R v Felton

[2002] NSWCCA 443

Reported Decision: (2002) 135 A Crim R 328

New South Wales

Court of Criminal Appeal

CITATION:	R v Felton [2002] NSWCCA 443
FILE NUMBER(S):	CCA 60647/2001
HEARING DATE(S):	08/10/2002
JUDGMENT DATE:	8 November 2002
PARTIES :	Regina v Shaun Peter Felton
JUDGMENT OF:	Sully J at 1; Howie J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0233
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	D. Woodburne - Crown D. Corish - Applicant
SOLICITORS:	S.E. O'Connor - Crown D.J. Humphreys - Applicant
CATCHWORDS:	Criminal Law Practice and Procedure - Sentence - Failure to apply Pearce v The Queen - Motor Traffic - Disqualification from driving - effect of taking matters into account on sentence - no conviction - Habitual traffic offender provisions have no application.
LEGISLATION CITED:	Justices Act 1902 - s 51A Crimes Act 1900 - ss 114, 154A Crimes (Sentencing Procedure) Act 1999 - ss 10, 33(2), 34, 35(4), Div 3 Criminal Appeal Act 1912 - s 6(3) Criminal Procedure Act 1986 Road Transport (Driver Licensing) Act 1998 - ss 25A(1) Road Transport (General) Act - ss 27, 28, 30, 31
CASES CITED:	Veen v The Queen (No. 2) (1988) 164 CLR 465 R v Cocking [1999] NSWCCA 311 Pearce v The Queen (1988) 194 CLR 610 R v AEM (Snr) [2002] NSWCCA 58
DECISION:	See paragraph 43.

60647/01

SULLY J
HOWIE J

FRIDAY 8 NOVEMBER 2002

R V Shaun Peter FELTON

Judgment

1 SULLY J: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty before a magistrate to three offences and was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. As a consequence, he appeared for sentence before Judge English on two counts of driving a motor vehicle without the consent of the owner contrary to s 154A of the Crimes Act and one count of being in possession of car breaking implements contrary to s 114 of that Act.

3 In respect of each of the three offences for which he was committed for sentence there was an accompanying Form 1 containing matters to be taken into account under the provisions of the Crimes (Sentencing Procedure) Act. However, the formalities of s 33(2) were not attended to and the applicant was not asked whether he admitted his guilt to those matters or whether he wished them to be taken into account. Although no point has been taken concerning this irregularity, the criminal courts should be astute to comply with the procedural formalities attending to the steps towards sentencing. They are not empty gestures, but are important safeguards to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody.

4 The matters for which the applicant was to be sentenced by her Honour, therefore, were as follows:

Count 1: Drive conveyance without consent
Form 1: 1. Drive whilst disqualified
2. State false name and address
3. Exceed speed limit by over 30kmph
Count 2: Possess car breaking implements
Form 1: 1. Drive whilst disqualified
2. Take and drive conveyance without consent
3. Stealing
4. Possess implements
Count 3: Drive conveyance without consent of owner
Form 1: 1. Exceed speed
2. State false name
3. Drive whilst disqualified

5 On 30 August 2001 her Honour sentenced the applicant on each of the three counts, and taking into account the Form 1 matters. The sentences imposed were corrected on 1 February 2002 and the result is as follows:

Count 1: Imprisonment for 30 months to date from 4 May 2001 with a non-parole period of 18 months to date from 4 May 2001 and to expire 3 November 2002.
Count 2: Imprisonment for 24 months to date from 4 May 2001 with a non-parol period of 18 months to expire on 3 November 2002.
Count 3: Imprisonment for 48 months to date from 4 May 2001 with a non-parole period of 24 months to expire on 3 May 2003.

That is an effective sentence of imprisonment for 4 years from 4 May 2001 with a non-parole period of 2 years. Her Honour also disqualified the applicant from driving until 31 January 2008.

