Sevelj v Roffey
[2002] WASCA 20
•14 FEBRUARY 2002
SEVELJ -v- ROFFEY [2002] WASCA 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 20 | |
| Case No: | SJA:1141/2001 | 30 NOVEMBER 2001 | |
| Coram: | McLURE J | 14/02/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | ANDREW JOHN SEVELJ PETA JULIE ROFFEY |
Catchwords: | Penalty Driver the subject of a licence suspension order subsequently disqualified under s 49(2)(a) of the Road Traffic Act on two occasions Whether s 49(2)(a)(iii) or (iv) applies Meaning of "having been disqualified" and "still legally disentitled" Whether cumulative periods of disqualification mandatory under s 49(3c) Whether s 105 of the Sentencing Act applies |
Legislation: | Fines, Penalties and Infringements Notices Enforcement Act 1994 Road Traffic Act 1974 Sentencing Act 1995 |
Case References: | Cooke v Ginby (1994) 21 MVR 351 Goodwin v Phillips (1908) 7 CLR 1 Horton v Burton [1999] WASCA 82 Power v Jasharovski (1994) 19 MVR 337 Power v Steele (1992) 16 MVR 362 R v Adams (1935) 53 CLR 563 Waugh v Kippen (1986) 64 ALR 195 Wilkins v Leitch (1986) 4 MVR 219 Cooper v Penman (1994) 19 MVR 289 Keady v Bradford (1993) 18 MVR 102 Whitby v Williams (1987) 5 MVR 268 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PETA JULIE ROFFEY
Respondent
Catchwords:
Penalty - Driver the subject of a licence suspension order subsequently disqualified under s 49(2)(a) of the Road Traffic Act on two occasions - Whether s 49(2)(a)(iii) or (iv) applies - Meaning of "having been disqualified" and "still legally disentitled" - Whether cumulative periods of disqualification mandatory under s 49(3c) - Whether s 105 of the Sentencing Act applies
Legislation:
Fines, Penalties and Infringements Notices Enforcement Act 1994
Road Traffic Act 1974
Sentencing Act 1995
Result:
Appeal allowed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Ms K E McDonald
Respondent : Mr D McKenna
Solicitors:
Appellant : Crown Solicitor
Respondent : Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Cooke v Ginby (1994) 21 MVR 351
Goodwin v Phillips (1908) 7 CLR 1
Horton v Burton [1999] WASCA 82
Power v Jasharovski (1994) 19 MVR 337
Power v Steele (1992) 16 MVR 362
R v Adams (1935) 53 CLR 563
Waugh v Kippen (1986) 64 ALR 195
Wilkins v Leitch (1986) 4 MVR 219
Case(s) also cited:
Cooper v Penman (1994) 19 MVR 289
Keady v Bradford (1993) 18 MVR 102
Whitby v Williams (1987) 5 MVR 268
(Page 3)
1 McLURE J: On 17 May 2001 in the Perth Court of Petty Sessions the respondent pleaded guilty to, and was convicted of, driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974 ("RTA").
2 The respondent was legally disentitled to hold a driver's licence as she was subject to a licence suspension order imposed pursuant to the Fines, Penalties and Infringements Notices Enforcement Act 1994 ("FinesAct").
3 On 17 May 2001, Magistrate Roberts imposed a community based order of 12 months duration and ordered that the respondent be disqualified from holding or obtaining a driver's licence for a period of nine months.
4 On 12 July 2001 in the Perth Court of Petty Sessions the respondent pleaded guilty to, and was convicted of, driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the RTA.
5 On 16 August 2001, Magistrate Calder ordered that the respondent be disqualified from holding or obtaining a driver's licence for a period of 6 months for the offence of which she was convicted on 12 July 2001. The learned Magistrate also resentenced the defendant for the first offence imposing a community based order and no period of disqualification from holding or obtaining a driver's licence, in effect removing the 9 month disqualification imposed by Magistrate Roberts on 17 May 2001.
6 Magistrate Calder accepted that the circumstances of the second offence were that the respondent was driving while legally disentitled because of a licence suspension order (under s 49(2)(a)(iv) of the RTA) rather than driving while disqualified by court order (under s 49(2)(a)(iii) of the RTA). Hence, the applicable penalties were those prescribed in s 49(3)(b) and s 49(3b) rather than s 49(3)(a)(i) and s 49(3a) of the RTA.
