Tuang v Gadenne
[2015] WASC 383
•15 OCTOBER 2015
TUANG -v- GADENNE [2015] WASC 383
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 383 | |
| Case No: | SJA:1123/2013 | 15 APRIL 2015 | |
| Coram: | JENKINS J | 15/10/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Decision made by Corboy J on 4 March 2014 to dismiss the appeal confirmed | ||
| B | |||
| PDF Version |
| Parties: | BOON KWANG TUANG JEFFERY MICHAEL GADENNE |
Catchwords: | Criminal law Appeal Application to set aside decision made on the papers to dismiss appeal Conviction for driving without authority Appeal against conviction and sentence after plea of guilty No merits in the proposed grounds of appeal against conviction or sentence Gross failures to comply with Rules and court orders Not in the interests of justice to set aside decision made on the papers |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code (WA), s 24 Criminal Procedure Rules 2005 (WA), r 63(3), r 63(6), r 65(1), r 65(3), r 65(6), r 65(7) Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 5, s 19, s 43, s 101, s 101A, s 101D Road Traffic Act 1979 (WA), s 49(1)(a), s 49(3)(d) |
Case References: | Aubertin v The State of Western Australia (2006) 33 WAR 87 Illich v Young [2000] WASCA 383 Meissner v The Queen (1995) 184 CLR 132 Minear v Rudrum [2001] WASCA 10 Ottobrino v Espinoza (1995) 14 WAR 373 R v Chan (1989) 38 A Crim R 337 Vella v The State of Western Australia [2006] WASCA 129 Wroblewski v Starling [1987] WAR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JEFFERY MICHAEL GADENNE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R BROMFIELD
File No : PE 22098 of 2013
Catchwords:
Criminal law - Appeal - Application to set aside decision made on the papers to dismiss appeal - Conviction for driving without authority - Appeal against conviction and sentence after plea of guilty - No merits in the proposed grounds of appeal against conviction or sentence - Gross failures to comply with Rules and court orders - Not in the interests of justice to set aside decision made on the papers
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 24
Criminal Procedure Rules 2005 (WA), r 63(3), r 63(6), r 65(1), r 65(3), r 65(6), r 65(7)
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 5, s 19, s 43, s 101, s 101A, s 101D
Road Traffic Act 1979 (WA), s 49(1)(a), s 49(3)(d)
Result:
Decision made by Corboy J on 4 March 2014 to dismiss the appeal confirmed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms J E Rhodes
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Aubertin v The State of Western Australia (2006) 33 WAR 87
Illich v Young [2000] WASCA 383
Meissner v The Queen (1995) 184 CLR 132
Minear v Rudrum [2001] WASCA 10
Ottobrino v Espinoza (1995) 14 WAR 373
R v Chan (1989) 38 A Crim R 337
Vella v The State of Western Australia [2006] WASCA 129
Wroblewski v Starling [1987] WAR 233
- JENKINS J:
The decision under appeal
1 On 28 May 2013, the appellant pleaded guilty in the Magistrates Court at Perth to an offence of driving without authority to drive due to fines suspension. This offence is commonly called driving without a licence. He was fined $500, ordered to pay costs of $129.35 and disqualified from holding or obtaining a driver's licence for a period of three months. On 24 October 2013, the appellant filed an Appeal Notice.
Grounds of appeal
2 The Appeal Notice says:
1. Unemployed, paying rent $130 per week, financial hardship.
2. I was still paying off my previous fines on a pro-rata basis and I believed I was still able to drive my car free of suspension or my MDL: 326 5517.
3. I want the imposed fine and suspension to be aborted.
4. My fines & fees were suppose to due on 23rd October 2013.
3 On appeal, the appellant is unrepresented. The Appeal Notice is unclear as to whether the appellant appealed against his conviction and sentence or his conviction only. At the hearing before me the appellant said that he wishes to appeal against both conviction and sentence.
History of the appeal
4 The Appeal Notice was filed some four months out of time.
5 The Appeal Notice was filed with the appellant's affidavit dated 24 October 2013 which purported to explain the merits of the appeal. It said nothing about why the Appeal Notice was filed out of time and why an extension of time ought to be granted within which to appeal.
