Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Kmetyk (No 2) [2018] NSWCA 195 Hearing dates: On the papers Decision date: 03 September 2018 Before: Meagher JA; Leeming JA; Sackville AJA Decision: 1. Grant leave to the applicant to be heard in support of further orders. 2. Otherwise dismiss the notice of motion filed on 8 August 2018. 3. No order as to costs, with the intention that the parties bear their own costs. Catchwords: TRAFFIC LAW – statutory disqualification upon conviction for driving while disqualified – appeal against sentence – whether automatic stay of execution applied to disqualification consequence upon unchallenged conviction – Road Transport Act 2013 ss 54 and 207 – Crimes (Appeal and Review) Act 2001, s 63 Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 63 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Justices Act 1902 (NSW), ss 105, 127 Road Transport Act 2013 (NSW), ss 54, 207 Cases Cited: Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 Category: Consequential orders (other than Costs) Parties: Director of Public Prosecutions (NSW) (Applicant) Alison Lee Kmetyk (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: A Mitchelmore (Applicant) Solicitors: Solicitor for Public Prosecutions (Applicant) Hepmac Lawyers (First Respondent) Crown Solicitor (Second Respondent, submitting) File Number(s): 2018/69346 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Nil Date of Decision: 04 December 2017 Before: His Honour Judge Ellis DCJ File Number(s): 2017/00246292 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: Ms Alison Kmetyk pleaded guilty to an offence of driving while suspended, contrary to s 54(3) of the Road Transport Act 2013 (NSW), and was convicted in the Local Court on 21 September 2017. Her licence was suspended until 31 October 2017. Ms Kmetyk appealed against her sentence to the District Court. When that appeal was heard on 4 December 2017, the District Court set aside her conviction, reconvicted her and imposed a lesser sentence. By judgment delivered on 19 July 2018, this Court set aside the orders made by the District Court for jurisdictional error: Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156. Relevantly, what was left in place was Ms Kmetyk's conviction on 21 September 2017, and a statutory disqualification for 12 months effected by s 54(8) of the Road Transport Act in the form it then took: "(8) Automatic disqualifications apply for certain offences If a person is convicted by a court of an offence against subsection (1), (3), (4)(a) or (5), 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. Note: Section 207 provides for the effect of a disqualification (whether or not by order of a court)." The "relevant disqualification period" in the present case was 12 months. 1. What was and is controversial is the effect of s 63 of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") upon the 12 month automatic period of disqualification following Ms Kmetyk's conviction. It appears to be the case that the parties proceeded on the basis that while Ms Kmetyk's appeal against sentence was pending, time did not run for the purposes of the s 54(8) period of disqualification. In its judgment, this Court construed s 63 so that it did not apply to stay the automatic disqualification of Ms Kmetyk by reason of her conviction. The Court took the view that s 63 did not apply because Ms Kmetyk had not challenged her conviction, but only her "sentence" (which did not include the automatic period of disqualification). 2. The practical consequence for Ms Kmetyk is that on the construction indicated in this Court's earlier judgment, the 12 months for which she is disqualified commenced on 1 November 2017 and will expire on 31 October 2018 (at which stage she may apply if she chooses for a new licence). On the construction on which the parties appear to have proceeded, and for which the Director of Public Prosecutions has applied for leave to be heard further, the 12 months commenced on 4 December 2017 when her appeal to the District Court was determined, and will expire on 3 December 2018. 3. Further, it may be that Ms Kmetyk was driving in the period from 1 November 2017 until 4 December 2017 in the belief that the statutory disqualification period did not start while her appeal was pending. There is no evidence one way or the other as to whether she was using her licence or, if she was, what her state of mind at the time was. 4. This Court addressed the question of construction tentatively, conscious that the parties had not had a full opportunity to be heard on the point, given the basis on which they had proceeded. It is as well, in order that this judgment stands alone, to reproduce the entirety of the reasoning on this issue, which was at [45]-[61]: 'When the appeal was heard, the parties appeared to proceed on the common basis that (a) s 63(1)(b) read with s 63(2) had the effect of staying the operation of the automatic disqualification of Ms Kmetyk's licence while her appeal to the District Court was pending, and (b) s 207(6) meant that some or all of those approximately 10 weeks were to be disregarded for the purposes of calculating the period of disqualification imposed upon her. The Court raised with the parties the unlikelihood that statute would on the one hand automatically impose a period of disqualification with a stay during the pendency of an appeal, but on the other hand