There have been a number of changes to this offence provision – particularly after the decision of Director of Public Prosecutions v Partridge [2009] NSWCCA 75 (25 March 2009). The current legislation is set out below. It is significant to note that the automatic periods of disqualification flow from the person being convicted of the offence – see s54(8).
ROAD TRANSPORT ACT 2013 – SECT 54
Offences by disqualified drivers or drivers whose licences are suspended or cancelled
(cf DL Act, s 25A (1)-(10))
(1) Driving or making licence application while disqualified A person who is disqualified from holding or obtaining a driver licence must not:
(a) drive a motor vehicle on a road during the period of disqualification, or
(b) make an application for a driver licence during the period of disqualification and in respect of the application:
(i) state the person’s name falsely or incorrectly, or
(ii) omit to mention the disqualification.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(2) Subsection (1) does not apply to a driver of a motor vehicle in relation to a period of disqualification the commencement and completion dates of which have been altered by operation of section 206 unless the Authority has given written notice of the altered dates to the driver before the driver is alleged to have driven the vehicle.
Note: Section 276 (and statutory rules made for the purposes of that section) provide for the service and giving of documents to persons under the road transport legislation, which includes this Act.
(3) Driving or making licence application while licence suspended (other than for non-payment of fine) A person whose driver licence is suspended (otherwise than under section 66 of the Fines Act 1996 ) must not:
(a) drive on a road a motor vehicle of the class to which the suspended driver licence relates, or
(b) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application:
(i) state the person’s name falsely or incorrectly, or
(ii) omit to mention the suspension.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(4) Driving or making licence application after licence refusal or cancellation (other than for non-payment of fine) A person whose application for a driver licence is refused or whose driver licence is cancelled (otherwise than under section 66 of the Fines Act 1996 ) must not:
(a) drive on a road a motor vehicle of the class to which the cancelled licence or the refused application related without having subsequently obtained a driver licence for a motor vehicle of that class, or
(b) make an application for a driver licence for a motor vehicle of the class to which the cancelled licence or the refused application related and in respect of the application:
(i) state the person’s name falsely or incorrectly, or
(ii) omit to mention the cancellation or refusal.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(5) Driving or making licence application after licence cancelled or suspended for non-payment of fine A person whose driver licence is suspended or cancelled under section 66 of the Fines Act 1996 must not:
(a) in the case of a suspended driver licence:
(i) drive on a road a motor vehicle of the class to which the suspended licence relates, or
(ii) make an application for a driver licence during the period of suspension for a motor vehicle of the class to which the suspended driver licence relates and in respect of such an application state the person’s name falsely or incorrectly or omit to mention the suspension, or
(b) in the case of a cancelled driver licence:
(i) drive on a road a motor vehicle of the class to which the cancelled licence related without having subsequently obtained a driver licence for a motor vehicle of that class, or
(ii) make an application for a driver licence for a motor vehicle of the class to which the cancelled licence related and in respect of the application state the person’s name falsely or incorrectly or omit to mention the cancellation.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(6) In determining any penalty or period of disqualification to be imposed on a person for an offence against subsection (5), a court must take into account the effect the penalty or period of disqualification will have on the person’s employment and the person’s ability to pay the outstanding fine that caused the person’s driver licence to be suspended or cancelled.
(7) No need to state previous licence cancellation or refusal in certain cases For the purposes of subsection (4) (b) or (5) (b) (ii), a person who applies for a driver licence for a class of motor vehicle need not mention a previous cancellation of a driver licence (or refusal of an application for a driver licence) for that class of motor vehicle if the person has obtained a driver licence after any such cancellation or refusal by means of an application that stated the person’s name correctly and mentioned the cancellation or refusal.
(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).
(9) For the purposes of subsection (8), the
“relevant disqualification period” is:
(a) in the case of a first offence against subsection (1), (3) or (4) (a)-12 months, or
(b) in the case of a first offence against subsection (5)-3 months, or
(c) in the case of a second or subsequent offence-2 years.
(10) The disqualification referred to in subsection (8) is in addition to any penalty imposed for the offence.
(11) Offences extend to disqualifications, suspensions and cancellations by court order or under law Subsections (1), (3) and (4) apply to a person who is disqualified from holding a licence, or whose licence is suspended or cancelled, by a court in Australia or under any law in this jurisdiction or another jurisdiction.
(12) Statutory rules may exclude driving of certain motor vehicles Subsections (1), (4) (a) and (5) (b) (i) do not apply to the driving of a motor vehicle in circumstances prescribed by the statutory rules.