6 On 12 December 2013, Corboy J ordered the appellant to lodge and serve the transcript of proceedings in the Magistrates Court within 21 days and to lodge a service certificate within two days of lodgement and service. His Honour further ordered that the appeal would stand dismissed if either of those orders were not complied with.
7 The appellant did not comply with either of those orders. On 4 March 2014, Corboy J signed orders dismissing the appeal (Corboy J's provisional decision).
8 The next thing which happened was that the appellant filed an application in an appeal dated 17 March 2014 (the 17 March 2014 application). That application said:
I have made subsequent 'time to pay' arrangements & was able to pay it full in time to allow to 'Drive' but I was issue with an infringement of notice that suspense my driver's License (which not allow to drive!) (suspense with 3 months (3 months not able to drive) ...
I need time to appeal this matter as I was previously dismissed by the Honourable Justice Corboy after the due date ...
9 On 27 August 2014, Corboy J held an ex parte hearing at which he told the appellant that he had until 19 September 2014 to support the 17 March 2014 application with an affidavit which explained:
1. why the appeal was filed out of time; and
2. why he failed to lodge and serve the transcript within the time ordered by the court.
10 His Honour said that if the appellant filed the affidavit and if he was satisfied with the appellant's explanations he would make directions about getting the appeal 'moving forward'. The appellant was told that once he filed that affidavit, Corboy J's associate would write to tell him what was then going to occur.
11 On 29 August 2014, the appellant filed an affidavit which said:
Previously, I was unable to attend court hearing soon after the expiry day period of court due to work commitments. As been casual ... I not risk taking day off to attend court that could have jeopardise my employment. I am pleased ... The Honourable Justice Corboy had given me a chance to extend my application since 12th December 2013. I am appealing on the grounds that my driver's license was legal to drive on the road whilst the police had no right to intervene my vehicle (1BBF394) on 19th April 2013.
12 The affidavit did not explain:
1. why the appeal was filed out of time; or
2. why the appellant failed to lodge and serve the transcript within the time ordered by the court.
13 On 24 September 2014, Corboy J ordered that the appellant serve on the respondent on or before 9 October 2014 the Appeal Notice, the transcript of proceedings in the Magistrates Court, the 17 March 2014 application and the appellant's two affidavits. His Honour further ordered that the appellant was to file a service certificate within seven days of the service of the documents and listed the matter for a directions hearing on 10 November 2014.
14 It should be remembered that at that time there was no appeal on foot. The only application before the court was the appellant's application dated 17 March 2014.
15 There is no record of any appearance on 10 November 2014, but there is a transcript of proceedings on 17 November 2014. On that date the appellant appeared ex parte before Corboy J. There was a discussion between his Honour and the appellant as to whether the appellant had complied with his Honour's orders of 24 September 2014. It was not in dispute that he still had not done so.
16 His Honour gave the appellant a further indulgence and ordered that the appellant had until 15 December 2014 to comply with the orders for service and until 22 December 2014 to file a certificate of service. His Honour gave the appellant information about how to serve documents on the respondent.
17 His Honour told the appellant that once those orders were complied with, 'we can get on with hearing the appeal itself'. The appellant asked whether the appeal would be next year and his Honour replied that once he had received 'notification' then he would list the appeal for hearing.
18 Order 4 of his Honour's orders reflected that comment. Order 4 said '[o]nce his Honour is satisfied of service, an appeal hearing can be listed in this matter'.
19 On 2 December 2014, the respondent filed a Notice of Respondent's Intention to take part in the appeal.
20 On 10 December 2014, the respondent advised the court that it had not been served with the Appeal Notice or the affidavit of the appellant dated 24 October 2013. Since then the appellant has not filed any documents. This means that he has not complied with Corboy J's orders of 24 September 2014 or 17 November 2014, despite Corboy J making it clear that compliance with those orders was a precondition to the appeal being heard.
21 The court then advised the parties that 'the matter' was listed for hearing before me. Both parties assumed that the 'the matter' was the appeal itself. They appeared before me prepared to argue the appeal. Regardless of their assumptions, I was not prepared to hear the appeal when, on my understanding, it stood dismissed by virtue of Corboy J's provisional decision.
22 I advised the parties that, with their consent, I would:
1. treat the appellant's application of 17 March 2014 as an application for a hearing of the matter that gave rise to Corboy J's provisional decision and to set it aside;
2. enlarge the time for filing that application for a rehearing to 17 March 2014;
3. hear the appellant's application to set aside Corboy J's provisional decision; and
4. if I decided that Corboy J's provisional decision should be set aside so that the appeal was reinstated, determine the appeal on the basis of the submissions made by the parties at the hearing before me.
