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District Court 20 June 2013

R v Tony LIRISTIS

[2013] NSWDC 223

Traffic & driving
CRIMINAL LAW PARTICULAR OFFENCES DRIVE WHILE DISQUALIFIED APPEALS AGAINST SENTENCES UPHELD COMMENT ON MANDATORY SENTENCES.

Citation: R v Tony Liristis [2013] NSWDC 223
Court: District Court of New South Wales
Date: 20 June 2013
Judge: Cogswell SC DCJ

Background

The appellant had been disqualified from holding a driver licence following proceedings in the Local Court. He appealed that disqualification to the District Court, lost, and then lodged further appeal documents in the Court of Criminal Appeal. He says he asked officers at the Court of Criminal Appeal registry whether the disqualification remained on foot, and was told there would be an automatic stay of the order while his appeal was pending.

Relying on that advice, the appellant continued to drive. Police stopped him on two separate occasions in late July 2011, and he was charged with driving while disqualified on each occasion. He was convicted in the Local Court on both charges and sentenced by two different magistrates: the first imposed a good behaviour bond, and the second imposed a fine of $2,000.

The appellant appealed both convictions and both sentences to the District Court. Cogswell SC DCJ dismissed both conviction appeals, finding that the appellant's mistake was one of law rather than fact, which precluded the Proudman v Dayman defence. The sentence appeals, however, were dealt with separately. The first sentence appeal was allowed earlier in the week. This judgment concerns only the second sentence appeal, arising from the $2,000 fine imposed by Magistrate Barkell.

  • Whether the Proudman v Dayman defence (honest and reasonable mistake of fact) was available to defeat the driving-while-disqualified charges
  • Whether the convictions should stand in light of the misleading information the appellant received from a court officer
  • Whether a dismissal order under s 10 of the Crimes (Sentencing Procedure) Act 1999 was available and appropriate in the circumstances of the second offence
  • Whether the appellant's conduct between the two offences (including his attempt to clarify his licence status) amounted to extenuating circumstances for the purposes of s 10

Decision

Cogswell SC DCJ had already dismissed both conviction appeals on the basis that the appellant's mistaken belief about the stay of his disqualification was a mistake of law, not a mistake of fact. Because Proudman v Dayman applies only to mistakes of fact, the defence was unavailable and the convictions stood.

On the sentence appeal, the prosecution argued that no s 10 dismissal was appropriate because the appellant lacked an honest and reasonable belief that he was entitled to drive. The prosecution pointed particularly to the fact that police had told him four days before the second offence that their records showed him as disqualified, and that he had given police a false name and address when stopped the second time.

The court acknowledged those matters but found that the appellant had, in the days between the two offences, sent a fax and made phone calls to the Court of Criminal Appeal registry in a genuine attempt to clarify his position. Documentary evidence corroborated those attempts. The court accepted that the appellant had been given misleading information by a court officer and was acting on that information at the time of the second offence.

Cogswell SC DCJ held that the circumstances in which the second offence was committed were sufficiently extenuating to warrant a s 10 order. The court noted that it was understandable for a person to place considerable weight on advice received from a senior appellate court officer. The $2,000 fine was set aside and, without proceeding to conviction, the court dismissed the charge under s 10.

Orders Made

  • The sentence imposed by Magistrate Barkell (a fine of $2,000) was set aside under s 20(2) of the Crimes (Appeal and Review) Act 2001
  • In place of that sentence, an order was made under s 10 of the Crimes (Sentencing Procedure) Act 1999 finding the appellant guilty without proceeding to conviction, and directing that the charge be dismissed

Key Takeaways

  • A mistaken belief that a disqualification order has been stayed pending a further appeal is a mistake of law, not a mistake of fact, and the Proudman v Dayman defence is therefore unavailable to a charge of driving while disqualified.
  • Under s 10 of the Crimes (Sentencing Procedure) Act 1999, a court can dismiss a charge without recording a conviction where extenuating circumstances exist in which the offence was committed.
  • Misleading information given by an officer of a court can constitute extenuating circumstances, particularly where the defendant took documented steps to clarify their legal position before committing the offence.
  • A general need to drive, whether for family or personal reasons, does not of itself constitute an extenuating circumstance sufficient to ground a s 10 order.
  • Prior criminal and traffic convictions weigh against a s 10 dismissal, and the court did not treat the offence itself as trivial; the s 10 order rested specifically on the misleading official advice and the appellant's attempts to act on clarified information.

Legislation and Cases Referenced

Legislation
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)

Cases
- Proudman v Dayman (1941) 67 CLR 536 (High Court: honest and reasonable mistake of fact as a defence to strict liability offences)
- Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 (High Court: distinction between mistakes of law and mistakes of fact)