Smith v Stivala
[2018] ACTSC 309
•8 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Smith v Stivala |
Citation: | [2018] ACTSC 309 |
Hearing Date: | 23 May 2018 |
DecisionDate: | 8 November 2018 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Magistrates Court Appeal – licence disqualifications – whether the Magistrate erred in proceeding under s 61 of the Crimes (Sentencing) Act – whether where an aspect of an offender’s punishment is an automatic consequence of conviction, any circumstance of aggravation must be alleged in the charge – Magistrate had no power to make a disqualification order of the same length as the automatic disqualification period – ss 29 and 30 of the Crimes (Sentencing) Act 2005 (ACT) – cannot apply to automatic disqualification periods that take effect by force of statute – no issue of totality can arise – whether the Magistrate erred in making, or alternatively continuing, the order under s 65 of the Road Transport (General) Act 1999 (ACT) – no power available to the Magistrate to review the order imposing the indefinite disqualification – whether the total period of disqualification from holding or obtaining a licence was manifestly excessive in all of the circumstances – ample evidence upon which the Magistrate could conclude that it was necessary in the public interest to make the indefinite disqualification order – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 16, 18(5), 29, 30, 31, 58(6), 61 Magistrates Court Act 1930 (ACT) s 208(1)(d) Road Transport (General) Act 1999 (ACT) ss 61AA, 63, 65, 68, 69 |
Cases Cited: | Beath and McCurley [2018] ACTCA 48 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Pearce v The Queen [1998] HCA 57; 194 CLR 610 |
Parties: | Johnathon Smith (Appellant) Ian Anthony Stivala (Respondent) |
Representation: | Counsel Mr M Toole (Appellant) Mr M Howe (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 8 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 29 January 2018 Case Title: The Queen v Johnathon Smith Court File Numbers: CC2016/10953; CC2016/10954 |
BURNS J:
On or about 20 October 2016 the appellant, Johnathon Smith was charged with two offences in the following form:
(a)That he in the Australian Capital Territory on 22 September, 2016, drove a motor vehicle on a road in a way that menaced another person, namely, Brian Frederick Summers, knowing that person might be menaced (CC2016/10953).
(b)That he in the Australian Capital Territory on 22 September, 2016, drove a motor vehicle on a road in a way that menaced another person, namely, Timothy Chaseling, knowing that person might be menaced (CC2016/10954).
Each such charge alleged an offence contrary to s 8(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Safety Act). That section provides:
(2) A person must not drive a motor vehicle on a road or road related area in a way that menaces someone else if the person ought to have known that the other person might be menaced.
I pause at this point to observe that the charges as laid against the appellant do not faithfully reflect the terms of the offence found in s 8(2). The offences charged alleged actual knowledge on the part of the appellant that the nominated persons might be menaced, whereas the offence provision only requires that the prosecution prove that the offender ought to have known that the other person might be menaced. No issue was taken about this apparent discrepancy before the Magistrate or myself, and in any event it is a discrepancy that favoured the appellant. An acceptance by the appellant that he knew that the other person might be menaced inevitably means that he ought to have known that the other person might be menaced.
By virtue of s 63 of the Road Transport (General) Act 1999 (ACT) (the General Act), a person convicted of an offence under s 8(2) of the Safety Act is subject to an automatic period of disqualification from holding or obtaining a drivers licence. For a first offender, that period is “3 months or, if the court orders a longer period, the longer period”: s 63(2)(a). For a repeat offender, the period is “12 months or, if the court orders a longer period, the longer period”: s 63(2)(b).
On 21 October 2016 the appellant entered pleas of guilty to the two charges. Sentencing was adjourned to 6 December 2016. The appellant was, at that time, in custody and on 6 December 2016 the Magistrate received copies of the Statement of Facts, the appellant’s criminal history, a Forensic Mental Health Report and a Pre-Sentence Report. After hearing submissions from the appellant’s lawyer and the prosecutor, the Magistrate initially made the following orders:
· CC2016/10954 – convicted, and sentenced to one month imprisonment commencing 7 November 2016 and expiring 6 December 2016. The appellant was disqualified from holding or obtaining a licence for three months.