23 I advised the parties that Corboy J did not object to me hearing the application to set aside his provisional decision. The parties consented to the above approach.
Details of charges and proceedings
24 The prosecution notice alleged that on 19 April 2013 at Cannington, the appellant:
drove a motor vehicle, namely a Holden Hatchback, registered number, 1BBF394, on a road, namely Albany Highway, whilst not being a person authorised by Part IVA of the Road Traffic Act 1974 and whilst no longer authorised to drive 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.
25 The Road Traffic Act 1974 (WA) (the RT Act) s 49(1)(a) creates the alleged offence and states:
(1) A person who -
(a) drives a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 to do so; or
(b) …
commits an offence.
Penalty:
(a) …
(b) if subsection (3)(d), but no other paragraph of subsection (3), applies -
(i) a fine of not less than 4 PU or more than 30 PU; and
(ii) imprisonment for not more than 12 months,
and the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years;
27 The only relevance of s 49(3)(d) to the charge is that it creates the condition-precedent for the application of the above penalty provision. The condition-precedent is that the appellant had been disqualified from holding or obtaining a driver's licence under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the FPINE Act) s 19 or s 43.
28 On 28 May 2013, the appellant appeared before the magistrate. Counsel represented him. The magistrate read the charge to the appellant and asked him if he understood the charge. The appellant replied 'yes'. The magistrate then asked him 'how do you plead to the charge?' to which the appellant replied 'guilty.'
29 The prosecutor recited the facts as follows:
The facts are, your Honour, at 10.35 am, Friday, 19 April 2013 the accused drove a motor vehicle along Albany Highway, Cannington. It was stopped and it was ascertained he was not authorised to drive from 12 April 2013 for non-payment of fines. At the time of being stopped he was aware that he was subject of fines and suspension and had recently entered into an agreement to pay the fines but failed to honour that agreement, your Honour.
30 The prosecutor sought costs of $129.35.
31 The prosecutor handed up the appellant's prior criminal record which contains a number of traffic convictions being:
1998 - dangerous driving;
2005 - driving without a licence - under fines suspension;
2006 - two offences of driving without a licence - under fines suspension; and
2011 - exceed speed limit between 10 - 19 kmph, in a speed zone.
32 The appellant also has criminal convictions in 2001 for one count each of forgery and uttering and in 2006 for attempted burglary of a dwelling.
33 The appellant's counsel then said that the facts were admitted. She made a plea in mitigation in which she said the appellant had missed a payment due under his time to pay arrangement because he was unemployed. She said that he was still unemployed. She acknowledged that he had received a notice telling him that he would be disqualified if he did not restart payments by a certain time. Counsel said that he had failed to do so but that he had now paid off all fines. She said that the appellant fully accepted responsibility and understood that he should not have been driving at the time.
34 Counsel noted that the appellant had pleaded guilty at the earliest opportunity and that there was nothing aggravating in his manner of driving. She said that he was 44 years of age, lived by himself and was on Centrelink payments.
35 His Honour said that he took into account the early plea of guilty. The magistrate said that the appellant had chosen to drive when he knew that he was not entitled to do so. The magistrate fined the appellant $500, disqualified him from holding or obtaining a driver's licence for a period of three months and ordered the appellant to pay costs of $129.35.
Determination of the application to set aside Corboy J's provisional decision
36 The Criminal Procedure Rules 2005 (WA) (the CP Rules) r 63(3) says that a party who wants a hearing of the matter that gave rise to a provisional decision - that is, a decision made on the documents - must apply for a hearing. Rule 63(6) says that at a hearing of a matter that gave to a provisional decision, the provisional decision may be confirmed, amended or set aside.
37 There are no statutory criteria for the exercise of the powers in r 63(6).
38 Where the provisional decision to dismiss the appeal was made because the appellant failed to comply with statutory time limits and an order made in an appeal requiring him to do something within a time limit, as in this case, I should consider whether in light of: the seriousness of the breach of the time limit; any explanation for the failure to comply with the time limit; and the likelihood of the appeal succeeding, it is in the interests of justice for the application to succeed and for the provisional decision to be set aside.