would then provide that irrespective of the outcome of the appeal, time continued to run. If that were the proper construction, then there would be an incentive to bring meritless appeals and to prolong them to take advantage of the automatic stay during which period time continued to run, directly contrary to the statutory purpose of imposing a sanction independently of the sentencing process. The Court gave both parties the opportunity to be heard further on that construction, and written submissions were received on 10 and 12 July 2018. The Director submitted, by reference to Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151, that s 207(6) should be construed as applying in its entirety to all disqualifications made as a consequence of a person being convicted, with the result that the period from 1 November 2017 until 4 December 2017, during which the stay effected by s 63 was in force, should be disregarded. The result was, according to the Director, that Ms Kmetyk's period of disqualification would not end until 4 December 2018. Ms Kmetyk agreed that s 207(6) 'precludes the absurd outcome of one filing an appeal, having the benefit of the stay of the disqualification period and never having to serve the driving disqualification for the period of time the appellant had the benefit of the stay.' She agreed with the construction propounded by the Director. In light of the way the issue emerged during the hearing, it is understandable that the parties' supplementary submissions were directed to the construction of s 207(6). However, it may be that the key to the effect of these two provisions is to consider s 63(1) in its terms, and in particular to notice the easily overlooked words 'in respect of which' in s 63(1) and 'any such sentence' and 'any such ... disqualification or loss or suspension of a licence' in s 63(2). It is convenient to reproduce the provisions again, emphasising those words: '63 Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged ...' The relative pronoun 'which' and the relative adjective 'such' both require reference to an antecedent noun which has appeared previously in the provision. In each case, there is some subtlety in parsing the language. First, the words 'in respect of which' in s 63(1) plainly apply distributively, to each of the cases mentioned in paragraphs (a) and (b). In cases where s 63(1)(a) applies, the antecedent of 'which' is 'sentence'. In cases where s 63(1)(b) applies, the antecedent of 'which' is potentially ambiguous. As a matter of grammar, it is necessarily a noun in paragraph (b), but it could refer to the 'conviction'; alternatively, it could refer to the 'penalty, restitution etc' earlier in paragraph (b). However, the statute must be read as a whole, and it makes provisions for and distinguishes between appeals against conviction and appeals against sentence. It is tolerably clear, having regard to the nature of appeals (which are against conviction or sentence) and the structure of the subsections, that the word 'which' must refer, in a case to which paragraph (b) applies, to the 'conviction'. Secondly, s 63(2) does not apply to every sentence and every statutory penalty, restitution, etc to which an appellant is subject. That is because of the words 'such' in subsection (2). The word 'such' can give rise to debate, in part because it is used in a number of senses, some of which are less than precise, as has long been recognised: see In re Godfrey [1921] SASR 148 at 152. However, the symmetry between paragraphs (a) and (b) in s 63(1) with the words following each instance of 'such' in s 63(2) means that the words following 'such' in subsection (2) correspond with the 'sentence' in (1)(a) and the 'penalty ... disqualification or loss or suspension of a licence' in (1)(b). The force of 'such' is that s 63(2) only applies to (i) a particular sentence, in the case of paragraph (a) being made applicable, or (ii) to a particular penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension, in the case of paragraph (b) being made applicable. Importantly, s 63(1) only applies when the sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension is one 'in respect of which an appeal or application for leave to appeal is made'. Contrary to what appears to have been the shared assumption of the parties, the stay effected by s 63(2) appears not to operate upon all penalties, disqualifications, losses or suspensions of a licence imposed upon a person who has filed an appeal. The stay effected by s 63(2) appears to apply only upon the sentences, penalties, disqualifications, losses or suspensions of a licence to which the section applies, namely, 'such' sentences or 'such' penalties, disqualifications, losses or suspensions of a licence as are made applicable by s 63(1), which is to say, those in respect of which an appeal, or application for leave to appeal, has been brought. Ms Kmetyk appealed against her sentence. It is clear that the execution of the fine imposed by the Local Court was 'the execution of any such sentence' and was stayed while her appeal remained undetermined. To the extent that the Local Court ordered that she be disqualified for a period of 12 months as a result of her conviction, that too is part of the sentence imposed by the Court, and was stayed while her appeal remained undetermined. For the reasons already stated, such an order was not authorised and misapprehended