· CC2016/10953 – convicted and sentenced to one month imprisonment commencing 7 November 2016 and expiring 6 December 2016. The appellant was disqualified from holding or obtaining a licence for three months “which is cumulative upon the previous term of imprisonment (sic) (semble, disqualification).
Up to this point the Magistrate had:
(a)imposed aggregate sentences of imprisonment totalling one month; and
(b)purported to disqualify the appellant from holding or obtaining a drivers licence for six months commencing 6 December 2012.
The Magistrate then purported to make a further disqualification of licence order under s 65 of the General Act. That section relevantly provides
65 Disqualification until court order
(1) This section applies if—
(a) a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted, or found guilty, of an offence, or offences, against the road transport legislation or any other territory law; and
(b) the total period of disqualification (the compulsory disqualification period) is 12 months or more.
(2) If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3).
(3) If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside.
It is apparent from s 65 that it only permits the making of an order of disqualification until the Court otherwise orders (an indefinite disqualification order) where the Court has already imposed a disqualification or disqualifications totalling 12 months or more. To this point in the proceedings the Magistrate had only imposed disqualification totalling six months, so that she was not entitled to impose the indefinite disqualification under s 65.
After the Magistrate had finished passing sentence, the prosecutor informed her Honour that the s 65 disqualification could not be made unless the disqualification orders for the two offences of menacing driving totalled at least 12 months. What followed was extraordinary. The Magistrate, without reference to either the prosecutor or the appellant’s lawyer, simply said:
I see. I will make each of those six months in the circumstances.
10. It is difficult to interpret the Magistrate’s actions as other than increasing (in fact doubling) the length of the disqualification orders that she had originally considered appropriate for each of the menacing driving offences so as to enliven her jurisdiction to make an indefinite disqualification order under s 65. If so, this is wrong in principle. The correct approach for a sentencing court to adopt in sentencing for multiple offences was stated by McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; 194 CLR 610 (at 624):
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
11. There was troubling material before the Magistrate concerning the appellant’s mental stability, such that the Magistrate may have been concerned about public safety if the appellant were to resume driving after any fixed period of disqualification and without demonstrating that he did not pose a risk to the public when driving a motor vehicle. If that be the case, the proper course was not to increase the appropriate disqualification periods so as to allow an indefinite disqualification order to be made. The proper course would be to impose the appropriate disqualification period for each offence, determine issues of concurrency and cumulation with regard to those periods, considering totality. If the total disqualification period thus derived equalled or exceeded 12 months in duration, the Magistrate could consider whether it was appropriate to make an indefinite disqualification order; if not, she could direct the Registrar of the Court to forward the papers in the matter to the relevant licencing authority for it to determine whether to take action regarding the offender’s driving licence. For the reasons that follow, any incorrect approach by the Magistrate in this regard was not of significance.
12. The appellant accepted the orders made by the Magistrate. He waited until the aggregate period of 12 months disqualification expired, and then applied to have the indefinite disqualification set aside pursuant to s 65(3) of the General Act. That application came before the same Magistrate on 17 January 2018. A representative of the Road Transport Authority (RTA) informed the Magistrate at that time that the application was opposed because an error had occurred in sentencing the appellant on 6 December 2016. The error identified was that the appellant should have been sentenced as a “repeat offender” with regard to one of the offences of menacing driving, identified as being the second in time, or charge CC2016/10953, and should have been subject to the more stringent disqualification period reserved for repeat offenders: see [4] above.
13. The matter was further adjourned to 29 January 2018 before the same Magistrate. At that time both the RTA and the Director of Public Prosecutions were represented before the Magistrate, as well as the appellant. Counsel appearing for the appellant submitted that the higher automatic disqualification of 12 months did not apply because an allegation that the appellant was a repeat offender, while not an element of the offence of menacing driving, was a matter of aggravation and should as a matter of practice be pleaded in the charge, citing The Queen v Meaton (1986) 160 CLR 359 (The Queen v Meaton). The Magistrate accepted that it would have been preferable for the charge to have alleged that the appellant was a repeat offender, but, as a matter of law, the appellant was a repeat offender for the purposes of sentencing on the second offence of menacing driving.
