W, N v Police
[2019] SASC 11
•6 December 2018
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
W, N v POLICE
[2019] SASC 11
Judgment of The Honourable Justice Stanley (ex tempore)
6 December 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
The appellant was sentenced by a magistrate in the Youth Court after pleading guilty to offences including driving while disqualified and using a motor vehicle without consent contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA). The magistrate imposed a licence disqualification for a period of three years in relation to the offence of contravening s 86A.
On appeal, it was common ground between the parties that the 12 month period of disqualification in s 86A(3) is both a minimum and a maximum period of disqualification. The appellant also argued, and the respondent rejected, that the magistrate erred in ordering that the period of disqualification be served cumulatively on the expiration of the disqualification to which the appellant was already subject.
Held: Appeal allowed.
1. The magistrate fell into error in imposing a licence disqualification of three years.
2. There was no error on the part of the magistrate in ordering that the period of disqualification be served cumulatively.
3. The appeal must be allowed and the period of disqualification set by the magistrate set aside.
Summary Offences Act 1953 (SA) s 17; Motor Vehicles Act 1959 (SA) s 91; Criminal Law Consolidation Act 1935 (SA) s 86A; Road Traffic Act 1961 (SA) 169A, 169B, referred to.
R v Sprecher [2015] SASCFC 76, discussed.
W, N v POLICE
[2019] SASC 11
STANLEY J: This is an appeal against sentence. The appeal is out of time. There is no opposition to an extension of time. I grant an extension of time to 10 October 2018.
The appellant was sentenced by a magistrate in the Youth Court after pleading guilty to offences of being unlawfully on premises, contrary to s 17(1) of the Summary Offences Act 1953 (SA), driving while disqualified, contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) and using a motor vehicle without consent, contrary to s 86A(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The appellant was sentenced to a period of six months detention, backdated to 9 August 2018. The learned magistrate also imposed a licence disqualification for a period of three years, cumulative on any existing disqualification. The disqualification was imposed in relation to the offence of contravening s 86A. Section 86A(3) provides:
86A—Using motor vehicle without consent
...
(3) Notwithstanding the Children's Protection and Young Offenders Act 1979 where the Children's Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver's licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver's licence, not earlier than when the child attains that age).
The disqualification period cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence. It is common ground between the parties that the 12‑month period of disqualification in s 86A(3) is both a minimum and a maximum period of disqualification. So much is clear from the reasons of the Court of Criminal Appeal in R v Sprecher.[1]Accordingly, the magistrate fell into error in imposing a licence disqualification of three years. It follows that the appeal must be allowed and the disqualification set aside and the Court should resentence the appellant by substituting a period of disqualification of the appellant’s driver’s licence for 12 months. The issue on appeal is when that disqualification period should commence.
[1] [2015] SASCFC 76 at [25].
The appellant is 16 years of age, being the qualifying age for a driver’s licence. The appellant is currently serving a period of disqualification.
Sections 169A and 169B of the Road Traffic Act 1961 (SA) govern the commencement period of any disqualification of a driver’s licence where a person is the subject of a sentence of imprisonment and an order for disqualification from holding or obtaining a driver’s licence. Section 169B provides:
169B—Effect of imprisonment on disqualification
(1) If, in sentencing a convicted person for an offence under this or any other Act, the court imposes a sentence of imprisonment (other than a suspended sentence) and orders that the person be disqualified from holding or obtaining a driver's licence for a specified period, the person will be taken to be so disqualified for a period commencing at the time the order is made and ending at a time calculated as if the specified period commenced—
(a)on the person's release from a period of imprisonment served by the person that consists of or includes a period attributable to the court's sentence; or
(b)if, on the person's release from such a period of imprisonment, the person would, apart from this subsection, already be disqualified from holding or obtaining a driver's licence or holds a driver's licence that is suspended—on the expiration of that period of disqualification or suspension.
(2) Subsection (1) applies despite the terms of the court's order and despite the fact that it will or might result in the convicted person being disqualified from holding or obtaining a driver's licence for a period exceeding the maximum period (if any) prescribed under this or another Act in relation to the relevant offence.
The provisions of s 169B(1)(b) make clear that the 12-month period of disqualification will commence on the expiration of the disqualification to which the appellant was and is already subject. There was no error on the part of the magistrate in ordering that the period of disqualification be served cumulatively. For the reasons given by the magistrate, I am satisfied that the order was not only open to him but is appropriate. In the circumstances, it is clear that s 169A permits the Court to order that the period of licence disqualification commences at a time after the making of the order for disqualification. The power to do so is to be exercised where the Court considers there is reasonable cause to so order.
Again, for the reasons given by the magistrate, I am satisfied that reasonable cause exists to order that the 12-month period of licence disqualification should commence from the date the existing period of disqualification expires. That date is 15 July 2021.
Accordingly, I would allow the appeal. I would set aside the period of disqualification ordered by the magistrate. I would order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months, commencing on 15 July 2021.
I would hear the parties as to costs.
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