R v Stephen Roy Iovino

[2009] NSWDC 260

Reported Decision: 9 DCLR (NSW) 323

District Court

CITATION:	R v Stephen Roy IOVINO [2009] NSWDC 260
HEARING DATE(S):	11 May 2009 20 May 2009 22 May 2009 5 August 2009 10 August 2009
JUDGMENT DATE:	11 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	1. Leave to appeal from the conviction is granted. 2. The appeal is dismissed. 3. Allow the appeal from sentence. I set aside the conviction and the fine and order for costs, and the order for disqualification. In lieu thereof, I discharge the appellant pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act, conditional upon him entering a bond to be of good behaviour for a period of twelve months from today
CATCHWORDS:	CRIMINAL LAW – Appellant driving in NSW, his licence having been suspended in NT for fine default – under NT law appellant “taken not to hold a licence to drive during the period of suspension” – whether appellant was a person whose driver licence was suspended for the purposes 25A(2)(a) Road Transport (Driver Licensing) Act 1998 – Subsequent amendment to 25A(2)(a) excluding its operation where the licence is suspended for fine default in NSW – exclusion does not extend to licences suspended for fine default outside NSW – whether undetected hiatus – whether unconstitutional – discussed – Whether the provision as amended could inform the interpretation of the provision prior to the amendment.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act (1999) Fines Act (1996) Road Transport (General) Act 2005 Road Transport (Driver Licensing) Act 1998 Road Transport (Driver Licensing) Regulation 2008 Fines and Penalties (Recovery) Act (NT) Motor Vehicles Act (NT) Traffic Act (NT)
PARTIES:	The Crown Stephen Roy Iovino
FILE NUMBER(S):	2009 / 3135
SOLICITORS:	Kristine Chapman Timothy McGrath

IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION

2009 / 3135

BENNETT SC DCJ

Monday 10 August 2009

R v Stephen Roy IOVINO

ALL GROUNDS APPEAL

Introduction

1 This is a conviction appeal by Stephen Roy Iovino.

2 Stephen Roy Iovino was convicted in the Local Court, Goulburn, on 25 February 2009 of an offence of driving whilst suspended on 7 January 2009 contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998.

3 On that day he lodged an appeal from the severity of the penalty imposed pursuant to the Crimes (Appeal and Review) Act 2001. The appeal was listed for hearing in the sittings of the District Court at Goulburn commencing 11 May 2009. When it was mentioned to allocate a date for argument in the following two weeks Mr McGrath for the appellant informed the court that in the course of the preparation of the matter he came to the view that the appellant could not at law stand guilty of this offence and foreshadowed an application for leave to appeal from the conviction.

4 Argument was heard on 20 May 2009 after the appellant’s solicitor filed written submissions and the hearing was then adjourned to 22 May 2009 for judgment. On that day however, the appellant’s solicitor advised that he wished to enlarge his submissions and the matter was adjourned to the next sittings on 27 July 2009, with the appellant excused from attending if represented.

5 Leave was given for the filing of further written submissions. The court received these on Friday 31 July 2009. Thereafter the appeal was listed for further argument on 5 August 2009.

6 The appellant’s appeal from the conviction was well beyond the twenty eight days specified in s 11 of the Crimes (Appeal and Review) Act 2001, but it was brought within the three months specified in s 13 of the Act during which the appellant may seek leave to appeal. I propose to grant leave to appeal from the conviction but will dismiss the appeal for the reasons hereunder.

The Facts

7 The facts are uncontroversial. On 7 January 2009 the appellant was the driver of a motor vehicle with Northern Territory registration heading south along the Hume Highway north of Goulburn. Police saw him fail to keep to the left and not keep wholly within the number 1 lane, and had him stop. When they spoke to him he produced a Northern Territory driver licence with an expiry date 11 August 2009. Inquiries by radio informed the police that the appellant’s licence was suspended in the Northern Territory from 24 January 2007 until 27 January 2009.

8 The statement of facts to which he pleaded guilty in the Local Court include that he was stopped by police in Alice Springs on 17 October 2007 and told of the suspension. The appellant denies this but nothing turns upon it since he acknowledges through his solicitor that he was aware of the suspension before the police stopped him on 7 January 2009.

