Reported Decision : 60 NSWLR 304 New South Wales Supreme Court CITATION : RTA v WEIR [2004] NSWSC 154 HEARING DATE(S) : 10/02/04 JUDGMENT DATE : 12 March 2004 JUDGMENT OF : Shaw J at 1 DECISION : 1) The order below be set aside; 2) The matter be remitted to the Local Court and determined according to law; 3) No order for costs of proceedings in this Court CATCHWORDS : Appeal against Local Court decision - Suspension of Driver's licence Crimes Act 1900 (NSW), 556A Crimes (Local Court Review and Appeal) Act 1982 (NSW), s 56(1) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Local Courts Act 1982 (NSW), s 64(1) Road Transport (Driver Licensing) Act 1998 (NSW) Julius v the Bishop of Oxford (1880) 5 App Cas 214; (1880) LJQB 577; [1874-80] All ER Rep 43 NSW Roads & Transport Authority v Hillyard & Anor [2003] NSWCA 284 CASES CITED : R v Beissel (1996) 89 A Crim R 210 CA (Qld) Roads & Traffic Authority of NSW v Wilson & Anor [2003] NSWCA 279 Thorneloe v Filipowski (2001) 52 NSWLR 60 PARTIES : Roads & Traffic Authority of New South Wales (Plaintiff/Applicant) Philip Weir (Defendant/Respondent) FILE NUMBER(S) : SC 13373/2003 COUNSEL : T Lynch (Plaintiff/Applicant) SOLICITORS : Hunt & Hunt (Plaintiff/Applicant) LOWER COURT Local Court JURISDICTION : LOWER COURT 56303/03/102C FILE NUMBER(S) : LOWER COURT Magistrate Pierce JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 12 March 2004 13373/03 ROADS & TRAFFIC AUTHORITY OF NSW (Plaintiff/Applicant) v PHILIP WEIR (Defendant/Respondent) JUDGMENT 1 Shaw J: This case arises from a summons filed for the Roads & Traffic Authority of NSW (the plaintiff) on 18 December 2003 for judicial review in this Court of a decision and order of Magistrate Pierce on 30 October 2003 in which the plaintiff's decision to suspend the licence of Philip Weir was disallowed. 2 A preliminary question was whether, in the discretion of this Court, the time for the filing of the summons pursuant to s 64 of the Local Courts Act 1982 (NSW) and s 56(1) of the Crimes (Local Court Review and Appeal) Act 2000 (NSW) and of an appeal against the order of the Local Court at Hornsby disallowing the suspension of the defendant's driver's licence should be entertained despite the fact that that Part 51B rule 6(1) of the rules of the Supreme Court prescribes that the time for the lodging of an appeal of this character expired on 28 November 2003, that is 28 days after the order which is the subject of the proceedings. However, the rule also provides that that time may be extended. I indicated in the course of argument on 10 February 2004 that I would be prepared to extend the time so as to allow this summons to be heard. I did so for the following reasons: (a) Mr Weir has decided not to appear before this Court and although he has said to the plaintiff's solicitors in a letter of 5 February 2004 that: "… I believe the summons was registered after the acceptable time limit", he has chosen not to oppose either the extension of time or the appeal itself. (b) The plaintiff properly does not seek costs against Mr Weir in relation to these proceedings. (c) It is difficult to see that Mr Weir has been prejudiced by the relatively modest delay in lodging the proceedings, because pending the hearing in the Local Court the suspension had been stayed, and pending the resolution of the appeal in this Court the defendant's driver's licence has continued in force and effect. The mere institution of the proceedings as an appeal does not affect the subsistence of the driver's licence. (d) Moreover, the appeal raises a question of law of general public importance as to the administration of demerit points and the suspension of drivers' licences, in the motor vehicle laws of this State. 3 By a notice dated 23 August 2003, the defendant's driver's licence was suspended for 3 months commencing 27 September 2003, a date which was deferred by the appellate processes which I have identified. 4 By reason of a series of 4 offences the defendant incurred 12 demerit points, 6 of which were incurred in relation to an offence on 1 January 2003. 5 The plaintiff submits that the relevant law prescribes that a driver incurring 12 or more demerit points, within 3 years, gives rise to a non-discretionary suspension of the driver's licence. Section 16(2) of the Road Transport (Driver Licensing) Act (NSW) 1998 provides: Licence suspension for demerit points The Authority must give a notice of licence suspension to the holder of a driver licence (not being a provisional licence or learner licence) that incurs 12 or more demerit points within the 3 year period ending on the day on which the person last committed an offence for demerit points have been recorded against the person. (my emphasis) Section 16(5) of the same Act provides that: the period of licence suspension under subsection (2) is the period applicable under the following table … It is unnecessary to set out the whole of that table, but it does provide that the period of licence suspension for 12 – 15 demerit points is 3 months. Some subsequent provisions of the same section allow a person incurring particular numbers of demerit points to give an election to be "of good behaviour", for a period of 12 months from the day on which the licence would otherwise be suspended, but any minor infringement (incurring 2 or more demerit points) during that period results in a suspension of licence for twice the period that would have applied to the person if that election had not been made. There is no suggestion in the present case that any such election had been made. Rather, the defendant appealed against the suspension to the Local Court, resulting in a stay of that suspension. He elected to have the allegation in relation to the offence of 1 January 2003 dealt with by a court, and on 7 August 2003 the defendant was "found guilty" of the offences but the proceedings were dismissed, that is to say no conviction was recorded in reliance upon the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 10 of that Act, which reflects the longstanding provision of s 556A of the Crimes Act 1900 (NSW) provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 6 Nothing in the report of the NSW Law Reform Commission (Report 79, Sentencing, December 1996), which was the genesis of the new 1999 sentencing procedure regime in NSW, suggests that a change should be made to the traditional approach expressed in s 556A of the Crimes Act, 1900 (NSW). So there was no conviction in relation to these offences which were found proved but nonetheless the defendant had been "found guilty", of the them. 7 It has been held that the invocation of the power provided by s 10 (or its statutory predecessor) involved the exercise of a wide discretion: Thorneloe v Filipowski (2001) 52 NSWLR 60. It has also been held that a court should not attempt to minimise the seriousness of criminal conduct with a view to influencing third parties (such as licensing authorities) to disregard or overlook the offence in determining whether the accused person is suitable to hold a particular position or occupation: R v Beissel (1996) 89 A Crim R 210 CA (Qld). The relevant Queensland statute defined "conviction" as meaning "a finding of guilt…": Penalties and Sentences Act 1992 (Qld): s 4. However, s 12(1) of the Act confers upon the court a discretion to record or not record a conviction. In relation to the exercise of that discretion, McPherson JA, with whom Dowsett and White JJ agreed, said: In my opinion it really misapprehends the purpose and function of provisions like s12 to suppose that the provisions they confer are designed to enable the fact that criminal convictions have been sustained to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute. 8 Section 14(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) provides that: The Authority must record, in the demerit points register, against a person the number of demerit points specified in the regulations if the person: (a) is convicted, or found guilty, of an offence specified in the national schedule of demerit points or any other offence specified in the regulations, or recognised, under section 15, or (b) pays the penalty specified in a penalty notice issued to the person in respect of the offence, or (c) has not paid the penalty specified in a penalty notice issued to the person in respect of the offence, the person has not elected to have the matter dealt with by a court and the time for the person to have the matter so dealt with has lapsed. 9 Thus, on the face of the statutory language, there is a differentiation between conviction and a finding of guilt, but nonetheless either conclusion leads to a duty upon the plaintiff to record the demerit points. This is made obvious by the use of the word "or". 10 Although there was no final decision about it by the learned magistrate who heard the appeal against suspension of licence, there was a suggestion in his Worship's decision that a "finding of guilt" pursuant to s 10 of the Crimes (Sentencing Procedure) Act may not have resulted in that person having been "found guilty" for the purposes of the relevant provisions of the Road Transport (Driver Licensing) Act 1998 (NSW). Rather, the magistrate approached the matter by deciding that even if there was the requisite finding of guilt that nevertheless … in terms of fairness … quite apart from a statutory right to do it, it is completely inappropriate to take a person's licence … for offences which include an offence which was dismissed … 11 However fair and liberal minded this approach may seem, the problem with it is that the statute uses mandatory language, that is to say the Authority "must" give notice of suspension of the licence where 12 or more demerit points are received within the 3 year period. 12 I find it difficult to see any general discretion vested in the Local Court to determine that the suspension is "unfair" in circumstances where the statutory prerequisites are met and where the plaintiff is commanded by legislative provisions to act to suspend a licence. 13 In Roads & Traffic Authority of NSW v Wilson & Anor [2003] NSWCA 279 paragraph [14] Meagher JA said: The demerit points accumulated, the automatic consequence was the suspension. 14 Ipp JA and Foster AJA agreed; cf NSW Roads & Transport Authority v Hillyard & Anor [2003] NSWCA 284 which was, as I apprehend, decided on the basis that the learned magistrate had, without error, disallowed the suspension of a driver's licence because of his finding that the person whose licence was suspended was not the driver on a specified occasion. 15 As I understand it, there is some controversy about the rather arbitrary nature of the system of demerit points, and the resultant suspension of licences which can obviously jeopardise employment opportunities and cause other hardship in circumstances where, it might be reasonably thought, the courts should have a discretion to ameliorate the mandatory provisions in particular circumstances. Nevertheless, this Court is bound to apply the law as laid down by the legislature both in statutes and regulations made under them and the duty of the judge is to give effect to the Parliamentary intention in that respect. I say that, of course, subject to any considerations of constitutional invalidity which do not arise here. 16 It is in this context that I determine that a finding of guilt pursuant to s 10 of the Crimes (Sentencing Procedures) Act (NSW) does result in a person having been found guilty for the purposes of the Road Transport (Driver Licensing) Act 1998 (NSW) and that the plaintiff had no discretion other than to suspend the licence of the defendant for a period of 3 months. This is not a case of a court determining that the verb "may" means "must" in accordance with the ancient doctrine of Julius v the Bishop of Oxford (1880) 5 App Cas 214; (1880) 49 LJQB 577; [1874-80] All ER Rep 43, but rather applying the term "must" in its ordinary English connotation as expressing necessity, obligation or requirement. 17 Hence, I think the Court below was in error in allowing the application and setting aside the suspension of the defendant's driver's licence and I therefore make an order that the order below be set aside. 18 However, Mr Lynch, appearing for the plaintiff, properly concedes that, in the event that the application in this Court is successful, there remains an outstanding issue. The defendant wishes to put an argument before the Local Court founded on s 16(3)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) which provides some leeway of choice for the plaintiff in dealing with these matters. The statute provides that, despite the mandatory provisions of s 16 (2): The Authority is not required to take action under that subsection if it is of the opinion: (3) That it would be unreasonable to do so, having regard to the date when any relevant offence was committed … Counsel for the plaintiff has expressed his agreement with the defendant that the proper order in this case, if the plaintiff's application succeeds in this Court, as it does, is that the matter be returned to the Local Court and determined according to law. 19 In these circumstances I make orders that: 1) The order below be set aside. 2) The matter be remitted to the Local Court and determined according to law. 3) No order be made for costs of proceedings in this court. ********** Last Modified: 03/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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