Seriousness of the breach of the time limits
39 The history of proceedings relating to this appeal, which I related earlier in these reasons, shows that the appellant repeatedly failed to comply with the relevant provisions of the Criminal Appeals Act 2004 (WA), the CP Rules and the orders of the court either at all, or in a timely fashion. This is despite the fact that Corboy J was at all times generous and helpful to the appellant in explaining to him what he was required to do, and how he could meet his obligations, and in giving him further time to comply.
40 In relation to the seriousness of the breaches of the time limits, I note the following facts:
1. The Appeal Notice was filed some four months out of time;
2. The appellant failed to comply with the CP Rules r 65(3) by failing to lodge an affidavit which explained why the appeal was not commenced within time;
3. The appellant failed to comply with the CP Rules r 65(1) by failing to lodge certain documents at the time of lodging the Appeal Notice;
4. The appellant failed to comply with the CP Rules r 65(6) by failing to serve certain documents on the respondent;
5. The appellant failed to comply with the CP Rules r 65(7) by failing to lodge a service certificate;
6. Over six weeks after the lodgement of the Appeal Notice, Corboy J gave the appellant a further 21 days to lodge and serve the transcript of proceedings in the Magistrates Court and a further two days after that to lodge a service certificate. His Honour's orders made it plain what the consequences were if the orders were not complied with but the appellant failed to comply with the orders;
7. The appellant did nothing for three months and then filed the 17 March 2014 application. The application did not explain the failure to comply with relevant time limits or Corboy J's orders;
8. Despite the obvious deficiencies in, and delinquency in filing, the 17 March 2014 application, Corboy J gave the appellant further time to rectify the deficiencies and to explain the reasons for failing to comply with the time limits;
9. The appellant failed to comply with Corboy J's orders made on 27 August 2014 despite Corboy J having spent some time explaining to the appellant what was required;
10. The appellant failed to comply with Corboy J's orders of 24 September 2014; and
11. The appellant failed to comply with Corboy J's orders of 17 November 2014.
41 I conclude that, both before and after Corboy J's provisional decision, the appellant's failures to comply with the time limits and the other requirements in the CP Rules and the orders of the court have been gross. The derelictions are numerous and are longstanding. The appellant does not appear to have made any concerted effort to comply with relevant time limits and orders and instead has relied on the indulgences and accommodations given to him by the court and the respondent.
Explanation for breach of the time limits
42 On 5 March 2014, the appellant sent an email to the court which apologised for his late reply and said that he had not lived at the address on his Appeal Notice for some time. It is, of course, the appellant's responsibility to keep the court advised of any changes in his address for service. The email also said that the appellant had just opened an email from the court advising him that his appeal had been dismissed and he apologised for the delay (presumably in complying with Corboy J's 12 December 2013 orders) but did not provide an explanation for not having done so.
43 On 27 August 2014, the appellant told Corboy J that he had the transcript and prosecution notice in his file. He said he did not have an 'affidavit form'. Corboy J seems to have provided him with a pro forma form of affidavit or told him that he could get one from the Supreme Court registry. The appellant told Corboy J that he had not turned up to court because of work commitments. The appellant asked Corboy J who had to witness his affidavit and where he had to file his affidavit. He was given information about both matters.
44 At the hearing on 17 November 2014, the appellant told Corboy J that he had never been told to serve the transcript of the Magistrates Court proceedings and the Appeal Notice on the respondent and had only been told to bring it to court. Patently, this assertion was not true.
45 At the hearing before me, the appellant told me that he did not comply with time limits and other requirements because he did not know the correct procedure. He said that he did not understand what a service document was or how to draw up an affidavit.
46 It is apparent, from reading the material filed with the court and listening to the appellant, that English is not his first language and that he is not very familiar with the procedure in Western Australian courts, in general, or the Supreme Court, in particular.
47 Balanced against this background is that the appellant has had some contact with the Western Australian criminal justice system through previous prosecutions. Further, the orders made by the court are in plain English and whenever the appellant appeared before Corboy J he was given more than adequate assistance to help him understand the procedures of the court.
48 There is no evidence before me that the appellant tried to comply with the procedures, orders and time limits but was frustrated, through lack of knowledge of the English language or legal procedures. Rather, the appellant has chosen not to attempt to comply with required procedures and time limits. This may partly have been because he was concerned that he would not know what to do in order to comply. Given the indulgences and assistance he was given, that concern does not excuse his gross failures.