9 Included in the material tendered by the Crown is a certificate pursuant to s 230 of the Road Transport (General) Act 2005 according to which the appellant does not hold a licence to drive issued in New South Wales. Also included in the material tendered by the Crown is a certificate from the Deputy Registrar of Motor Vehicles for the Northern Territory pursuant to s 119 of the Motor Vehicles Act (NT) certifying that on 7 January 2009 the appellant was suspended for a period commencing on 24 January 2007 until 27 January 2009.

The Issues

10 The question first raised was whether on 7 January 2009 the appellant was a person whose driver licence was suspended for the purposes of the offence created by s 25A(2) of the Road Transport (Driver Licensing) Act in light of the legislation in the Northern Territory pursuant to which the authorities there took action resulting in his status of being one taken not to be the holder of a licence to drive.

11 The appellant’s solicitor’s first written submissions argued that the appellant was not a driver whose licence was suspended because of the terms of the Northern Territory legislation where the administrative decision made to suspend his licence was the preliminary step before he became an unlicensed driver in that jurisdiction. Therefore, so it was argued, when the appellant drove in New South Wales on 7 January 2009 he did so as an unlicensed driver with the consequence that he did not commit the offence with which he was charged.

12 The Northern Territory legislation was not produced and no evidence led to prove its terms as promulgated at the relevant times. However, the written submissions quote the relevant provisions. The Crown has not challenged the reliability of this material.

13 The analysis provided in those submissions included reference to s 25A(2) and s 25A(3A) of the Road Transport (Driver Licensing) Act as presently enacted. Those submissions were thus misconceived to the extent that they were premised upon the application of those provisions in the present form to the driving of the appellant on 7 January 2009.

14 The subsequent submissions included a further analysis of the New South Wales legislation creating the offence of driving whilst suspended, bringing to account that the present legislation became operative on 9 March 2009. This notwithstanding, it was submitted that it must have always been the intention of Parliament that the offence of driving while suspended created by s 25A(2) of the Road Transport (Driver Licensing) Act, even as expressed on 7 January 2009, did not apply to a licence suspension imposed upon a fine defaulter.

15 The submissions also argue that to the extent that the legislation creating this offence exposed the appellant to its operation, it was beyond the power of the New South Wales legislature and therefore inoperative.

The Analysis

16 The determination of this appeal turns upon the construction of the legislation in New South Wales creating the offence with which the appellant was charged. Section 25A of the Road Transport (Driver Licensing) Act provides for offences committed by disqualified drivers or drivers whose licences are suspended or cancelled.

17 On 7 January 2009 s 25A(2) provided relevantly:

A person whose driver licence is suspended must not:

(a) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates, or

(b) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application state his or her name falsely or incorrectly or omit to mention the suspension.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

18 Section 25A(9) provides,

Subsections (1)–(3) apply to a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this State or another State or Territory.

19 The appellant acknowledges that his licence was suspended before 7 January 2009, but argues that under the statutory regime in the Northern Territory he was an unlicensed driver. It is said that there was no offence in the Northern Territory for driving while suspended comparable to that with which the appellant is here charged. The offence committed by a driver whose licence was suspended is driving whilst unlicensed. It will be necessary to refer to the relevant provisions.

20 The Northern Territory Parliament proscribed the driving of a motor vehicle by those who do not hold a licence to do so: s 32 Traffic Act (NT). It also authorised the Registrar of Motor Vehicles to suspend the licence to drive held by a fine defaulter as defined in the Fines and Penalties (Recovery) Act (NT) if requested to do so by the Fines Recovery Unit acting pursuant to s 60 of that Act.

21 When detected driving in New South Wales on 7 January 2009 the appellant was a fine defaulter in the Northern Territory whose licence to drive issued to him there was suspended. s 29A(1) of the Traffic Act (NT) provides:

If a person's licence to drive is suspended under this Act or another Act, the person is to be taken not to hold a licence to drive during the period of suspension.

22 Section 32(1) of the same Act provides relevantly:

(1) A person shall not drive a motor vehicle on a public street or public place:

(a) unless that person:

(i) holds a licence;

23 Thus, within the Northern Territory the appellant was a fine defaulter and because his licence was suspended was taken not to hold a licence for the period of the suspension.