7 The appellant was granted leave to appeal by order of Justice Roberts-Smith made on 18 September 2001. The grounds of appeal the subject of the grant of leave are as follows:
(1) the learned Magistrate erred in law in holding that, pursuant to section 19(9)(c) of the Fines Penalties and
(Page 4)
- Infringement Notices Enforcement Act 1994, a licence suspension order was not concurrent with a period of disqualification imposed after the commencement of the licence suspension order;
- (2) the learned Magistrate erred in law in –
(i) holding that the Respondent was a person to whom section 49(3b) of the Road Traffic Act 1974 applied;
(ii) failing to disqualify the Respondent from holding or obtaining a driver's licence for a period of not less than 9 months for the offence in Complaint No 28222 of 2001 which was the subject of the conviction on 12 July 2001;
(3) the learned Magistrate erred in law in holding that section 130 of the Sentencing Act 1995 enabled him, in resentencing the Respondent, to remove the 9 month disqualification from holding or obtaining a driver's licence imposed for the offence in Complaint No 19744 of 2001.
8 The applicant withdrew ground 3 at the hearing of the appeal.
The RTA and Fines Act
9 This appeal raises for determination the proper construction of s 49 of the RTA and s 19 of the Fines Act. In order to have any hope of understanding the issues, it is necessary to set out the relevant statutory provisions. Section 49 of the RTA materially provides:
"(1) Subject to this section and to sections 48C to 48F, every person who —
(a) drives a motor vehicle of a class for which he is not the holder of the appropriate, valid driver’s licence; or
(b) employs, or permits, some other person to drive a motor vehicle of a class for which that other person is not the holder of the appropriate, valid driver’s licence,
(Page 5)
- on a road, commits an offence.
Penalty: For a first offence, 6 PU.
For a subsequent offence, 12 PU.
- (1a) A person who drives a motor vehicle for a purpose or in a manner set out in regulations under section 43(1)(aa) without the authority to do so conferred by an endorsement on the licence under that section is not the holder of an appropriate, valid driver’s licence.
(2) Where —
(a) a person —
(i) having applied for a driver’s licence and having been refused the issue of the licence under section 48;
(ii) having held a driver’s licence that is cancelled under section 48 or of which the operation is suspended under that section;
(iii) having been disqualified from holding or obtaining a driver’s licence, other than under a licence suspension order referred to in subparagraph (iv); or
(iv) having been disqualified from holding or obtaining a driver’s licence under a licence suspension order made under section 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994,
commits, whilst still legally disentitled to hold a driver’s licence, an offence against subsection (1)(a); or
- (b) a person in respect of whom an order is made under section 76(3) commits an offence against subsection (1)(a) before a licence has been issued pursuant to that order or when any licence so issued has expired and has not been renewed,
(Page 6)
- the person may be arrested without warrant by a member of the Police Force and is liable, instead of to the penalties provided by subsection (1), to those provided by subsection (3).
(3) A person convicted of an offence against this section committed in any of the circumstances mentioned in subsection (2) is liable —
(a) if the offence is committed in the circumstances mentioned in subsection (2)(a)(i), (ii) or (iii) or (2)(b) —
(i) for a first offence, to a fine of not less than 8 PU or more than 40 PU and imprisonment for not more than 12 months;
(ii) for a subsequent offence, to a fine of not less than 20 PU or more than 80 PU and imprisonment for not more than 18 months;
or
(b) if the offence is committed in the circumstances mentioned in subsection (2)(a)(iv), to a fine of not less than 4 PU or more than 30 PU and imprisonment for not more than 12 months.
(3a) A court convicting a person of an offence committed in the circumstances mentioned in subsection (2)(a)(i), (ii), (iii) or (2)(b) shall order that the person be disqualified from holding or obtaining a driver’s licence for a period of not less than 9 months and not more than 3 years.
(3b) A court convicting a person of an offence committed in the circumstances mentioned in subsection (2)(a)(iv), but not in the circumstances mentioned in subsection (2)(a)(i), (ii) or (iii) or (2)(b), may order that the person be disqualified from holding or obtaining a driver’s licence for a period of not more than 3 years.
