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BARNES -v- COOPER [2011] WASC 5 (11 January 2011)

Last Updated: 11 January 2011

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : BARNES -v- COOPER [2011] WASC 5

CORAM : JENKINS J

HEARD : 15 & 19 NOVEMBER 2010

DELIVERED : 11 JANUARY 2011

FILE NO/S : SJA 1097 of 2010

BETWEEN : JEFFREY JOHN BARNES

Appellant

AND

DAVID BRIAN COOPER

First Respondent

WAYNE OLDHAM

Second Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M E PONTIFEX

File No : CO 395 of 2006, CO 254 of 2007

Catchwords:
Criminal law - Appeal against sentence - Offence of breaching a community based order - Magistrate exercising power in the Sentencing Act s 133(1)(b) to sentence appellant for original offence - No power in s 133(1)(b) to impose disqualification order under Road Traffic Act as a part of the sentence - Meaning of 'sentence' in the Sentencing Act s 133(1)(b) - Discretion in the Sentencing Act s 136(2)(b) to make any order

Legislation:
Crimes Act 1958 (Vic), s 566
Criminal Appeals Act 2004 (WA), s 6, s 14, s 23
Interpretation Act 1984 (WA), s 5
Road Safety Act 1986 (Vic)
Road Traffic Act 1974 (WA), s 64, s 106
Sentencing Act 1995 (WA), s 39, s 44, s 131, s 133, s 135, s 136

Result:
Appeal allowed
8­month motor driver's licence disqualification order set aside

Category: A

Representation:

Counsel:

Appellant : Ms K I McDougall

First Respondent : Ms K J Dodd

Second Respondent : Ms K J Dodd

Solicitors:

Appellant : Legal Aid (WA)

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Creed v Dudley [1984] WAR 344

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

R v Novakovic [2007] VSCA 145

R v Warfield (1994) 34 NSWLR 200

Schamotta v The Queen [2002] WASCA 262

Trajkoski v Director of Public Prosecutions (WA)  [2010] WASCA 119 

JENKINS J:

1 On 23 August 2010 in the Magistrates Court at Bunbury the appellant pleaded guilty to one count of breaching a community order. The magistrate fined the appellant $200 and also re-sentenced the appellant for the offence of driving a motor vehicle with a blood alcohol content exceeding 0.08, being the offence for which the community order was imposed. Her Honour re-sentenced the appellant to a fine $1,000 and disqualified him from holding or obtaining a motor driver's licence (MDL) for a period of 8 months. The appellant appeals against the imposition of the disqualification order on re-sentencing on the basis that he had already served a disqualification period for the offence of exceeding .08 which was imposed when he was originally sentenced for that offence.

2 On 23 September 2010 I granted leave to appeal on the following grounds of appeal against sentence:

1. The learned Magistrate made an error of law by considering herself bound to impose an additional period of 8 months disqualification when making an order under s 133 of the Sentencing Act 1995 for the breach of Community Based Order.
2. The learned Magistrate made an error of law by failing to take into account the extent to which the Appellant had complied with another written law in respect of the same offence (s 64 of the Road Traffic Act 1974) as required by s 135(2)(a) of the Sentencing Act 1995.
3. The learned Magistrate imposed a sentence that was manifestly excessive considering that the Appellant had already served the full disqualification period ordered on 10 January 2007 when he was sentenced for the excess 0.08% and made subject to the Community Based Order.

3 The prosecution notices alleged that the appellant:

(1) on 12 October 2006 at Collie drove a motor vehicle, registered number 1CAE451 on a road, namely, Coalfields Highway with a percentage of alcohol in his blood exceeding 0.08%, that alcohol content calculable as 0.108% contrary to the Road Traffic Act 1974 (WA) s 64(1) (CO 395/06); and

(2) on 15 January 2007 at Collie being a person subject to a community order made by the Collie Magistrates Court on 10 January 2007 in respect of the offence of excess 0.08% breached the order on 15 January 2007 by failing to report within 72 hours of the imposition of the order contrary to the Sentencing Act 1995 (WA) s 131(1) (CO 254/07).

4 On 10 January 2007 the appellant appeared in the Magistrates Court at Bunbury and pleaded guilty to CO 395/06. The facts were unremarkable. The motor vehicle he was driving was stopped by the police and he was breath-tested. His reading, after applicable calculations, was .108.