14. The law to which the Magistrate referred was presumably s 61AA of the General Act, which provides definitions of “first offender” and “repeat offender” for the purposes of division 4.2, including the offence of menacing driving. That section provides:
61AA Meaning of first offender and repeat offender—div 4.2
(1) A person who is convicted or found guilty of a disqualifying offence is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.
(2) A person who is convicted or found guilty of a disqualifying offence is a repeat offender in relation to the offence if—
(a) the person has been convicted or found guilty of a relevant offence committed at any time before the disqualifying offence was committed (whether or not the person had been convicted or found guilty of the relevant offence when the person committed the disqualifying offence); or
(b) the person is convicted or found guilty of 1 or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence.
(3) In this section:
disqualifying offence means—
(a) for section 62 (Automatic disqualification for culpable driving)—an offence of culpable driving; or
(b) for section 63 (Automatic disqualification for certain other driving offences)—an offence mentioned in section 63 (1).
relevant offence means any of the following:
(a) an offence of culpable driving;
(b) an offence against section 60 (which is about requiring people to disclose the identity of a driver), if the requirement is to give information about the driver of a motor vehicle who is alleged to have committed an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 5C (Failing to stop motor vehicle for police);
(c) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 5A (1) or (5) (which are about races, attempts on speed records, speed trials etc);
(d) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 5B (2) or (4) (which are about improper use of a motor vehicle);
(e) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 5C (Failing to stop motor vehicle for police);
(f) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 6 (1) (which is about negligent driving) that occasions death or grievous bodily harm (within the meaning of that section);
(g) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 7 (1) (which is about furious, reckless or dangerous driving);
(h) an offence against the Road Transport (Safety and Traffic Management) Act 1999, section 8 (1) or (2) (which are about menacing driving).
15. It is clear from the provisions of s 61AA that the offence of menacing driving contrary to s 8(2) of the Safety Act is both a “disqualifying offence” and a “relevant offence” for the purposes of the provision. The Magistrate on multiple occasions asserted that the minimum disqualification period prescribed by law for a repeat offender for an offence of menacing driving was 12 months; she concluded that she was entitled to revisit her order made on charge CC2016/10953 on 6 December 2016 by substituting a disqualification period of 12 months for the previously imposed period of six months. This was expressed to be pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act), which relevantly provides:
61 Reopening proceedings to correct penalty errors
(1) This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has—
(a) made a sentence-related order that is contrary to law; or
(b) failed to make a sentence-related order that is required to be made by law.
(2) This section applies whether or not anyone has been convicted or found guilty of an offence in the proceeding.
(3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:
(a) make a sentence-related order that is in accordance with law;
(b) amend any relevant finding of guilt, conviction, sentence or order.
16. An order of disqualification from holding or obtaining a drivers licence made by a court is a “sentence related order”: see s 61(7), s 58(6) and s 18(5) of the Crimes (Sentencing) Act.
17. The Magistrate then turned to consider the appellant’s application to set aside the indefinite disqualification. The representative of the RTA objected to the application on the basis that the mandatory disqualification period had not expired, because the amendment made by the Magistrate to the disqualification order on charge CC2016/10953 meant that the total aggregate disqualification for the two offences of menacing driving was now 18 months, and not 12 months as ordered by the Magistrate on 6 December 2016. Counsel for the appellant raised with the Magistrate whether the two disqualification periods should continue to be accumulated, to which the Magistrate replied:
I can’t really disturb that sentence at this stage. That would certainly be interfering, I think, with the substance of the sentence and it’s not an inappropriate sentence.
18. The Magistrate then dismissed the application to set aside the indefinite disqualification order.
The appellant purported to appeal from the orders made by the Magistrate on 29 January 2018. The Notice of Appeal cited a number of grounds, but in his written submissions the appellant refined those grounds to the following:
(a)the Magistrate erred in proceeding under s 61 of the Crimes (Sentencing) Act;
(b)the Magistrate failed to have regard to the principle of totality when imposing the respective periods of licence disqualification;
(c)the Magistrate erred in making, or alternatively continuing, the order under s 65 of the General Act; and
(d)the total period of disqualification from holding or obtaining a licence was manifestly excessive in all of the circumstances.