6 Before considering the factual basis of each of the matters for which the applicant was sentenced, it should be noted that the applicant has a lengthy record for offences involving the illegal use of motor vehicles and motor traffic offences despite the fact that he is only 21 years of age. His record dates from 1996 in the Children’s Court and contains other offences of dishonesty apparently unconnected with motor vehicles. On my reckoning, before he was sentenced by her Honour, he had been before the courts for thirteen offences involving the illegal use of motor vehicles, twelve offences of drive whilst disqualified and two offences of possession of car breaking implements.

7 The applicant has served terms of imprisonment before the current sentences were imposed upon him. He was sentenced to imprisonment for drive whilst disqualified in 1999 and also placed on a three-year good behaviour bond for illegal use of a motor vehicle at that time. On 11 May 2000, for an offence of drive conveyance without consent of the owner, the applicant was sentenced to imprisonment for 18 months with a non-parole period of 12 months. He was released to parole on 9 February 2001.

8 The first set of offences for which the applicant was before Judge English arose on 24 March 2001. In the early hours of that date the applicant was driving a stolen motor vehicle at a speed of 123 kph in a 90 kph zone when he was stopped by police. There were five other persons in the vehicle. The applicant told police he did not have his licence with him and gave a false name and address. However, when the applicant was informed that he would have to accompany police to verify his identity, he informed them of his real name. Inquiries revealed that he had been disqualified from driving and that the vehicle had been stolen 11 days earlier. The applicant told police he had purchased it for $200. The applicant was charged with a number of offences and released to bail.

9 On 13 April 2001 the applicant was driving a vehicle when he was pulled over to partake in a random breath test. Inquiries by police revealed that the vehicle had been stolen earlier that evening. The applicant told police that he had received the vehicle from a person he knew as “Mike” and had started it with a bent fork. The applicant was of course still disqualified from driving. The applicant was charged with a number of offences arising from this incident and was issued with a court attendance notice. These offences and two other matters committed in May of that year comprised the second set of matters for which Judge English sentenced the applicant.

10 The third set of matters before her Honour arose on 5 May 2001. On that date the applicant was again stopped in a motor vehicle while exceeding the speed limit. Once more he gave a false name to police. The vehicle had been stolen the day before and a bent fork, which had been used to start the ignition, was found in the motor vehicle. The applicant was refused bail on the charges arising from this incident and has remained in custody thereafter.

11 The obvious aggravating factor in the offences before her Honour was that they were all committed while the applicant was on conditional liberty of one sort or another. He was on parole when all the offences were committed and was also subject to existing good behaviour bonds for similar conduct. Further, the second and third sets of offences were committed while the applicant was on bail for the first set and the third while he was subject of a court attendance notice in respect of the second set. In light of the applicant’s record this was a case that, on the face of it, required a sentence of some severity both to act as a specific deterrent to the applicant and to protect the community from his continued criminal behaviour in relation to the theft and use of motor vehicles.

12 A pre-sentence report revealed the following information. The applicant had in the past accepted supervision from the Probation and Parole Service when offered to him, but intervention by the Service appeared to have little impact upon his offending behaviour. He had experienced a difficult upbringing marked by abuse and instability but enjoyed family support. The applicant was being treated for injuries suffered while in custody when he fell during a fit. He was undergoing medical tests to determine the cause of his fitting. He was assessed as unsuitable for both periodic detention and community service.

13 Medical reports placed before her Honour indicated that the applicant suffered from epilepsy and was being treated with Tegretol. He had been admitted to hospital on 16 April 2001 after reportedly drinking petrol because he felt depressed and wanted to commit suicide as he was facing gaol for stealing cars. It should be noted that a short time later he was again involved in that criminal activity.

14 The applicant’s sister gave evidence that her brother commenced receiving treatment for a mental disorder in 1996 after he had been charged with lighting fires. After his release from prison on parole, he came to live with her and their mother and was attempting to “get everything under control”. This witness suffers from a mild form of spinal bifida and the applicant helps her get around and makes appointments for her because she has memory problems. She said that the applicant had made a number of suicide attempts. She reported that a friend of the family had sexually assaulted the applicant when he was young. He had also been assaulted in gaol.

