Director of Public Prosecutions (NSW) v Kmetyk (No 2)

1. [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:

2. [2]

   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).

3. [3]

   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.

4. [4]

   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.

5. [5]

   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]:

6. [6]

   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.

7. [7]

   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. [8]

   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:

2. [9]

   The Director submits that:

3. [10]

   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.

4. [11]

   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.

5. [12]

   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.

6. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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.