Beath and McCurley [2018] ACTCA 48 (Beath v McCurley)
20. At the hearing of the present appeal it was noted that a number of issues raised by the appeal were also raised in the Court of Appeal in the matter of Beath v McCurley, and that it may be beneficial to await publication of that decision. The decision in that appeal was handed down by the Court of Appeal on 23 October 2018. McCurley had been convicted in the Magistrates Court of multiple driving offences, each of which were subject to an automatic disqualification of drivers licence. While different provisions imposed the automatic disqualification with regard to different offences, they all had one thing in common. Each provision provided that upon conviction of the relevant offence, the offender was automatically disqualified from holding or obtaining a drivers licence for a specified period, or such longer period as may be ordered by the Court. The automatic disqualification period was therefore also the minimum disqualification provided by law.
21. The sentences imposed by the Magistrate resulted in the disqualification period being cumulative rather than concurrent. The total period of disqualification was 16.5 years. The period of disqualification in each case was the automatic period, meaning that it was the minimum period provided by law.
22. McCurley appealed from the disqualification “orders” made by the Magistrate on the ground that the total disqualification period was manifestly excessive. At the hearing of the appeal the respondent submitted that the appellant had no right of appeal as each disqualification period was imposed by statute (citing Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 (Burow v The Queen)), and the Magistrate had no power to make a disqualification order of the same length as the automatic disqualification.
23. The primary judge distinguished Burow v The Queen on the basis that in Burow v The Queen the Magistrates Court had not made any order in relation to disqualification, with the consequence that there was no jurisdiction under s 208(1)(d) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which permitted an appeal from a “sentence or penalty imposed by the Magistrates Court”. In the opinion of the primary judge, the Magistrate who sentenced McCurley did in fact make an order of disqualification equal to the automatic disqualification period. The primary judge was satisfied that the Magistrate was entitled to do so by virtue of the general power of disqualification in s 64 of the General Act. The primary judge was therefore satisfied that there was a right of appeal pursuant to s 208(1)(d) of the Magistrates Court Act.
24. On appeal, the Court of Appeal determined:
(a)That s 64 of the General Act did not provide the Magistrate with power to impose a period of disqualification that was the same as an automatic period of disqualification;
(b)That a licence disqualification order is not a “sentence or penalty” for the purposes of s 208(1)(d) of the Magistrates Court Act, and any right of appeal from a licence disqualification order must be found in s 208(1)(g). That provision only permits an appeal where the licence disqualification order is made for “a longer period than the minimum”;
(c)That s 208(1)(d) does not authorise an appeal from an order that a Magistrate lacked jurisdiction to make.
25. The decision in Beath v McCurley has definitively decided a number of issues raised in the present appeal.
The pleading issue
26. The appellant submitted that where an aspect of an offender’s punishment, in this case the period of licence disqualification, is an automatic consequence of conviction, any circumstance of aggravation (in this case that he was a repeat offender) must be alleged in the charge.
27. The respondent submitted that the elements of the offence of menacing driving are found in s 8(2) of the Safety Act, and this does not require proof that the accused person is either a first offender or a repeat offender. The respondent submitted that whether an accused is a repeat offender is irrelevant to proving the offence, and is only relevant to establishing the penalty prescribed for the offence.
28. The respondent’s submission must be accepted. It is not an element of the offence of menacing driving which the prosecution must establish to prove the commission of the offence that an accused is a first offender or a repeat offender. Proof that an accused person is a repeat offender is relevant only to sentencing after the offence has been found proved. Where possible, the fact that it is alleged that an accused is a repeat offender should be pleaded in the charge: The Queen v Meaton. This may prove difficult, if not impossible, where an accused is alleged to have committed two offences in the course of a single course of conduct, as it will not always be possible to determine upon which charge the court will initially proceed to conviction. In sentence proceedings in cases such as the present the prosecution should make it clear to the court whether they say an accused, such as the appellant in these proceedings, is to be sentenced as a first offender or a repeat offender on any charge where such a categorisation is relevant to the maximum penalty. This will enable evidence to be led on the issue, if necessary.