15 In her remarks on sentence her Honour said of the applicant’s offences and his criminal record:

His offences reflect simply dreadful conduct. The community has a rightful expectation that repeat offenders such as this will be dealt with by the Court in a responsible manner, and the Court will impose penalties which will reflect the community's disapprobation of car theft and driving offences. Those who earn money honestly and save or borrow to buy a motor vehicle, should be entitled to have an expectation that it will not be stolen by those who choose to flout the law and disregard the rights of honest people. Society is paying far too much for insurance premiums as a result of the activities of the likes of [the applicant].

Normally an offender's past record must not be a ground for increasing sentences, but a predilection to commit the same offence as many times as this young offender, is a factor to be properly taken into account when sentencing him for further offences of a like nature. This is not to punish him for his past crimes, it is because the previous sentences passed have proved to be insufficient deterrent and, in my view, an increase in the length of sentence imposed is justified, if not in the offender's own interests, then certainly in the interests of motor vehicle owners in this community.

16 In my respectful opinion these two paragraphs reflect the proper approach to sentencing this applicant for these offences on the material then before the sentencing judge. This was a case of continued attitude of disobedience to the law such that, notwithstanding the applicant’s youth and unfortunate background, a severe sentence was warranted in an endeavour to deter the applicant and protect the community, see Veen v The Queen (No2) (1988) 164 CLR 465.

17 The grounds of appeal relied upon can be summarised as follows:

1. The learned sentencing Judge erred in proceeding on the basis that the maximum sentence for the offence of Drive without the Consent of the Owner was ten years imprisonment.
2. The discount allowed by the learned sentencing Judge for the plea of guilty was inadequate in the circumstances.
3. The learned sentencing Judge erred in giving insufficient weight to the subjective circumstances of the applicant.
4. The sentence(s) are manifestly excessive in the circumstances.

18 The first ground of appeal contends that her Honour erred in proceeding on the basis of the wrong maximum penalty for the offence in the first and third counts and on the Form 1 in relation to the second count. The applicant was charged with offences under s 154A of the CrimesAct and that section prescribes a maximum sentence of 5 years imprisonment. Unfortunately her Honour was misinformed that this offence carried a maximum penalty of ten years imprisonment and sentenced the applicant accordingly. Twice during her sentencing remarks her Honour referred to this being the maximum penalty for the offences in the first and second counts. Further, the error would appear to account for the fact that the sentence imposed for the second set of matters is less than the other two notwithstanding that the objective criminality appears to be greater.

19 The Crown concedes this error occurred but submits that the sentence should not be varied because a more lenient sentence is not “warranted in law”, see s 6(3) of the CriminalAppealAct and R v Cocking [1999] NSWCCA 311. The Crown submits that the sentence imposed upon the applicant must reflect the fact that the applicant faced a total maximum sentence of 17 years imprisonment for the offences before the sentencing judge and that any sentence imposed had to take into account both specific and general deterrence.

20 In my view the Court must interfere to correct the sentences imposed upon the applicant for two reasons; firstly, because her Honour’s error has clearly affected the structure of the sentences imposed and secondly because the structure of the sentences does not, in any event, accord with the sentencing principle enunciated in Pearce v The Queen (1998) 194 CLR 610. It was not appropriate for her Honour to impose concurrent sentences and simply reflect the totality of the criminality by increasing the last sentence to be served. The last set of offences, as serious as they were, could not justify a sentence of four years after a plea of guilty, notwithstanding the aggravating feature that the applicant was on parole and bail at the time they were committed. Her Honour should have given appropriate penalties for each set of offences and then made orders as to the commencement of the sentences to reflect the total criminality involved.

