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District Court 12 March 2008

JOHNSON v R

[2008] NSWDC 255

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE DRIVING ON THE ROAD WHILST SUSPENDED AUTOMATIC DISQUALIFICATION PERIOD

Citation: JOHNSON v R [2008] NSWDC 255
Court: District Court of New South Wales
Date: 12 March 2008
Judge(s): Berman SC DCJ

Background

The appellant was stopped by police for traffic offences and was told at the roadside that his licence was suspended due to fine default. Police explicitly warned him not to drive, watched him arrange a lift, and then left. A short time later they saw him driving the same vehicle on the same road.

When asked why he had driven after being told not to, the appellant said he was simply moving the car from a no-stopping zone to a safer spot. He was charged with driving whilst suspended. A magistrate convicted him, imposed a fine, and disqualified him for two years.

The appellant appealed to the District Court against the severity of the sentence on two grounds: first, that no conviction should be recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999; and second, that the magistrate had applied the wrong disqualification period under the Road Transport (Driver Licensing) Act 1998.

  • Whether the circumstances of the offence warranted a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the applicable automatic disqualification period under section 25A of the Road Transport (Driver Licensing) Act 1998 was twelve months (first offence) or two years (second or subsequent offence), given the appellant's prior drink-driving conviction within the preceding five years

Decision

Section 10 application: The District Court refused to record no conviction. Although the appellant described the driving as minor, the court found there were safe parking spots available before police intervened, and in any event police had made the prohibition on driving unmistakably clear. In those circumstances, a deliberate decision to drive again could not be overlooked by withholding a conviction.

Statutory interpretation of the disqualification period: The more significant issue was the proper construction of section 25A of the Road Transport (Driver Licensing) Act 1998. The Crown argued that because the appellant had a prior drink-driving conviction within five years, section 25A(6) treated this as a second or subsequent offence, attracting the two-year disqualification period in section 25A(10)(b). The appellant's legal representative argued the minimum was twelve months.

The court accepted the appellant's construction. While section 25A(6) can deem certain prior convictions relevant for the purpose of identifying a "second or subsequent offence," section 25A(10) makes clear that only specific categories of second or subsequent offences trigger the extended two-year disqualification. The appellant's prior drink-driving conviction did not fall within those categories. Accordingly, the correct "relevant disqualification period" was twelve months, not two years.

The court also found that no additional disqualification period beyond the statutory minimum was warranted in the circumstances. To account for the approximately one month the appellant had already served under the magistrate's now-varied order, the twelve-month disqualification was backdated to 12 February 2008.

Orders Made

  • Appeal allowed
  • Fine and court costs imposed by the magistrate confirmed
  • Appellant disqualified from driving for one year, commencing 12 February 2008

Key Takeaways

  • The District Court held that a deliberate decision to drive after receiving an explicit police warning is not a proper candidate for a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999, even where the driving was brief and arguably minor.
  • Under section 25A of the Road Transport (Driver Licensing) Act 1998, not every prior conviction that qualifies as a "second or subsequent offence" for one purpose within the section automatically triggers the extended two-year disqualification period; the court must examine which specific subsections of section 25A(10) apply.
  • A prior drink-driving conviction within five years did not, on the facts of this case, bring the appellant within the category of second or subsequent offences that attracts the two-year minimum disqualification for driving whilst suspended.
  • Where an appellant has already served part of a disqualification period before a sentence is stayed pending appeal, the sentencing court on appeal can backdate the revised disqualification period to avoid double-counting that time served.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A (in particular subss (6), (7), (10))

Cases cited: No cases were cited in the judgment.