R v Sirocic

[2000] NSWCCA 325

CITATION:	Regina v Sirocic [2000] NSWCCA 325
FILE NUMBER(S):	CCA 60646/99
HEARING DATE(S):	14 April 2000
JUDGMENT DATE:	14 April 2000
PARTIES :	Regina v Chris Julian Sirocic
JUDGMENT OF:	Priestley JA at 1; Foster AJA at 24; Smart AJ at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DCCrim 99/52/0260
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL :	Crown - C.K. Maxwell QC Respondent - J.S. Stratton
SOLICITORS:	Crown - S.E. O'Connor Respondent - T.A. Murphy
CATCHWORDS:	Stated case - Crown appeal against inadequacy of sentence
LEGISLATION CITED:	Justices Act Traffic Act 1909
DECISION:	Stated case answered yes

IN THE COURT OF

CRIMINAL APPEAL

CCA 60646/99

PRIESTLEY JA
FOSTER AJA
SMART AJ

Friday, 14 April 2000

REGINA v SIROCIC

1 PRIESTLEY JA: This is a case stated by Christie DCJ of the District Court submitting for the determination of the Court of Criminal Appeal two questions of law arising from an appeal to the District Court. The parties to the appeal were the Director of Public Prosecutions, the appellant and Mr C J Sirocic, the respondent. 2 The respondent was on 23 July 1998 at the Local Court at Armidale convicted of driving in a manner dangerous to the public in breach of section 10A(1)(b)(i) of the Traffic Act. This was a major offence as defined by section 2 of the Traffic Act. He was disqualified from driving for two years to 22 July 2000. 3 On 9 June 1999 the respondent pleaded guilty again at the Local Court at Armidale to driving whilst disqualified at Macksville on 5 March 1999. The Magistrate found the offence proved but dismissed the charge pursuant to section 556A of the Crimes Act. The appellant appealed pursuant to section 133F of the Justices Act to the District Court. 4 On 2 September 1999 Christie DCJ upheld the appeal and convicted and sentenced the respondent. The respondent entered into a recognizance of $100 to be of good behaviour for twelve months, and Christie DCJ also disqualified him from driving a motor vehicle for twelve months from 9 June 1999, the day of the Magistrate's decision. 5 At the request of the appellant Christie DCJ then stated a case pursuant to section 5B of the Criminal Appeal Act. The essential facts were those I have already summarised. 6 Christie DCJ stated the grounds of his judgment as follows:

“ In my view the fact this was an appeal by the Director of Public Prosecutions against the inadequacy of the sentence imposed in the Local Court placed the appeal proceedings into a special category where I do not have to disqualify the respondent from driving a motor vehicle for the statutory period of two years as specified by section 7A(3)(b)(a) of the Traffic Act, 1909. In coming to this view in the absence of evidence to the contrary from the Crown, I was not prepared to reject the version of evidence given to the Magistrate by the solicitor for the respondent that at the relevant time the appellant was driving Miss Rollings to hospital .”

7 I interpolate here that the reason given by the Magistrate for applying section 556A in the circumstances was that he accepted the excuse given by the respondent that he had only begun to drive the car very shortly before he was stopped because the person who had been driving, Miss Rollings, who was pregnant, had stomach pains which led to the thought that she might be miscarrying and he was intending to drive her directly to the hospital. 8 The two questions of law which the trial Judge stated were:

1. In hearing an appeal by the Director of Public Prosecutions pursuant to s 133F of the Justices Act did I err in law when upholding the appeal in not imposing at least the statutory minimum period of disqualification from driving as specified in The Traffic Act 1909.
2. In upholding the appeal referred to in question one, did I err in law in not commencing the period of disqualification from driving from the expiration of the existing disqualification period, being 23 July 2000.

