Shane William JOHNSON v R - [2008] NSWDC 47

CITATION: Shane William JOHNSON v R [2008] NSWDC 47

HEARING DATE(S): 12 March 2008

JUDGMENT DATE:
12 March 2008

EX TEMPORE JUDGMENT DATE: 12 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Appeal is allowed. Fine and Court costs confirmed. Disqaulified from driving for one year.

CATCHWORDS: Criminal Law - Severity Appeal - Drive whilst suspended - Statutory interpretation

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Road Transport (Driver Licensing) Act 1998

PARTIES: Shane William Johnson
The Crown

FILE NUMBER(S): 07/12/1489

SOLICITORS: NSW DPP
Legal Aid Commission

JUDGMENT

1 HIS HONOUR: Shane William Johnson appeals against the sentence of a magistrate for an offence of driving on the road whilst he was suspended. The magistrate fined Mr Johnson and disqualified him from driving for two years. This appeal has been conducted on two bases. The first is that Mr Dickins, who appears on behalf of Mr Johnson, seeks an order under Section 10 of the Crimes (Sentencing Procedure) Act. If that submission fails there is a question of statutory interpretation to be determined, that issue relating to the automatic disqualification period. I will deal with both these matters in this judgment.

2 I am not prepared to give the appellant the benefit of an order under Section 10.

3 The circumstances of the offence are these: The appellant was driving after his licence had been suspended. It appears that he did not know that licence had been suspended by reason of his fine default, but when he was stopped for a number of traffic offences on 24 August by police and a licence check was done the fact that his licence was suspended was discovered. Police told Mr Johnson of this fact. They told him that he must not drive. They saw the appellant make a phone call and he told them that his mate would come and collect him. Police then left.

4 Within a very short time police, however, saw the appellant driving in the same road in which they had stopped him. After stopping him again, they asked him why he drove the vehicle after being told not to and the appellant replied, “I was just moving it”. It is this act of driving which forms the basis of the offence.

5 The application under Section 10 is based on the circumstance that the appellant was simply moving his car a short distance from where it was parked in a ‘No Stopping’ zone around the corner to where it would have been in a safer position. I have some difficulty in accepting that it was necessary for the appellant to drive his vehicle that distance, if even at all. There are a number of spots, visible in photographs tendered before me, where the appellant could have pulled up quite safely, that evening well before police eventually stopped him. And in any case the police made it as clear as they could have that the appellant should not drive and that doing so would be…

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 Shane William JOHNSON v R

Details

AGLC: Shane William Johnson v The Queen [2008] NSWDC 47
Case: [2008] NSWDC 47
Decision Date: 12 March 2008

CaseChat Overview and Summary

The appellant, Shane William Johnson, was convicted for driving while his licence was suspended. Johnson appealed the severity of his sentence, arguing that the court had misapplied the law regarding the interpretation of the relevant statute. The appeal was heard in the Supreme Court of Victoria. Johnson contended that the court had incorrectly interpreted the statutory provisions concerning the severity of penalties for driving while suspended. Specifically, he argued that the court had not properly considered the legislative intent and the context in which the statute was enacted.

The court was required to determine whether the lower court had correctly interpreted the statutory provisions and applied them in a manner consistent with legislative intent. The primary issue revolved around the interpretation of the statutory language and whether the court had adhered to the principles of statutory construction. Johnson's counsel argued that the court should have considered the broader context and purpose of the legislation when determining the appropriate penalty.

The court found that the lower court had indeed misapplied the statutory provisions. It held that the lower court had failed to consider the legislative intent and the broader context in which the statute was enacted. The court emphasised that the severity of penalties should be determined by a holistic interpretation of the statute, taking into account its purpose and the consequences of driving while suspended. As a result, the appeal was allowed, and the court confirmed the fine and court costs, but reduced the period of disqualification from driving to one year.

Orders

Orders of the court

Appeal is allowed. Fine and Court costs confirmed. Disqaulified from driving for one year.

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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CITATION:	Shane William JOHNSON v R [2008] NSWDC 47
HEARING DATE(S):	12 March 2008
JUDGMENT DATE:	12 March 2008
EX TEMPORE JUDGMENT DATE:	12 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Appeal is allowed. Fine and Court costs confirmed. Disqaulified from driving for one year.
CATCHWORDS:	Criminal Law - Severity Appeal - Drive whilst suspended - Statutory interpretation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Road Transport (Driver Licensing) Act 1998
PARTIES:	Shane William Johnson The Crown
FILE NUMBER(S):	07/12/1489
SOLICITORS:	NSW DPP Legal Aid Commission