SEVELJ -v- ROFFEY [2002] WASCA 20

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 20
Case No:	SJA:1141/2001	Heard:	30 NOVEMBER 2001
Coram:	McLURE J	Delivered:	14/02/02
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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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

CITATION : SEVELJ -v- ROFFEY [2002] WASCA 20 CORAM : McLURE J HEARD : 30 NOVEMBER 2001 DELIVERED : 14 FEBRUARY 2002 FILE NO/S : SJA 1141 of 2001 BETWEEN : ANDREW JOHN SEVELJ

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sevelj v Roffey

Details

AGLC: Sevelj v Roffey [2002] WASCA 20
Case: [2002] WASCA 20
Decision Date: 14 FEBRUARY 2002

CaseChat Overview and Summary

The case involved the defendant, Sevelj, who had his driving licence suspended and subsequently disqualified under section 49(2)(a) of the Road Traffic Act on two separate occasions. The primary issue for the court to determine was whether the provisions of section 49(2)(a)(iii) or (iv) applied to the defendant’s situation, given his previous disqualifications. This required the court to interpret the meaning of "having been disqualified" and "still legally disentitled" as outlined in the act. Another significant point of contention was whether the cumulative periods of disqualification were mandatory under section 49(3c) and whether section 105 of the Sentencing Act applied to the defendant's case.

The court examined the statutory language and the legislative intent behind the Road Traffic Act. It found that the term "having been disqualified" did not necessarily mean that the individual was currently under a disqualification period but rather had previously been disqualified. This interpretation allowed for a more nuanced understanding of "still legally disentitled." The court also considered the implications of cumulative disqualification periods under section 49(3c), concluding that the cumulative periods were not mandatory but rather a guideline for sentencing. Additionally, the court assessed whether section 105 of the Sentencing Act was applicable, which allows for the imposition of penalties even if the offence is not specifically mentioned in the statute. The court ruled that the defendant's actions warranted a penalty under this section.

As a result of this reasoning, the court determined that the appeal was justified. The interpretation and application of the relevant sections of the Road Traffic Act and the Sentencing Act led to the conclusion that the defendant’s penalty should be reconsidered. The appeal was allowed, indicating that the original penalty imposed might have been excessive or incorrectly applied based on the statutory interpretation.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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