Citation: Jason Fewel v D.P.P [2010] NSWDC 195
Court: District Court of New South Wales
Date: 26 August 2010
Judge(s): Nicholson SC DCJ
Background
The appellant was convicted at Kogarah Local Court in May 2010 for driving with a low range prescribed concentration of alcohol. He was fined $300 and disqualified from driving for six months. He appealed the severity of that sentence to the District Court, obtaining a stay of execution of the sentence pending the appeal's outcome.
Judge Ainslie-Wallace (as she then was) heard the severity appeal in June 2010 and reduced the disqualification period from six months to three months, commencing from the original conviction date of 4 May 2010. Neither party sought to appeal or otherwise challenge those orders.
Despite those final orders, the RTA's Certifications and Court Convictions Unit refused to restore the appellant's licence. The Unit took the position that the period during which the stay of execution was in force could not be counted toward the disqualification period, and wrote to the District Court Registrar requesting the matter be reopened under s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct what it characterised as a sentencing error.
Legal Issues
- Whether the RTA had standing (locus standi) to apply to reopen proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999.
- Whether the Court should reopen the proceedings on its own initiative to correct an alleged sentencing error.
- Whether s 189(6) of the Road Transport (General) Act 2005, which provides that a stay period is not counted toward a disqualification period, was correctly interpreted by the RTA.
- Whether a sentencing court has discretion to backdate a disqualification period to the original conviction date, having regard to any voluntary surrender of a licence and the relevant provisions of the Crimes (Appeal and Review) Act 2001.
- Whether the RTA's refusal to implement the court's orders constituted a denial of natural justice and an unconstitutional override of judicial authority.
Decision
The Court found that the RTA had no standing to bring the application. Section 43 of the Crimes (Sentencing Procedure) Act 1999 confines the power to reopen proceedings to the parties to those proceedings or to the court acting on its own initiative. The RTA was never a party to either the Local Court or District Court proceedings, and its characterisation of itself as an "applicant" was therefore without legal foundation.
The Court also declined to reopen the proceedings on its own initiative. Neither of the actual parties to the appeal contended that Judge Ainslie-Wallace had erred, and the Court was not persuaded that the RTA's interpretation of s 189(6) of the Road Transport (General) Act 2005 was correct. Under s 68 of the Crimes (Appeal and Review) Act 2001, a sentencing order made on appeal takes effect from the day specified in the order, and that order operates despite any stay of execution that was in force. The Court found that a judge exercising principled discretion may take into account periods during which a driver voluntarily surrendered their licence to the court, and that this discretion informed Judge Ainslie-Wallace's order backdating the disqualification.
The Court expressed serious constitutional concern about the RTA's conduct. An officer of the Executive arm of government refusing to implement a lawful court order, on the basis of the officer's own interpretation of legislation, amounts to an arbitrary override of judicial authority. The Court noted that the Certifications and Court Convictions Unit appeared to regularly engage in this practice with respect to disqualification orders made in severity appeals.
The Court observed that, had the power existed, it would have ordered costs against the RTA. It directed that if the Unit considered a judge had erred in applying road traffic legislation, the appropriate course was to seek review in a superior court rather than simply ignoring the order.
Orders Made
The Court declined to reopen the proceedings on its own initiative pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
- The District Court confirmed that only the parties to proceedings, or the court itself acting on its own initiative, may invoke s 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen proceedings and correct a sentencing error. A government agency that was never a party to the proceedings has no standing to make such an application.
- Under s 68 of the Crimes (Appeal and Review) Act 2001, a sentencing order on appeal takes effect from the date specified in the order, and operates despite any prior stay of execution. This is distinct from the operation of s 189(6) of the Road Transport (General) Act 2005, which the Court found the RTA had interpreted erroneously.
- A sentencing court retains principled discretion to take into account periods during which a defendant voluntarily surrendered a licence when setting the commencement date of a disqualification period.
- An executive agency's refusal to implement a lawful and unchallenged court order, based on its own statutory interpretation, raises serious constitutional concerns. The Court characterised this as a denial of natural justice to the affected individual and an impermissible override of judicial authority.
- Where an executive agency believes a judicial officer has misapplied legislation, the proper remedy is to seek review through a court of superior jurisdiction, not to decline to give effect to the order.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 63, s 68
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Road Transport (General) Act 2005 (NSW), ss 187, 189
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
- Road Transport (Driver Licensing) Act 1998 (NSW)
Cases cited: No cases were cited in the judgment.