5 The presiding magistrate sentenced the appellant to a community based order (CBO) for 6 months with a requirement that he perform 80 hours unpaid community service work. He was also disqualified from holding or obtaining a MDL for a period of 8 months.

6 It was a standard condition of the CBO that the appellant report to a community corrections officer within 72 hours of the CBO being made. He did not do so and he failed to respond to warning letters issued on three subsequent dates. He did not perform any community service work under the order.

7 A member of the appellant's family told a community corrections officer that the appellant had travelled to Queensland and they did not know when he would return. On 27 April 2007 an officer laid CO 254/07.

8 It was not until 19 May 2010 that the appellant went to the Bunbury police station and handed himself in.

9 On 23 August 2010, the appellant appeared in the Magistrates Court at Bunbury and pleaded guilty to CO 254/07 and some other offences, all committed before he had gone to Queensland.

10 In his plea in mitigation, defence counsel told the magistrate that the appellant had been confused about his obligations under the CBO because of another CBO he was also on. This explanation was mentioned by the magistrate when she sentenced him but, not surprisingly, it does not appear to have been regarded by her Honour as having much mitigatory weight. No doubt one of the reasons why an offender is required to report within 72 hours is to ensure that he or she commences the order when its obligations are still fresh in their minds.

11 Defence counsel said that the appellant was required to go to Queensland at short notice because his grandfather was dying and that he ended up staying for sometime. On his return to Western Australia he handed himself in. He was in a long term de facto relationship and he had two children.

12 She said that the appellant had a medical condition for which he required an operation in about four weeks of his court appearance. Although he was then working, the operation would require an unstated period of convalescence for which he would not be paid. However, it was implied that his job would be available to him after his recovery. It was said in mitigation that he had reduced $6,000 in outstanding fines to $125.

13 The magistrate indicated that she was considering re-sentencing the appellant for the original .08 offence and that if she did she believed she was required by law to impose, at the very least, the minimum mandatory period of MDL disqualification.

14 Defence counsel submitted that the law did not require her Honour to do so and it would be a case of 'double jeopardy' if she did.

15 When sentencing the appellant, the magistrate noted that the appellant had essentially not complied with the CBO. She fined him $200 for CO 254/07. She noted that she may also re-sentence him for CO 395/06. She proceeded to fine him $1,000 and made a disqualification order for 8 months. In doing so, her Honour said:

The view that I have, Mr Barnes, is because I am re-sentencing you, and the disqualification is a mandatory part of that sentence, that disqualification will be imposed - and I have heard Ms Walsh's helpful submissions but I don't think section 136 of the Sentencing Act assists you in this matter. So my view is that I am required to re-sentence in a manner which I could do at the time, and that sentence at the time must have included a mandatory disqualification - and although you have been disqualified again and served that disqualification once - the legislature is expects you to comply with the order, in which case you wouldn't have had to serve a disqualification again.

16 The appellant served 31 days of the disqualification order. It was then lifted pending the outcome of this appeal.

17 The complaint in ground 1 is that having decided to exercise the power in the Sentencing Act s 133 to re-sentence the appellant for CO 395/06, the magistrate erred in regarding herself bound to re-impose, at the very least, the minimum mandatory MDL disqualification period.

18 The appellant's original written submission said that the appellant's original sentence for the exceed .08 offence had two components, being the CBO and the disqualification order. It was said that he only breached the CBO, the disqualification still stood and the Sentencing Act s 133 only enlivened the magistrate's discretion to re-sentence him to a fine or CBO.

19 However, at the hearing of the appeal, I raised the issue as to whether, when the Sentencing Act s 133 said that a breaching court may 'sentence the person for the offence for which the ... community order was imposed in any manner the court could if it had just convicted the person of that offence', the word 'sentence' included imposing a disqualification order under the Road Traffic Act, s 64.

20 As the parties had not considered this construction of s 133, I adjourned the hearing to a later date. In the meantime both parties filed further comprehensive and helpful written submissions to which they spoke at the resumed hearing.

21 The authorities, such as Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 and the cases cited therein, show that determining whether a particular order made by a judge after conviction is a sentence or not is not always straight-forward.

22 What is connoted by 'sentence' in its ordinary meaning was considered in R v Warfield (1994) 34 NSWLR 200, where Hunt CJ said that a sentence is most appropriately described as 'an order which definitively disposes of the consequences of conviction', or 'a definitive decision by the judge on the punishment or absence of it which is to be the consequence of the conviction'.

