Police v Clayton-Smith

[2010] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v CLAYTON-SMITH

[2010] SASC 127

Reasons for Decision of The Honourable Justice Gray

7 May 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - ORDERS - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IMPROPER PURPOSES

Appeal against decision of Magistrate to vacate orders made by another Magistrate on an earlier occasion pursuant to section 76A of Summary Procedure Act – Magistrate re-convicted the appellant in regard to the earlier matters - in so doing the Magistrate avoided the operation of section 74 of the Motor Vehicles Act which mandated the imposition of a three year disqualification from driving for a subsequent offence - whether the Magistrate acted for a purpose not authorised by section 76A of the Act - whether denial of procedural fairness to the Police - discussion of the operation of relevant provisions - whether power to re-record convictions operative at another date.

Held: appeal allowed - denial of procedural fairness occasioned when Magistrate proceeded to act under section 76A without giving adequate notice to the Police - Magistrate acted under section 76A for purpose of avoiding or limiting the operation of section 74 of the Motor Vehicles Act - Magistrate acted for an improper purpose - interests of justice did not call for the setting aside of the earlier orders - pursuant to section 47IAA of the Road Traffic Act, in fixing a period of mandatory disqualification for the offence for which the notice of appeal was issued, the Court is required to take into account the relevant period imposed for another offence arising out of the same course of conduct - it would require extraordinary circumstances to justify the re-recording of the convictions which have been set aside purportedly because it was in the interests of justice to do so.

Summary Procedure Act 1921 (SA) s 76A; Motor Vehicles Act 1959 (SA) s 74; Road Traffic Act 1961 (SA) s 47A and 47IAA, referred to.
Police v Alikaris [2000] SASC 163; Muscat v Magistrates' Court (1996) 66 SASR 367; Brownells Ltd v Ironmongers Wages Board (1950) 81 CLR 108; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513; Shop Distributive & Allied Employees Association v Minister for Industrial Affairs for State of SA (1995) 183 CLR 552; State of South Australia v Slipper (2004) 136 FCR 259; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Police v Franco [2008] SASC 268; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Tran v Police (Unreported, 2 October 1998, Judgment No. S6891, Perry J), considered.

POLICE v CLAYTON-SMITH
[2010] SASC 127

Magistrates Appeal

GRAY J:

1. This is an appeal against sentence.

   Introduction

2. On 8 January 2010, a Magistrate acted pursuant to section 76A of the Summary Procedure Act 1921 (SA) and vacated orders made by the Magistrates Court on an earlier occasion, 23 July 2009.  The Magistrate then proceeded to re-convict the defendant in regard to those earlier matters and impose penalties in the same amount.  Through this process, those earlier convictions were no longer previous convictions for the purposes of sentencing for the matter before the Magistrate on 8 January 2010.

3. The Police appealed against the sentence imposed by the Magistrate on the ground that the Magistrate erred in law by not imposing the minimum mandatory licence disqualification of three years as required under sections 74(5)(a) and (b) of the Motor Vehicles Act 1959 (SA). The defendant and respondent appeared unrepresented both before the Magistrate and on the hearing of the appeal.

4. On completion of the hearing of the appeal on 24 March 2010, I allowed the appeal.  I discharged the order of the Magistrate of 8 January 2010 setting aside the earlier convictions of 23 July 2009 and re-recording the convictions in regard to those matters.  I further ordered that the penalties imposed by the Magistrate in respect of the offending before the Court on 8 January 2010 be confirmed, save that the defendant be disqualified from holding and obtaining a driver’s licence for a period of two years and five months from the date of my order.  These are my reasons for those orders. 

   Background

5. Section 74 of the Motor Vehicles Act is concerned with the duty to hold a licence or a learner's permit. Section 74(5) relevantly provides

   (5)Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:

   (a)     the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;

   (b)     the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;

   (c)     if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.

