provided in s 39(3A), must commence from the same day and run together until the shorter expires, the other continuing until it expires. I have not been directed to any power to order the disqualification periods take effect consecutively.
The legislature clearly intended that however many relevant findings of guilt may be made on the one day, all statutory disqualification periods, whether the minimum mandated by statute or as extended by the court, should commence together. In my opinion it would be contrary to that intention that orders be made having the effect of accumulation of each period of disqualification. For example, I think it would be contrary to that intention if a court were to order that a period subsequent to the first be of such a time as would achieve the same result as accumulation.
That is not to say that a court may not order a period in excess of the statutory minimum in any case if it is warranted by the circumstances of the case and more than one such order could be made on the one day. However, I agree that the period of disqualification should, when considered with the other penalties imposed, represent a total sentence that is proportionate to the offence (Fox and Freiberg, “Sentencing State and Federal Law in Victoria”, 2^nd Edition, Par 6.5.2). In that regard two major considerations were identified by the Court of Criminal Appeal of Victoria in the unreported decision of George 21 September 1990 referred to in Boeyen (1990) 50 A Crim R 482:
“They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.”
In the ordinary course of events the court may well consider that a period of disqualification should be less for a first offender than for a person who is not, but it will depend upon all the circumstances, subject, of course, to the statutory minimum.
In this case I have no doubt that the second finding of guilt on 23 March called for a longer period of disqualification than the statutory minimum. The offence which enlivened the court’s power was committed only a few days after the first and the blood alcohol content was very high, it was the respondent’s manner of driving that brought him to the attention of police.
His Worship erred in fixing the first period of disqualification by reference to a minimum of five years and that should be corrected. Had each period of disqualification been fixed in accordance with the statute, the first would have been for not less than 18 months and the second, not less than five years. For reasons already given they could only run from the same day. The total effective period of disqualification was a little in excess of five years, barely over the minimum prescribed for the second finding of guilt. In my opinion that was inadequate, but I bear in mind that it was his Worship’s discretion, not mine, and that this is a prosecution appeal designed to establish the disqualification powers of a court when dealing with a finding of guilt for an offence under s 19(2) when a period of disqualification for such an offence has not expired.
The disqualification orders made by his Worship are quashed. For the offence committed on 4 February 2001, the respondent is disqualified from driving as from 23 March 2001 for a period of 18 months reduced by the period for which he was disqualified under s 20A. For the offence committed on 15 February, the respondent is disqualified from driving as from 23 March 2001 for a period of five years reduced by the period for which he was disqualified under s 20A.
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