24 The New South Wales legislation also provided for the suspension of driver licences for non-payment of fines or penalties but also for other reasons. The initial written submissions draw comparisons and contrasts between the legislative schemes in the Northern Territory and New South Wales providing for the suspension of driver licences for non-payment of fines, and developed a number of arguments drawing upon the features identified in support of the proposition that the provision under which the appellant is charged in New South Wales does not extend to the circumstances of the appellant.

25 The submissions point to the fact that there are two broad bases upon which a driver licence might be suspended in New South Wales. On the one hand, a licence might be suspended for reasons other than the non-payment of outstanding fines, whilst on the other, there is debt recovery scheme involving the suspension of licence and registration to encourage compliance. The mistaken reference to the legislation as presently enacted providing for lesser penalties for persons driving while suspended as fine defaulters compared to persons driving whilst suspended for other reasons, underpinned the submissions that the New South Wales legislature could not have intended s 25A(2) of the Road Transport (Driver Licensing) Act to apply to someone in the situation of the appellant.

26 In the further submissions, this proposition was maintained in respect of the legislation as it was on 7 January 2009, upon the premise that the enactment of amending legislation merely perfected the provisions to express what Parliament had always intended.

27 I was invited to the Second Reading Speech introducing these amendments on 27 November 2008. Portions of the speech delivered by the Attorney General were included in the submissions. I have accessed the entire speech from Hansard. The Bill presented was the Fines Further Amendment Bill 2008, the primary purpose of which was to improve the system for administration and enforcement of court fines and penalty notices.

28 The following appears in Hansard record of the Attorney’s speech:

Specifically, the amendments are intended to increase the recovery of court fines and penalty notices from low-income earners; divert vulnerable groups out of the fine and penalty notice system and provide them with meaningful and effective non-monetary sanctions; reduce enforcement costs by providing better-targeted fine payment and mitigation options; and reduce the incidence of secondary offending brought about by fine default. The bill makes amendments to the Fines Act 1996 and other related legislation to achieve these objectives.

29 The range of offences attracting monetary penalties was rehearsed. The Attorney noted that there were 17,000 different offences under ninety seven separate laws in New South Wales, including traffic offences, and that the main issuing agencies were police, local councils, Railcorp, and the Road and Traffic Authority.

30 The system for determination of liability and for recovery of the penalties was discussed, including the time allowed to the person fined for payment and the system for the recovery of the fine that operated through the State Debt Recovery Office, which imposed a strict hierarchy of sanctions to encourage payment or to recover the money owing, including suspending driver’s licences, cancelling car registration, seizing property, garnisheeing bank accounts, issuing community service orders or even imprisonment if a person breaches a community service order.

31 The Attorney discussed the lack of flexibility in the system that was particularly problematic for the homeless, and those with a mental illness or intellectual disabilities, and the findings of the New South Wales Sentencing Council regarding such people who often find it harder than the rest of us to understand or access the procedures for challenging the fine or asking for an extension of time to pay. When they do not address their fine debt, they automatically progress through the strict hierarchy of sanctions and their debt increases.

32 For people who lacked income and assets, and other vulnerable groups, the enforcement system could cause additional and unintended hardship. Improvements needed to assist such people were recognised to address the problem of secondary offending, which happens when people who have had their licence or vehicle registration suspended or cancelled because of fine default continue to drive, and which can ultimately lead to imprisonment.

33 Secondary offending is a particular problem for disadvantaged people without the means or organisational skills to pay a fine or penalty notice, leading inevitably to default and licence sanctions, compounding their difficulties when seeking employment or attending to day-to-day necessities.

34 Driver sanctions also have a disproportionate impact on people in remote and rural areas. The Attorney said:

The amendments in this bill represent the Government's response to improve the legislative framework for the enforcement of court fines and penalty notices. They seek to ensure that the fine and penalty notice system works in a way that is fair, efficient, and effective for everyone. I note that the changes proposed in this bill are the most urgent changes in response to the problems highlighted in the reports.

