R v Mohamed Gebara [2012] NSWDC 68

District Court New South Wales

Medium Neutral Citation: R v Mohamed Gebara [2012] NSWDC 68 Hearing dates: 4 April 2012 Decision date: 04 April 2012 Before: Colefax SC DCJ Decision: Orders made on 22 March 2012 are set aside. Appellant re-sentenced. Catchwords: Whether any discretion to reduce disqualification period for burnout offence. Whether trial judge functus officio on application to re-open proceedings. Legislation Cited: Road Transport Safety and Management Act; Crimes (Sentencing Procedure) Act; Safety and Traffic Management Act; Road Transport (General) Act; Road Transport Legislation Amendment (Car Hoons) Bill; Interpretation Act 1987 (NSW). Cases Cited: Sillery v The Queen (1981) 180 CLR 353; Byrne and McLeod (1934) 52 CLR. Texts Cited: Statutory Interpretation in Australia (7th ed.) Category: Principal judgment Parties: The Queen (Applicant); Mohammed Gebara (Respondent). File Number(s): 2011/00304329 Decision under appeal Date of Decision: 2012-02-20 00:00:00 Before: Magistrate Connell File Number(s): 2011/00304329

Judgment 1On 9 September 2011 Mohamed Gebara engaged in conduct which constituted an aggravated burnout offence contrary to s 41 (2) (b) of the Road Transport Safety and Management Act (the "Safety and Management Act"). 2Mr Gebara was convicted and sentenced for that offence in the Local Court on 20 February 2012. At that time a fine of $1,000 was imposed together with court costs of $81 and a period of disqualification from driving of twelve months. 3A severity appeal to this Court was heard by me on 22 March 2012. 4One matter which was of particular significance on that occasion, and is directly relevant to this judgment, is whether the Court had a discretion to reduce the period of disqualification; and, if so, whether it would exercise that discretion in the appellant's favour. 5It would appear that the officer within the Office of the Director of Public Prosecutions who settled the severity appeals instruction sheet may have had the opinion that such a discretion existed because, after the notation "licence disqualification auto twelve months", the words "minimum twelve months" was struck out. However, the solicitor from that Office who appeared on behalf of the Crown on the appeal took a different position. She submitted no discretion was available to the Court and that there was, in effect, a mandatory period of disqualification which the Court had no power to reduce. 6In referring to the two different positions adopted by the two officers of the Office of the Director of Public Prosecutions, I am not to be taken as being critical of either officer because, as I shall later reveal, the statutory provision which they individually considered is not clear. I have no doubt that each of them was acting professionally and with their duty to the Court utmost in their minds. That duty clearly on this occasion was put ahead of uniformity of position within the office of the Director and that professional attitude by those solicitors is to be congratulated. 7At the conclusion of the severity appeal hearing I delivered an ex tempore judgment in which I held that I did have a relevant discretion and I exercised that discretion to reduce the period of disqualification to nil. 8The Director of Public Prosecutions subsequently made an application to re-open the proceedings, pursuant to s 43 (1) of the Crimes (Sentencing Procedure) Act. 9On 27 March 2012 I made orders in chambers directing that the application to re-open (and if the proceedings be re-opened then the appeal) be listed for hearing today. I made a further direction that the Crown file and serve written submissions in support of its application to re-open the proceedings and that direction was complied with. 10It has been submitted on behalf of Mr Gebara today that I am relevantly functus officio. However that conclusion could only be arrived at after a consideration of the Crown's substantive submissions. 11Section 41 (2) (b) of the Safety and Traffic Management Act relevantly provides that a person must not "[d]o or omit to do anything that prolongs, sustains, intensifies or increases loss of traction". The sub-section provides a maximum penalty for a first offence (which is this case) of thirty penalty units. 12Subs 7 of s 41 provides: "A person who is convicted by a Court of an offence under [inter alia subs (2)(b)] in relation to a motor vehicle is disqualified from holding a driver licence by the conviction and without any specific order of the Court for 12 months". 13Subs (8) of s 41 provides: "Any disqualification under this section is in addition to any penalty imposed for the offence". 14On the appeal both as initially heard and on the present application counsel for the appellant made the following submissions. 