the operation of s 54(8). As Fagan J observed in Director of Public Prosecutions (NSW) v Armstrong at [13], 'The making of the order did not displace or alter the operation of the statute; the order was simply redundant'. However, although the statutory disqualification effected by former s 54(8) upon Ms Kmetyk being convicted readily answers the description of a 'disqualification or loss or suspension of a licence', it does not follow that it is a disqualification or loss or suspension of a licence in respect of which her appeal had been made. The better view appears to be that it is not. When a person appeals his or her sentence, but not his or her conviction, and a disqualification is automatically imposed by statute upon the conviction, then it would seem to follow that the disqualification in not one 'in respect of which' the appeal has been made. To the contrary, the person has chosen not to appeal against conviction, and that choice carries with it the consequence of not appealing against the automatic consequences statute attaches to that conviction. If the construction propounded above is correct, then what follows is this. 1. In the case of an appeal against conviction, a disqualification arising under the Act upon the conviction is 'any such ... disqualification or loss or suspension of a licence or privilege' to which s 63(2) applies. Accordingly, the operation of the disqualification is stayed while the appeal is pending. 2. In the case of an appeal against sentence, the execution of the sentence is stayed while the appeal is pending. However, a disqualification arising under the Act is not relevantly a 'sentence' and not the consequence of a conviction in respect of which there is an appeal, or application for leave to appeal. Accordingly, the operation of the disqualification is not stayed while the appeal is pending. On that construction, it also follows that the construction of s 207(6) does not arise in this appeal, for there was no relevant stay of execution under s 63. The unlikely consequences mentioned above do not arise in this case, although it may not have been appreciated at the time that the disqualification remained in force while the sentence appeal was pending. There remain some difficulties with the construction indicated above. One is how it operates when there is an appeal against sentence and the appellant seeks a s 10 order. Another is reconciling the above with the 'permanent' disqualification effected by s 207(1). There may be others. I am also conscious that the parties seem to have proceeded upon an assumption that s 63 operates more expansively, and have not been heard as to the construction outlined above. In those circumstances, it is appropriate to make final orders in respect of those issues as to which the parties have been fully heard, and permit either party to be heard further as to the operation of s 63 read with s 207(6)." 1. This Court made orders permitting the parties to be heard further, if they chose, on the issue. By notice of motion filed on 8 August 2018 (within a period which had been extended consensually) the Director has applied to be heard further, by way of written submissions. Ms Kmetyk has indicated that she does not wish to be heard further. The Director has advised that he is content for the Court to determine the application on the papers. 2. It is appropriate to grant leave to the Director to be heard further on a point which is of general importance and not without complexity, and in respect of which without fault by any party full submissions had not previously been made. The Director's further submissions 1. The Director accepts that there is much force in the construction explained in this Court's previous judgment, namely, that the stay effected by s 63 applies only to (relevantly) disqualifications, losses or suspensions of a licence as are made applicable by s 63(1), which is to say, those in respect of which an appeal, or application for leave to appeal, has been brought. However, he submits that there is an alternative construction, such that: "s 63(1) would be read in a manner that: (a) focuses upon the reference, at the conclusion of the subsection, to the making of "an appeal or an application for leave to appeal" (emphasis added), which would cover an appeal or application for leave in respect of conviction or sentence, or both; and (b) construes paragraphs (a) and (b) of s 63(1) as intending to cover the field of orders and other statutory consequence which may arise under an Act by reason of a conviction." 1. The Director submits that: "On that construction of s 63(1), s 63(2)(a) would operate to stay the execution of 'any such' sentence and 'any such' statutory penalty when, relevantly for present purposes, a notice of appeal or application for leave – in relation to conviction, or sentence, or conviction and sentence – is duly lodged". 1. That is to say, the Director propounds the construction which was implicitly applied by the parties, which in its application to the facts of this case, means that there was a stay of the statutory disqualification upon conviction, even though Ms Kmetyk's appeal was only against sentence. 2. The Director submits that this construction may better reflect the purpose of the section. He submits that the use of "any" between s 63(1)(a) and (b) and in s 63(2) is consistent with the general application of the words "an appeal" and "an application for leave to appeal" at the conclusion of s 63(1), such that any appeal will operate to stay the operation not only of a sentence, but also any other statutory consequence, pending its resolution. 