Citation: Gardner v Regina [2003] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 13 August 2003
Judge(s): Sheller JA, James J, O'Keefe J
Background
The applicant pleaded guilty in the Taree Local Court to two serious offences committed in December 2001: assault with intent to rob while armed with a dangerous weapon (a shortened .22 calibre rifle), and robbery while armed with a dangerous weapon. Both offences carry a maximum penalty of 25 years imprisonment under the Crimes Act 1900.
The applicant was sentenced in the District Court in August 2002. Among the orders made at sentencing was a disqualification from holding a motor vehicle driver licence for life. The applicant sought leave to appeal against the sentences, raising issues about the discount applied for his guilty plea and for assistance provided to authorities, as well as the validity of the lifetime driving disqualification.
Legal Issues
- Whether the sentencing judge applied an adequate discount for the utilitarian value of the applicant's guilty pleas
- Whether the discount allowed for assistance provided to authorities was sufficient, having regard to the quality of that assistance
- Whether a court has the statutory power to impose a lifetime disqualification from holding a driver licence under s 25(2)(d) of the Road Transport (General) Act 1999, where the offender has not been declared a habitual traffic offender
Decision
On the sentencing discount grounds, the Court of Criminal Appeal found no basis for intervention. The sentencing judge had allowed a discount of one third, and the Court was not satisfied that this was so low as to warrant appellate interference. It noted that overlapping considerations relating to the quality of assistance given to authorities could properly fall within the additional percentage discount the judge had already allowed beyond the utilitarian value of the plea.
The Court emphasised the threshold set by s 6(3) of the Criminal Appeal Act 1912: the Court must form a positive opinion that some other sentence is warranted in law and should have been passed before it can intervene. That threshold was not met on the sentencing discount grounds.
On the driver licence disqualification, all three judges agreed that the lifetime disqualification was beyond power. Under s 25(2)(d) of the Road Transport (General) Act 1999, a court may order a period of disqualification longer than the automatic three-year period, but that provision does not expressly authorise lifetime disqualification. In contrast, s 30(2) of the same Act, which applies specifically to habitual traffic offenders, expressly includes disqualification for life in parentheses as an option when ordering a longer period.
Sheller JA and James J both reasoned that the express inclusion of lifetime disqualification in s 30(2), applicable only to habitual traffic offenders, indicated that the legislature intended the general disqualification power in s 25(2)(d) not to extend that far. The structure of the legislation, together with the principle that inclusive parenthetical words are generally intended to enlarge the ordinary meaning of the provision in which they appear, supported the conclusion that lifetime disqualification is a power reserved exclusively for cases involving habitual traffic offenders. The lifetime disqualification was accordingly quashed and replaced with a fixed-term disqualification until 2 January 2017.
Orders Made
- Leave to appeal granted
- Appeal dismissed, except in relation to the lifetime driver licence disqualification
- The order disqualifying the applicant from holding a motor vehicle driver licence for life was quashed
- In its place, the applicant was disqualified from holding a motor vehicle driver licence until 2 January 2017
Key Takeaways
- Under the Road Transport (General) Act 1999, the power to impose a lifetime disqualification from holding a driver licence is confined to cases where the offender has been declared a habitual traffic offender under s 30(2); the general disqualification provision in s 25(2)(d) does not confer that power.
- The express inclusion of "(including disqualification for life)" in s 30(2) was treated by the Court as a strong textual indicator that lifetime disqualification was not available under the general s 25(2)(d) power, which contained no equivalent language.
- In dismissing the sentencing discount grounds, the Court of Criminal Appeal reaffirmed that appellate intervention requires a positive opinion that a different sentence is warranted in law, not merely that the appeal court might have sentenced differently.
- Discounts for the utilitarian value of a guilty plea and for assistance to authorities may operate together, and overlapping considerations can properly be absorbed within a combined percentage reduction where the sentencing judge has addressed both.
- A one-third overall discount on sentence was not found to be manifestly inadequate in the circumstances of this case, even where arguments about the quality of assistance and the timing of the plea were raised on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 34
- Road Transport (General) Act 1999 (NSW), ss 5, 24, 25(1), 25(2)(d), 30(2)
- Road Transport (Driver Licensing) Act 1999 (NSW), ss 25, 25A(1)(b), 25A(7)(b)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 40, 42
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Motor Traffic Act 1909–1937 (NSW), s 10(1)(c)
Cases:
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383
- Barbaro v DPP (1999) 49 NSWLR 68
- Regina v Jolly (1993) 70 A Crim R 527
- Ex parte Thomas; Re Arnold (1966) 84 WN (Pt 1) (NSW) 493
- Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201
- Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342
- Regina v Wallace [1955] NI 137