Russell v Stephen

[2013] WASC 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   RUSSELL -v- STEPHEN [2013] WASC 21

CORAM:   McKECHNIE J

HEARD:   11 DECEMBER 2012

DELIVERED          :   31 JANUARY 2013

FILE NO/S:   SJA 1098 of 2012

BETWEEN:   STEWART JEFF RUSSELL

Appellant

AND

KRISTY ANN STEPHEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE K M BOOTHMAN

File No  :PE 63903 of 2010

Catchwords:

Road traffic - When a licence is disqualified or suspended - No new principles

Legislation:

Fines Penalties and Infringement Notices Enforcement Act 1994 (WA)
Road Traffic Act 1974 (WA), s 49, s 51

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms K J Farley

Respondent:     Mr D J Anderson

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  Mr Russell has a habit of driving when he is apparently not authorised to do so.  He had better get out of the habit pronto or he will never be allowed to drive again.

The issue

1. Is a provisional driver whose licence is suspended under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act) a person who does not 'hold' a driver's licence?

2. The appellant submits that driving while under fines suspension is not specified as an offence that invokes cancellation under the Road Traffic Act 1974 (WA). The appellant is wrong and the appeal is dismissed. The answer lies in two Acts.

The Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)

1. The short title is 'an Act to provide for the enforcement of the payment of fines and other penalties and for the enforcement of infringement notices and for related purposes'.  The focus of the FPINE Act is to get people to pay fines.  The focus is not regulation of traffic.

2. If the preconditions are met under FPINE Act s 19, a registrar may make a licence suspension order as to such matters as the registrar thinks relevant:

   If the alleged offender is an individual a licence suspension order may disqualify the alleged offender from one of the following:

   (a)from holding or obtaining a driver's licence;

   (b)from holding or obtaining a vehicle licence in respect of those vehicles specified in the order; or

   (c)from holding or obtaining a vehicle licence in respect of any vehicle (s 19(3).

3. A licence suspension order is cancelled if the fee on penalty is paid.

Road Traffic Act 1974 (WA) s 51

1. The Road Traffic Act (RTA) differentiates between forms of suspension for fines enforcement and other reasons for suspension. Section 51 deals with the cancellation of driver's licences granted on probation and differentiates between convictions, court disqualifications and suspension under the FPINE Act.

2. The RTA draws a distinction between the consequences of a holder of an ordinary licence suspended for fines enforcement and the holder of a provisional licence suspended for fines enforcement.  A provisional licence holder is shown less leniency.

3. A conviction under the RTA s 49 does not provide for automatic cancellation under s 51. Section 51(4A) and s 51(4) provide:

   (4A)If the holder of a driver’s licence that is a provisional licence is disqualified from holding or obtaining a driver’s licence -

   (a)by a licence suspension order made under the Fines, Penalties and Infringement Notices Enforcement Act 1994; or

   (b)by a disqualification notice given to the person under section 71C,

   the provisional licence is, by operation of this subsection, suspended so long as the disqualification continues in force.

   (4)While a provisional licence is suspended under subsection (4A) it is of no effect, but this section does not operate so as to extend the period for which the licence may be valid or effective beyond the time when the licence would be due to expire.

4. Section 51(5a):

   (5a)Where a person to whom this subsection applies is -

   (a)convicted of an offence such as is mentioned in subsection (1) or an offence against section 49(1)(a); or

   (b)disqualified by a court from holding or obtaining a driver’s licence,

   that person is disqualified from holding or obtaining a licence -

   (c)for any period for which he is so disqualified by the court; or

   (d)for a period of 3 months from the date of his conviction or, where he is convicted on more than one occasion of an offence referred to in paragraph (a), from the date of his latest conviction,

   whichever period terminates later.

5. The issue is whether s 51(5a) applies. Section 51(5) provides:

   (5)Subsection (5a) applies to a person if -

   (a)the person does not hold a driver's licence; and

   (b)the regulations would require that, if a driver's licence were to be granted to the person, it be a provisional licence.

6. Was Mr Stephen a person who held a driver's licence, albeit one that was suspended, when he was convicted in August 2010?  The argument mounted by the appellant's counsel is intriguing but wrong:

   13.Section 51 specifies those offences where a driver's licence will be cancelled. Driving whilst under fines suspension is not specified as an offence that will invoke cancellation.

   14.To 'cancel' is to withdraw, revoke, discontinue, obliterate, delete, annul, make void or abolish: The Australian Concise Oxford Dictionary 4th edition @ page 198.

   15. To 'suspend' is to keep inoperative or undecided for a time, defer or debar temporarily from a function, office privilege: ibid @ page 1439.

   16.It is submitted on behalf of the Applicant that a provisional driver whose licence is subject to a fines suspension order, nonetheless, still holds a driver's licence and is not someone to whom section 51(5a) applies.

   17.It is therefore submitted that when dealt with on 25 January 2011 for driving on 26 August 2010, the Appellant should not have been convicted pursuant to s 49(3)(c) of the Road Traffic Act but was instead guilty pursuant to s 49(3)(d) of that Act which carries a maximum disqualification rather than a minimum disqualification.

7. At issue is not the ordinary meaning of the verb 'to hold' but the contextual construction of the language of a statute.

8. Although the FPINE Act s 19 is entitled 'Licence Suspension Order' and gives the registrar power to make a licence suspension order, the actual suspension disqualifies an alleged offender from holding or obtaining an driver's licence.

9. A licence suspension does not merely put in abeyance the privileges attached to a driver's licence; it forbids a person to hold a licence.

Chronology

7 March 2008	Provisional licence issued for 5 years
5 July 2010	Drove an unlicensed vehicle - unauthorised to drive that class
23 July 2010	2 x Licence Suspension Orders (FPE) s 19
10 August 2010	Convicted of 5 July 0ffence RTA s 49(1)(a) - Fine $100 (The court did not suspend his licence)
26 August 2010	Drove while unauthorised
31 August 2010	Licence Suspension Order cancelled
25 January 2011	Convicted of 26 August offence RTA s 49(1)(a) and s 49(3)(c). Fined $400. MDL disqualified: 9 months

1. So on 10 August 2010 the appellant fulfilled two criteria:

   1.he did not hold a driver's licence;

   2.he had been convicted of an offence under s 49(1)(a).

2. His disqualification thereafter relevant to the offence on 26 August 2010 was pursuant to RTA s 51, not FPINE Act s 19.

3. If this is not clear enough by a contextual reading, RTA s 51(4A) puts the matter beyond doubt.

4. There was no miscarriage of justice when on 25 January 2011 the magistrate correctly sentenced the appellant under RTA s 49(3).

5. The appeal is dismissed.