AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 12 March 2008

Shane William JOHNSON v R

[2008] NSWDC 47

Traffic & driving
CRIMINAL LAW SEVERITY APPEAL DRIVE WHILST SUSPENDED STATUTORY INTERPRETATION

Citation: Shane William Johnson v R [2008] NSWDC 47
Court: District Court of New South Wales
Date: 12 March 2008
Judge(s): Berman SC DCJ

Background

The appellant was stopped by police for a number of traffic offences and, during a licence check, officers discovered his licence had been suspended due to fine default. The appellant told police his friend would collect him, and police left. Within a short time, police observed him driving again in the same road. When questioned, he said he was simply moving the car from a no-stopping zone to a safer position.

The appellant was convicted in the Local Court of driving whilst suspended. The magistrate fined him and imposed a two-year disqualification period. The appellant appealed the sentence to the District Court, seeking either a non-conviction order or a reduction of the disqualification period.

  • Whether the court should dismiss the charge without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, given the circumstances of the driving
  • Whether the correct "relevant 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)

Decision

On the section 10 application, the court declined to grant a non-conviction order. Although the appellant claimed he was merely relocating his car a short distance from an illegal parking spot, the court was not satisfied that driving was truly necessary. Photographs showed safe stopping positions available before police originally stopped him. More significantly, police had explicitly told him not to drive and warned him it would be a breach of the law. His deliberate decision to drive in those circumstances precluded the lenient outcome he sought.

On the statutory interpretation question, the key dispute concerned which category of "second or subsequent offence" was relevant when calculating the disqualification period. The Crown relied on subsection 6, which treated the appellant's prior drink-driving conviction as making this a second or subsequent offence, thereby attracting a two-year automatic disqualification. The appellant argued that subsection 10, which defines the "relevant disqualification period," is more specific and refers only to second or subsequent offences under particular subsections of section 25A itself.

The court accepted the appellant's construction. It held that, while the appellant's prior drink-driving conviction may have made the offence a second or subsequent offence for some purposes under the section, not all such prior offences enliven the extended two-year period in subsection 10. The relevant disqualification period in the circumstances was twelve months, and the court found no reason to impose any additional disqualification beyond that automatic period.

Orders Made

  • Appeal allowed
  • Fine and court costs imposed by the magistrate confirmed
  • Appellant disqualified from driving for one year

Key Takeaways

  • The District Court held that the "relevant disqualification period" under section 25A(10) of the Road Transport (Driver Licensing) Act 1998 turns on the specific type of prior offence, not merely on whether any prior relevant conviction exists within the prescribed period.
  • A prior drink-driving conviction may constitute a second or subsequent offence for some purposes within section 25A without automatically triggering the extended two-year disqualification under subsection 10.
  • Under section 10 of the Crimes (Sentencing Procedure) Act 1999, a deliberate decision to drive after an explicit police warning will weigh heavily against a non-conviction order, even where the driving distance was short.
  • The court treated the distinction between subsections 6 and 10 of section 25A as significant: the Crown's submission that the provision was "clear as crystal" in favour of two years was rejected, with the court finding the first-offence period of twelve months applied on the facts.
  • No additional disqualification period beyond the statutory minimum was imposed, reflecting the court's view that the automatic period was sufficient in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10
- Road Transport (Driver Licensing) Act 1998 (NSW), sections 25A and 25K

Cases cited: None recorded in the judgment.