21 Judges of the District Court must understand that the principle in Pearce is considered by this Court to be fundamental to the proper exercise of the sentencing discretion, see R v AEM (Snr) [2002] NSWCCA 58. A failure to comply with it will almost inevitably mean that this Court will be required to allow an appeal and vary the sentence. This will usually involve the Court re-exercising the sentencing discretion that resided in the sentencing judge and very often fresh material will need to be taken into account which may result in the sentence being reduced. This is clearly a waste of the valuable resources of the criminal courts in this State and inimical to the interests of justice.

22 In this case material is now before the Court that clearly should have been placed before the District Court. It was evident from the psychiatric records before her Honour and the evidence from the applicant’s sister that there was some matter of the applicant’s mental or emotional state that needed to be investigated. Yet this was one of the apparently few cases in which a report upon the applicant’s mental state was not obtained by the defence.

23 A psychiatric report has been tendered to this Court on the basis that it may be necessary to re-sentence the applicant. It discloses that the applicant’s fits are most probably the result of an anxiety disorder with panic attacks and pseudo-seizures rather than epilepsy. However, the psychiatrist believes that the applicant’s principal psychiatric diagnosis was post-traumatic stress disorder as a result of witnessing the murder of a childhood friend. The applicant told the psychiatrist that he used cars that he stole as an “escape route” to get away from what the applicant described as “intense situations”. The psychiatrist assessed the applicant as having long-standing and serious psychiatric problems that he believed played a part in his offending. He thought that a change in the applicant’s behaviour was unlikely unless he is afforded appropriate treatment along with supervision and support on his release.

24 Be that as it may, the offences committed by the applicant and his flagrant disregard of court orders merits a sentence in the order of that imposed by Judge English. The psychiatric report does little to diminish the objective seriousness of his conduct although it may explain what motivates him to behave as his does. Her Honour’s sentencing remarks stressed the importance of personal deterrence and the protection of the community, and those are still the most important matters when determining the appropriate sentence notwithstanding the new psychiatric material. Her Honour gave the applicant the advantage of a finding of special circumstances based upon his age, mental health problems and the need for a lengthy supervised period of rehabilitation. The new material merely confirms that her Honour was correct in her approach notwithstanding the applicant’s constant failure to abide by conditions imposed upon his liberty.

25 In my view there is no substance in the other grounds of appeal. The overall sentence is simply the appropriate one and, in particular, the non-parole period of 2 years is the very least that could be imposed upon the applicant to mark the court’s disapproval of his conduct, protect the public and deter him from further behaviour of this kind. They were serious offences of their nature and deserved a sentence towards the upper end of the maximum penalty available. Since Judge English sentenced the applicant, his parole has been revoked and he is serving the balance of that sentence concurrently with the sentences for these offences.

26 On the hearing of the appeal a further matter was raised which was not reflected in the grounds of appeal or the written submissions originally filed. It concerns the length of the applicant’s disqualification from holding a driver’s licence. Although the Court received some oral submissions on the matter, the parties were granted leave to file further written submissions in respect of the point and judgment was then reserved. Each of the parties filed further written submissions and I have taken them into account.

27 Her Honour stated the following in respect of the period of disqualification to be ordered as part of the sentence she was imposing upon the applicant:

At the time the offences, for which you have been sentenced, were committed, you were disqualified from holding a New South Wales Drivers Licence until 30 January 2004. Your driving record is the worst that I have ever seen for a young man just 20 years old. Not only have you never held a driver’s licence and choose to drive whilst disqualified on 13 occasions, but you also have no regard for road rules. You have been dealt with for driving furiously or recklessly, in a dangerous manner and at speed dangerous on three occasions, and you have failed to stop after an accident. Your driving record demonstrates a persistent refusal to appreciate the responsibility with regard to the laws designed to protect road users of this State.

Accordingly, in respect of each of the offences contained on the schedules, I impose the automatic period of disqualification of two years in respect of each offence, which effectively means that you will be disqualified from obtaining a driver’s licence until 31 January 2008.

