Citation: R v El Kerhani [2021] NSWLC 14
Court: Local Court of NSW
Date: 22 December 2021
Judge(s): Brender LCM
Background
The accused faced two charges of driving with illicit drugs in his blood, arising from separate incidents on 13 July 2021 and 29 July 2021. He pleaded guilty to both charges, which came before the court on different dates but were ultimately sentenced together on the same day.
The accused had a prior conditional release order (without conviction) for an earlier offence under the same provision, which had concluded in September 2020. He had no other relevant driving matters on his record, though the two offences did breach a community correction order imposed for unrelated offensive conduct.
The central dispute arose when the prosecution submitted that, if the court convicted the accused of the first offence, it would seek to amend the charge relating to the second incident to classify it as a "second or subsequent offence." That classification would have increased both the maximum fine and the mandatory disqualification periods.
Legal Issues
- Whether the second drug-driving charge should be treated as a "second or subsequent offence" under s 9 of the Road Transport Act 2013 (NSW), attracting higher penalties and longer disqualification periods.
- Whether, when two convictions are entered on the same day in the same proceedings, either conviction can be said to precede the other so as to trigger the "second or subsequent offence" definition.
Decision
Issue 1: Statutory framework for "second or subsequent offence"
The magistrate traced the legislative history from the former Road Transport (General) Act 2005 (NSW) and Road Transport (Driver Licensing) Act 1998 (NSW) through to the current s 9 of the Road Transport Act 2013 (NSW). Under s 9, the definition of "second or subsequent offence" focuses on conviction, not the chronological order of offending occasions. The critical question is whether, at the time of conviction for the "new offence," the person had already been convicted of a relevant first offence within the applicable re-offending period (at [15]-[16]).
The magistrate noted that this legislative design means the penalty regime can vary depending on when police charge matters, when adjournments occur, or whether one matter results in an earlier conviction. That outcome, however, is the necessary consequence of the statutory wording (at [17]).
Issue 2: Simultaneous convictions on the same day
The magistrate applied the principle from R v Ahmed [2008] NSWDC 380, which drew on two older authorities: that judicial acts are taken to date from the earliest minute of the day on which they are done, and that where convictions are entered on the same day in contemporaneous proceedings, neither precedes the other. Following Ahmed as a decision of an inferior court not shown to be clearly wrong, the magistrate held that both convictions were to be treated as occurring simultaneously (at [19]-[20]).
Because neither conviction could be said to precede the other, the precondition for treating the second charge as a "second or subsequent offence" was not met. The magistrate refused to grant leave to amend the court attendance notice accordingly (at [21]-[22]). The magistrate noted that the result would have differed had the matters been sentenced on separate days, or had one charge earlier resulted in an ex parte conviction (at [22]).
Sentence
Taking into account totality, the guilty pleas, and the fact that offending had occurred on two occasions, the magistrate imposed a $500 fine for each offence and declined to reduce the automatic six-month disqualification period, with both disqualification periods running concurrently (at [23]).
Orders Made
- Fine of $500.00 imposed on the defendant.
- Defendant disqualified from holding a driver's or rider's licence for 6 months from 1 December 2021.
Key Takeaways
- Under s 9 of the Road Transport Act 2013 (NSW), whether an offence qualifies as a "second or subsequent offence" turns on the sequence of convictions, not the sequence of offending occasions. The order in which incidents occur is expressly immaterial (at [15]-[17]).
- Where two convictions are entered simultaneously in the same proceedings on the same day, neither conviction precedes the other, and the "second or subsequent offence" classification cannot be triggered. This follows the principle confirmed in R v Ahmed and the earlier authorities on which it relied (at [19]-[20]).
- The timing of charges, adjournments, and plea dates can have direct consequences for whether a matter is treated as a first or subsequent offence under the current Road Transport Act framework, as the magistrate expressly acknowledged (at [17]).
- A different result would follow if matters are sentenced on different days, or if one charge resulted in an earlier conviction through a non-appearance or ex parte process (at [22]).
- In sentencing two first offences together, the court may decline to reduce an automatic disqualification period where the offending has occurred on more than one occasion, even when a guilty plea has been entered (at [23]).
Legislation and Cases Referenced
Legislation
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A
- Road Transport (General) Act 2005 (NSW), s 96(2)
- Road Transport Act 2013 (NSW), s 9
Cases
- Bimson, RMS v Damorange Pty Ltd [2014] NSWSC 734
- DPP v Partridge (2009) 74 NSWLR 62; [2009] NSWCCA 75
- Edwards v the Queen (1854) 9 Ex. 628
- R v Ahmed [2008] NSWDC 380
- R v Miller [1986] 2 Qd R 518
- RTA v Fletcher (2008) 51 MVR 41; [2008] NSWSC 936
- Valentine v Eid (1992) 27 NSWLR 615