23 However, common law or ordinary notions of what is or is not a sentence cannot prevail in the face of contrary statutory provisions. Therefore, I turn first to consider the relevant provisions of the Sentencing Act and the Road Traffic Act.

24 The Sentencing Act s 39(2) states:

(2) Subject to sections 41 to 45, a court sentencing an offender may -

(a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender;

(b) with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender;

(c) with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made);

(d) with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender;

(e) under Part 10 impose an ISO and order the release of the offender;

(f) under Part 11 impose suspended imprisonment and order the release of the offender;

(g) under Part 12 impose CSI and order the release of the offender; or

(h) under Part 13 impose a term of imprisonment.

25 Section 44 says that if the statutory penalty for an offence is such that a fine but not imprisonment may be imposed a court may use certain specified sentencing options in s 39(2). However, that section does not apply to offences under the Road Traffic Act s 64, by virtue of the Road Traffic Act, s 106, which I refer to later in these reasons.

26 The Sentencing Act s 39 also contains subsections 6 - 8 which state:

(6) A court sentencing an offender may also make a disqualification order under Part 15, and any such order is to be taken as being part of the sentence.

(7) A court sentencing an offender may also make a reparation order under Part 16, but any such order is not to be taken as being part of the sentence.

(8) A court sentencing an offender may also make an order under Part 17, but any such order is not to be taken as being part of the sentence.

27 Thus, a CBO, with or without a spent conviction order is a sentencing option for a natural person: Sentencing Act s 39(2)(d). The nature of a CBO referred to in s 39(2)(d) is described in the Sentencing Act s 62 as an order:

(a) that if while the CBO is in force the offender commits another offence (in this State or elsewhere) the offender may be sentenced again for the offence to which the CBO relates; and

(b) that the offender -

(i) must comply with such of the primary requirements in section 64 as the court imposes;

and

(ii) while any primary requirement in section 64 is in force, must comply with the standard obligations in section 63.

28 An offender who breaches his or her CBO is liable to be dealt with under the Sentencing Act pt 18 div 4 ss 131 - 136. Section 131(1) creates the offence of breaching a community order, which includes a CBO.

29 The Sentencing Act s 132(2)(b) states that if the Magistrates Court convicts an offender of the offence of breaching a CBO which was imposed by the Magistrates Court it may fine the person not more than $1,000 and may make an order under s 133. I note that it is not in dispute that a magistrate is not required to make an order under s 133. Section 133(1)(b) relevantly states that the breaching court may:

[I]f the CRO or community order is not then in force, sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence.

30 Section 135 states that if a court makes an order under s 133(1) it must take into account:

(a) the extent to which the person has complied with the CRO or community order and with any other order made under this Act or another written law in respect of the offence for which the CRO or community order was imposed; and

(b) how long the person has been subject to the CRO or community order or to any other order made under this Act or another written law in respect of the offence for which the CRO or community order was imposed.

31 Section 136(2) states that when a court 're-sentences' an offender under s 133(1)(b) the court may -

(a) cancel any order forming part of the sentence imposed previously in respect of the offence, whether the order was made under this Act or another written law, other than an order that it was mandatory to make; and

(b) subject to section 135, make any order under this Act or another written law that it could if it had just convicted the person of the offence.

32 Driving with a blood alcohol content in excess of .08 is an offence contrary to the Road Traffic Act s 64. Section 64(2)(a) states that an offender convicted of a third or subsequent offence of driving with a blood alcohol content exceeding or equal to .10 grams of alcohol per 100 ml of blood but less than .11 grams (as the appellant was) 'is liable to the relevant penalty' set out in the table to the subsection, which is a fine of at least $1,000 but not more than $1,500. Section 64(2)(b) says that the court 'shall also order' that the offender be disqualified from holding or obtaining a MDL for not less than the minimum period of disqualification in the table, which is 8 months.

33 The Road Traffic Act s 106(3), relevantly, says that a court sentencing an offender convicted of an offence against s 64 may, instead of imposing a fine, impose a CBO, with at least a community service requirement. Whether or not the court imposes a fine or a CBO, the court must disqualify the offender from holding or obtaining a MDL. This is stipulated by the Road Traffic Act, s 106A which states:

(1) If this Act requires a court to disqualify an offender from holding or obtaining a driver’s licence -

...

(b) for a period not less than a minimum period provided in relation to the offence concerned;

...

the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -

...

(e) for a period not less than that minimum period.