   [Emphasis added]

6. On 8 January 2010 the defendant appeared before the Magistrate and pleaded guilty to two charges on complaint. The first charge alleged that the defendant had, on 1 August 2009, driven a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act.[1]  The second charge alleged that on the same date, the defendant drove a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol,[2] as defined in section 47A of the Road Traffic Act.[3] 

   [1]    It was further alleged that the respondent had never been authorised under the Motor Vehicles Act, or any other Act within the Commonwealth to drive a motor vehicle of that class on a road.

   [2]   It was further alleged that the concentration of alcohol in the defendant’s blood was 0.173 grams in 100 millilitres of blood.

   [3] Contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) which provides:

   (1)     A person must not—

   (a)     drive a motor vehicle; or

   (b)     attempt to put a motor vehicle in motion,

   while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.

7. On 23 July 2009, the defendant had been convicted of two breaches of section 74(2) of the Motor Vehicles Act, by driving unauthorised, the first being on 26 April 2009 and the second being on 17 May 2009.[4]

   [4]    It is apparent that the occasion of driving on 17 May 2009 was not treated as a subsequent offence to the offence of 26 April 2009 as the defendant, when he drove on 17 May 2009, had not been convicted for the offence of 26 April 2009.  

8. Section 74(2) of the Motor Vehicles Act relevantly provides:

   (2)     Subject to this Act, a person who—

   (a)     drives a motor vehicle of a particular class on a road; and

   (b)     is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,

   is guilty of an offence.

   Maximum penalty:

   For a first offence—$2 500.

   For a subsequent offence—$5 000 or imprisonment for 1 year.

   [Emphasis added]

9. In respect of the offences before the Court on 8 January 2010, the Magistrate dealt with the drive unauthorised offence by entering a conviction and imposing a fine. The Magistrate did not proceed to make an order pursuant to section 74(5) of the Motor Vehicles Act. As extracted above, that section mandates, in the circumstances of a subsequence offence contrary to section 74(2), the making of an order disqualifying a defendant from holding or obtaining a driver’s licence for a period of not less than three years; in fact, it is for such a period as the court thinks fit, being not less than three years. In other words, in relation to the defendant, the statute mandated the imposition of a minimum three year disqualification.

10. In the circumstances, but for the Magistrate setting aside the earlier convictions, the driving of 1 August 2009 in breach of section 74(2) of the Motor Vehicles Act, was a subsequent offence, attracting the operation of section 74(5)(a) and (b) of the Act and making it mandatory for the Court to disqualify the defendant from holding or obtaining a driver’s licence for not less than three years. However, the operation and effect of section 74(5) was circumvented by the Magistrate setting aside the orders of 23 July 2009.

11. As earlier observed, in setting aside the orders of 23 July 2009, which were the basis for the trigger of section 74(5)(a), the Magistrate purported to act pursuant to section 76A of the Summary Procedure Act.  That section provides the power to the Magistrates Court, in certain circumstances, to set aside a conviction or order of the Court, and relevantly provides:

    (1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.

    (2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.

    (3)     The Court may set aside a conviction or order under this section if satisfied—

    (a)     that the parties consent to have it set aside; or

    (b)     that the conviction or order was made in error; or

    (c)     that it is in the interests of justice to set aside the conviction or order.

    (4)Where the Court sets aside a conviction or order under this section it may, without further formality—

    (a)     proceed to re-hear the proceedings in which the conviction or order was made; or

    (b)     adjourn the proceedings for subsequent re-hearing.

    [Emphasis added]

    Denial of Procedural Fairness

12. In an affidavit dated 16 March 2010, the police prosecutor who appeared before the Magistrate in the within matter, deposed that after informing the Court of the defendant’s relevant prior convictions, the Magistrate explained to the defendant the three year minimum disqualification. The Magistrate then adjourned the proceedings for a short period to review the court files in relation to the previous convictions. When the matter resumed, the Magistrate stated that pursuant to section 76A of the Summary Procedure Act, she was vacating the orders made on 23 July 2009 in relation to the prior convictions.  The prosecutor deposed that the Magistrate then proceeded to re-record the previous convictions. 

