New South Wales District Court CITATION: Shane William JOHNSON v R [2008] NSWDC 47 HEARING DATE(S): 12 March 2008 JUDGMENT DATE: 12 March 2008 EX TEMPORE JUDGMENT DATE : 12 March 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Appeal is allowed. Fine and Court costs confirmed. Disqaulified from driving for one year. CATCHWORDS: Criminal Law - Severity Appeal - Drive whilst suspended - Statutory interpretation LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Road Transport (Driver Licensing) Act 1998 PARTIES: Shane William Johnson The Crown FILE NUMBER(S): 07/12/1489 SOLICITORS: NSW DPP Legal Aid Commission JUDGMENT 1 HIS HONOUR: Shane William Johnson appeals against the sentence of a magistrate for an offence of driving on the road whilst he was suspended. The magistrate fined Mr Johnson and disqualified him from driving for two years. This appeal has been conducted on two bases. The first is that Mr Dickins, who appears on behalf of Mr Johnson, seeks an order under Section 10 of the Crimes (Sentencing Procedure) Act. If that submission fails there is a question of statutory interpretation to be determined, that issue relating to the automatic disqualification period. I will deal with both these matters in this judgment. 2 I am not prepared to give the appellant the benefit of an order under Section 10. 3 The circumstances of the offence are these: The appellant was driving after his licence had been suspended. It appears that he did not know that licence had been suspended by reason of his fine default, but when he was stopped for a number of traffic offences on 24 August by police and a licence check was done the fact that his licence was suspended was discovered. Police told Mr Johnson of this fact. They told him that he must not drive. They saw the appellant make a phone call and he told them that his mate would come and collect him. Police then left. 4 Within a very short time police, however, saw the appellant driving in the same road in which they had stopped him. After stopping him again, they asked him why he drove the vehicle after being told not to and the appellant replied, "I was just moving it". It is this act of driving which forms the basis of the offence. 5 The application under Section 10 is based on the circumstance that the appellant was simply moving his car a short distance from where it was parked in a 'No Stopping' zone around the corner to where it would have been in a safer position. I have some difficulty in accepting that it was necessary for the appellant to drive his vehicle that distance, if even at all. There are a number of spots, visible in photographs tendered before me, where the appellant could have pulled up quite safely, that evening well before police eventually stopped him. And in any case the police made it as clear as they could have that the appellant should not drive and that doing so would be a breach of the law. In those circumstances, the appellant's clear decision to breach the law cannot be overlooked by the imposition of an order under Section 10. 6 The second matter concerns, as I have said, the interpretation of the automatic disqualification period. Section 25K of the Road Transport (Driver Licensing) Act provides for the disqualification period for offences of driving whilst licenses are suspended. Section 25A(7) provides that upon conviction for an offence such as that the appellant committed he is to be disqualified for "the relevant disqualification period", on top of which he may also be disqualified for such additional period as the court may order. 7 It is the question of what the relevant disqualification period is which is to be determined. The Crown says it is two years and Mr Dickins, on behalf of the appellant, says it twelve months. Mr Dickins points to subsection 10 which says that, in this section, "The relevant disqualification is: (a) in the case of a first offence under subsection 1, 2 or 3A twelve months; or (b) in the case of a second or subsequent offence under subsection 1, 2 or 3A two years." 8 It is common ground that the appellant was convicted of a drink driving matter within five years of his conviction on this matter. The Crown therefore says that he has committed a second or subsequent offence after referring me to subsection 6. However, even if it is a second or subsequent offence for the purposes of subsection 6, it is not all second of subsequent offences which are to be looked at in determining the relevant disqualification period under subsection 10. The section makes it, and I use the Crown's term, as clear as crystal that it is only some second or subsequent offences which give rise to the extended relevant disqualification period. 9 I am satisfied that the proper interpretation of Section 25A in the circumstances of this case is that the relevant disqualification period is twelve months. I am also satisfied that in the circumstances of the offence there does not need to be any additional period and so the orders I make are these. 10 The appeal is allowed. I confirm the fine and court costs imposed by the magistrate, but disqualify the appellant from driving for one year. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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