Reported Decision : 7 DCLR (NSW) 271 New South Wales District Court CITATION: Wheeler [2008] NSWDC 165 HEARING DATE(S): 1 August 2008 JUDGMENT DATE: 1 August 2008 JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ CATCHWORDS: Relevant disqualification period. - Second or subsequent offence. LEGISLATION CITED: Road Transport (Driver Licensing) Act 1998 s25A CASES CITED: Johnson [2008] NSWDC 47 PARTIES: Rick Jason Wheeler (Appellant) DPP (Respondent) FILE NUMBER(S): 2008/10342 COUNSEL: Bruce Brown (For Appellant) SOLICITORS: Graham Whitaker (For Respondent) JUDGMENT 1 HER HONOUR: The appellant appeals against the severity of penalties imposed by the Local Court on 16 June 2008 for offences of fail to submit to breath analysis (on 21 March 2008) and drive while licence suspended (on 30 April 2008). The appellant does not contest the fines that were imposed. Rather, he argues that the disqualification periods ought to be reduced. 2 The facts are set out in Exhibit A. In relation to the offence of failing to submit to a breath analysis, the appellant says that he did not submit to the analysis because he thought that the reading may be false. He had just finished a beer and thought that his mouth alcohol may affect the reading. According to Professor Starmer, that would not have occurred. The failure to submit to the breath test exposed the appellant to the penalty applicable for a high range prescribed concentration of alcohol offence. The minimum disqualification period that can be imposed for the offence of failing to submit to a breath analysis is twelve months. Mr Brown submits that that is the period which ought to be imposed, given the circumstances of the refusal and Professor Starmer's evidence that the reading would have been between 0.54 and 0.104. 3 I am not entirely sure that I accept the appellant's version of what occurred. It is too laden with excuses. However, taking into account the fact that, since being fined for a mid range prescribed concentration of alcohol offence in 1999, he has had a reasonable traffic record with no drink driving or other serious matters, I am prepared to reduce that disqualification period to twelve months. 4 In relation to the drive while licence suspended matter, the Local Court imposed a disqualification period of two years, having formed the view that that was the mandatory period. On appeal, Mr Brown advances two reasons for his submission that the mandatory disqualification period is not two years but one year. 5 Pursuant to s 25A(7) of the Road Transport (Driver Licensing) Act 1998: If a person is convicted by a court of an offence under subsection (1), (2) or (3) (a), the person: (a) is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a driver licence, and (b) may also be disqualified, for such additional period as the court may order, from holding a driver licence. Sub section 10 defines relevant disqualification period as follows: In this section, the " relevant disqualification period " is: (a) in the case of a first offence under subsection (1), (2) or (3)(a)—12 months, or (b) in the case of a second or subsequent offence under subsection (1), (2) or (3) (a)—2 years. Sub section 6 provides: An offence under this section is a second or subsequent offence for the purposes of this section if: (a) it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1), (2) or (3) (a) within the period of 5 years immediately before the person is convicted of the offence, or (b) within the period of 5 years immediately before the person is convicted of the offence, the person was convicted of: (i) a major offence within the meaning of the Road Transport (General) Act 2005, or (ii) an offence under section 6 (1C) or 7A of the Traffic Act 1909 (as in force before its repeal), or (iii) an offence under section 25 (2). Sub section (6)(b) applies in the circumstances of this case. 6 First, Mr Brown argues that, where s 25A (10) refers to "a second or subsequent offence under subsection (1), (2) or (3)(a)," it refers to a second or subsequent offence of the nature of driving while disqualified, driving with licence suspended or driving with licence cancelled, and that offences of a different type do not qualify as second or subsequent offences. Mr Brown relies upon the decision of Judge Berman in Johnson [2008] NSWDC 47. 7 I disagree with the approach taken by his Honour. On that interpretation of subsection (6), part (b) would have no work to do. Consequently I reject that submission. 8 Second, Mr Brown submits that, as both the offence of 21 March and that of 30 April came before the Local Court on the same occasion, 16 June 2008, and as there is no evidence that the conviction for the earlier offence was imposed prior to the conviction for the later offence - for all we know, the convictions may have been imposed simultaneously or in reverse chronological order- I cannot conclude that, prior to the drive with licence suspended conviction, there had been a conviction for the offence of failing to submit to breath analysis. 9 I have not been referred to any provision that deems convictions to have been recorded in accordance with the chronology of offences. It is not clear from the papers that that occurred. Consequently, I accept the submission. Therefore, the automatic disqualification period applicable to the offence of drive while licence suspended is a period of twelve months. The parties agree that that disqualification period must be served cumulatively on the first disqualification period. 10 The appeals against sentence are allowed. The orders for fines and court costs are confirmed, but the disqualification periods are varied. In each case, I impose a disqualification period of twelve months. For the fail to submit to breath analysis, the disqualification is from 21 March 2008 to 20 March 2009. For the drive while licence suspended offence, the disqualification period is from 21 March 2009 to 20 March 2010. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.