Local Court New South Wales Medium Neutral Citation: Application by Mouhammed Masri for removal of driver licence disqualification [2018] NSWLC 16 Hearing dates: 22 August and 31 August 2018 Decision date: 31 August 2018 Jurisdiction: Criminal Before: Magistrate Still Decision: See [24]. Catchwords: APPLICATION – Special Jurisdiction – application for removal of drive licence disqualification period – meaning of relevant offence free period – offence committed outside relevant period - date to be used for calculation of relevant threshold for making application - whether date offence committed or date of conviction applies – date of conviction not impediment to making of application, however date of conviction relevant to whether Local Court can exercise power to remove disqualification Legislation Cited: Road Transport Act 2013 (NSW) ss 221A, 221B, 221D Texts Cited: Explanatory Note, Road Transport Amendment (Driver License Disqualification) Act 2017 (NSW) New South Wales, Parliamentary Debates, Legislative Assembly, 12 September 2017 (Mark Speakman, Attorney General) Category: Principal judgment Parties: Mouhammed Masri (applicant) Representation: Solicitors: Mr B Sandland, for the applicant File Number(s): 2018/00204233 Publication restriction: Nil Judgment 1. HIS HONOUR: The matter before the Court for decision is a matter of Mouhammed Masri. Mr Masri has applied to the Local Court to remove a driver license disqualification imposed on him. His current traffic record makes it quite clear that Mr Masri's last offence occurred on 15 June 2016; that being an offence of drive while disqualified, but he was not convicted of that offence until 25 October 2016 at Parramatta Local Court; and he was then disqualified for 2 years. 2. It is that disqualification plus an outstanding habitual offender declaration period that he seeks to attack via his application. In simple terms, the argument advanced by Mr Sandland of Legal Aid on behalf of Mr Masri is that on a proper construction of the legislative provisions in Division 3A of the Road Transport Act 2013 (NSW), the relevant date to be used for calculation of the 2 year threshold is not the date of conviction but the date of the offence. I will come to that shortly. 3. Mr Sandland says that the legislation is beneficial and it should be interpreted in a way which supports the ability of an applicant to bring the matter to the Court without bars that are not otherwise specifically put in place. I agree. I have had regard to his submissions and those made by Mr Wozniak on behalf of the RMS, however, I don't consider them relevant to the issue to be determined. 4. I say that because 'relevant offence-free period' is defined in s 221A of the Road Transport Act 2013 as follows: relevant offence-free period, in relation to a disqualified person who has applied under this Division for the removal of his or her licence disqualifications, means: 1. 4 years, if the person has been convicted of any of the following offences within the period of 4 years before the determination of the person's application by the Local Court under this Division (whether or not the licence disqualification imposed for that offence has been completed): 1. a major offence, or 2. an offence of exceeding a speed limit prescribed under this Act by more than 30 kilometres per hour, or 3. an offence against section 115 (1), 116 (2) or 117 (2), or 4. any other offence prescribed by the statutory rules, or 1. 2 years, if all those licence disqualifications were imposed by this Act because the person was declared (or taken to have been declared) an habitual traffic offender under Division 3 (as in force immediately before its repeal), or 2. 2 years, in any other case. 1. It's quite clear from that description of 'relevant offence-free period' that the only reference to conviction is that contained in paragraph (a). There is no reference in (b) or (c) to a two-year period of any requirement for a conviction. That 'relevant offence-free' period sets the framework within which Mr Masri can lodge an application. It is agreed between the RMS and Mr Sandland that in his case, it is the period of two years. 2. It appears from the description of the 'relevant offence-free period' that Mr Masri is required to be offence‑free for two years. 3. Section 221D of the Act sets out the classes of persons "not eligible to apply for removal of licence disqualification". 4. Subsections 221D(1) and (2) do not apply to Mr Masri. 5. Subsection 221D(3) does. It says: A disqualified person is also not eligible to make an application to the Local Court for the removal of a licence disqualification under this Division if the person has committed a driving offence during the relevant offence-free period before the making of the application that would preclude the making of an order to remove those licence disqualifications. That section specifically refers to whether the person has "committed a driving offence". 1. 'Driving offence' is defined in s 221A of the Act as follows: driving offence means : (a) a major offence, or (b) an offence under the road transport legislation that relates to the driving of a motor vehicle (other than a parking offence). 