(3c) A period of disqualification ordered under subsection (3a) or (3b) is cumulative upon any other period of disqualification to which the person may then be subject
(Page 7)
- or upon any period for which the operation of the person’s driver’s licence may currently be suspended."
10 Section 19 of the Fines Act relevantly provides:
"(1) If —
(a) 28 days have elapsed since the date of issue of a notice of intention to suspend licences;
(b) the modified penalty, and enforcement fees, specified in that notice have not been paid to the Registry; and
(c) the alleged offender has not made an election under section 21,
the Registrar may make a licence suspension order in respect of the alleged offender.
(2) A licence suspension order is an order as to such of the matters in subsections (3) and (4) as the Registrar thinks fit.
(3) 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.
(a) from holding or obtaining a vehicle licence in respect of those vehicles specified in the order; or
(b) from holding or obtaining a vehicle licence in respect of any vehicle.
(Page 8)
- (5) A licence suspension order has effect on the date and at the time specified in the order, but the date and time must not be earlier than the date and time stated in the notice of intention to suspend licences and must not be earlier than when the order is made.
(6) …
(7) …
(8) …
(9) For the purposes of this Act and the Road Traffic Act 1974, a licence suspension order —
(a) takes effect on the date and at the time specified in the order;
(b) is in force from the time it takes effect to the time when it is cancelled; and
(c) is concurrent with any other period for which the alleged offender is disqualified from holding or obtaining a driver's licence."
11 The Magistrate in his reasons concluded that:
(a) the term "legally disentitled" in s 49(2)(a) of the RTA refers to those categories of circumstances stated in s 49(2)(a)(i)-(iv) of the RTA where a person is not entitled to drive;
(b) the disqualification from holding a driver's licence consequent upon a licence suspension order under section 19(3) of the Fines Act is the same as a "disqualification" as that term is used in s 49(2) of the RTA. It also means the person is "legally disentitled" to drive as that term is used in s 49(2)(a) of the RTA;
(c) section 19(9) of the Fines Act means that a licence suspension order cannot have any cumulative effect. It takes effect on the date specified in the order. It operates concurrently only with those disqualifications that are
(Page 9)
- already in existence and operating at the time the licence suspension order is made;
- (d) section 49(2)(a)(iii) of the RTA requires that at the time of conviction there must be a disqualification in existence at the time, other than under a licence suspension order;
(e) the reference in s 49(3c) of the RTA to a disqualification may include a licence suspension order made under the Fines Act but in any event a licence suspension order must be taken to be a suspension as referred to in s 49(3c);
(f) a suspension or disqualification made under 49(3a) or (3b) of the RTA is cumulative upon any period for which the licence is either disqualified or currently suspended;
(g) "having been disqualified" in s 49(2)(a)(iii) of the RTA means:
(i) the defendant is disqualified;
(ii) the defendant is disqualified for a certain period of time; and
(iii) the period of disqualification does not commence until the existing legal disentitlement has come to an end;
(h) the second offence was committed when the legal disentitlement which was operative at the time was the legal disentitlement arising out of the licence suspension order, not the disqualification imposed by Mr Roberts SM.
12 The Magistrate accepted that the effect of the construction adopted by him is that if a defendant chooses not to pay the fine which led to the licence suspension order, the higher penalties that would normally apply to driving whilst under disqualification will not apply if offences are committed during the period the fine has not been paid.
(Page 10)
Grounds 1 and 2 of the Appeal
13 Section 49 of the RTA was extensively amended by the Acts Amendment (Fines Enforcement and Licence Suspension) Act 2000 ("Amendment Act"). The effect of the Amendment Act was to provide for an expanded range of options for dealing with fines enforcement and traffic matters. The Second Reading Speech for the Amendment Act relevantly provides:
"The first area of reform [of the RTA] relates to the lack of flexibility in sentencing options for offenders who are convicted of driving without a licence. Members would be aware that of particular concern in this regard are those offenders who drive while under fine default suspension. At present the Road Traffic Act provides a variety of penalties for driving without a licence, including driving under suspension. The Bill seeks to recast a number of these penalty provisions and, in particular, provides a specific penalty for driving while under fine default suspension. The Act does not currently contain this distinction. The new offence of driving under fine default suspension will attract a lower penalty than that for the offence of driving under a court-imposed suspension.