13. I accept that the Magistrate gave no adequate notice of her intention to act pursuant to section 76A on her own initiative to set aside the orders of 23 July 2009. In my view, and consistent with authority on the operation of section 76A in this respect,[5] the rules of procedural fairness required that notice be given to the Police of the course to be taken by the Magistrate and that the Police be given an opportunity to be heard.  In Muscat v Magistrates’ Court,[6] regarding the proper procedure to be followed when a Magistrate is acting on his or her own initiative pursuant to section 76A, Lander J observed:

    …nor in my opinion could he have [acted pursuant to section 76A] without first giving the parties notice of the exercise of his initiative and allowing the parties to be heard.

    In my opinion, a failure to hear the parties would constitute a denial of natural justice with the consequence that, if [the Magistrate] was functus officio and hence relying on his power under s 76a in deciding to withdraw his reasons, certiorari would lie to quash that decision.

    [5]    Police v Alikaris [2000] SASC 163 at [15] (Debelle J).

    [6]    Muscat v Magistrates’ Court (1996) 66 SASR 367 at 379 (Lander J).

14. The denial of procedural fairness in the present proceeding means that the orders are liable to review and reconsideration by this Court. 

    Improper Purpose

15. Counsel for the Police submitted that the facts of the case, and the material before this Court, lead to the conclusion that the Magistrate made the orders that she did in order to avoid the operation of section 74(5) of the Motor Vehicles Act. Accordingly, it was said that the power provided by section 76A of the Summary Procedure Act was not exercised in the interests of justice, and instead was used for an improper purpose. 

16. Counsel for the Police submitted that even if there was a discretion to be exercised, a discretion as enlivened by section 76A(3), that in the present proceeding it was exercised erroneously and for an improper purpose. It was said that on a proper construction of the legislation and a consideration of the circumstances of the case, the order made by the Magistrate was invalid by reason of the power being exercised for a purpose not intended by Parliament.

17. The High Court decisions of Brownells Ltd v Ironmongers Wages Board[7] and Toohey[8] provide a starting point in the context of administrative law for a consideration of improper or unauthorised purpose.  Those decisions have been followed repeatedly, and confirm that a decision maker, upon whom power is conferred, can lawfully exercise that power only for a purpose for which it was conferred, and that decisions made in the exercise of the power can be challenged on the grounds of an improper purpose.[9]  It is further to be noted that the presence of an improper purpose will not automatically lead to invalidity of the decision - it will depend on the statute conferring the power under which the decision was made or discretion exercised.[10]

    [7]    Brownells Ltd v Ironmongers Wages Board (1950) 81 CLR 108.

    [8]    R v Toohey;Ex parte Northern Land Council (1981) 151 CLR 170; see also Sydney Municipal Council v Campbell [1925] AC 338.

    [9]    See Brownells Ltd v Ironmongers Wages Board (1950) 81 CLR 108 at 119-120 (Latham CJ).

    [10]   See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

18. In Toohey,[11] Aickin J took an approach which accords with that taken by the House of Lords in Ex parte Fire Brigades Union,[12] and described improper purpose in the following way:

    I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.

    [11]   R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233.

    [12]   R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513.

19. Counsel for the Police invited the Court to consider the High Court decision of Shop Distributive & Allied Employees Association v Minister for Industrial Affairs for State of SA.[13]  That decision involved legislation that prevented Sunday trading; the Shop Trading Hours Act 1977 (SA). Section 5 of the Act empowered the Minister to issue a certificate of exemption to a shopkeeper from the observance of the prescribed hours for Sunday trading in the central shopping district of Adelaide city centre. The Minister purported to use a certificate to exempt a whole shopping district from the Sunday trading legislation. This certificate bypassed a section of the Act, which required agreement by a majority of interested parties, for such an exemption. It was held that the certificate was invalid as it was effectively used to replace the legislative scheme, in that what purported to be an exemption became a prescription in itself. It was held that the power was not to be construed as allowing the Minister to effect an alteration of shop trading hours within a shopping district. Accordingly, the certificate was issued for an improper purpose and was therefore beyond power.[14] 

    [13]   Shop Distributive & Allied Employees Association v Minister for Industrial Affairs for State of SA (1995) 183 CLR 552.