29. Whether a person is a repeat offender for the purposes of s 63(2) of the General Act is not a pure question of law, as the Magistrate appears to have believed. It is a mixed question of law and fact. In some cases, for example, an accused may challenge the criminal history provided by the prosecution and which suggests he or she is a repeat offender. In such a case, evidence may need to be presented to allow the court to determine as a question of fact whether the accused has a relevant prior conviction. Such cases may be expected to be rare, and nothing of that nature occurred before the Magistrate in this case. There was no dispute about the facts in the proceedings before the Magistrate, and in that sense the exercise did become a question of law: did the facts establish that the appellant fell within the definition of a repeat offender for the purposes of s 63(2)? There is no suggestion, even now, but that they did. The imposition of the automatic disqualification period for an offender to whom s 63 applies, either as a first offender or a repeat offender, occurs by force of the statute. Where the evidence, in whatever form, establishes that the offender is a repeat offender, then the automatic disqualification prescribed for a repeat offender automatically applies. The only power the sentencing court has, with regard to the length of any disqualification, is to impose a period of disqualification greater than the automatic period.
The remaining issues
30. It was accepted by the appellant that if it was unnecessary for the charge of menacing driving concerning Mr Summers (CC2016/10953) to allege that the appellant committed the offence as a repeat offender, the automatic disqualification period was 12 months, and it was appropriate for the Magistrate to utilise s 61 of the Crimes (Sentencing) Act to order that the disqualification period be amended from 6 months to 12 months.
31. Despite the concession made by the appellant, this is only partially correct. The order made on 6 December 2016 disqualifying the appellant from holding or obtaining a licence for six months on charge CC2016/10953 was “contrary to law” because the automatic, and minimum, disqualification period was 12 months. The Magistrate was empowered by s 61 of the Crimes (Sentencing) Act to reopen the proceedings on 29 January 2018 to amend the orders she made on 6 December 2016 by deleting the purported disqualification order, which was made beyond jurisdiction. The Magistrate was not entitled to then purport to make a disqualification order of 12 months. This was not a “sentence related order that is in accordance with law” for the purposes of s 61 of the Crimes (Sentencing) Act, because the 12 month disqualification period applied by force of s 63(2) of the General Act and the Magistrate had no power to make a disqualification order of the same length as the automatic disqualification period: see Beath v McCurley.
32. It follows that the Magistrate did err in her use of s 61 of the Crimes (Sentencing) Act on 29 January 2018, but not in a way which materially assists the appellant in this appeal.
33. This appeal effectively concerns two issues. First, what was the legally correct period of disqualification on charge CC2016/10953? For the reasons given above, the legally correct period of disqualification was 12 months, imposed by force of s 63(2) of the General Act. The second issue is: when did the automatic disqualification on charge CC2016/10953 commence to run?
34. The Magistrate initially convicted the appellant of the charge of menacing driving concerning Mr Chaseling (CC2016/10954). With regard to that charge she disqualified him from holding a licence for six months, an order she was entitled to make because it was greater than the automatic period of disqualification. The disqualification order made on CC 2016/10954 took effect from the time of conviction: see s 68 of the General Act. The effect was that when the Magistrate came to convict the appellant of CC2016/10954, the appellant was a person “already disqualified from holding or obtaining a drivers licence”, and was therefore subject to the provisions of s 63(4) of the General Act. The effect of s 63(4) was that by force of that provision the automatic disqualification of 12 months on CC2016/10953 commenced to run at the conclusion of the period of six month disqualification imposed on CC2016/10954. The provisions of s 63 of the General Act do not confer any discretion on a court, in the circumstances of this case, to order that any part of the disqualification orders operate concurrently.
35. I am aware that, in other proceedings, it has been argued that s 69 of the General Act is a source of judicial power to order that multiple disqualifications operate other than cumulatively. This section provides:
69 Multiple disqualifications cumulative unless court orders otherwise
If—
(a) a person is disqualified (whether or not by court order) from holding or obtaining an Australian driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction; and
(b) before the period of disqualification has ended, the person is again so disqualified; the periods of disqualification are cumulative unless a court in Australia orders otherwise.