…
Currently, the Road Traffic Act provides for mandatory disqualification of a licence when a person is convicted of driving without a licence. Such disqualification can be for a period of between nine months and three years, as determined by the court. Those disqualification powers will remain. However, the Bill provides that in the case of persons convicted solely of driving while under fine default suspension, the disqualification will be discretionary and may be for any period up to three years."
14 The Amendment Act inserted the existing subsections (3) to (3c) inclusive of s 49 of the RTA.
15 It is tolerably clear from the Second Reading Speech that the legislature did not intend to produce the consequences which flow from the construction of s 49 of the RTA upheld by the Magistrate. For the respondent, that meant that she was treated as having been disqualified under a licence suspension order to which s 49(2)(a)(iv) applies with the consequence that the lower penalties in s 49(3)(b) and (3b) apply.
(Page 11)
16 Further, the lower penalty available for a fines suspension would, whilst the licence suspension order remained in force, continue to apply notwithstanding the offender drove on multiple occasions and received multiple court imposed disqualifications.
17 The appellant seeks to avoid the consequences arising from the construction adopted by the Magistrate by three alternate routes. The first is to construe s 19(9)(c) of the Fines Act as applying to any period of disqualification regardless of whether it was imposed before or after the licence suspension order was made. The second is to construe s 49(2)(a)(iii) of the RTA to apply from the making of the order for disqualification rather than during the period when the disqualification is served. The third, is to construe s 49(3c) of the RTA as not applying to licence suspension orders made under s 19 of the Fines Act because they are indefinite in the sense of not being for a fixed period.
18 In my opinion there is no proper basis for construing s 19(9)(c) of the Fines Act or s 49(3c) of the RTA in the manner suggested by the appellant. I start with s 49(3c) of the RTA. I see no justification in the language of that section or in policy for excluding licence suspension orders made under s 19 of the Fines Act from the scope of s 49(3c). The fact that licence suspension orders are not for a fixed period does not warrant the interpretation contended for: Horton v Burton [1999] WASCA 82.
19 Indeed, there is a strong policy ground for making a period of disqualification under s 49(3a) or (3b) cumulative on a prior fine suspension order. There would be no incentive to pay the relevant fine before the expiry of the disqualification under the RTA if a prior fine suspension order was served concurrently with subsequent disqualifications.
20 Thus, there is no necessary inconsistency between s 19(9)(c) of the Fines Act and s 49(3c) of the RTA. Further, it is not open to interpret s 19(9)(c) of the Fines Act as applying to existing and future disqualifications in light of the subsequent and specific statutory intention reflected in s 49(3c) of the RTA. Section 49(3c) in its current form was inserted by the Amendment Act.
21 It was submitted by the respondent that s 49(3c) of the RTA is not mandatory having regard to s 105(2) of the Sentencing Act 1995. Section 105(1) of the Sentencing Act gives a court sentencing an offender for a motor vehicle offence a discretion to order that the offender be
(Page 12)
- disqualified from holding or obtaining a driver's licence for a term set by the court. Subsection (2) of s 105 materially provides:
"(2) The term is concurrent with –
(a) any other term for which the offender's driver's licence is or may be disqualified; or
(b) any term for which the offender's driver's licence is or may be suspended,
unless the court orders that the term is to be cumulative on those terms."
23 Section 105(2), which makes the terms of disqualification prima facie concurrent, is inconsistent with s 49(3c) of the RTA. Further, s 105(4) of the Sentencing Act does not in terms extend to s 49(3c) of the RTA. However, in my opinion, the specific and subsequently enacted s 49(3c) of the RTA is intended to and does prevail over the general provision in s 105(2) of the Sentencing Act in relation to disqualifications under the RTA and Fines Act: see Goodwin v Phillips (1908) 7 CLR 1 at 7.
24 For these reasons I reject the appellant's and respondent's submissions concerning s 19(9) of the Fines Act and s 49(3c) of the RTA. I agree with the Magistrate's conclusions concerning the construction of s 19 of the Fines Act and s 49(3c) of the RTA. However, in my opinion, the Magistrate has erred in his construction of s 49(2)(a)(iii) of the RTA. In particular, I disagree with that part of the Magistrate's reasoning summarised in sub-paragraphs (d) and (g) above. Section 49(2)(a)(iii) does not require that a period of disqualification is being served other than pursuant to a licence suspension order at the time the offence was committed.