35 The Attorney continued:

Schedule 2.3 to the bill inserts a new offence of driving while licence suspended or cancelled due to fine default. The Fines Act provides that if a court fine or penalty notice is not paid after the due date and reminder letter, the person is considered to be in default and their matter is referred to the State Debt Recovery Office where an enforcement order is made. If the amount is still not paid the person's drivers licence can be suspended. It is a criminal offence in New South Wales to drive with a suspended or cancelled licence.

The threat of licence sanctions is a highly effective way of encouraging prompt payment of outstanding fines and penalty notices. However, the current offence of driving while licence suspended or cancelled does not distinguish between licence suspension for unsafe driving and licence suspension for fine default. This is problematic for two reasons. First, the lack of a specific offence prevents an accurate assessment of the extent to which fine default is leading to secondary offending. Secondly, it prevents courts from imposing appropriate sanctions for this offence to reflect the lower threat to the community posed by those who have lost their licence through fine default as compared to those who have lost their licence because of unsafe driving.

Accordingly, the bill will amend the Road Transport (Driver Licensing) Act 1998 to create a specific offence of driving whilst suspended due to fine default. This will enable the Government to collect better data on the extent of secondary offending due to fine default. Importantly, it will also enable the monitoring of the reforms contained in the bill. The penalties for the new offence would still include minimum disqualification periods; however, these would be lower than those that currently apply under section 25 A (2) of the Road Transport (Driver Licensing) Act 1998 to reflect the fact that licence suspension for fine default is less serious than, for example, suspension due to driving offences.

36 These last two paragraphs, but for a few lines, were quoted in the submissions.

37 When coming to the end of his speech, the Attorney said:

In conclusion, the proposals in this bill are based on several detailed reports into the fine and penalty notice system, research and broad-based consultation. We anticipate the reforms will increase the recovery of court fines and penalty notices from low-income earners by improving access to payment arrangements, including Centrepay; divert vulnerable groups out of the fine and penalty notice system and provide them with meaningful and effective non-monetary sanctions; reduce enforcement costs by providing better targeted fine payment and mitigation options; and reduce the incidence of secondary offending brought about by fine default.

38 The passage extracted in the appellant’s submissions is advanced in support of the proposition that the use of the word “suspended” in s 25A of the Road Transport (Driver Licensing) Act 1998 was never intended to apply to a visiting driver whose privileges were withdrawn in New South Wales. The analysis leading to this proposition, as I have understood the submissions, is that the amendments have done no more than to perfect the legislation to make clear that this was Parliament’s intention from the inception of s 25A(2) of the Act, and that it should not apply to fine defaulters, in which case it should not apply to the appellant who was a fine default in the Northern Territory.

39 I do not agree with this analysis. If the Second Reading Speech might be used to shed light on the intention of Parliament with regard to the provisions as they were on 7 January 2009, it could only be of limited assistance, for its focus is upon the amendments proposed, the mischief they are to address, and the source of the learning that has brought forth concerns that led to the introduction of the Bill. I do not believe that it could be said that the Parliament always intended the outcomes achieved with the amendment. It is apparent, in my respectful opinion, that with the benefit of the reports informing the decision to introduce the amendments written after the investigation of the difficulties faced by the disadvantaged in the community, the Government of the day saw the merit in modifying the existing scheme so that the impact of secondary offending fell more lightly upon those who found themselves to be driving while suspended, not because of an earlier unsafe driving offence, but because of fine default.

40 To the extent that the Second Reading Speech might be used to inform the court upon this question, it does not in my opinion support the submission made on behalf of the appellant.

41 Without wanting to do injustice to the research undertaken and the analysis of the legislation provided in the submissions, with the adjustment made to the second iteration of that document bringing into account the legislation as it was on 7 January 2009, I am of the opinion that the construction of 25A of the New South Wales Road Transport (Driver Licensing) Act advanced on behalf of the appellant is not correct.

42 There can be no doubt in my opinion that giving the words used in s 25A(2) their ordinary meaning, the intention of Parliament was to create an offence of driving whilst a licence is suspended regardless of the reason for that suspension. Moreover, there can be no doubt in my opinion that giving to the words used in s 25A(9) of the Act their ordinary meaning, the intention of parliament was to create an offence of driving whilst the licence is suspended, regardless of where the suspension was suffered in the Commonwealth of Australia.

