Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156

Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156

Because Ms Kmetyk appealed only against sentence, the District Court had no statutory authority to quash her Local Court conviction, reconvict her or alter the automatic disqualification that arose by operation of former s 54(8) of the Road Transport Act 2013 (NSW). The repeal of s 54(8) did not undo the 12 month disqualification already suffered by operation of the conviction. The District Court therefore acted beyond jurisdiction in purporting to quash the conviction and reduce the disqualification, although the reduction of the fine to $300 was not challenged.

Jurisdiction
Australia
Judgment Date
19 July 2018
Procedural Posture
Judicial Review in the Court of Appeal's Supervisory Jurisdiction of Orders Made by the District Court Determining an Appeal Against Sentence From the Local Court / Summons Determined by the Court of Appeal
Outcome
Orders of the District Court made on 4 December 2017 set aside; the sentence appeal allowed only to set aside the Local Court fine of $450 and substitute a fine of $300; declaration made that Ms Kmetyk was convicted in the Local Court and disqualified for 12 months from 1 November 2017; no order as to costs.
Legal Topics
['jurisdictional Error' 'appeal Against Sentence From Local Court to District Court' 'driving While Suspended' 'statutory Driver Licence Disqualification' 'automatic Stay Pending Appeal' 'reconciliation of Court Orders Recorded in Different Forms']
['criminal Law' 'traffic Law' 'administrative Law' 'courts and Procedure'] ['jurisdictional Error' 'appeal Against Sentence From Local Court to District Court' 'driving While Suspended' 'statutory Driver Licence Disqualification' 'automatic Stay Pending Appeal' 'reconciliation of Court Orders Recorded in Different Forms']

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Procedural Posture

Judicial Review in the Court of Appeal's Supervisory Jurisdiction of Orders Made by the District Court Determining an Appeal Against Sentence From the Local Court / Summons Determined by the Court of Appeal

Legal Issues

  1. 1 ['Whether the District Court, on an appeal against sentence only, had authority to quash the Local Court conviction, reconvict Ms Kmetyk and impose a new sentence.' 'Whether the District Court could reduce or alter a statutory disqualification imposed automatically by s 54(8) of the Road Transport Act 2013 (NSW) after that provision had been repealed and replaced before the District Court appeal was heard.' 'Whether the automatic stay in s 63 of the Crimes (Appeal and Review) Act 2001 (NSW) applied to the statutory disqualification arising from conviction where no appeal against conviction was brought.' 'How discrepancies between orders pronounced in court, a signed document on the court file and JusticeLink records should be treated.']

Ratio Decidendi

Because Ms Kmetyk appealed only against sentence, the District Court had no statutory authority to quash her Local Court conviction, reconvict her or alter the automatic disqualification that arose by operation of former s 54(8) of the Road Transport Act 2013 (NSW). The repeal of s 54(8) did not undo the 12 month disqualification already suffered by operation of the conviction. The District Court therefore acted beyond jurisdiction in purporting to quash the conviction and reduce the disqualification, although the reduction of the fine to $300 was not challenged.

Court Disposition

Orders of the District Court made on 4 December 2017 set aside; the sentence appeal allowed only to set aside the Local Court fine of $450 and substitute a fine of $300; declaration made that Ms Kmetyk was convicted in the Local Court and disqualified for 12 months from 1 November 2017; no order as to costs.

Orders

  • ['Set aside the orders of the District Court made on 4 December 2017, and in lieu thereof, order that the appeal against sentence be allowed, set aside the fine of $450 imposed by the Local Court and in lieu thereof order that Ms Kmetyk be fined $300 with 28 days to pay.' 'Declare that Ms Kmetyk was convicted in the...