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District Court 31 October 2008

R v AHMED

[2008] NSWDC 380

Traffic & driving
CRIME APPEAL AGAINST PENALTY

Citation: R v Ahmed [2008] NSWDC 380
Court: District Court of New South Wales
Date: 31 October 2008
Judge(s): Bennett SC DCJ

Background

The appellant held a motorcycle rider's licence that had been suspended due to accumulated demerit points. On 23 December 2007, she was stopped at a random breath test at around 5:30 pm and found to be riding while suspended. She was issued a Court Attendance Notice and told not to ride again. Approximately 45 minutes later, she was seen riding the same motorcycle, apparently returning it home.

Both offences of driving while suspended, contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998, were heard together in the Local Court at Burwood on 5 February 2008. The Magistrate treated the first offence as a first offence (attracting a 12-month disqualification) and the second offence as a "second or subsequent offence" (attracting a mandatory two-year disqualification), resulting in a total disqualification running to February 2011.

The appellant appealed on two grounds: that the Magistrate misapplied the legislation governing disqualification periods, and that the penalties were excessive.

  • Whether two offences committed on the same day, convicted on the same day, in the same hearing, can be distinguished as a "first offence" and a "second or subsequent offence" for the purposes of penalty under s 25A of the Road Transport (Driver Licensing) Act 1998.
  • Whether the common law principle that judicial acts relate back to the earliest moment of the day applies to prevent one conviction taking priority over another entered in the same proceedings.
  • Whether the phrase "second or subsequent occasion on which the person is convicted" in s 25A(6) requires a conviction to have pre-existed the commission or conviction of the later offence.

Decision

Bennett SC DCJ accepted the appellant's submissions. The court held that where two convictions are entered on the same day in contemporaneous proceedings, the law does not assign priority to one over the other. Both convictions must therefore be treated as first offences for the purposes of sentencing.

The court reviewed a line of English and Australian authority on the common law principle that judicial acts relate back to the earliest moment of the day on which they occur. While the principle is not universally applied, the court drew on decisions from Queensland and Tasmania, as well as English authority, to support the view that where two convictions occur simultaneously, neither can logically precede the other.

The Crown argued that the phrase "second or subsequent occasion on which the person is convicted" in s 25A(6) was broad enough to capture a second conviction entered on the same day. Bennett SC DCJ rejected that construction. In the court's view, the statutory language does not require or support the conclusion that a conviction entered simultaneously with another can constitute a "prior" conviction for the purpose of elevating the penalty for the other.

The court also noted that the presumption of innocence supports this outcome: until conviction is formally entered, a person cannot be treated as having a prior record that aggravates their penalty. No provision in the legislation clearly displaced that principle.

Orders Made

• Both convictions are to be dealt with as first offences for sentencing purposes.

Key Takeaways

  • The District Court held that where two offences are convicted on the same day in the same proceedings, neither conviction takes priority over the other, and both must be treated as first offences for penalty purposes under s 25A of the Road Transport (Driver Licensing) Act 1998.
  • Under the common law principle that judicial acts relate back to the earliest moment of the day, two convictions entered simultaneously are deemed to occur at the same instant, with no temporal hierarchy between them.
  • Clear statutory language would be required to displace the common law position and assign penalty-escalating priority based on the sequence in which offences were committed (rather than the sequence of convictions).
  • The presumption of innocence underpins this result: a person cannot be said to have a prior conviction for the purpose of aggravating a penalty until conviction has actually been entered.
  • The decision in Shane William Johnson v R [2008] NSWDC 47, also concerning s 25A disqualification periods, was distinguished because the prior conviction in that matter arose from a different offence provision, not from a contemporaneous proceeding.

Legislation and Cases Referenced

Legislation
- Road Transport (Driver Licensing) Act 1998 (NSW), ss 25A(2), 25A(6), 25A(10)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Traffic Act 1925 (Tas), s 41

Cases
- Clarke v Bradlaugh (1881) 8 QBD 63
- Edwards v The Queen (1854) 9 Ex 628
- Re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy [1938] Ch 725
- The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1
- R v Miller [1986] 2 Qd R 518
- O'Hara v Harrington [1962] Tas SR 165
- Prowse v McIntyre and Others (1961) 35 ALJR 373
- Shane William Johnson v R [2008] NSWDC 47