    [14]    Shop Distributive & Allied Employees Association v Minister for Industrial Affairs for State of SA (1995) 183 CLR 552 at 561 (The Court).

20. Counsel further sought to rely on the decision State of South Australia v Slipper.[15] That decision concerned the acquisition of land by the Commonwealth. The Commonwealth Minister for Finance and Administration sought to acquire land in South Australia for the purpose of constructing a radioactive waste dump. South Australia indicated that it would declare the designated land to be a public park, thereby pursuant to section 42 of the Lands Acquisition Act 1989 (Cth), preventing the compulsory acquisition of the land without the consent of the State. Before that declaration was made, the Commonwealth Minister accelerated the acquisition process issuing a certificate pursuant to section 24(1)(a) of the Lands Acquisition Act, which would effectively cut through the formalities if there was “an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed …”.  Without affording the State an opportunity to be heard in relation to the decision, the Commonwealth Minister declared that the land was compulsorily acquired under section 41 of the Act.  Branson J applied both Toohey and Ex Parte Fire Brigades Union, in reaching the conclusion that to limit or control the operation of section 42 was not a purpose for which the power under section 24 was conferred, and as such the certificate was void for being issued for an improper purpose.[16]  It is convenient to set out the following observations of Branson J:[17]

    Even accepting, as I do, that "an urgent necessity for the acquisition" is a wider expression than "the urgent necessity for using the land" (see [10]), I do not believe that s 24(1) can be understood to reflect a legislative intent that the power thereby given to the Minister may be exercised for the purpose of preventing s 42 from applying to the acquisition in question. In my view, by acknowledging that he acted under s 24(1) of the Lands Acquisition Act to prevent s 42 of that Act from operating in accordance with its terms, the first respondent has conceded that he acted to frustrate the will of Parliament as reflected in s 42. The power of acquisition granted by the Lands Acquisition Act is part of a statutory scheme that includes s 42. It is not open to the respondents to suggest, as they sought to do, that although as a matter of statutory interpretation s 42 would have an operation in respect of a public park brought into existence to frustrate the Commonwealth's powers of compulsory acquisition, Parliament did not really intend the section to have that operation.

    [15]   State of South Australia v Slipper (2004) 136 FCR 259.

    [16]   State of South Australia v Slipper (2004) 136 FCR 259 at 273-275 (Branson J).

    [17]   State of South Australia v Slipper (2004) 136 FCR 259 at 274-275 (Branson J).

21. The introduction of the current section 76A of the Summary Procedure Act, coincided with the implementation of extensive changes to the practices and procedures of the Magistrates Court. The second reading speech discloses a clear intention behind the new section 76A:[18]

    A number of miscellaneous amendments are designed to improve the efficiency of the court…

    The Magistrates’ Court is given a wide power to set aside a conviction.  This will enable convictions to be set aside where, for example, a magistrate has acted outside his or her jurisdiction.  This will save the necessity for an appeal…

    Clause 40 substitutes section 76a giving the court power to set aside a conviction or order.  The grounds on which a conviction or order may be set aside are extended to where the court is satisfied that it is otherwise in the interests of justice or the parties consent.

    [18]   South Australia, Parliamentary Debates, House of Assembly, 14 November 1991, page 1973-1974.  (Hon GJ Crafter, Minister of Education).

1. What might be in the interests of justice may encompass a wide variety of circumstances, giving Magistrates flexibility to deal with those varied circumstances. Section 76A, although conferring a broad discretion designed to facilitate the efficiency of the courts and avoid unnecessary appeals, is primarily directed to circumstances where the previous conviction is contaminated with error, or where otherwise, having regard to the circumstances of the particular case, the interests of justice demand the use of the power.