Merits of the appeal against conviction
49 A consideration of whether it is in the interests of justice for Corboy J's provisional decision to be set aside requires me to consider the merits of the proposed appeal. If the appeal has merit, it tends to the result that Corboy J's provisional decision ought to be set aside, and vice-versa. I will consider the merits of an appeal against conviction and then the merits of an appeal against sentence.
50 In order to determine the merits of the appeal against conviction I must consider the circumstances in which a court will allow an appeal against a conviction entered after a plea of guilty and whether or not the appellant can make out those circumstances. In Meissner v The Queen (1995) 184 CLR 132, Dawson J said:
[A] person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred (157).
51 It follows that an appeal against a conviction based on a plea of guilty will not be allowed simply because the appeal court thinks that the appellant may be innocent or may have a good defence to the charge.
52 The limited circumstances in which an appeal against a conviction based on a plea of guilty will be allowed were stated by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 [26] where his Honour said:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
53 The appellant has not filed any affidavit material which asserts that he did not understand the charge or intend to admit guilt. Neither does the appellant submit that his guilty plea was obtained improperly or illegally. When I sought an explanation from the appellant as to why he pleaded guilty and why his lawyer told the magistrate that he accepted the facts, the appellant did not provide an explanation but said simply:
I should plead not guilty instead of guilty at the time of the hearing.
54 Consequently, there is insufficient material before me to support a finding that the appellant did not understand the nature of the charge or intend to admit guilt. Nor is there material to support a finding that the guilty plea was obtained by improper inducement, fraud or intimidation.
55 Further, the evidence falls short of showing that on the facts admitted the appellant could not be guilty of the offence. At best, it may be said that he had a defence open to him on which he chose not to rely. Thus, for the reasons which I will give, this case does not fall within any of the three well recognised categories in which pleas of guilty have been set aside. The circumstances of the case do not otherwise give rise to a miscarriage of justice.
56 It is not in dispute that the appellant drove a motor vehicle on 19 April 2013 whilst not being authorised to do so and when his licence was subject to a licence suspension order. An offence under the RT Act s 49(1)(a) is committed when a person drives a motor vehicle on a road while not authorised to do so. Relevantly, the appellant was not authorised to drive because his driver's licence had been suspended by the licence suspension order. It was irrelevant to proof of the commission of the offence whether or not the licence suspension order had been served on the appellant. Thus, the elements of the offence are admitted.
57 However, there are many single judge decisions in this court which accept that a person charged with an offence under the RT Act s 49(1) and whose licence was cancelled or suspended because of discretionary administrative action, as opposed to by operation of law, may raise the defence of mistake of fact pursuant to the Criminal Code (WA) s 24: Wroblewski v Starling [1987] WAR 233; Ottobrino v Espinoza (1995) 14 WAR 373; Illich v Young [2000] WASCA 383; Minear v Rudrum [2001] WASCA 10. The respondent does not dispute that s 24 applied to the charge against the appellant; although he does dispute that it provided a defence to the appellant on the facts of this case. Consequently, I will assume, without deciding, that s 24 applied to the charge against the appellant.
58 If the appellant had pleaded not guilty to the charge and could have pointed to evidence which raised the defence of honest and reasonable mistake, he could not have been convicted unless the respondent had proved that he (the appellant) did not have an honest and reasonable but mistaken belief that he was licensed to drive the vehicle.
59 The first thing to note is that the appellant, by his plea of guilty, admitted the essential elements of the offence. Through his counsel, he also admitted that he knew at the time of the offence that his licence was suspended. Consequently, such a finding would be contrary to the admissions made at the hearing in the Magistrates Court.
60 Secondly, it is unknown whether, even if the conviction was set aside and returned to the Magistrates Court for hearing, there would be any evidence to raise the defence under the Criminal Code s 24.
61 However, I will put those issues to one side and examine whether the availability of the defence means that it is arguable that there has been a miscarriage of justice because in law he could not have been convicted of the offence.
62 In order to do that it is first necessary to examine all the factual material before me. In doing so, I will give the appellant's assertions from the bar table the same weight as if they were sworn statements.