1. Mr Masri committed an offence of drive while disqualified which is not a major offence. His offence is clearly however in terms of paragraph (b), an offence under the road transport legislation relating to the driving of a motor vehicle. 2. The question is, has Mr Masri, "committed an offence against the road transport legislation during the relevant offence-free period"? The answer to that is, no, he has not committed an offence against the road transport legislation in the two years preceding his application because the drive while disqualified offence occurred on 15 June 2016, which is outside the 2 year period in which he makes his application. 3. It follows, therefore, that there is no impediment to him making an application. He has committed a "driving offence" but it's outside the two years. The date of conviction on that construction of the legislation is irrelevant. The only relevant date can be the date of the offence, and here it is outside the 2 year period prior to his application. 4. In my view, the gateway to him making an application is open on my construction of that legislation. 5. The sticking point, and the one relied upon in part by Mr Sandland, are the provisions of s 221B. 6. Section 221B says: (1) The Local Court may, by order on application made in accordance with this Division, remove all licence disqualifications to which a disqualified person is then subject if: (a) the disqualified person has not been convicted of any driving offence for conduct during the relevant offence-free period before the removal of the licence disqualifications, and (b) the Local Court considers that it is appropriate to do so. 1. What work has that provision to do - it's a very clumsy provision. As I've already said, the prerequisite is that Mr Masri has made an application in accordance with the Division, but it's also clear, having regard to 221B(1)(a) that Mr Masri has, in fact, been convicted of a driving offence for conduct during the relevant offence-free period i.e. the 2 year period before his application was made. Much is made by Mr Sandland of the words in that provision "for conduct". His submission being that it can only refer to the date of the offence. However, conduct is not defined anywhere in the Act. But Mr Masri, as I've already said, was convicted of a driving offence for conduct that arose during the relevant offence-free period. 2. 'Conduct' in s 221B(1) (a) can only refer to the date of the relevant driving offence. It follows, in my view, that the Local Court is unable to make a decision under s 221B where the prerequisite in s 221B(1)(a) has not been made out. Further to that, I note that in Masri's application for removal of the licence disqualification, he ticked the box against "I have not been convicted of any driving offence during the relevant offence-free period." In fact he had. 3. In construing s 221B regard can be had to the second reading speeches in Parliament -not that they are of great assistance - but there was a second reading speech on 12 September 2017 given by the Attorney‑General, Mark Speakman. 4. On my interpretation of the legislation, the situation is not as clear cut as he states, but he did say of the legislative changes they: "…will enable a disqualified driver to apply to the Local Court to have their remaining disqualification period removed or reduced after they have been compliant with their disqualification period for a minimum period. The Court will only lift an order or reduce a driver disqualification period if the person has not been convicted of any driving offence for the duration of the relevant offence-free period. This will be four years for any disqualification arising from serious offences and two years in other cases-for example, where the applicant has been convicted of driving while disqualified, unlicensed, or low-level speeding offences". 1. The intention of the legislation appears there to be clearly expressed but I do not think on my construction that what the Attorney said is accurately reflected in the actual legislation. 2. The Explanatory Note to the Road Transport Amendment (Driver License Disqualification) Act 2017 at Schedule 1 [15] says: "An order may be made if the person has not been convicted of any driving offence for the relevant offence-free period (being four years for disqualifications arising from certain serious offences and two years in other case)". 1. It appears from the reading speech and explanatory note that it was the intention of the legislation that it was conviction for offences during the offence free period which was to be determinative. If that is the intention of the legislation, then while Mr Masri may make an application on my construction of the legislation, s 221B does not invest the Local Court with jurisdiction to consider the application because of the provisions of s 221B(1)(a). 2. In summary, while I consider that Mr Masri has a legitimate application in accordance with the legislation, the Local Court cannot deal with his application until such time as 2 years have passed from the date of his conviction for the offence of drive while disqualified, namely 25 October 2016. Magistrate Still Parramatta Local Court 31 August 2018 ********** 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 March 2019