Citation: R v Stephen Roy Iovino [2009] NSWDC 260
Court: District Court of New South Wales
Date: 11 August 2009
Judge(s): Bennett SC DCJ
Background
The appellant held a Northern Territory driver licence. His NT licence had been suspended from 24 January 2007 to 27 January 2009 due to fine default under Northern Territory law. On 7 January 2009, while that suspension was still in force, he was stopped by police driving a NT-registered vehicle on the Hume Highway north of Goulburn, New South Wales.
He was convicted in the Local Court at Goulburn of driving whilst suspended, contrary to section 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW). He initially appealed against the severity of his sentence, but his solicitor subsequently identified a potential legal argument that he could not, as a matter of law, have been guilty of that offence at all.
The District Court heard both a conviction appeal (requiring leave, as it was filed outside the standard 28-day period but within three months) and a sentence appeal.
Legal Issues
- Whether the appellant's NT licence suspension constituted a "suspended driver licence" for the purposes of section 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW), given that NT law treated a fine-default suspension as rendering the person "taken not to hold a licence" rather than as a suspended licence holder
- Whether a subsequent amendment to section 25A(2)(a), which excluded its operation where a licence is suspended for fine default in NSW, could inform the interpretation of the provision as it stood on 7 January 2009 (before the amendment took effect on 9 March 2009)
- Whether the amended provision's exclusion extended to licences suspended for fine default outside NSW, or whether an undetected gap in the legislation existed
- Whether, to the extent the provision applied to interstate fine defaulters, it was constitutionally valid
Decision
The District Court granted leave to appeal the conviction but dismissed the conviction appeal. The court found that, on 7 January 2009, section 25A(2)(a) as then enacted applied to the appellant. Section 25A(9) expressly extended the offence provision to persons whose licences were suspended under the law of another State or Territory. The NT suspension, whatever its precise characterisation under NT law, brought the appellant within the scope of the NSW offence.
The argument that the pre-amendment provision should be read as already excluding fine-default suspensions was rejected. The court reasoned that the subsequent amendment to section 25A could not be used to reinterpret the provision as it stood before 9 March 2009. The amendment had introduced a new and specific exclusion, and that exclusion was not available to the appellant at the time of his offence.
The court noted, without fully resolving, that the amended provision appeared to create an undetected gap: while NSW fine defaulters were now excluded from the offence, drivers whose licences had been suspended for fine default in another State or Territory remained exposed to it. The constitutional arguments about discriminatory treatment of interstate drivers were acknowledged but left undecided, as the court considered it unnecessary to resolve them for the purposes of the appeal.
On sentence, the court allowed the appeal. The court accepted that the appellant's driving behaviour was not deliberate or dangerous, that he had paid his outstanding NT fines by 17 January 2009, and that his suspension had since expired. These factors, combined with his personal circumstances, supported a more lenient outcome than the magistrate had imposed.
Orders Made
- Leave to appeal from the conviction granted
- Conviction appeal dismissed
- Sentence appeal allowed; the fine, costs order, and disqualification order were set aside
- The appellant was discharged under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, conditional on entering a 12-month good behaviour bond with conditions including maintaining a known address and notifying the court of any change of residence
Key Takeaways
- Section 25A(9) of the Road Transport (Driver Licensing) Act 1998 (NSW) extended the driving-while-suspended offence to persons whose licences were suspended under the laws of another State or Territory, so an NT suspension for fine default was capable of grounding a NSW offence.
- A subsequent legislative amendment that introduces a new exclusion cannot be used to reinterpret the earlier version of a provision so as to read in that same exclusion before it was enacted.
- The District Court identified a potential gap in the amended legislation: the fine-default exclusion introduced into section 25A(2)(a) applied only to NSW fine defaulters, leaving interstate fine defaulters still exposed to the suspended-driving offence, which the court flagged as warranting further legislative attention.
- Constitutional arguments about discriminatory treatment of interstate drivers suspended for fine default were raised but not resolved, as the court found it unnecessary to determine them.
- A section 10 discharge (conditional on a good behaviour bond) remained available as a sentencing outcome even where a conviction appeal had failed, where the circumstances of the offence and the offender supported leniency.
Legislation and Cases Referenced
Legislation:
- Road Transport (Driver Licensing) Act 1998 (NSW), particularly sections 25A(2), 25A(3A), 25A(7), and 25A(9)
- Road Transport (Driver Licensing) Regulation 2008 (NSW)
- Road Transport (General) Act 2005 (NSW), sections 206 and 230
- Crimes (Appeal and Review) Act 2001 (NSW), sections 11 and 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10(1)(b)
- Fines Act 1996 (NSW)
- Motor Vehicles Act (NT), section 119
- Traffic Act (NT)
- Fines and Penalties (Recovery) Act (NT)
Cases cited: No specific cases were identified in the provided text.