R v AHMED [2008] NSWDC 380 (31 October 2008)
Last Updated: 28 September 2010
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v AHMED [2008] NSWDC 380
FILE NUMBER(S):
2009 / 2232
HEARING DATE(S):
13 March 2008
22 April 2008
22 October 2008
31 October 2008
JUDGMENT DATE:
31 October 2008
PARTIES:
The Crown
Samar AHMED
JUDGMENT OF:
Bennett SC DCJ
COUNSEL:
SOLICITORS:
Mr A Kirupaidasan – DPP
Mr R Bartley – R J Bartley & Associates
CATCHWORDS:
CRIME – Appeal against penalty – 2 driving offences committed on the same day – subsequent convictions entered on the same day – whether the latter offence was a “second or subsequent offence” for the purposes of imposing penalty under s 25(2) Road Transport (Driver Licensing) Act 1998 – both offences dealt with as “first offences”
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999; s 10A
Road Transport (Driver Licensing) Act 1998; s 25A
Traffic Act 1925 (Tas); s 41
CASES CITED:
Clarke v Bradlaugh (1881) 8 QBD 63
Edwards v The Queen [1854] EngR 276; (1854) 9 Ex. 628
re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy [1938] Ch 725
The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1
R v Miller [1986] 2 Qd R 518
O’Hara v Harrington [1962] Tas SR 165
Prowse v McIntyre and Others (1961) 35 ALJR 373
Shane William Johnson v R [2008] NSWDC 47
TEXTS CITED:
DECISION:
At [32]
JUDGMENT:
IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION
2008 / 2232
BENNETT SC DCJ
Friday 31 October 2008
R v AHMED
IN THE MATTER OF THE APPEAL OF SAMAR AHMED
Introduction
The Grounds of Appeal
3 The grounds upon which the appeal is brought are first, that the learned Magistrate erred in the application of the legislation providing for the disqualification periods, and secondly, that the penalties are too severe.
Applicable Penalties
5 The disqualification periods provided for this offence are mandatory upon conviction. For a first offence it is twelve months and in the case of a second or subsequent offence two years: s 25A(10) Road Transport (Driver Licensing) Act .
The Argument
6 The Appellant argues that although convicted of two separate offences of driving whilst suspended, because the determination of both offences occurred on the same day in the same hearing they were to be seen in each case as first offences.
The Facts
8 About 5.30pm on 23 December 2007 she was selected randomly for a breath test. Her cycle did not have a P Plate displayed as required. She produced her licence, but when checked it was found to have been suspended. Her explanation for riding the cycle knowing her licence was suspended was, “Passion”. I take that to be a reference to her passion for the riding of her motorcycle.
9 She was issued with a field Court Attendance Notice for that offence and told not to ride again. Unfortunately, about 6.15pm the same day, she was seen riding her motorcycle. I understand her explanation to be that she was simply taking her motorcycle home from where she was stopped on the first occasion.
Submissions
10 Mr Bartley submits on her behalf that the legislation has not abrogated fundamental principles of the common law, namely, that a judicial act relates to the day on which it is performed without reference to the precise time at which it was completed. A judgement of conviction is a judicial act, and so, when the defendant suffers two convictions in contemporaneous proceedings determined on the same day, neither one has priority over the other, regardless of the actual sequence in which the determination was made, and regardless of the temporal disparity between the commission of the offences in respect of which judgment was passed.
11 Furthermore, the reference to second or subsequent offences, properly understood, is a reference to second or subsequent offences that are committed after conviction.
12 To this submission I would add the observation that it is fundamental to our system of criminal justice that a person accused of an offence is presumed to be innocent unless and until the essential ingredients of the offence alleged are proved beyond reasonable doubt to the satisfaction of the judicial officer or jury called upon to determine the proceedings. This is so regardless of any assessment that the prosecution case is a strong one. A person accused of an offence is entitled to have the case against them established to the requisite standard and until that has been done they are not exposed to any penalty.
13 If the legislation intended that for purposes of the imposition of penalty priority was to be determined according to the sequence in which an offence was committed, language making that intention clear would be expected in the relevant provisions. I have found no provision that provides such a clear expression of intention in my review of the legislation, and none has been brought to my attention.