(Page 13)
25 The error arises as a result of a failure to distinguish between two distinct albeit related concepts, that of "disqualification" and "period of disqualification". The former refers to the fact or existence of the act of disqualification. Disqualification means the withdrawal of an entitlement thus giving rise to a disentitlement. That occurs when the court makes a disqualification order under s 49(3a) or s 49(3b) of the RTA. The latter refers to the period or term of that disqualification or disentitlement.
26 The Magistrate focussed on the period of disqualification being served at the time the relevant offence occurred. That focus takes you to the licence suspension order rather than any other cause of disqualification. The correct focus is the existence or fact of a relevant disqualification regardless of when the period of disqualification is served for the following reasons.
27 The opening words "having been disqualified" in sub paragraph (iii) are in the past tense. They can only refer to the fact of disqualification rather than the period of disqualification. A reference to the period of disqualification in the past tense is inconsistent with the closing words of s 49(2)(a) which requires that a person commit an offence against subsection (1)(a) "whilst still legally disentitled to hold a driver's licence".
28 The Court has had to consider on a number of occasions what is meant by the words "whilst still legally disentitled to hold a driver's licence". In relation to s 49(2)(a)(i), the legal disability is deemed to continue until a person who has been refused a licence under s 49 of the RTA has applied for and obtained a licence: Power v Steele (1992) 16 MVR 362. In relation to s 49(2)(a)(ii) the use of the present tense in sub-paragraph (ii) when referring to a cancelled licence has been construed to mean that the legal disentitlement continues only during the period in which the cancelled licence might otherwise have continued: Power v Jasharovski (1994) 19 MVR 337. These cases were concerned with identifying when the legal disentitlement ceased. They do so because it is the case that the subsequent offence must have been committed whilst the person was legally disentitled.
29 Accordingly, if the word "disqualified" in sub-paragraph (iii) meant the period of disqualification then the use of the past tense would mean after the expiry of the period of disqualification. That is obviously unsustainable. If the legislature intended that sub-paragraph (iii) apply when a person commits an offence during the relevant period of disqualification it could have made that intention plain.
(Page 14)
30 Of course the outcome would be different if the closing words, in particular the words "legally disentitled", could as a matter of construction only possibly refer to the period of disqualification being served at the time of the subsequent offence against s 49(1)(a). I see no warrant for that conclusion. I accept that there must be a direct nexus between the cause of the disqualification and the legal disentitlement. However, if, (as I have concluded) the opening words "having been disqualified" refer to the fact of disqualification, the corresponding "legal disentitlement" is the disentitlement occasioned by the fact of disqualification which is extant from the time the disqualification order is made even if service of the period of disqualification has not commenced. The legal disentitlement ceases upon expiry of the period of disqualification. Focussing on the act (or fact) of disqualification is consistent with s 49(2)(a)(i) of the RTA considered in Power v Steele (supra).
31 This construction of s 49(2)(a)(iii) is consistent with s 49(3b) which contemplates overlapping periods of disqualification as a result of a continuing fine suspension order. On the Magistrate's construction of s 49(2)(a) there could never be an overlap between legal disentitlements giving rise to a breach of sub-par (iii) and (iv) of s 49(2)(a). Yet that outcome is contemplated in s 49(3b) which refers to a Court convicting a person of an offence "committed in the circumstances mentioned in subsection (2)(a)(iv), but not in the circumstances mentioned in subsection (2)(a)(i), (ii) or (iii) …". That language (which does not appear in s 49(3a)) would be otiose on the construction upheld by the Magistrate.
32 I have reached my conclusion on the construction of s 49(2)(a)(iii) by reference to the fair meaning of the language of s 49 in the context of the RTA as a whole. I do not regard the outcome as one to be determined by the rules of construction relating to penal provisions (as to which see R v Adams (1935) 53 CLR 563 at 567-568). Nor is it necessary to determine whether and to what extent there is a conflict between the rules of construction that apply where an act is both beneficial and penal: Waugh v Kippen (1986) 64 ALR 195 at 200-201.
33 For these reasons I uphold ground 2 of the appeal. The parties made no submissions on penalty in the event the appeal was allowed. I will hear the parties on that matter. My preliminary view is that in the circumstances the appropriate course is to remit the matter to the Magistrate for reconsideration in the light of these reasons.
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