Written by Michael Hempsall
May 19, 2016
The decision of R v Ahmed  NSWDC 380 – why it is relevant to drive while suspended and disqualified charges, whether pending or finalised:
Ms Ahmed had been suspended for the accumulation of demerit points. She continued to drive and was charged with two counts of Driving While Suspended. Her suspension concluded and subsequently she appeared at Local Court on 5 February 2008 in respect of both offences.
The Road Transport Legislation relevantly provided that a person who commits the offence of driving while suspended or disqualified is disqualified from the date of the expiration of the "existing" disqualification or disqualification, or from the date of conviction, whichever is later.
The legislation also provided that where an offence is deemed to be a "second or subsequent offence" if a convicted person has been convicted of another relevant offence within 5 years. There are longer automatic disqualifications if an offence is a second or subsequent offence.
What happened in the Local Court:
Ms Ahmed was convicted of both offences and received the consecutive disqualification periods, meaning that they ran back to back rather than at the same time.
She appealed to the District Court.
What happened in the District Court:
The District Court considered the definition of a “second or subsequent offence” and ruled that:
Where “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”
This ruling meant that where a person is convicted of two or more offences on the same day neither is relevant for determining whether the other is a second or subsequent offence (and thus whether the more severe penalties apply).
Furthermore, in unpublished comments the Court stated that:
“… the disqualification periods for the two offences of driving whilst suspended should be entirely concurrent …”
Ms Ahmed’s overall disqualification was effectively reduced from three years to one year.
Update: In the more recent decision of R v Armstrong NSWSC 873 the Supreme Court ruled that word "existing" in the phrase"the existing disqualification" means existing at the time the offence was committed. This in turn means that if two offences are committed during the same period of suspension or disqualification and are dealt with before that period expires then the disqualification periods imposed for those offences will also commence on the same date.
Why this matters to you:
Even if your matter has already been determined we may be able to use this case to your advantage thereby limiting the time you have to spend off the road. We can examine the Court’s orders to see if there has been an error in sentencing and seek to have the matter reopened under section 43 to reduce your period of disqualification. This can sometimes result in a disqualification reduction of many years.
The new legislative regime:
Although the Road Transport (Driver Licencing) Act has since been repealed and replaced by the Road Transport Act, the relevant principles set out in Ahmed apply with the same practical effect.