34 Thus, the Road Traffic Act distinguishes between 'the penalty' for an exceed .08 offence, being the fine or CBO, on the one hand and the mandatory 'order' of a MDL's disqualification following conviction, on the other. This is evidenced by:

1. Section 64(2) which states that the offender is 'liable to the penalty' set out in the table attached to it and that the court also 'shall order that the person be disqualified' as set out in the table. It does not refer to the MDL disqualification as being part of the penalty;
2. Section 106 which states that 'a court sentencing a person' may instead of imposing a fine for certain offences, including one against s 64, impose a CBO. It does not say that a court sentencing a person may instead of imposing a fine and a MDL disqualification period, impose a CBO and a MDL disqualification period; and
3. Section 106A which states that the requirement to disqualify an offender from holding or obtaining a MDL is irreducible in mitigation 'irrespective of any sentence the court imposes on the offender'. Section 106A thus distinguishes between the order of disqualification and the sentence imposed; being the fine or the CBO.

35 The above express provisions prevail over the definition of 'penalty' in the Interpretation Act 1984 (WA) s 5, which includes the suspension or cancellation of a licence and disqualification from obtaining a licence. It is notable that the Interpretation Act does not define 'sentence' nor define 'penalty' in terms of the sentencing options in the Sentencing Act s 39. This indicates that in Western Australian statutes 'penalty' may, in any event, have a broader meaning than 'sentence' in the Sentencing Act.

36 It is consistent with the scheme in the Road Traffic Act that the Sentencing Act does not state or imply that a MDL disqualification under the Road Traffic Act is part of a 'sentence' for the purposes of Sentencing Act, s 133(1)(b). I draw this conclusion from the following material and arguments:

(a) The Sentencing Act does not define the word 'sentence'. However,

when the word is used in that Act it does not bear its ordinary meaning because s 39 lists exclusively what a court may do when 'sentencing an offender' who is a natural person. 'Sentence' may be used as a noun, as when it is used to designate the penalty imposed by a court. 'Sentencing' in the first paragraph of s 39 is used as a verb but the purpose of the section is to exclusively define the 'sentences' which may be imposed by a court; at least so far as the Sentencing Act is concerned. The sentences do not include imposing MDL disqualification orders under the Road Traffic Act s 64(2).

(b) The statutory list of the court's powers when sentencing in s 39 does not include all the orders which can be made as a consequence of an offender being convicted and sentenced for an offence. For example, it does not include disqualification orders made under the Sentencing Act pt 15 as part of a sentence for the purposes of the Sentencing Act but s 39(6), in effect, deems them to be so. Part 15 refers to MDL disqualification orders under the Road Traffic Act but only to say that pt 15 does not affect the power to impose such orders. Neither does s 39 include other orders which may be made as a result of conviction or sentence such as a parole order or an indefinite imprisonment order under the Sentencing Act pt 14. Thus, it distinguishes between sentences, other orders which are deemed to be part of a sentence and other orders made as a result of a conviction.

(c) The second reading speech of the Sentencing Bill 1994 indicates that the purpose of the resulting Sentencing Act was to consolidate all sentencing options. In her second reading speech regarding the Sentencing Bill, Attorney General Cheryl Edwardes said:

The Government intends that these reforms will be achieved through consolidating within the one enactment, the Sentencing Bill, all the provisions empowering a court to pass sentence, and consolidating all matters dealing with the administration of sentence within another enactment, the Sentence Administration Bill. These reforms are needed for a number of reasons. Firstly, sentencing laws and penalties are currently to be found in various Statutes and courts may even impose common law bonds. At any one time the sentencer and others involved in the process are required to draw on a wide range of legislation, including the Criminal Code, the Justices Act 1902, the Prisons Act 1981, the Police Act 1892 and the Offenders Community Corrections Act 1963. This situation is unwieldy for the courts and difficult for the community to understand (Hansard 25 May 1995 p 4255 - 4256).

The Attorney General also said:

A major feature of this Bill is that it contains more, and a more complete range of, sentencing options than have ever before been made available to a court in this State. Part 5 lists these options and sets out how some of them may be combined (Hansard 25 May 1995 p 4257).

The above excerpts from the second reading speech support the view that the purpose of the Sentencing Act was to gather together the relevant law about sentencing in the one Act and to list all sentencing options in pt 5, which is the part in which s 39 appears. This is also evidenced by the long title to the Sentencing Act which says that it is an Act to consolidate and amend the law relating to the sentencing of offenders.