Consideration of Authority
15 The Court of Appeal held that the issue of writ of summons was not a judicial act, and accordingly the court could enquire whether or not the Writ was in fact issued after the accrual of a cause of action upon which it was issued. Lord Coleridge CJ, page 65, said the following,
“The defendant has contended that there is a principle of law, for which great authorities have been cited, that the law takes no regard of fractions of a day, that a writ must be taken to refer to the first moment of the day on which it is issued, and that a writ of summons is a writ within the meaning of the rule, so that the writ in this case was issued before the penalty could have been incurred. I am of the opinion that, having regard to the authorities and the reasons for them, there has been a distinction taken between various kinds of writs, and that this distinction is as old as the rule upon which the defendant relies and of the same authority. It might perhaps be also found, though it is not for us on the present occasion to decide, that even of two judicial acts done on the same day, the court would inquire, if it were necessary, which was done at the earlier time of day.”
16 And then shortly thereafter he wrote,
“I do not therefore recognise the universality of the rule even as to judicial acts.”
17 Lord Justice Brett said at page 68,
“As for the rule that judicial acts relate back to the earliest moment of the day, I know of no principle on which it can be founded. It is an unofficial rule, declared for a long number of years to be a part of common law procedure, and therefore it is to be assumed to be as old as the common law itself. But it is to be applied in the same way as it was applied when first promulgated. The question is whether those who promulgated the rule declared the issuing of a writ to be the act of a party, or whether they declared it to be the act of the court.”
18 The remarks concerning a judicial act and the question of whether enquiry can be made as to priority between judicial acts on the same day was not resolved in that decision.
19 I was invited to a further decision from the United Kingdom in re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy, a decision in 1938. It was a decision concerned with bankruptcy proceedings and reference was made to Clarke and Bradlaugh, ibid.
20 Luxmoore J delivered the judgment of the court. His Lordship was concerned with determining the meaning of the words, “before the date of the receiving order”. His Lordship noted that it was a rule of law that a judicial act is deemed to have been performed at the earliest moment of the day on which it is in fact performed and referred to Edwards v The Queen [1854] EngR 276; (1854) 9 Ex 628, 631 and 632 in which Coleridge J said,
“The doctrine that judicial acts are to be taken always to date from the earliest minute of the day on which they are done, stands upon ancient and clear authority.”
21 Luxmoore J concluded,
“In our judgment the making of a receiving order in the present case was a judicial act and must in accordance with the rule be referred back to the earliest moment of March 15, 1937…”.
22 I was invited also to a decision of the High Court of Australia, Prowse v McIntyre and Others (1961) 35 ALJR 373. Their Honours were there concerned with the date upon which a person is born and the time at which the calculation begins for the purposes of calculating age. Although consistent with the proposition advanced on behalf of the Appellant, I put that decision to one side because of more recent authority more closely aligned with the point I must decide.
23 In O’Hara v Harrington [1962] Tas SR 165 the Court was concerned with a section in the Traffic Act 1925 (Tas). Subsection 41(2) provided for a period of twelve months disqualification for a first conviction for an offence of driving whilst under the influence of liquor, and three years on a second conviction of such an offence. Burbury CJ said at page 167,
“It is clear law that where the legislature imposes an increased penalty for a second offence that expression bears the technical meaning of an offence committed after conviction for a first offence”.
Both convictions must in my view in accordance with the general rule be deemed to relate back to the earliest moment on February 13, 1985″.
27 This was the date upon which the convictions were entered. His Honour continued,
“Both convictions in law occurred at the same instant”.
“It seems to me that it is quite impossible to give a reasonable construction to the various clauses of the section unless the words ‘ second offence ’ and’ third and any subsequent offence’ are read as meaning an offence after a previous conviction or convictions, as the case may be, for offence under the section”
The Decision
30 Section 25A(2), as I have said, provides for monetary and custodial penalties. Section 25A(10) provides for the relevant disqualification periods. Section 25A(6) relevantly provides,
“An offence under this section is a second or subsequent offence for the purposes of this section if:
(a) it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1), (2), (3) (a) or (3A) within the period of 5 years immediately before the person is convicted of the offence, or
…
31 The Crown has submitted that the phrase second or subsequent occasion indicates a legislative intention to embrace a second or subsequent conviction entered on the same day as a conviction entered earlier, such as in the present matter.
32 I do not believe that the language used in the legislation requires any such construction. In my opinion the submissions made by Mr Bartley on behalf of the appellant are correct. In my opinion, the convictions both having been entered on the same day in contemporaneous proceedings, there is no priority to be given in one over the other, and accordingly for the purposes of the sentencing for this offender they should be both dealt with as first offences.