28 There were three offences of drive whilst disqualified before her Honour, one on each Form 1 to be taken into account on each of the three charges for which the applicant was to be sentenced. Section 34 of the Crimes (Sentencing Procedure) Act relevantly provides:

34(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.
(2)
(3)
(4) In this section, “ancillary order” means an order or direction with respect to restitution, compensation, costs, forfeiture, disqualification or loss or suspension of a licence or privilege.

Therefore, by taking into account the three offences of drive while disqualified, the sentencing judge was empowered to make orders in respect of the further disqualification of the applicant as if he had been convicted of each offence. However, s 35(4) of that Act states:

(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.

29 Section 25A(1) of the Road Transport (Driver Licensing) Act 1998 provides for an offence of driving while disqualified from holding a driver licence. Subsections (7), (8) and (10) of that Section provide:

(7) If a person is convicted by a court of an offence under subsection (1), (2) or (3)(a), the person:
(a) is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a driver licence, and
(b) may also be disqualified, for such additional period as the court may order, from holding a driver licence.

(8) The disqualification referred to in subsection (7) is in addition to any penalty imposed for the offence.

(10) In this section, the relevant disqualification period is:
(a) in the case of a first offence under subsection (1),(2) or (3)(a) —12 months, or
(b) in the case of a second or subsequent offence under subsection (1), (2) or (3)(a)—2 years.

In the present case, the relevant disqualification period, which would apply had the applicant been convicted of an offence of drive whilst disqualified, was 2 years, as each of the offences taken into account by her Honour were “second or subsequent offences”, see subs (6).

30 Her Honour indicated that she was making an order disqualifying the applicant for “the automatic period of disqualification”, that being 2 years in respect of each offence. Her Honour therefore disqualified the applicant for a further four years from 30 January 2004 the date upon which the applicant’s then period of disqualification expired and indicated that the applicant was further disqualified until 30 January 2008. However, her Honour’s calculations were clearly erroneous. The statutory disqualification period would have been 6 years, being 2 years in respect of each of the three offences, to be served cumulatively between themselves and cumulative on the existing disqualification period. Had her Honour made the orders she apparently intended, the applicant should have been disqualified until 30 January 2010.

31 However, the application made in respect of the disqualification period before this Court was not based upon the order made by her Honour, which was unduly favourable to the applicant. Rather the application was based upon the attitude taken by the Road Transport Authority (the RTA) to the traffic record of the applicant and, in particular, the orders made by Judge English. A letter sent by the RTA to the applicant and dated 21 September 2002 was tendered on behalf of the applicant on the hearing of this appeal without objection by the Crown. The substance of that letter was as follows:

HABITUAL TRAFFIC OFFENDER DECLARATION

Advice of Declaration under the Habitual Traffic Offender's legislation

Road Transport (General) Act (Part 3, Division 4)


Advice has been received that you recently committed traffic offences which are affected by the above legislation (see over for more details). As a result, your driving record indicates that with the recent offences, you have committed three or more relevant offences within a five-year period. Therefore, the law requires that you be declared an Habitual Traffic Offender.

As a consequence, the law operates to apply a mandatory five-year period of disqualification from holding or obtaining a driver's licence for each declaration imposed, unless the court, at the time of your conviction, decides otherwise. The disqualification period imposed against you for each declaration will not commence until all other periods of disqualification have expired.

The relevant offence details that led to the declaration(s) and habitual offender disqualification(s) are listed on the reverse side of this letter.

32 On the reverse side of the letter there is set out information concerning the declaration of an habitual traffic offender, what action might be taken by a person subject to such a declaration and what the consequences of the declaration would be if the person continued to drive.

33 There then follows a table with the following headings: "Offence particulars"; “Court”; “Court Date”; “Disq until & including". It is unnecessary for present purposes to set out the matters contained in the table under each of these headings. It is sufficient to indicate that the table includes, amongst the items listed under the heading "Offence particulars", the three offences of drive while disqualified dealt with by Judge English. They can be identified by reference to the corresponding entries specifying the court and court date. Beneath each one of these entries is listed an item "habitual offender declared". Alongside each of these items, under the heading “Court”, is shown “Gosford”, and, under the heading "Court Date", is shown “30-08-2001”. Beneath each of these entries are the words “Disq for five years until" and under the last column headed “Disq until & including" there is a date specified. In respect of the first of these three entries, the date specified is "30-01-2019", in respect of the second, the date specified is "31-01-2008", and, in respect of the third, the date specified is "30-01-2029".