(d) Another Act could declare, expressly or by necessary implication, that a particular sort of statutory order was to be taken as being part of the sentence for the purpose of the Sentencing Act. However, that Act would have to be construed carefully before such a conclusion was drawn. Nothing in the Road Traffic Act leads to this conclusion.

37 The respondent submits that a disqualification order made under the Road Traffic Act has usually been regarded as a penalty and, therefore, part of a sentence imposed on an offender for an offence under that Act. Prior to the enactment of the Sentencing Act it was held that a purpose of making a MDL disqualification order under a different section of the Road Traffic Act was to penalise an offender: Creed v Dudley [1984] WAR 344, 346 (Burt CJ). However in Schamotta v The Queen [2002] WASCA 262 the Court of Appeal did not view this as the main purpose of disqualification orders, even when they are made under the Sentencing Act pt 15 and taken to be part of the sentence by virtue of s 39(6). It said:

However, it seems to us that, generally, the decisive consideration will be whether the conviction has, or its circumstances have, when viewed in the light of the prior record of the offender, revealed that this offender is not a fit person to hold the relevant licence. Whether the licence is a driving licence or a firearm licence, the paramount consideration in assessing the question of fitness to hold it may well be public safety; but there are other considerations, such as whether the offender has been shown to be unable or unwilling to comply with the requirements of regulations affecting the licence. The potential effect upon others is an important reason for licensing provisions, and, undoubtedly, Pt 15 has a protective object, notwithstanding that as part of the sentencing process, it is brought into operation by an offence for which sentence is to be imposed. Applied 'in conjunction with any sentencing option', it is not necessarily subject to precisely the same limitations as those that affected earlier, more limited, provisions for disqualification from holding a licence of a particular kind [12].

38 Thus, I am not persuaded that any binding authority requires me to find that a MDL disqualification under the Road Traffic Act s 64 forms part of the sentence for that offence, for the purpose of the Sentencing Act s 133.

39 This is not to say that some of the principles which guide the sentencing discretion are not also relevant to the determination of the length of a disqualification order under the Road Traffic Act. The fact that some judges have used those principles to determine appeals against the length of disqualification orders is not inimitable to my preferred construction of the Sentencing Act.

40 In this respect, the respondent relies on a number of decisions of this court where judges have described a MDL disqualification order made under the Road Traffic Act as part of a sentence or as a penalty. The question in this case is whether such a disqualification order is part of a sentence for the purposes of the Sentencing Act s 133. I do not see any contradiction between describing such an order as a penalty and also holding that it is not a sentence for the purpose of s 133. The word 'sentence' is used in the Sentencing Act in a particular way. An order may be a penalty or even part of a sentence in colloquial terms but still not be part of 'sentence' for the purposes of s 133.

41 Further, none of the cases relied on by the respondent considered this exact question. The fact that another court has assumed, without deciding, that a MDL disqualification order made under the Road Traffic Act is a sentence does not mean that the other court was correct in its assumption. It is not authority for the respondent's position.

42 The question as to whether a disqualification order made under the Road Safety Act 1986 (Vic) fell within the definition of 'sentence' for the purpose of s 566 of the Crimes Act 1958 (Vic) was considered by the Victorian Court of Appeal in R v Novakovic [2007] VSCA 145. The case concerned whether an appeal lay under the Crimes Act from a disqualification order because it was part of the sentence imposed on an offender. The court found that it did, primarily because the definition of 'sentence' in the Crimes Act was an inclusive definition.

43 The case is easily distinguishable because the Criminal Appeals Act 2004 (WA) s 23(1) provides that a party may appeal against the 'sentence' imposed on the offender or an 'order made as a result of the conviction' of the offender. Thus, the Criminal Appeals Act is consistent with the view that the law of Western Australia draws a distinction between a sentence and other orders which are made as a result of a conviction but which should still be dealt with as part of the criminal process, including for the purpose of appeal.

44 Another point of distinction is that the Victorian Crimes Act has an inclusive definition of 'sentence' and is quite dissimilarly worded to the Sentencing Act s 39.