63 In the appellant's affidavit of 24 October 2013 he said that he believed that he was able to drive his motor vehicle. He did not say why he held that belief. He acknowledged that there had been 'delay' in his payment under the time to pay arrangement. He asserted that he believed that he was doing the right thing by paying his fines.
64 In his affidavit of 27 August 2014 the appellant said that he was appealing on the grounds that:
my driver's licence was legal to drive on the road whilst the police had no right to intervene my vehicle.
65 The above material suggests that the appellant was of the view that whilst he had a time to pay arrangement in place and he was intending to pay off his fines but was not doing so, he was authorised to drive.
66 In the appellant's oral submissions he did not dispute that he may have missed more than one payment under the time to pay arrangement or that he had not complied with the time to pay arrangement. He said that he thought that he could continue to drive whilst the time to pay arrangement was in place and he was making payments 'on a pro rata basis'.
67 It was only when I asked the appellant directly why he had thought that he could continue to drive when he had not complied with the time to pay arrangement and he had had received the breach notice that he said:
Yes, I don't think that I received letter because I wasn't notified .. that I was unable to drive.
…
Yes, because I don't receive the letter by mail because I moved it - because I moved the - I might have not received the letter, I might have forgotten, then missed a payment - missed a payment.
68 The appellant then acknowledged that the address to which the Fines Enforcement Registry (the Registry) sent all the relevant notices was his then address.
69 When I asked the appellant why he did not ask his lawyer to give the explanation he had given to me to the magistrate, the appellant said:
I didn't have a - did I have a lawyer? I didn't have a lawyer to represent me. I was - I was represented myself.
70 I then advised the appellant that counsel represented him in the Magistrates Court. After a further exchange, the appellant repeated the assertion that when he drove his car on 19 April 2013, he did not know that his licence was suspended.
71 I also take into account the affidavit of Geoffrey Arthur Watson, Registrar of the Registry, sworn on 10 April 2015 and filed by the respondent.
72 Mr Watson has deposed that the appellant had two fines registered with the Registry for enforcement. On 15 September 2011, the Registry issued a notice of intention to enforce one of the fines, being a fine of $271.95 for speeding (the speeding fine). The notice of intention to enforce had to contain information that unless before a date specified in the notice the amount owed was paid, the Registrar may make a licence suspension order in respect of the appellant. On 21 September 2011, the appellant added that fine to an existing time to pay arrangement with the Registry. By complying with the conditions of that arrangement he avoided the immediate possibility of the Registrar imposing a licence suspension order. Between that date and 11 March 2013 the appellant was issued with multiple reminder notices for failing to make scheduled payments under the time to pay arrangement. On 11 March 2013 a notice confirming breach of the time to pay arrangement was posted to the appellant at his then address in Lynwood (the breach notice). The breach notice advised the appellant that if $506.95 (a reference to the amount outstanding on both registered fines) was 'not paid in full by 8 April 2013, a Licence Suspension Order will be imposed/reinstated'. The last paragraph of the notice said that the law did not allow further 'time to pay' applications on fines after a breach had occurred.
73 The breach notice had to be served on the appellant. The evidence before me is that it was posted to the appellant's address. The FPINE Act s 5 provides that a document issued under the Act may be served by post on a person by properly addressing and posting it by pre-paid post as a letter to the person at the person's last known address. It also provides that a document sent by post to a person is to be taken as having been served on the person.
74 Mr Watson has deposed that on 12 April 2013 at 12.47 am, a licence suspension order was issued under the FPINE Act s 43. A notice confirming the suspension was served on the appellant by posting it to his then address in Lynwood (the suspension notice). The suspension notice advised the appellant that his driver's licence had been suspended on 12 April 2013 at 12.47 am and would remain suspended until the amount of the speeding fine had been paid in full. The amount which was said to be required to be paid was $300 and the notice said that the suspension order would be cancelled upon receipt of this amount.
75 The FPINE Act s 43 states:
43. Licence suspension order
(1) If -
(a) 28 days have elapsed since the date of issue of a notice of intention to [suspend licences]; and
(b) the amount owed has not been paid,
... the Registrar may make a licence suspension order in respect of the offender.
(2) …
(3) If the offender is an individual a licence suspension order may disqualify the offender from one of the following:
(a) from holding or obtaining a driver's licence;
…
(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) If the Registrar makes a licence suspension order, he or she must -
(a) issue a notice confirming licence suspension; and
(b) advise the Director General of the terms of the order forthwith.