3. The Director makes three submissions as to the operation of the provisions. First, he submits that the construction would better accommodate an appeal against sentence in which the appellant contended that the sentence be varied so as not to record a conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. Secondly, he submits that this construction would lead to consistent results in cases when an appeal is brought in a case where a statutory disqualification period is in place, and in cases where a magistrate orders a greater or lesser period of disqualification. Thirdly, he submits that this will discourage the bringing of conviction appeals for the sole purpose of effecting a stay of the statutory disqualification period, while preserving the utility of a conviction appeal where the sentence imposed may ultimately fall away if the conviction is set aside. 4. The Director noted that the disqualification effected by s 207(1) of the Road Transport Act would not be affected by this construction. He submitted that the extrinsic material was relevantly unhelpful, and that there was no authority touching on the issue. He noted that the statutory predecessors of s 63 were ss 105 and 127 of the Justices Act 1902 (NSW), provisions which even more clearly than s 63 focussed on the orders made by the Local Court rather than the statutory consequence of a conviction. Consideration 1. As is accepted by the Director, there is no clear-cut answer to the question of construction. It seems likely that s 63 and its predecessors were drafted in a fashion which focussed upon the need to stay the effect of orders imposed by the Local Court in order to maintain the efficacy of the right of appeal, without necessarily giving close consideration to the automatic statutory consequences of a conviction. The Director properly exposes the difficulties (flagged at [60] of this Court's earlier judgment) where a person pleads or is found guilty, seeks an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 but where the Local Court records a conviction and imposes, say, a fine. In those circumstances, the person has a right of appeal against sentence, but on the construction outlined in the earlier judgment the person will be disqualified until such time as the appeal is heard. If the appeal is allowed and the conviction set aside and an order under s 10 made in lieu, then the person will have in fact been disqualified for a period of time which, having regard to the outcome of the appeal, should not have occurred. 2. On the other hand, there are real difficulties with the alternative construction outlined by the Director. It seems passing strange that a person like Ms Kmetyk, who pleaded guilty and did not ask for an order under s 10 should, by dint of exercising her right to appeal against the fine imposed on her, achieve a stay of the disqualification imposed by statute. That can scarcely effectuate the purpose of the automatic period of disqualification for a conviction, and it would seem to encourage meritless appeals against sentence. 3. Nor is a stay of the automatic period of disqualification necessary to ensure that the appeal against sentence is not rendered futile. A successful appeal against sentence will not, except in the case of an order under s 10, affect the automatic disqualification effected by statute. 4. In an area such as this where improbable outcomes are unavoidable and reference to legislative purpose and extrinsic materials unhelpful, the appropriate course is to respect the ordinary meaning of the statutory text. The grammatical structure of s 63(1) is quite careful, and reflects a distinction between appeals against sentence and appeals against conviction. The legal meaning outlined in this Court's earlier judgment is the natural meaning of the language. The Director candidly accepts the force of that construction. 5. The competing construction raised by the Director devalues the elaborate structure of the legislation, in the form of the distinction in paragraphs (a) and (b) of subsection (1) and the linking of the descriptions in subsection (1) with the same terms in subsection (2) preceded by "any such". What emerges clearly from the elaborate and qualified drafting in s 63 is that the stay does not extend to all consequences of a conviction in every appeal. Most of the words in s 63 would be verbiage if its meaning was to stay the operation of every penalty imposed, whether by court order or directly by statute, during the pendency of every appeal, whether against conviction or sentence. Orders 1. For those reasons, the preferable construction of s 63 is that outlined in this Court's earlier judgment, reproduced above. The consequence is that Ms Kmetyk's period of disqualification will end on 31 October 2018. None of the additional orders sought by the Director should be made. Noting that neither party sought costs, there should be no order as to the costs of the motion. ********** Amendments 03 September 2018 - [5], second sentence: change "produce" to "reproduce". [13], third sentence: "s" added to "provision" and comma moved to precede "provisions". 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: 03 September 2018