Local Court New South Wales Medium Neutral Citation: NSW Police v Garrick [2015] NSWLC 30 Hearing dates: 15 September 2015 Decision date: 30 September 2015 Jurisdiction: Criminal Before: DCM C O'Brien Decision: 1. I reopen the sentence proceedings in H55153785 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 determined on 6 August, 2014. 2. The disqualification/suspension order dated 6 August 2014 is set aside. 3. In lieu the defendant is disqualified from holding or obtaining a driver licence pursuant to the Road Transport Act for a period of 2 years from 6 August 2014. Catchwords: CRIMINAL LAW – sentence – correction of sentencing error – re-opening of proceedings – function and limits of s 43, Crimes (Sentencing Procedure) Act 1999 – 'contrary to law' – drive while licence suspended and mid-range PCA offences - automatic period of licence disqualification upon conviction Legislation Cited: Road Transport Act 2013, ss 54, 210 Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 43 Cases Cited: Achurch v R (No 2) [2013] NSWCCA 117 Bungie v R [2015] NSWCCA 9 Category: Sentence Parties: NSW Police Anthony Garrick (the defendant) Representation: Solicitors: Sgt Hayes (police prosecutor) Ms Duncan (for the defendant) File Number(s): 2014/660 Judgment 1. On 10 November 2013 Anthony Garrick (the defendant) was detected by police to be speeding at Chippendale. He was stopped and a breath test was conducted which returned a positive result. He was arrested for the purpose of a breath analysis and returned a blood alcohol reading of 0.122. He was not carrying a driver's licence at the time. Following his being charged with the offence of mid-range PCA a notice of suspension was issued to him meaning that he was not entitled to drive until the charge was finalised at court. These were proceedings H 53170057. Some 17 days later, on 27 November 2013 at Marrickville, the defendant was detected driving his motor vehicle and as a result was charged with the offence of driving whilst suspended. This was proceeding H 55153785. 2. The offence of 10 November 2013 was the second occasion that the defendant had been charged with an alcohol related offence. His record revealed that on 30 January 2013 he had been convicted in the Waverley Local Court of the offence of driving with the middle-range prescribed concentration of alcohol. 3. After some delay and following pleas of guilty being entered the charges from both 10 and 27 November 2013 came before his Honour Magistrate Mabbutt for sentence in the Downing Centre Local Court on 6 August 2014. I have had the benefit of perusing the original court papers in respect of both matters and have also been provided by Ms Duncan, who now appears on behalf of the defendant, with a copy of the transcript of the proceedings before Magistrate Mabbutt. Ms Duncan did not appear for the defendant at that time. 4. On the 6 August 2014, his Honour heard submissions from the defendant's solicitor and at page 4 of the transcript it indicates that in respect of the mid-range PCA charge the defendant was convicted and fined $2,500. He was also placed on a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for two years. In addition, he was disqualified from holding a driver licence for a period of two years from 6 August 2014 to 5 August 2016. In relation to the speeding offence and the offence of not carrying a driver licence, the defendant was convicted but pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 no further penalty was imposed. 5. In respect of the drive while suspended matter the defendant was convicted, fined $800 and disqualified from holding or obtaining a driver licence for a period of two years from 6 August 2014 to 5 August 2016. 6. Following his Honour making these orders, an application was made to him to consider the imposition of a disqualification suspension order, otherwise known as an interlock order. His Honour accepted that it was appropriate for an interlock order to be made. A consideration of the papers and the transcript reveals that his Honour then proceeded to make an interlock order pursuant to the then relevant provision, being s 210 of the Road Transport Act 2013, with a disqualification compliance period of 6 months and a minimum interlock participation period of 36 months. His Honour purported to make such an order in respect of both the mid-range PCA offence and the drive whilst suspended offence. 7. Page 5 of the transcript of 6 August indicates that the following was said at the time the interlock order was made: HIS HONOUR: I will explain to you what has happened, Mr Garrick. I have imposed an interlock order. That means you're disqualified now from driving any car other than a car fitted with the interlock device for 36 months, 3 years. The disqualification period for driving anything is reduced to 6 months. You can decide which of these options you want. You can be disqualified for two years driving anything or you go and pay the money and get your car fitted out to get the interlock order. That means you have got to stay off the road for 6 months and you can't drive any car other than that fitted car for 36 months, so if you are found in the next 3 years driving anything other than that car you have got the device fitted to, you will be treated as a disqualified driver. Do you understand that? ACCUSED: I do. 1. No issue is taken by the defendant that his Honour was perfectly entitled to make the interlock order in respect of the mid-range PCA matter. The issue raised by the defendant is that there was no entitlement for the court to make an interlock order in respect of the drive while suspended charge. It is clear that the defendant is correct in this submission. The drive while suspended matter was not an alcohol related offence to which the interlock provisions of the Road Transport Act 2013 applied and accordingly, those proceedings should be reopened pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 and a fresh penalty imposed. That of course gives rise to the question of what that fresh penalty should be. 2. Ms Duncan, who has made both oral and written submissions to me, is instructed that the solicitor then acting for the defendant advised him that he could drive a motor vehicle in 6 months' time from 6 August 2014 on the basis that he had the interlock device fitted for a further 36 months. She submits that it was the intention of the magistrate that Mr Garrick be permitted to drive with an interlock device after a period of 6 months of disqualification. She observes, and this is confirmed from the transcript, that the periods of disqualification were to run concurrently for both the mid-range PCA and the charge of driving whilst suspended. She submits that the only way to achieve the outcome that the court intended is to reopen the proceedings for the drive while suspended charge, amend the conviction and impose a penalty being a s 10(1)(b) bond. She notes that for the purposes of s 43 of the Crimes (Sentencing Procedure) Act 1999 the disposition of the matter pursuant to s 10 falls within the definition of a penalty. 