43 I accept that if there were any ambiguity in the language used the construction to be given to the legislation must be that which falls in favour of the appellant, but I do not accept that there is ambiguity in this provision.

44 The scheme in the Northern Territory provides for the suspension of the licence, and that during the period of the suspension the person is taken not to hold a licence. If a person drives in the Northern Territory during the period of the suspension, he or she then commits the offence of driving when not the holder of a licence to do so. However, the legislative structure does not alter the fact that the licence is suspended for a finite period. In my opinion, the nature of the offence that might be committed in the Northern Territory under that legislative scheme once a licence is suspended does not impact upon the construction to be placed on the New South Wales legislation creating the offence within this State.

45 The words used in s 25A(2) of the Road Transport (Driver Licensing) Act that provide for this offence are:

... a person whose licence is suspended...

46 and by s 25A(9) they apply:

... a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this State or another State or Territory.

47 These provisions capture the status of the appellant when he drove in New South Wales on 7 January 2009.

48 Without wanting to do injustice to the extensive submissions made on behalf of the appellant upon the final limb of his argument, reflecting extensive reading and thorough research in their development, I believe I can deal with the point raised succinctly.

49 In my opinion, my conclusion regarding the construction of these provisions addresses the argument that the New South Wales Parliament has reached beyond its power to legislate extra territorially. I do not believe that it has done so.

50 Although it is not necessary to decide, I am also persuaded that the appellant was at the same time an unlicensed driver in New South Wales. Section 25 of the Road Transport (Driver Licensing) Act provides:

(1) A person must not, unless exempted by the regulation:

(a) drive a motor vehicle on any road or road related area without being licensed for that purpose,

51 Clause 99 of the Road Transport (Driver Licensing) Regulation 2008 provides relevantly:

(1) A visiting driver who holds:

(a) a current Australian driver licence or learner licence (including a New Zealand driver licence or learner licence) issued in another jurisdiction …

that authorised him or her to drive a motor vehicle of a particular kind may drive a motor vehicle of that kind in this State, and is exempt from the requirements of the Act and this Regulation (other than this clause).

(4) A visiting driver ceased to be exempt under this clause from any requirements of the Act and this Regulation if any of the following happen:

(c) the visiting driver is suspended or disqualified from driving a motor vehicle on a road or a road related area in any part of Australia or another country.

52 The appellant would have been exempt from these provisions on 7 January 2009 but for the suspension in the Northern Territory, as a consequence of which he did not hold a current licence to drive by force of the legislation that deemed him not to hold a licence during the period of the suspension. Moreover, if he drove in New South Wales whilst he was disqualified or suspended in any other place whatsoever, including in places outside of Australia, he would have committed an offence within New South Wales the scope of which extends beyond the circumstances required for the offence with which the appellant is charged.

53 However, it does not follow from the availability of another charge that he may escape from the liability, which he has attracted upon the application of s 25A(2) of the Road Transport (Driver Licensing) Act. This is not to suggest that he should have been charged with both offences. In any event, this has not arisen for argument and I therefore put the question one side.

Orders

54 There remains the appeal from the severity of the penalty imposed. However before I turn to that question, I make the following orders.

1. Leave to appeal from the conviction is granted.

2. The appeal is dismissed.

55 I shall now turn to the appeal from the sentence imposed by the magistrate.

56 The maximum penalty to which the appellant was exposed was a fine of $3,300 or imprisonment for eighteen months or both. An automatic period of disqualification of twelve months applies on conviction: s 25A(7). Road Transport (Driver Licensing) Act. The magistrate imposed a fine of $450 and court costs of seventy-three dollars and disqualified the appellant from driving for the statutory period commencing on 7 January 2009.

