Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550

Reported Decision : 185 A Crim R 83

New South Wales Supreme Court

CITATION : Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550

HEARING DATE(S) : 26 May 2008

JUDGMENT DATE : 5 June 2008

JUDGMENT OF : Johnson J at 1

1. Appeal against conviction is dismissed. DECISION : 2. Appeal against sentence allowed and the sentence, fine and costs order imposed in the Nyngan Local Court quashed. 3. In lieu thereof, an order is made under s.10(1)(a) Crimes (Sentencing Procedure) Act 1999 that, without proceeding to conviction, the charge under s.18(1) Road Transport (Vehicle Registration) Act 1997 is dismissed. 4. No order as to costs.

CATCHWORDS : ROAD TRANSPORT - offence of using unregistered registrable vehicle on road or road-related area - whether vehicle was a pedal cycle to which was attached auxiliary propulsion motor or motors having combined maximum power output not exceeding 200 watts - finding by Magistrate that vehicle was primarily a motor cycle with foot pedals as secondary means of propulsion - appeal against conviction on question of law - meaning of "auxiliary" - finding open to Magistrate - no error of law - appeal against conviction dismissed - SENTENCING - Magistrate excludes consideration of s.10 Crimes (Sentencing Procedure) Act 1999 because of plea of not guilty - error of law established - sentence varied

Crimes (Appeal and Review) Act 2001 Road Transport (Vehicle Registration) Act 1997 LEGISLATION CITED : Road Transport (Vehicle Registration) Regulation 1998 Road Transport (Vehicle Registration) Regulation 2007 Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 2005