2. Prior to its amendment in 1991, section 76a of the then Justices Act 1921 (SA) was in stricter terms and more limited in its operation that the current section 76A. It is evident that what might amount to what is in the interests of justice has been deliberately broadened by Parliament. As noted in Muscat v Magistrates’ Court,[19] the amendment occurred at the same time as Parliament constituted the Magistrates Court of South Australia as a court of record. Further, the amendment provided the Court with power to act pursuant to section 76A in the absence of an application, and on its own motion. Given that section 76A is within the category of remedial legislation, it should receive a liberal construction.[20] It is clear that section 76A confers a broad, but not unfettered, discretion upon the Court. The section enables the Magistrates Court to make orders it would not otherwise have been able to make because it was functus officio.[21] 

   [19]   Muscat v Magistrates’ Court (1996) 66 SASR 367, at 379.

   [20]   See Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 (Isaacs J, dissenting) and subsequent cases. See specifically with respect to section 76A: Tran v Police (Unreported, 2 October 1998, Judgment No. S6891, Perry J); Police v Alikaris [2000] SASC 163 at [14] (Debelle J).

   [21]   Muscat v Magistrates’ Court (1996) 66 SASR 367 at 379; Police v Franco [2008] SASC 268 at [32].

3. The circumstances in which section 76A may be properly invoked were considered by this Court in Franco.[22]  Bleby J there observed:

   The Magistrates Court, although a court of record, is also a court of summary jurisdiction. Where an error has been made or relevant facts have been withheld from or mistakenly omitted from being placed before the Court, either through no want of diligence on the part of the applicant or because of a genuine misunderstanding on the applicant’s part, which has resulted in an injustice, or where material circumstances have changed which justify the reconsideration of an order of this nature and the interests of justice require it, resort to s 76A of the Summary Procedure Act is entirely appropriate. Within the constraints imposed by s 76A(3) it is a convenient summary remedy for an injustice which otherwise could only be cured by the much more cumbersome and expensive procedure of an appeal to this Court.

   Bleby J went on to hold:[23]

   This was not a case of substituting a discretionary order for an earlier one merely because the applicant was dissatisfied with the first one. The second Magistrate was not merely acting as a de facto appeal court, although the same result may have been achieved by an appeal. There were good and cogent reasons in the interests of justice why the second Magistrate should take the course that she did. She was acting on evidence that was not before the first Magistrate but which, if it had been, would probably have resulted in the order that was in fact made by the second Magistrate. It was not, as the respondent suggested, a case of having to demonstrate error on the part of the first Magistrate, although that is a possible ground for acting under s 76A. All that had to be shown, and was shown, was that it was in the interests of justice to set aside the order.

   [22]   Police v Franco [2008] SASC 268 at [35].

   [23]   Police v Franco [2008] SASC 268 at [39].

4. On the face of the material before me, I am of the view that the Magistrate acted under the power conferred by section 76A of the Summary Procedure Act for the purpose of avoiding or limiting the operation of section 74(5) of the Motor Vehicles Act in relation to the defendant. In light of the above analysis and the authorities, I am of the view that section 76A was not enacted for the purpose of authorising a Magistrate to merely avoid or limit the operation of section 74(5) of the Motor Vehicles Act or like provisions.

5. Section 76A is to be used for the purpose for which it was conferred.[24] Section 76A cannot be understood to reflect a legislative intent that the power thereby given to a Magistrate may be exercised for the purpose of avoiding the application of section 74(5) of the Motor Vehicles Act to the defendant in circumstances such as those of the within proceeding, and to so act, in my view, frustrates the intention of Parliament. As such, the Magistrate was acting for an improper purpose, and upon a proper construction of section 76A, the orders purported to be made under section 76A were made beyond power and are void for that reason.

   [24]   See Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758.

6. At the hearing of the appeal, I accepted counsel for the Police’s submission that, in the circumstances, the interests of justice did not call for the invocation of section 76A and the vacating of the earlier orders by the Magistrate. The defendant was convicted over a short time frame on two occasions for driving without having a licence. A short time later, he offended against drink driving legislation, recording a blood alcohol reading of 0.173. These factors weigh heavily against any finding that it was in the interests of justice to set aside the convictions. It would require extraordinary circumstances to outweigh the nature of the offending described above.

