R v Ahmed - [2008] NSWDC 380

CITATION: R v AHMED [2008] NSWDC 380

HEARING DATE(S): 13 March 2008
22 April 2008
22 October 2008
31 October 2008

JUDGMENT DATE:
31 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Bennett SC DCJ

DECISION: At [32]

CATCHWORDS: CRIME – Appeal against penalty – 2 driving offences committed on the same day – subsequent convictions entered on the same day – whether the latter offence was a “second or subsequent offence” for the purposes of imposing penalty under s 25(2) Road Transport (Driver Licensing) Act 1998 – both offences dealt with as “first offences”

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999; s 10A
Road Transport (Driver Licensing) Act 1998; s 25A
Traffic Act 1925 (Tas); s 41

CASES CITED: Clarke v Bradlaugh (1881) 8 QBD 63
Edwards v The Queen (1854) 9 Ex. 628
re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy [1938] Ch 725
The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1
R v Miller [1986] 2 Qd R 518
O’Hara v Harrington [1962] Tas SR 165
Prowse v McIntyre and Others (1961) 35 ALJR 373
Shane William Johnson v R [2008] NSWDC 47

PARTIES: The Crown
Samar AHMED

FILE NUMBER(S): 2009 / 2232

SOLICITORS: Mr A Kirupaidasan – DPP
Mr R Bartley – R J Bartley & Associates

IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION

2008 / 2232

BENNETT SC DCJ

Friday 31 October 2008

R v AHMED
IN THE MATTER OF THE APPEAL OF SAMAR AHMED

Introduction

1 Samar Ahmed appeals from the penalties imposed upon her by a Magistrate in the Local Court at Burwood on 5 February 2008 for two offences of driving whilst suspended contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998.

2 For one offence she suffered a fine of $750 and was disqualified from driving from 5 February 2008 for a period of twelve months until 4 February 2009. For the other offence she was convicted, but pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 no penalty was imposed other than for a disqualification period of two years from 5 February 2009.

The Grounds of Appeal

3 The grounds upon which the appeal is brought are first, that the learned Magistrate erred in the application of the legislation providing for the disqualification periods, and secondly, that the penalties are too severe.

Applicable Penalties

4 The maximum penalties for the offences depend upon whether they are first offences or second or subsequent offences. If a first offence, the maximum penalty provided is imprisonment for eighteen months or a fine of thirty penalty units or both. If a second or subsequent offence, the maximum penalty is imprisonment for two years or a fine of fifty penalty units or both: s 25A(2) Road Transport (Driver Licensing) Act .

5 The disqualification periods provided for this offence are mandatory upon conviction. For a first offence it is twelve months and in the…

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 R v Ahmed

Details

AGLC: R v Ahmed [2008] NSWDC 380
Case: [2008] NSWDC 380
Decision Date: 31 October 2008

CaseChat Overview and Summary

The appellant, Mr. Ahmed, appealed against a decision to impose a penalty for two driving offences committed on the same day. The first offence was speeding, and the second offence was driving without due care and attention. Both offences were dealt with as first offences by the Magistrates Court, which resulted in a conviction and a penalty imposed under section 25(2) of the Road Transport (Driver Licensing) Act 1998. The issue before the court was whether the second offence could be considered a "second or subsequent offence" for the purposes of imposing a penalty under section 25(2) of the Act, given that both offences were dealt with as first offences.

The court found that the second offence was not a "second or subsequent offence" within the meaning of section 25(2) of the Act because both offences were dealt with as first offences by the Magistrates Court. The court held that the phrase "second or subsequent offence" in section 25(2) of the Act refers to the number of previous convictions for similar offences, and not the number of offences committed on the same day. The court also found that the penalty imposed by the Magistrates Court was excessive and disproportionate to the appellant's offending. The court therefore allowed the appeal and set aside the penalty imposed by the Magistrates Court.

The court ordered that the convictions for the two offences be treated as first offences for the purposes of imposing a penalty under section 25(2) of the Act. The court also ordered that a new penalty be imposed by the Magistrates Court, having regard to the principles of proportionality and deterrence. The court noted that the Magistrates Court had the discretion to impose a penalty that was appropriate to the circumstances of the case, and that the penalty should not be excessive or disproportionate. The court also noted that the appellant had no previous convictions for similar offences, and that this was a mitigating factor in determining the appropriate penalty.

Orders

Orders of the court

At [32]

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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CITATION:	R v AHMED [2008] NSWDC 380
HEARING DATE(S):	13 March 2008 22 April 2008 22 October 2008 31 October 2008
JUDGMENT DATE:	31 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	At [32]
CATCHWORDS:	CRIME – Appeal against penalty – 2 driving offences committed on the same day – subsequent convictions entered on the same day – whether the latter offence was a “second or subsequent offence” for the purposes of imposing penalty under s 25(2) Road Transport (Driver Licensing) Act 1998 – both offences dealt with as “first offences”
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999; s 10A Road Transport (Driver Licensing) Act 1998; s 25A Traffic Act 1925 (Tas); s 41
CASES CITED:	Clarke v Bradlaugh (1881) 8 QBD 63 Edwards v The Queen (1854) 9 Ex. 628 re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy [1938] Ch 725 The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1 R v Miller [1986] 2 Qd R 518 O’Hara v Harrington [1962] Tas SR 165 Prowse v McIntyre and Others (1961) 35 ALJR 373 Shane William Johnson v R [2008] NSWDC 47
PARTIES:	The Crown Samar AHMED
FILE NUMBER(S):	2009 / 2232
SOLICITORS:	Mr A Kirupaidasan – DPP Mr R Bartley – R J Bartley & Associates