15First, the use of the word "any" in subpara (8) necessarily implies the existence of a residual discretion. If the disqualification were mandatory that could easily have been effected by Parliament substituting "any" with "a". 16Secondly, s 187 (1) of the Road Transport (General) Act (the "General Act") applies. That section relevantly provides as follows: "A court that convicts a person of an offence under the road transport legislation may at the time of the conviction order the disqualification of the person from holding a driver licence for such a period as to the Court specifies." I interpolate to observe that the Safety and Traffic Management Act is "road transport legislation" within the meaning of that section. 17The relevant submission of the appellant was that the power to reduce thereby applied to the disqualification under subs (7) of the Safety and Traffic Management Act. 18The Crown submitted that the first submission of the appellant is too legalistic and would result in the clear purpose of the legislation, to borrow an expression from the 7th Edition of Statutory Interpretation in Australia at para 9.8, becoming "lost in a semantic tournament" (my citation not the Crown's). The Crown submitted that if Parliament had intended the Courts to have a discretion to reduce the disqualification it could easily have done so as it has done in other contexts and which are identified in the Crown's written submissions. 19As to the second submission of the appellant, the Crown submitted that the apparent application of s 187(1) of the General Act is illusory because s 5 of subs (3) of that Act is relevantly engaged. That subsection provides: "a provision of this Act relating to road transport legislation does not apply to the road transport legislation if that legislation provides otherwise either expressly or by a necessary intendment." 20Contrary to the submissions of the Crown on the appellant's first submission, in my view subs (7) of s 41 of the Safety and Transport Management Act is ambiguous. The fact that in other contexts Parliament has expressly given a discretion in my view is not decisive. Parliamentary drafting is not always consistent or uniform in approach. 21Further, the Crown's submission on the appellant's second submission is, with respect, circular. 22At common law an ambiguity of the kind presently under consideration would often be construed in favour of an offender. For example see Sillery v The Queen (1981) 180 CLR 353. In that case Gibbs CJ with whom Aickin J agreed, said at 357: "If it is intended to provide a mandatory penalty clear words can and should be used". 23Murphy J in the same case said: "The policy of maximum and not mandatory penalties is so pervasive that it should be presumed that any penalty is intended as a maximum. Very clear words would be necessary to displace this presumption. The general presumption is that legislation affecting the liberty of a person is to be construed in favour of that person." 24His Honour then quoted Dixon J in Byrne and McLeod (1934) 52 CLR at p 8. "The principles of interpretation require that in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case." 25However the common law has been modified to an extent by s 34 of the Interpretation Act 1987 (NSW). That Act amongst other things permits the Court to have regard to an explanatory memorandum or a Second Reading Speech by a Minister in order to assist in the ascertainment of the meaning of a provision if a Court concludes that the meaning of that provision is ambiguous or obscure. 26As I have concluded that the meaning of the relevant section is ambiguous or obscure, I have accordingly had regard to both the Second Reading Speech and the explanatory memorandum to the evocatively entitled Road Transport Legislation Amendment (Car Hoons) Bill 2008. 27Having carefully considered both of those documents, and in particular the Second Reading Speech of the Parliamentary Secretary who on behalf of the Minister moved that the relevant Bill be read a second time, I have come to the conclusion that, although the speech was not elegantly expressed nor explicitly consider the point under consideration, the tone of the speech read as a whole leads me to conclude that Parliament did intend that the Court should not have any discretion to reduce the period of disqualification. 28Consequently, the Crown has established a basis for the sentencing hearing to be re-opened pursuant to s 43 of the Crimes (Sentencing Procedure) Act. 29Accordingly the orders I made on the 22 March 2012 are set aside. 30I shall now re-sentence the appellant on the basis of the facts established and the submissions made on the earlier occasion, other than the submissions concerning whether or not a period of disqualification is mandatory. 31[Balance of Judgment unnecessary for publication]. 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. Decision last updated: 21 May 2012