7. I infer that the Magistrate had formed the view that seven months disqualification was appropriate for the drink driving offence and that any further licence disqualification was beyond what was called for, and that it was in the interests of justice to avoid the operation of section 74(5) of the Motor Vehicles Act.  This approach however, given the observations above, is at direct odds with the intention of the legislation that repeated driving whilst unauthorised is to be viewed as a serious matter.  The potential penalty of imprisonment of up to one year is a reflection of the seriousness with which Parliament has viewed the problem of repeated unauthorised driving. 

   A Further Matter

8. A further issue arose on the hearing of the appeal.  As earlier observed, one of the matters before the Magistrate on 8 January 2010, was a drink driving offence in respect of which the defendant had been given a notice by the Police that he was not to drive, effective as from 1 August 2009.  The provisions of the Road Traffic Act 1961 (SA) require that, in fixing a licence disqualification, an appropriate allowance is to be made in respect of the time during which the defendant has already been banned from driving. The relevant provision can be found in section 47IAA of the Road Traffic Act, which addresses the power of the police to impose an immediate driver’s licence disqualification or suspension following a reasonable suspicion that a driver has committed a drink driving offence.  What is of particular relevance to the present proceeding is the operation of 47IAA(9), which relevantly provides:

   If—

   (a)     a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of immediate licence disqualification or suspension under this section; and

   (b)     a court convicts the person of the offence to which the notice relates or another offence arising out of the same course of conduct; and

   (c)     a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence,

   then—

   (d)     the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence, the disqualification operates to cancel the licence from the commencement of that period); and

   (e)     despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may impose a period that is less than the mandatory minimum period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum and the period that has applied as a result of the notice).

   [Emphasis added]

9. Sub-section (9)(b) of section 47IAA indicates that Parliament contemplated that a driver, in addition to the drink driving related offence for which a notice of immediate disqualification was issued, might also, as part of the same course of conduct, have committed another offence for which a licence suspension or disqualification could be imposed, such as driving unauthorised. This is the very situation that occurred in the present proceeding.

10. Sub-section (9)(e) of section 47IAA operates to permit a Court to do what the Act would otherwise forbid; that is, to mitigate or ameliorate a requirement that in particular circumstances a minimum period of licence disqualification must be imposed. It does so by requiring the Court, when fixing the period of licence disqualification or suspension, to take into account the period elapsed since the notice of disqualification or suspension was issued by the police.

11. It was contended by counsel for the Police in the present proceeding, that sub-section 9(e), when read in light of the provisions of sub-section (9)(b), requires a Court to take into account the period elapsed since the notice issued by the police, when fixing a period of mandatory disqualification, not only for the offence for which the notice was issued but also for another offence arising out of the same course of conduct.  It was further contended that it is at the discretion of the Court as to whether the order made operates cumulatively or concurrently.  I accept these contentions.

12. It is for these reasons that I adjusted the period of disqualification to two years and five months from the date of my order. 

    Power to Re-record Convictions Operative at another Date

13. A further question arose as to the power of the Magistrate to, having set aside the convictions of 23 July 2009, immediately re-record them, but operative not as of 23 July 2009, but 8 January 2010.  In the circumstances, an issue arises as to whether having set aside convictions, the Court is empowered to order the re-recording of the convictions operative at another date.

14. In my view, as a result of my conclusions above, it was inappropriate for the Magistrate to proceed in this way.  It would require extraordinary circumstances to justify, absent a re-hearing of the facts of a case, the re-recording by the Magistrate of the very same convictions which were set aside in the first place purportedly because the interests of justice required that they be set aside.  Indeed, the re-recording of the convictions shortly after they were set aside provides a strong indication that it was not necessary, in the interests of justice, to set them aside, but that the setting aside was done for an improper purpose.

    Conclusion

15. As a consequence of the above, I resentenced the defendant to reflect the mandatory provisions of the Motor Vehicles Act.  I adjusted the period of disqualification to a period of two yeas and five months for the reasons set out above.