36. In my opinion s 69 of the General Act is not a source of judicial power to order that multiple disqualifications, and in particular multiple automatic disqualifications under s 63 of the General Act, may operate other than cumulatively. It is a provision directing how multiple disqualification periods, perhaps from multiple jurisdictions, are to have effect for the purposes of ACT laws. It informs individuals and relevant authorities of how multiple disqualification periods are to be taken to apply in the ACT. The basic rule is that they are taken to be cumulative, but this is subject to where “a court in Australia otherwise orders”. Such an order would need to be based upon a power in the relevant State or Territory legislation allowing the court imposing the disqualification to order that it be served concurrently with other disqualifications.
37. The power for a court to order that multiple driver licence disqualification orders operate concurrently is, in my opinion, found in ss 29 and 30 of the Crimes (Sentencing) Act, dealing with combination sentences. These sections provide:
29 Combination sentences—offences punishable by imprisonment
(1) If the offence is punishable by imprisonment, the court sentencing the offender may impose a sentence (a combination sentence) consisting of 2 or more of the following orders:
(a) an order sentencing the offender to imprisonment as full-time detention;
(b) an intensive correction order (but not in combination with a sentence of full-time imprisonment, a suspended sentence of imprisonment or a good behaviour order);
(c) a suspended sentence order;
(d) a good behaviour order;
(e) a fine order;
(f) a driver licence disqualification order;
(g) a reparation order;
(h) a non-association order;
(i) a place restriction order;
(j) an order (however described) imposing another penalty available under any other territory law.
…
(2) However, the court must not make an order that forms part of the
combination sentence unless the court would have power to make the
order otherwise than as part of a combination sentence.
30 Combination sentences—offences punishable by fine
(1) If the offence is not punishable by imprisonment (except in default of payment of a fine), the court sentencing the offender may impose a sentence (also a combination sentence) consisting of 2 or more of the following orders:
(a) a good behaviour order;
(b) a fine order;
(c) a driver licence disqualification order;
(d) a reparation order;
(e) a non-association order;
(f) a place restriction order;
(g) an order (however described) imposing another penalty available under any other territory law.
(2) However, the court must not make an order that forms part of the combination sentence unless the court would have power to make the order otherwise than as part of a combination sentence.
38. The reference to a “driver licence disqualification order” in each of these provisions is not presently relevant. The Dictionary to the Crimes (Sentencing) Act defines that term as meaning a disqualification order made under s 16 of the Crimes (Sentencing) Act, which relates only to offences of theft of a motor vehicle or taking a motor vehicle without consent. Each of the sections, however, provides that a combination sentence is one that includes ones of the specified orders and “an order (however described) imposing another penalty available under any other territory law”. Such an order would include an order that an offender be disqualified from holding or obtaining a licence. Where a combination sentence is imposed, including an order of licence disqualification, the court may set the start of any order forming part of the sentence by reference to anything the court considers appropriate: see s 31 Crimes (Sentencing) Act.
39. These provisions of the Crimes (Sentencing) Act only apply where a court has a power to make a disqualification order and does so. It cannot apply to automatic disqualification periods that take effect by force of statute, such as the automatic disqualification on CC2016/10953, because there has been no court order. It follows that the timing of the commencement of the automatic disqualification period on CC2016/10953 is governed by s 63(4) of the General Act, with the result that it was to commence at the expiration of the six month disqualification order made by the Magistrate on CC2016/10954. No issue of totality can arise in these circumstances.