45 For these reasons, I do not apply the decision in Novakovic to the question I have to decide.

46 The respondent also relies on Novakovic for the proposition that just because the Sentencing Act s 39 expressly includes some orders which may be sentences according to ordinary conceptions, does not mean that it is an exhaustive definition. In Novakovic Nettle JA said that:

[T]he better view is that such specific inclusions do not imply an exhaustive intention, especially where, ..., one or more of the expressly included items may be on the edge of the ordinary meaning of the term. As the High Court said in Corporate Affairs Commission (S A) v Australian Central Credit Union:

'The function of such an inclusive ''definition'' is commonly both to extend the ordinary meaning of the particular word or phrase to include maters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases'. [5]

47 The respondent points out that s 39 also includes orders which may be on the edge of the ordinary meaning of a 'sentence' such as imposing no sentence or a conditional release order. I do not accept that s 39(2) is an inclusive definition section, like that considered in Novakovic. Its purpose is expressed to be to list all sentencing options which can be used when sentencing an offender, not just those that are borderline or would not normally be within the definition. Section 39(2) does not include disqualification orders made under the Sentencing Act pt 15 as a sentencing option, but rather deems them to be part of a sentence. Thus, the Sentencing Act s 39 itself acknowledges that such disqualification orders would not otherwise be part of a sentence and sets them apart from orders which are defined to form part of a sentence.

48 It is also true that for the purposes of the Criminal Appeals Act s 6(f) a MDL disqualification under the Road Traffic Act is an order made 'as a result of a conviction': see the discussion of the meaning of that term in Trajkoski v Director of Public Prosecutions (WA)  [2010] WASCA 119.  However, this does not mean that a MDL disqualification order made under the Road Traffic Act is part of a 'sentence' for the purpose of the Sentencing Act, s 133.

49 This approach to the Sentencing Act appears to be consistent with the principle of statutory interpretation that an Act should be construed as far as possible so as to give the same meaning to the same words used in it: see Pearce D C, Geddes R S, Statutory Interpretation in Australia (6th ed, 2006) pars 4.6 and 4.7. I acknowledge that that presumption is easily rebutted where the words are sufficiently clear so as to indicate that they have different meanings.

50 In this case it is not a question of whether the words are sufficiently clear to indicate that the word 'sentence' is used in a different sense in the Sentencing Act s 133 to the way the word 'sentencing' is used in s 39 in the same Act. The more helpful way of considering the issue is whether, when section s 133 states that 'a court ... may ... sentence the person for the offence for which the ... community order was imposed in any manner the court could if it had just convicted the person of that offence', did parliament intend that the sentencing options be limited to those options in s 39, read with the Sentencing Act s 44 and the Road Traffic Act s 106?

51 The answer to that question must be, yes. It is not logical to suggest that a court re-sentencing an offender under s 133 would have broader sentencing powers than the court which originally sentenced an offender. If parliament had intended that a court acting under s 133 would have more sentencing options than the original sentencing court then it could have easily said so. To the extent that on re-sentence the court may need to, or think that it is just to, make other orders which it could have made after conviction, s 136 provides the court with such power.

52 When exercising the power in the Sentencing Act s 133 to 'sentence' the appellant for the exceed .08 offence the magistrate could have only imposed a fine or CBO under s 39(2) and s 44, as further constrained by the Road Traffic Act s 106. Further, her Honour could have exercised the power in the Sentencing Act s 39(6). She was not bound to, and did not have the power to, impose a MDL disqualification under the Road Traffic Act s 64(2)(b).

53 The final matter for me to determine is the extent of the power in the Sentencing Act s 136, when sentencing under s 133.

54 It is apparent from the above reasons that the magistrate erred in determining that she was bound to impose a further MDL disqualification period on the appellant when she exercised her discretion to sentence him again for the exceed .08 offence. However, it is still necessary for me to consider the proper construction of the Sentencing Act s 136(2) as if this section gives a magistrate re-sentencing an offender under s 133 a discretion to also impose a MDL disqualification order, it is necessary for me to consider whether this appeal ought not to be allowed on the basis that there has been no substantial miscarriage of justice: Criminal Appeals Act s 14(2).

55 During the course of the hearing of the appeal several issues arose in respect to the construction of the Sentencing Act s 136(2) as applicable to the facts of this case. The first was whether s 136(2) only applied if a MDL disqualification period under the Road Traffic Act s 64 was part of a 'sentence' for the purpose of the Sentencing Act s 133(1)(b)?

56 Section 136(1) and the opening words of s 136(2) are clear. That is, the powers in s 136(2) are invoked when a court is re-sentencing a person for an offence under one of a number of different subsections, including s 133(1)(b). The nature and extent of the power in s 136(2) are different issues. In this case the powers in s 136(2) were invoked because the magistrate exercised her discretion to re-sentence the appellant pursuant to s 133(1)(b), even though a MDL disqualification order imposed under the Road Traffic Act s 64 is not part of a sentence for the purpose of the Sentencing Act s 133.

