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District Court 17 August 2009

Chan, Youlang v R

[2009] NSWDC 242

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL

Citation: Chan, Youlang v R [2009] NSWDC 242
Court: District Court of New South Wales
Date: 17 August 2009
Judge(s): Armitage DCJ

Background

The appellant was charged with driving while his driver licence was suspended, an offence under s 25A(2) of the Road Transport (Driver Licensing) Act 1998. At Burwood Local Court on 19 June 2009, the magistrate found the offence proven but elected not to proceed to conviction, instead dismissing the charge under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Despite applying s 10, the magistrate also imposed a twelve-month licence disqualification, which is an automatic consequence that ordinarily follows a conviction under s 25A(7) of the Road Transport (Driver Licensing) Act 1998. The appellant challenged that disqualification order on appeal to the District Court.

The central question was whether the magistrate had any power to impose the disqualification when no conviction had been recorded.

  • Whether a disqualification order under s 25A(7) of the Road Transport (Driver Licensing) Act 1998 can be imposed where the underlying charge has been dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, with no conviction recorded
  • Whether the limited deeming provision in s 10(4) of the Crimes (Sentencing Procedure) Act 1999 extended to treat the dismissal as a conviction for licensing purposes
  • Whether any alternative legislative pathway, including s 187 of the Road Transport (General) Act 2005 or s 188, conferred power on the court or the Roads and Traffic Authority (RTA) to impose a disqualification

Decision

Armitage DCJ held that the disqualification order was made without power and must be discharged. The disqualification mechanism in s 25A(7) is triggered only where a person is "convicted" of a relevant offence. A dismissal under s 10(1)(a) expressly proceeds "without conviction," so that threshold was never crossed.

The court examined s 10(4), which deems an order under s 10 to have the same effect as a conviction, but only for three narrow purposes: laws relating to stolen property, compensation directions under the Victims Compensation Act 1996, and orders concerning restitution or delivery of property. Licence disqualification falls outside all three categories, so the deeming provision offered no basis for the magistrate's order.

The court also traced s 187(1) of the Road Transport (General) Act 2005, which empowers a court to order disqualification upon conviction of a road transport offence. Because no conviction existed here, that provision provided no independent source of power. Nor did s 188, which governs automatic disqualifications for separately defined classes of "convicted persons" that did not include the appellant's situation.

Going further, Armitage DCJ directed that a copy of the reasons be sent to the RTA's legal section, noting that the same absence of a conviction also meant the RTA had no independent power to impose a disqualification of its own motion.

Orders Made

  • The appeal was upheld.
  • The twelve-month disqualification order made by the magistrate was discharged.
  • A copy of the reasons was directed to be sent to the legal section of the Roads and Traffic Authority.

Key Takeaways

  • The District Court held that a licence disqualification under s 25A(7) of the Road Transport (Driver Licensing) Act 1998 depends on the existence of a conviction. Where a charge is dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, no conviction exists, and the disqualification power is not activated.
  • The deeming provision in s 10(4) treats a s 10 order as a conviction only for three specific statutory purposes. It does not extend to licensing consequences, and courts should not read it more broadly than its text.
  • Under s 187(1) of the Road Transport (General) Act 2005, a court's power to order disqualification is also conditioned on a conviction. An order dismissing a charge supplies no foundation for that provision to operate.
  • No conviction also means no power for the RTA to impose an administrative disqualification of its own motion in respect of the same offending conduct.
  • A finding that an offence is "proven" for the purpose of applying s 10 does not amount to a conviction and does not carry the sentencing consequences that flow from a conviction at general law or under road transport legislation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1), 10(3), 10(4)
- Road Transport (Driver Licensing) Act 1998 (NSW), ss 25, 25A(2), 25A(7), 25A(10)
- Road Transport (General) Act 2005 (NSW), ss 187, 188
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 40
- Fines Act 1996 (NSW), s 66
- Victims Compensation Act 1996 (NSW), Part 4

Cases cited: No cases were cited in the judgment.