34 In order to understand what was intended to be conveyed by the entries set out in this table, it is necessary to refer briefly to the provisions of the Road Transport (General) Act concerned with habitual traffic offender declarations.

35 Sections 27and 28 of that Act provide as follows:

27(1) In this Division, a “relevant offence” means:
(a) any of the following offences committed after the commencement of this Division of which a person has been convicted by a court in this State:
(i) a major offence,
(ii) a prescribed speeding offence,
(iii) an offence under section 25(3) of the Road Transport (Driver Licensing) Act 1998,
(iv) an offence under section 25A(1), (2) or (3) of the Road Transport (Driver Licensing) Act 1998, or
(b) an offence committed after the commencement of this Division of which a person has been convicted by a court in another State or Territory that would be an offence of the kind referred to in paragraph (a) if it had been committed in this State, or
(c) a relevant offence within the meaning of section 10EA of the Traffic Act 1909 as in force immediately before its repeal.

(2) A relevant offence includes an offence of the kind referred to in subsection (1)(a) in respect of which the charge is found proven, or a person is found guilty, (but without proceeding to a conviction) under section 10 of the Crimes (Sentencing Procedure) Act 1999, or section 556A of the Crimes Act 1900, if the offence would, if it were a relevant offence, give rise to the declaration of the person under this Division as an habitual traffic offender. In that case, a reference in this Division to the conviction of the person for a relevant offence includes a reference to the making of an order with respect to the person.

28 A person is, by this section, declared to be an habitual traffic offender if:
(a) a court in this State convicts the person of a relevant offence, and
(b) the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions.

36 The consequence of an habitual traffic offender declaration is set out in s 30 of the Act which states:

30(1) If a person is declared by section 28 to be an habitual traffic offender, the person is disqualified by the declaration (and without any specific order of a court) for a period of 5 years from holding a driver licence, except as provided by this Division.
(2) If the court that convicts the person of the offence giving rise to the declaration thinks fit, the court may order a longer period of disqualification (including disqualification for life).
(3) If the court that convicts the person of the offence giving rise to the declaration determines that a 5-year disqualification is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case, the court may order a shorter period of disqualification (but not shorter than 2 years).
(4) If a court orders a shorter or longer period of disqualification, the court must state its reasons for doing so.
(5) A declaration of an habitual traffic offender ceases to be in force when the period of disqualification imposed by the declaration is completed.
(6) The period of any disqualification under this Division does not commence until all other disqualifications, and all other periods of licence cancellation or suspension, imposed on the person by or under this or any other Act have been completed.
(7) Further declarations have effect under this Division even though they occur while an existing declaration is in force, and the consequent periods of disqualification do not commence until all existing disqualifications under this Division have been completed. It does not matter that some of the relevant offences giving rise to a further declaration also gave rise to an earlier declaration.
(8) If, while an existing disqualification under this Division is in force, the person is disqualified by a court or automatically under another provision of this or any other Act, that further disqualification does not commence until all existing disqualifications under this Division have been completed.

37 In addition to the power of the court convicting the offender to reduce the period of disqualification consequent upon an habitual traffic offender declaration under subs 30(3), that court has a further power in order to avoid injustice arising from the automatic nature of a declaration under s 28. Section 31 of the Act provides:

31(1) The declaration of a person as an habitual traffic offender by section 28 may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.
(2) If a court quashes a declaration under this section, the court must state its reasons for doing so.
(3) However, a declaration or disqualification under this Division cannot be appealed to any court whether under this or any other Act.