57 The next construction issue that arose was whether s 136(2)(a) empowered the magistrate, when re-sentencing the appellant, to cancel the MDL disqualification order imposed on 10 January 2007 in respect of CO 395/06?

58 For the reasons which I have given earlier, I am of the view that the magistrate did not have the power to cancel the MDL disqualification order as it was not 'any order forming part of the sentence imposed previously in respect of the offence' of exceed .08. Section 136(2)(a) is clear that the only order which may be cancelled pursuant to that subsection is one that does form part of a sentence.

59 Even if I am wrong in that respect, it also appears that s 136(2)(a) would not have empowered the magistrate to cancel the MDL disqualification order as the power in s 136(2)(a) specifically excludes the power to cancel an order 'that it was mandatory to make'. It was mandatory to make a MDL disqualification order when the appellant was originally convicted of CO 395/06. During submissions on appeal there was some consideration given to whether the MDL disqualification order was mandatory because only a minimum period of disqualification was mandatory and the magistrate had a discretion to impose a disqualification period that was greater than the minimum period. In my opinion, the preferred view is that a MDL disqualification order is mandatory upon conviction for an exceed .08 offence under the Road Traffic Act s 64. Consequently, the Sentencing Act s 136(2)(a) does not empower a court re-sentencing an offender under s 133 of that Act to cancel such a MDL disqualification order.

60 The next issue that arose was whether if, as I have found, s 136(2)(a) did not apply, the magistrate upon re-sentencing the appellant could still exercise any discretion granted by s 136(2)(b) to impose a further MDL disqualification order?

61 For this to be the case 'and' at the end of s 136(2) would have to mean that the court re-sentencing the offender had a discretion to do (a) and a discretion to do (b) but that it did not have to do both (a) and (b). This would make a great deal of sense. For example, if a court re-sentenced an offender to a term of imprisonment, it would not need to cancel any order forming part of the original sentence but it may want to make a parole eligibility order pursuant to s 136(2)(b). Another example would be where a court re-sentencing an offender thought that it was appropriate to make a reparation order on re-sentence which had not been made at first instance. In my view these considerations lead to the conclusion that the power in s 136(2)(b) can be exercised even where the power in s 136(2)(a) does not apply or has not been exercised.

62 The final construction issue that arose was whether s 136(2)(b) empowered the court re-sentencing the appellant to make a MDL disqualification order when one had already been made when he was originally sentenced?

63 There is nothing contained in s 136(2)(b) which indicates that the power can not be exercised if it has already been exercised once when the offender was first sentenced. The fact that s 136(2)(b) is said to be subject to s 135 strengthens the view that it is a broad power intended to enable a court to make any order under the Sentencing Act or another written law that could have been made if the offender had just been convicted of the offence for which they are being re-sentenced, whether or not such an order had already been made when the offender was first sentenced. That is, s 135 provides that in dealing with an offender under s 133(1) the court must take into account the extent to which the person has complied with the community order and with any other order made under the Sentencing Act or another written law in respect of the offence for which the community order was imposed.

64 On the other hand, as the appellant points out, it appears to be contrary to general principles of fairness and justice that a person can be subject to the imposition of MDL disqualification orders and other adverse orders which can be made after conviction, not only at the time of the original sentence but again at the time of re-sentence under s 133. However, this appears to be the intended result of the breach provisions in the Sentencing Act which provide that a person who has already been sentenced once for an offence by the imposition of a CBO or other community order may be sentenced again for the same offence if they breach the CBO or community order. By providing in the Sentencing Act s 135 that in exercising both the power to re-sentence and the power in s 136(2)(b) that the re-sentencing court must have regard to the extent to which the offender has complied with the community order and with any other order made under the Sentencing Act or another written law in respect of the offence for which the community order was imposed, parliament has attempted to ensure that offenders are not punished twice for the same offence or unfairly twice subject to other orders which may be made as a consequence of conviction.

65 Nevertheless, the considerations referred to by the appellant mean that a court re-sentencing an offender under the Sentencing Act s 133 for an offence under the Road Traffic Act s 64 should be slow to exercise its discretion to impose a further MDL disqualification period. It is contrary to the general principles of fairness and justice that an offender should be twice subject to an order made as a consequence of a conviction which adversely affect him or her, not because he or she had breached the order originally imposed but because of a breach of a sentence imposed at the same time. The court should only again make such an order where it concludes that justice requires it to do so.