40. The sole remaining issue concerns the making and “continuation” of the indefinite disqualification order. The appellant submitted that if the Magistrate was entitled to reopen the proceedings on 29 January 2018 pursuant to s 61 of the Crimes (Sentencing) Act, her Honour erred in failing to consider the requirements of s 65(7) of the General Act as at that date. That submission cannot be accepted. As I have demonstrated, the Magistrate was only entitled pursuant to s 61 of the Crimes (Sentencing) Act to reopen the proceedings to delete the order which she made on 6 December 2016 which was contrary to law, being an order imposing a six month period of licence disqualification on CC2016/10953. The indefinite disqualification under s 65 of the General Act was not made contrary to law, and accordingly s 61 of the Crimes (Sentencing) Act did not permit her Honour to revisit the order that she made on 6 December 2016 imposing the indefinite disqualification. It may be necessary in some cases to make ancillary orders after exercising the jurisdiction conferred by s 61 of the Crimes (Sentencing) Act, but this was not such a case. An indefinite disqualification under s 65 of the General Act takes effect at the expiration of the “compulsory disqualification period”, in this case the automatic disqualifications on charges CC2016/10954 and CC2016/10953: s 65(2). There was no power available to the Magistrate on 29 January 2018 to review the order imposing the indefinite disqualification, and no necessity to vary the terms of that order.
41. As part of his grounds of appeal concerning the making of the indefinite disqualification order, the appellant submitted that the total period of disqualification from holding or obtaining a licence was manifestly excessive in the circumstances. The appellant does not allege that the disqualification order of six months made by the Magistrate was manifestly excessive. He cannot complain about the length of the automatic disqualification on CC2016/10953, or that it takes effect cumulative upon the six months disqualification, because these are determined by the operation of the statute. The real complaint must be the decision of the Magistrate to make the indefinite disqualification order. I observe at this point that the indefinite disqualification order was made on 6 December 2016, and the period for commencing an appeal against that order expired long before the present proceedings were commenced on 23 February 2018. No application for leave to appeal out of time was made by the appellant. In deference to the submissions made by counsel for the appellant, I will nevertheless address the issue.
42. In my opinion, criminal law principles of manifest excess and totality have little if any part to play in considering an appeal from the making of an indefinite disqualification order under s 65 of the General Act. Such a disqualification is not imposed as part of the penalty for a road transport offence. The penalty provisions with respect to the offence of menacing driving are s 8 of the Safety Act and s 63 of the General Act. The Safety Act prescribes the maximum period of imprisonment provided for the offence, and s 63 of the General Act prescribes the licence disqualification penalty. The licence disqualification penalty is open ended: other than the need to prescribe a period of disqualification, there is no prescribed maximum period of disqualification. There is therefore no necessity to resort to indefinite disqualification under s 65 of the General Act for the purpose of punishing an offender. As s 65(2) makes plain, an indefinite disqualification order can only be made where it is “necessary in the public interest to do so”. None of the matters which the court must consider before making an indefinite disqualification order (found in s 65(7)) are directed to punishment of the offender. The purpose of the provision is the protection of the public. The making of an indefinite disqualification order involves the exercise of a discretion, or the formation of a judgment, by the court. An appeal from such an order must acknowledge the nature of the evaluative function undertaken by the court. In the present case there was ample evidence upon which the Magistrate could conclude that it was necessary in the public interest to make the indefinite disqualification order.
Conclusion
43. It is possible to sympathise with the appellant’s apparent frustration with the manner in which his proceedings were dealt with in the Magistrates Court. That sympathy cannot extend so far as to allow the present appeal. The Magistrate made multiple errors in the process of sentencing the appellant, but that does not entitle the appellant to succeed in this appeal. The appellant had no right of appeal from the automatic disqualification imposed on the charge CC2016/10953. He also had no right of appeal from that disqualification period commencing at the end of the disqualification period on CC2016/10954. These were all imposed by statute. To the extent that the appellant had a right of appeal regarding the length of the disqualification imposed on CC2016/10954, and the decision to impose an indefinite disqualification order, the appeal must fail for the reasons given.
44. The appeal is dismissed.
Postscript
45. I do not know whether the appellant was required to pay a fee to lodge his application to set aside the indefinite disqualification order, but if he did pay such a fee, the Territory should consider refunding it. The application was filed in the belief that the mandatory or fixed disqualification that applied was one of 12 months. This was based on the orders made by the Magistrate on 6 December 2016, and the appellant clearly acted upon the assumption that those orders were correct, as he should have been entitled to do. Because of the errors made by the Magistrate, his application was not determined on its merits.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 8 November 2018 |
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