57 I have already summarised the facts and circumstances of the offence. I accept that the manner of driving that attracted the attention of the police was not deliberate or wanton, but was the product of high wind challenging the management of the vehicle over the short period that the police saw it moving, as they described. The police officer who detected this driving told the appellant not to drive any further, according to the first set of written submissions on behalf of the appellant. This was confirmed in evidence given by the appellant today. This was perfectly reasonable in the circumstances, for upon any view the appellant was not authorised to drive in New South Wales. The first set of written submissions included the proposition that it appeared the police officer exercised powers under s 206 of Road Transport (General) Act, which provides for an order of suspension by police officers in respect of certain offences, and which may be made in respect of visiting drivers authorised to drive in New South Wales.

58 It was not necessary for the police officer to resort to that provision, for as I have noted the appellant was not authorised to drive in any case. Moreover, upon my review of that provision, it does not provide for circumstances such as these.

59 I accept that the appellant did not drive from the date of the offence, and that even though a stay was in operation as a result of the lodgement of this appeal, initially against sentence only, he was unable to obtain the issue of a licence in New South Wales. This was so notwithstanding that he had paid the fines owing in the Northern Territory, and the licence suspension to which he was subject there has expired.

60 The appellant gave evidence today confirming that all of the outstanding fines were paid by 17 January 2009. I am told the records of both jurisdictions were flagged against the grant of a licence in light of the proceedings with which the court is now concerned. I am told that the appellant’s impecuniosity has precluded his pursuit of a remedy in the nature of prerogative relief against the failure of the relevant agency of government to allow him his licence.

61 The appellant was born on 8 August 1967. He is now forty-two years of age. He has no criminal antecedents in New South Wales other than for this offence and for an offence of drive with a middle range prescribed concentration of alcohol committed in December 2004. In South Australia however, he has been fined and disqualified for offences of driving with excess alcohol and speeding and driving dangerously. He also has convictions for larceny and was dealt with for possessing cannabis and an offensive weapon, and interfering with a motor vehicle, as a juvenile, without suffering a conviction. These offences commenced in 1984 and concluded in 1989.

62 In the Northern Territory he has convictions for driving a vehicle that was unregistered and uninsured and driving without a licence in October 2007. His most recent offence before then was in 1996 for being an unlicensed driver, and extending back to 1993 he has a record of offences of aggravated unlawful entry, stealing, using morphine, possession of cannabis, breaching bail, driving whilst disqualified, and driving whilst disqualified in another State.

63 His antecedents do not justify leniency reducing what would otherwise be the appropriate penalty assessed against the objective gravity of the offending. This said, I am persuaded by his evidence today that he has gone beyond what was a turning point in his life. He has relocated to Goulburn with his partner so that she might care for her grandmother, and he is looking to start afresh and follow a course in which he will be gainfully employed, will provide for his family, and not bring himself under notice.

64 Turning to the assessment of the objective gravity of the offending and the punishment that should be imposed at this point in the proceedings, I bring to account the burden that the appellant has already faced in the loss of his licence and his evidence that he has not driven since 7 January 2009, which I accept.

65 It is also appropriate in my opinion to bring to account the policy considerations that led to the reduction of the statutory period of disqualification to which persons suspended for driving for fine default have been exposed since March 2009, when the relevant legislation was amended. The disqualification that now applies to a first offence of driving whilst suspended as a result of a fine default is found in the amended s 25A(10)(a1) of the Road Transport (Driver Licensing) Act, wherein the period specified is three months in lieu of the twelve months that applied before. If there is a second or subsequent offence however, the period increases to two years and applies regardless of the reason for the suspension.

66 I have already referred to that development in the law in my judgment upon the appeal from conviction. I have referred in some detail to the second reading speech delivered by the Attorney General when presenting the bill introducing those amendments. The speech was delivered in November 2008 when the policy of government was clearly to recognise the difference in culpability between those suspended as fine defaulters and those suspended for unsafe driving offences. It is appropriate in my opinion to bring to account those matters and I do so. It was submitted that the court could resort to s 10 of the Crimes (Sentencing Procedure) Act as the appropriate outcome in this case, and might discharge the appellant conditional upon him entering into a bond to be of good behaviour for twelve months, in light of the appellant having being denied access to his licence since 7 January 2009 and that he has refrained from driving since, for a period of a little more than seven months.

67 I am of the view that there is merit in this approach and I will take that course. Before I make my final orders however I would like to add these additional comments.