66 I conclude that when re-sentencing an offender under s 133 for an exceed .08 offence under the Sentencing Act s 136(2)(b) a magistrate does have the power to make a further disqualification order under the Road Traffic Act s 64. However, if doing so, s 135 required the magistrate to have regard to the extent to which the offender had complied with the CBO and with the original MDL disqualification order.

67 In this case, the magistrate regarded herself as bound to impose the minimum period of disqualification. This was an error which resulted in a miscarriage of justice in that the magistrate did not properly exercise her discretion as to whether or not to impose the MDL disqualification order. She did not take into account the extent to which the appellant had complied with the CBO and with the original MDL disqualification period or more generally, his personal circumstances which she would have been required to do if she had acted properly under s 136(2)(b).

68 This is an appropriate case for me to allow the appeal and substitute the decision that should have been made by the court of summary jurisdiction: Criminal Appeals Act s 14(1)(a) and (d).

69 I have received the submissions from the parties in respect to the appellant's circumstances and whether it was appropriate to exercise the discretion to impose a further 8-month MDL disqualification period. Thus, I am in as good a position to deal with the appellant as a magistrate would be if I remitted the matter to the Magistrates Court.

70 I was advised by the appellant's counsel that he has not yet had the operation which had been foreshadowed during the plea in mitigation in the Magistrates Court. Counsel told me that he was still in a large degree of pain, suffering from depression and scheduled for an operation in early 2011. I was advised that he was casually employed as a scaffolder.

71 The respondent submitted that it was appropriate for the appellant to receive a further minimum period of disqualification as his Queensland criminal record, which was tendered on appeal, showed that on 23 August 2007 the appellant appeared in the Ipswich Magistrates Court and was convicted of disqualified driving which was committed on 30 June 2007 in Queensland, within the 8-month disqualification period imposed in Western Australia. The respondent says that this and other convictions entered against the appellant in Queensland during the period of the MDL disqualification order showed that the appellant did not suffer the consequences of the original disqualification period and was not remorseful for his offending in Western Australia.

72 On the other hand, the appellant submits that, as by virtue of the Road Traffic Act s 64(2), I can only impose a further 8-month minimum disqualification period, if I did so he will have to serve a 16-month disqualification period. This would be despite the fact the original magistrate regarded the circumstances as meriting the minimum disqualification period of 8 months.

73 In assessing these matters I am of the view that there is merit in what the appellant says. The magistrate who originally dealt with him regarded the circumstances as meriting an 8-month period of disqualification. That period disqualified the appellant from holding or obtaining a MDL in Western Australia. It appears that he served that period, in that he has not been charged or convicted with a driving offence in Western Australia within that period of disqualification. It therefore would seem to me now not to be appropriate to impose a further 8-month disqualification period.

74 The magistrate was wrong to hold that when she sentenced the appellant under the Sentencing Act s 133 she had to impose the minimum period of disqualification. Once she chose to exercise her discretion to make an order under s 133, she had to 'sentence' the appellant for the .08 offence. The word 'sentence' in s 133 included imposing a fine or CBO under the Road Traffic Act s 64 but it did not include the obligation to impose a MDL disqualification under the Road Traffic Act s 64(2). The obligation in the Road Traffic Act to make a disqualification order is not part of a 'sentence' for the purposes of the Sentencing Act.

75 The Sentencing Act s 136 extended the magistrate's powers under s 133. Section 136(2)(b) empowered the magistrate to make another MDL disqualification order. Despite the existence of this power, there was a miscarriage of justice in this case because the magistrate regarded herself as bound to impose the minimum MDL disqualification period when re-sentencing the appellant under s 133. The appeal ought to be allowed on ground 1.

76 As ground 1 of the appeal is made out it is unnecessary for me to consider the other grounds of appeal.

77 The order of the magistrate disqualifying the appellant from holding or obtaining a MDL for a period of 8 months is set aside.

78 The respondent submitted that if I came to the view that the disqualification order was not part of the sentence, the appeal notice would need to be amended because it purported to appeal against sentence. My preferred view is that this is an appeal against sentence on the ground that there has been a miscarriage of justice because the magistrate erred in law when re-sentencing the appellant under the Sentencing Act s 133 by regarding herself as bound to make a minimum 8-month MDL disqualification order.