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Local Court 30 September 2015

NSW Police v Garrick

[2015] NSWLC 30

Traffic & driving
CRIMINAL LAW SENTENCE CORRECTION OF SENTENCING ERROR OPENING OF PROCEEDINGS ‘CONTRARY TO LAW’ DRIVE WHILE LICENCE SUSPENDED AND MID

Citation: NSW Police v Garrick [2015] NSWLC 30
Court: Local Court of NSW (Downing Centre)
Date: 30 September 2015
Judge(s): Deputy Chief Magistrate C O'Brien

Background

In November 2013, a defendant was stopped at Chippendale for speeding and returned a mid-range blood alcohol reading of 0.122. He had a prior mid-range PCA conviction from January 2013. A notice of suspension was issued following the charge, but 17 days later he was detected driving again at Marrickville and charged with driving while licence suspended.

Both matters came before Magistrate Mabbutt at the Downing Centre Local Court on 6 August 2014. On the mid-range PCA charge, the defendant was convicted, fined $2,500, placed on a two-year good behaviour bond, and disqualified from holding a licence for two years. On the drive while suspended charge, he was convicted and fined $800, also with a two-year disqualification. Magistrate Mabbutt then made an interlock order under s 210 of the Road Transport Act 2013, purporting to apply it to both offences. An interlock order substitutes a shorter licence disqualification period for a longer one, on the condition that the offender drives only a vehicle fitted with an alcohol interlock device.

The defendant and his solicitor proceeded on the basis that the interlock order applied to both matters, meaning he could resume driving after six months. He did not appeal the sentence and purchased a vehicle with borrowed funds intending to have the device fitted. The proceedings were subsequently reopened on the basis that the interlock order had been wrongly made in respect of the drive while suspended charge.

  • Whether the interlock order imposed for the drive while suspended offence was contrary to law and could be corrected under s 43 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether s 43 permitted the court to look behind the conviction itself and impose a non-conviction order (such as a s 10 bond) in substitution, as the defendant's new solicitor submitted.
  • What penalty was legally available upon conviction for the drive while suspended charge, given the defendant's prior record.

Decision

The court accepted that the interlock provisions under the Road Transport Act 2013 applied only to alcohol-related offences. The drive while suspended charge was not such an offence. Magistrate Mabbutt therefore had no power to impose an interlock order in respect of that matter. That error brought the case within s 43 of the Crimes (Sentencing Procedure) Act 1999, which allows a court to reopen criminal proceedings to correct a penalty that is "contrary to law."

The defendant's solicitor argued the court should go further: reopen the proceedings, set aside the conviction, and replace it with a conditional release order under s 10(1)(b). DCM O'Brien rejected this approach. Section 43 permits amendment of a conviction only where the conviction itself was imposed contrary to law, meaning without any legal basis at all. Here, the conviction was lawful and intentional. The magistrate had always meant to convict, and any challenge to the conviction should have been pursued by way of appeal.

On the question of what penalty was legally available, s 54 of the Road Transport Act 2013 provided the answer. Given the defendant's prior PCA conviction, the drive while suspended offence attracted an automatic two-year licence disqualification from the date of conviction. No other period was open to the court.

DCM O'Brien also noted that s 43 is not a substitute for appeal and does not permit re-litigation of sentencing proceedings or the introduction of fresh evidence to achieve a different outcome. This approach was consistent with the Court of Criminal Appeal's analysis in Achurch v R (No 2) and Bungie v R.

Orders Made

  • The sentence proceedings in matter H55153785 were reopened pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999.
  • The disqualification/suspension order dated 6 August 2014 was set aside.
  • In its place, the defendant was disqualified from holding or obtaining a driver licence for a period of two years from 6 August 2014.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 permits a court to reopen proceedings and correct a penalty that is contrary to law, but its scope is limited: it corrects the penalty, not the conviction, unless the conviction itself lacked any legal basis.
  • An interlock order under s 210 of the Road Transport Act 2013 is available only for alcohol-related offences. Imposing such an order in respect of a drive while suspended charge falls outside the court's power and constitutes a sentencing error amenable to correction under s 43.
  • Where a defendant has a prior PCA conviction, s 54 of the Road Transport Act 2013 mandates an automatic two-year licence disqualification upon conviction for a drive while suspended offence, with no discretion to impose a lesser period.
  • The Court of Criminal Appeal's decisions in Achurch v R (No 2) and Bungie v R confirm that s 43 is not an alternative to appeal and cannot be used to re-litigate sentencing outcomes or introduce fresh evidence in pursuit of a different result.
  • Detrimental reliance on an erroneously made order, including financial steps taken in response to it, does not enlarge the court's power under s 43 or provide a basis for setting aside an otherwise lawful conviction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 10A, 43
- Road Transport Act 2013 (NSW), ss 54, 210

Cases:
- Achurch v R (No 2) [2013] NSWCCA 117
- Bungie v R [2015] NSWCCA 9