(7) A notice confirming licence suspension must be served on the offender.
(8) A notice confirming licence suspension must advise the offender that a licence suspension order has been made and of the date and time when it has effect and must explain the terms of the order.
(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 offender is disqualified from holding or obtaining a driver's licence.
101D Validity of certain orders not affected by non-receipt of documents
(1) The validity of a licence suspension order ... is not affected by the fact that the person to whom the order relates did not receive any document issued under this Act in respect of the matter to which the order relates.
(2) Subsection (1) does not affect the operation of section 101 or 101A.
(3) A court dealing with a matter in which the issue of whether at a particular time a licence suspension order was in force or not is relevant may, if it thinks fit, adjourn the matter so that a person can make an application under section 101 or 101A.
77 The reference in s 101D(3) to an application under s 101 or s 101A refers to provisions in the latter sections which, on application by a person affected, enable the Magistrates Court to cancel a licence suspension order. The appellant has not asked for an adjournment to make such an application. Even if he had done so, because of his gross breaches of time, his failure to comply with the orders of the court, the time that has elapsed since his conviction and the lack of evidence to support his assertion that he thought he could drive, I would not have adjourned this matter so that the appellant could make an application under s 101 or s 101A.
78 On the basis of the above material, I am not satisfied that a miscarriage of justice occurred when the magistrate convicted the appellant following his plea of guilty. In particular, I am not persuaded that the appellant could not in law have been guilty of the charge. This is because even if, at a hearing of the charge, the appellant was able to point to evidence to raise the defence under the Criminal Code s 24, it would still be open for the magistrate to find that the respondent had negatived such a defence either because it had proved that on 19 April 2013 the appellant did not hold an honest belief that he was authorised to drive or even if he held such a belief, that the appellant's belief was not reasonable, even judged by reference to the personal characteristics of the appellant: Aubertin v The State of Western Australia (2006) 33 WAR 87. As the question on appeal would be whether the appellant could not have been convicted, as opposed to whether he may not have been convicted, I find that there is no merit in the appellant's appeal against conviction following his plea of guilty.
79 In respect of the appeal against sentence, the appellant complains, in effect, that the fine was manifestly excessive given that he was unemployed and in receipt of Centrelink payments. The magistrate knew these facts.
80 In order to determine whether the fine was excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the same type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 (342). Where, as in this case, the penalty was a fine, it is also necessary to have regard to the appellant's ability to pay a fine.
81 There is no merit in the appellant's appeal against sentence because:
1. the fine was well within the magistrate's discretion, it being one-third of the maximum fine;
2. the maximum penalty included a term of imprisonment, which was not imposed;
3. despite his unemployment, the appellant had a demonstrated ability to pay off fines;
4. the magistrate was required to impose a personally deterrent penalty given the appellant's prior convictions and, in particular, his three prior convictions for the same offence;
5. whilst there is no evidence before me of the standards of sentencing for this type of offence, in 2005 the appellant had been fined $200 for his first offence against s 49(1)(a) and in 2006 he had been fined $300 for each of his second and third offences against the same section. Seven years later, a fine of $500 for his fourth offence is consistent with the standards of sentencing indicated by the appellant's previous sentences for the same offence;
6. the appellant's counsel told the magistrate that the appellant knew that he was not authorised to drive. Whilst the offence was not at the highest end of the range of seriousness of offences of its type, it was not so minor that it warranted a lesser penalty; and
7. the magistrate was required to impose a generally deterrent penalty to try to ensure that potential offenders regard the likely penalty level for driving without a licence as highly dissuasive.
82 For these reasons, I conclude that the appeal against sentence does not have a likelihood of succeeding.
Conclusion
83 Taking into account the seriousness of the appellant's breaches of the time limits imposed by legislation and the court, the appellant's belated and inadequate explanations for his failures to comply with the time limits, his unequivocal plea of guilty, his failure to show that his conviction is, arguably, a miscarriage of justice and the lack of merit in the proposed ground of appeal against sentence, it is not in in the interests of justice for me to set aside Corboy J's provisional decision to dismiss the appellant's appeal.
84 Therefore, I confirm Corboy J's provisional order to dismiss the appellant's appeal.
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