9 The appellant argues that both questions should be answered yes. The offence with which the respondent was charged was a breach of section 7A(2)(a) of the Traffic Act 1909. That provision made it an offence where a person is disqualified from holding a driver's licence or the person's licence is suspended or cancelled during the period of the suspension to drive upon a road. That is the offence to which the respondent pleaded guilty. 10 Section 7A(2) further provides that a person guilty of an offence against that provision in the case of a second offence is liable to a particular penalty. 11 Section 7A(2)(B) then provides that an offence under subsection (2) is a second offence if within the period of five years immediately before being convicted of it the person was convicted of a major offence. As I have already mentioned, the offence for which the respondent was convicted in 1998 was a major offence. 12 Section 7A(3) then goes on to provide that where a person is convicted of an offence under subsection (2)(B), amongst others, that person shall be disqualified by such conviction and without any specific order for the relevant disqualification period from the date of expiration of the existing disqualification or suspension, or the date of such conviction, whichever is the later, from holding a driver's licence and may also be disqualified for such additional period as the court may or from holding a driver licence. 13 Section 7A(3)(A) then defines the relevant disqualification period referred to in the preceding subsection as being, in the case of a second offence, under subsection (2), two years. 14 The effect of these provisions taken literally would seem to disqualify the respondent for the relevant disqualification period, namely, two years from 23 July 2000 and to give the court power if thought fit to extend the automatic relevant disqualification period for an additional period: ie, looking simply at subsection (3) itself, it imposes a minimum period of disqualification by its own force upon a conviction being entered, and further gave the court a discretion to increase the minimum period. 15 Simply on the face of these proceedings they would seem to produce the result contended for by the appellant, ie, automatic disqualification for two years from 23 July 2000. 16 For the respondent, however, an argument was put forward which focused on some of the offences dealt with by section 10A of the Traffic Act. In regard to those offences a formula was used whereby upon conviction for one of them the person convicted was to be disqualified by the conviction and, without any specific order, those words being very similar to some of the words used in section 7A(3), for a specified period, but the formula went on to say “or where the court upon the conviction thinks fit to order a shorter period ... or longer period of disqualification, the person shall be disqualified for such period as may be specified in the order”. 17 The argument then proceeded by reference to section 10 of the Act which in subsection (2) states that where a person is convicted, at the time of the conviction the person will be disqualified from holding a driver licence for such period as the court specifies. This was said to give a general power to the Court to impose disqualification for such periods as the Court might think fit upon the conviction of the person for offences not only under section 10A but also section 7A. However, I do not think that section 10 does the work for which the respondent contended. I omitted, when summarising section 10(2), the opening words which were: “Subject to section 4B, 6, 7A and 10A” and so preceded the general conferring of the power to disqualify for such period as the Court specified by making that power subject to these specified sections. 18 That seems to me to produce the result that section 7A and within it subsection (3), provided a disqualifying regime which is not affected by the more general power of disqualification conferred by section 10. 19 In cases other than those affected by the sections mentioned at the commencement of subsection (2) the Court may well have the general power contended for but not, in my opinion in cases falling within any one of those four sections. 20 There was a related argument which sought to draw from the way disqualification was to be imposed pursuant to section 10A a proposition that section 7A disqualifications should be treated similarly. However, in all section 7A seems to be perfectly clear and deliberately to exclude the kind of possibility that section 10A equally clearly, in regard to some offences, provides for a sentencing Court. 21 In my view the impression obtained from a reading of section 7A, which I stated earlier, is the proper understanding of that section and of the disqualification provision in subsection (3). I do not accept the construction arguments to the contrary proposed by the respondent. 22 A final argument used by the respondent was that the conclusion which I think is the correct conclusion involves recognising that section 7A(3) imposes a mandatory minimum disqualification period. That maybe one way of describing the effect of the subsection. But to describe it in that way does not in any way to my mind detract from a proper understanding of the clear words of the relevant provisions. 23 In the result in my opinion both questions in the stated case should be answered yes. 24 FOSTER AJ: I agree with what has fallen from the presiding Judge. 25 SMART AJ: I agree with Priestley J. 26 PRIESTLEY JA: The court extends the time in which questions of law in the stated case could be submitted to the Court to 28 October 1999. The Court makes an order under the Suitors Fund Act.