38 The effect of these sections is that, if a person is convicted of a relevant offence, and his or her traffic record is such as to bring the person within subs 28(b), the person, is by operation of s 28, declared to be an habitual traffic offender. The consequence of that declaration is that the person is thereby disqualified from holding a driver’s licence for a period of 5 years cumulative upon any disqualification period existing at the time of the declaration. Each time a declaration occurs, by reason of a conviction of a relevant offence, a further period of disqualification of 5 years is added to the disqualification period in existence at the time of the declaration. Hence in the present case, it was the view of the RTA that, when her Honour took into account each of the offences of drive whilst disqualified, the result was a declaration under s 28 carrying with it an additional 5 years disqualification over and above that which was ordered by her Honour. The RTA calculated that the applicant was disqualified until 30 January 2029.

39 The issue raised before this Court was not a review of the determinations made by the RTA as to the operation of the relevant provisions of the Road Transport (General) Act. This Court would clearly have no power to undertake such a review. Rather, counsel for the applicant relied upon subs 30(3) of that Act and the power of the court convicting a person of a relevant traffic offence to specify a disqualification period other than the period of 5 years that would automatically flow from an habitual traffic offender declaration. It was argued that, if this Court interfered with the sentences imposed by Judge English, this Court was then the court convicting the applicant and so this Court had power to specify a period of disqualification in respect of each declaration that flowed from each conviction. It was submitted that this Court should take that course in order to aid in the rehabilitation of the applicant particularly having regard to the psychiatric material now before the Court.

40 The flaw in this argument was exposed in the written submissions filed by the Crown after judgment was reserved. It is now accepted by counsel for the applicant that there has been no conviction for the offences of drive whilst disqualified which her Honour took into account under the provisions of Division 3 of the Crimes (Sentencing Procedure) Act, see s 35(4) above. Section 27(2) of the Road Transport (General) Act, set out above, has no application because that section is clearly confined to orders made under s 10 of the Crimes (Sentencing Procedure) Act. As there has been no conviction in respect of any of these offences, s 28 of the Road Transport (General) Act has not been engaged and, thus, no habitual traffic offender declaration can occur in respect of them. It follows that s 30 of that Act has no application.

41 The only question then that now arises in respect of the disqualification of the applicant from holding a driver licence, is whether this Court should interfere with the order made by Judge English, which, as I have already indicated, did not give effect to what her Honour intended, and increase the period of disqualification ordered by her Honour. Given that the period of disqualification is a penalty additional to the sentences imposed by her Honour and that this Court will not generally increase a penalty imposed upon an applicant in the absence of a Crown appeal, in my view, this Court should not interfere with the order of disqualification made by Judge English.

42 The examination of the provisions of the legislation referred to above indicates that care should be taken by the prosecuting authorities when determining whether serious motor traffic offences should be taken into account under the provisions of the Criminal Procedure Act, especially where the offender has a traffic record as bad as the applicant. By the prosecution agreeing that the offences of drive whilst disqualified be taken into account on sentence, the applicant was permitted to escape from the habitual traffic offender provisions which clearly ought to have applied, to some degree at least, in his case.

43 I would grant the applicant leave to appeal and allow the appeal only to the extent of restructuring the sentences imposed by her Honour. I propose that the sentences imposed by her Honour be quashed and in lieu the applicant be sentenced as follows:

1. In respect of Count 1 and taking the matters on the Form 1 into account, a fixed term of 12 months imprisonment to date from 4 May 2001 and to expire on 3 May 2002.
2. In respect of Count 3 and taking the matters on the Form 1 into account, a fixed term of 12 months to commence on 4 May 2002 and to expire on 3 May 2003.
3. In respect of Count 2 and taking the matters on the Form 1 into account, imprisonment for 2½ years to commence on 4 November 2002. There is to be a non-parole period of 6 months to expire on 3 may 2003 the date upon which the applicant is to be released to parole. There is to be a condition of parole that he place himself under the supervision of the Probation and Parole Service.
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