3. Ms Duncan submits that in reliance upon the remarks of the magistrate concerning the interlock period, and given the subsequent confirmation of that order by his solicitor, the defendant believed that he could take up an interlock device after 6 months and recommence driving. She said that as a consequence he did not lodge an appeal which he otherwise would have. Further, he purchased a motor vehicle with a loan of $19,000 so as to have the interlock device fitted. She says that these are all matters that the court is now able to take into account in determining this application. 4. Section 43 of the Crimes (Sentencing Procedure) Act 1999 provides a mechanism by which a court may re-open proceedings to correct sentencing errors. Ms Duncan submits that as there was a sentencing error made in the disposition of the drive while suspended charge, the proceedings should be reopened and a further penalty imposed. Relevantly for the purposes of this matter, s 43 applies to criminal proceedings in which a court has imposed a penalty that is contrary to law. In that event the court may re-open the proceedings and impose a penalty in accordance with the law and if necessary amend any relevant conviction or order. The words "impose a penalty" include the court making orders under s 10 or making an order in respect of disqualification of a driver licence. 5. Importantly, the section does not allow for the court to amend a conviction in the manner submitted by Ms Duncan. In my view a conviction may only be amended if it is one that is imposed contrary to law, that is, without any legal basis whatsoever. Further it is clear that the intention of the magistrate was always that the defendant be convicted. That this is so is abundantly clear from the fact that a penalty was imposed, albeit an incorrect one. 6. Here the defendant was convicted of the drive while suspended charge on the 6 August 2014. Relevantly, and prior to that date, he had a prior mid-range PCA of which he had been convicted on 30 January 2013. On conviction for the drive while suspended offence and given the terms of s 54 of the Road Transport Act 2013, the defendant was automatically disqualified (with or without any specific order of the court), for a period of two years from the date of conviction. No other disqualification was properly open to the court. 7. Despite this, the court after convicting the defendant imposed a fine and purported to then impose an interlock order. I accept that it had no power to do so and that such order was contrary to law. That being the case I further accept that it is open to me to re-open the proceedings and impose a penalty that is in accordance with the law. I do not accept that I can do what Ms Duncan urges, being, to look behind the fact of the conviction imposed by the magistrate. The conviction itself was not contrary to law. It was a penalty open to the court and accordingly to that extent there was no sentencing error. It was always open to the defendant to appeal his conviction if he thought that it was appropriate to do so. For whatever reason, he did not do so and it is not now open for this court to in effect sit as an appellate court in respect of the decision of another magistrate. 8. It is submitted by Ms Duncan that the magistrate had intended the defendant to be eligible to drive with an interlock device after 6 months disqualification. If that were the case, then so far as that intention is evinced from the interlock order for the drive while suspended charge, there has been a sentencing error. Upon conviction for that offence and given his record there could only ever be available an automatic period of disqualification of 2 years (see s 54 (8) and (9), Road Transport Act 2013). In reality Ms Duncan seeks to have me re-determine the fact of the defendant's conviction. I do not accept that I have any power to do so. 9. Section 43 of the Crimes Sentencing Procedure Act 1999 was considered by the Court of Criminal Appeal in Achurch v R (No 2) [2013] NSWCCA 117 where it was held: 1. that to re-open there must be an error which leads to a penalty that is contrary to law, and 2. that section 43 is a discretionary provision intended to correct manifest error in the sentence itself, and 3. that s 43 is not an alternate to appeal and must not be used to effectively lead to a lack of finality in criminal proceedings. 1. In my view, the conclusion that I have reached in respect of my inability to deal with the matter in the way that Ms Duncan has submitted is consistent with what the Court of Criminal Appeal said in R v Achurch. Further, the section does not permit the re-litigation of what has already been litigated or the seeking of a different outcome based on fresh evidence: see Bungie v R [2015] NSWCCA 9. To do other than that which I propose would in my view be to re-litigate the sentencing proceeding in an impermissible way. 2. I accept that there has been a sentencing error in that the court had no power to impose an interlock order for the drive whilst suspended offence. I am of the view that the appropriate course is for me to re-open sentencing proceedings pursuant to s 43 and to impose a disqualification period which is in accordance with the law, being for a period of 2 years to date from 6 August 2014.​ 1. ORDERS 1. I reopen the sentence proceedings in H55153785 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 determined on 6 August, 2014. 2. The disqualification/suspension order dated 6 August, 2014 is set aside. 3. In lieu the defendant is disqualified from holding or obtaining a driver licence pursuant to the Road Transport Act for a period of 2 years from 6 August 2014. Deputy Chief Magistrate C O'Brien Downing Centre Local Court 30 September 2015 ********** 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: 18 May 2016