68 I would like to refer to the point discovered by Mr McGrath when he first pursued the application for leave to appeal from the conviction under the mistaken view that s 25A of the Road Transport (Driver Licensing) Act in its present form applied to this matter. The resolution of this question was not necessary for the determination of the conviction appeal, for this most recent form of the legislation did not apply at the time the appellant was detected driving. Section 25A of this Act relevantly provides,

(2) A person whose driver licence is suspended (otherwise than under section 66 of the Fines Act 1996) must not:

(a) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates, or

…

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

…

(3A) A person whose driver licence is suspended or cancelled under section 66 of the Fines Act 1996 must not:

(a) in the case of a suspended licence:

(i) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates, or

…

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(3B) In determining any penalty or period of disqualification to be imposed on a person for an offence under subsection (3A), a court must take into account the effect the penalty or period of disqualification will have on the person’s employment and the person’s ability to pay the outstanding fine that caused the person’s driver licence to be suspended or cancelled.

...

(9) Subsections (1)–(3) apply to a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this State or another State or Territory.

69 Section 66 of the Fines Act provides for the suspension of a driver licence of a fine defaulter against whom the Roads and Traffic Authority is then required to take enforcement action. The section mandates that the Roads and Traffic Authority must suspend the driver licence even if the State Debt Recovery Office has granted an extension of time for the payment of the fine or allowed the fine defaulter to pay the fine by instalments after requiring the Roads and Traffic Authority to take enforcement action. I have read the entirety of s 66; no part of the section captures fine defaulters from jurisdictions within the Commonwealth of Australia beyond New South Wales.

70 The point initially argued by Mr McGrath was that on its face, this legislative scheme provided for only two classes of drivers whose licences were suspended. Those suspended under s 66 of the Fines Act and those suspended otherwise than under that provision. There was no other offence of driving whilst suspended, thus, if a motorist was suspended because of fine default in another jurisdiction within the Commonwealth of Australia, he would be dealt with as a person whose licence was suspended otherwise than under s 66 of the Fines Act (1996), and it would follow that notwithstanding that the person was a mere fine defaulter, albeit from another jurisdiction, he or she would be exposed to the more serious penalties in the form of the disqualification period. This was one of the difficulties with the earlier legislation identified in the second reading speech of the Attorney General to which I have referred.

71 It was submitted by Mr McGrath that although the retention of s 25A(9) in the Road Transport (Driver Licensing) Act allowed for the interstate motorists to be dealt with as a suspended driver, as if the suspension was a secondary offence to unsafe driving rather than mere fine default, this was unfair, contrary to principals of constitutional law relevant to the Commonwealth of Australia as a federation, and was discriminatory, particularly on the major interstate arterial roads connecting the major centres of the States and territories. Mr McGrath ultimately submitted that this could not have been the intention of Parliament, and that accordingly, if the appellant were detected in identical circumstances after the enactment of the amending legislation, upon its proper construction he would not be caught by any provision for driving whilst suspended in New South Wales.

72 I have not conducted any more detailed research of the legislation under this scheme to test these arguments or the authorities relevant to the suggested discriminatory impact of the legislation upon fine defaulters from beyond New South Wales who might otherwise be as deserving of the moderation now available to those within New South Wales. Because it is not necessary for the decisions required of me to do so, I do not intend to comment further upon these various matters other than to observe that if Mr McGrath is correct, it would seem that there ought to be some further consideration of the legislation to address the circumstances of drivers from outside of New South Wales who are mere fine defaulters whose licences have been suspended, to fill what might well be an hiatus that has gone undetected in the amended legislation.

73 I shall allow the appeal from sentence. I set aside the conviction and the fine and order for costs, and the order for disqualification. In lieu thereof, I discharge the appellant pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act, conditional upon him entering a bond to be of good behaviour for a period of twelve months from today. The conditions of the bond are that he be of good behaviour, that he appear before court if called upon to do so, that he continue to reside at [omitted]; if it is his intention to leave those premises for another domicile at any time during the currency of the bond, he is to give written notice thereof to the registrar of this court together with the particulars of the address to which he is intending to move. I will leave the papers on the court file lest there be some breach that I will have to deal with in the future.

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