Citation: Director of Public Prosecutions v Partridge [2009] NSWCCA 75
Court: Court of Criminal Appeal, New South Wales
Date: 25 March 2009
Judge(s): McColl JA; Grove J; Howie J
Background
The respondent was convicted in the Local Court of driving whilst disqualified, contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998. He had no prior convictions under s 25A, but he did have a prior conviction for high range prescribed concentration of alcohol under s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999, for which he had been disqualified from driving.
The Magistrate imposed a two-year licence disqualification for the driving-while-disqualified offence. The respondent appealed to the District Court, arguing the correct automatic disqualification period was one year, not two. The central question was whether the prior drink-driving conviction could be counted as a "second or subsequent offence" for the purpose of calculating the disqualification period under s 25A.
The District Court judge stated a case for the opinion of the Court of Criminal Appeal, asking whether he would err in law by treating the automatic disqualification period as two years in these circumstances.
Legal Issues
- Whether the definition of "second or subsequent offence" in s 25A(6)(b) of the Road Transport (Driver Licensing) Act 1998 applies to determine the automatic disqualification period under s 25A(10)(b).
- Whether a prior conviction for a drink-driving offence under s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 qualifies as a "second or subsequent offence" for the purpose of the two-year automatic disqualification period in s 25A(10)(b).
- How the phrase "under subsection (1), (2) or (3)(a)" in s 25A(10) interacts with the definition of "second or subsequent offence" in s 25A(6).
Decision
McColl JA (with whom Grove J and Howie J agreed) held that s 25A operates in a hierarchical structure, addressing two distinct issues: the applicable penalty for the s 25A offence, and the period of disqualification flowing from conviction. Each of these purposes is governed by a separate definition of "second or subsequent offence."
The definition in s 25A(6) governs penalty only. It determines the maximum fine applicable to offences under subsections (1) to (3), and may draw on a broader range of prior offences. However, for the purpose of determining the automatic disqualification period under s 25A(10), the relevant "second or subsequent offence" is defined differently: only a prior conviction for an offence under s 25A(1), (2) or (3)(a) counts.
Because the respondent had no prior conviction under s 25A, his prior drink-driving conviction did not qualify as a "second or subsequent offence" for the purpose of s 25A(10)(b). The automatic disqualification period applicable to him was therefore one year, not two. The District Court judge would err in law by treating it as two years.
The Court disapproved of the earlier New South Wales decisions in Wheeler and R v Sirocic, which had applied the s 25A(6) definition more broadly to the disqualification question. The decision in Shane William Johnson was approved.
Orders Made
- The answer to the question posed by the stated case is yes (the primary judge would err in law by characterising the automatic disqualification period as two years in these circumstances).
- The appellant (Director of Public Prosecutions) is to pay the respondent's costs of the stated case.
Key Takeaways
- Section 25A of the Road Transport (Driver Licensing) Act 1998 contains two separate and hierarchically distinct concepts of "second or subsequent offence": one governs the applicable penalty range, and another governs the length of the automatic disqualification period.
- For the purpose of automatic disqualification under s 25A(10), only a prior conviction for an offence under s 25A(1), (2) or (3)(a) constitutes a "second or subsequent offence." A prior conviction for a different traffic offence, such as high range drink-driving under the Road Transport (Safety and Traffic Management) Act 1999, does not satisfy this threshold.
- The broader definition of "second or subsequent offence" in s 25A(6) is confined to determining the maximum penalty for the s 25A offence and does not extend to the disqualification provisions in s 25A(10).
- In reaching this construction, the Court of Criminal Appeal applied the principle from Project Blue Sky that each provision of a statute should be given meaning, noting that the phrase "under subsection (1), (2) or (3)(a)" in s 25A(10) would be rendered meaningless if the s 25A(6) definition applied uniformly across the entire section.
- Earlier decisions of the New South Wales courts that had applied a broader construction to the disqualification provisions, including R v Sirocic and Wheeler, were expressly disapproved.
Legislation and Cases Referenced
Legislation:
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 5B
- Interpretation Act 1987 (NSW)
- Road Transport (General) Act 2005 (NSW)
- Road Transport Legislation Amendment Act 1999 (NSW)
- Traffic Act 1909 (NSW)
- Crimes Act 1900 (NSW)
- Acts Interpretation Act 1901 (Cth)
- Road Traffic Act 1961 (SA)
Cases:
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Shane William Johnson [2008] NSWDC 47 (approved)
- Wheeler [2008] NSWDC 165; (2008) 7 DCLR (NSW) 271 (disapproved)
- R v Sirocic [2000] NSWCCA 325; (2000) 32 MVR 165 (disapproved)
- Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
- Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
- Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
- Pointon v Police [2004] SASC 4; (2004) 143 A Crim R 416
- Police (SA) v Whitehouse [2005] SASC 220; (2005) 92 SASR 81