Rainima v Magistrate Freund [2008] NSWSC 944

Rainima v Magistrate Freund [2008] NSWSC 944

“It seems that the group (UPMART) holds strong views about the legitimacy of aspects of this State’s traffic legislation. Certainly, the plaintiff does. Whatever the views of the group might be, this appeal turns upon the attitude of the plaintiff as it was articulated by her in the Local Court and, through her representatives, in this Court. Put shortly, as it relates to the present case, it is that the State is under a duty not to impose upon her its driver licensing regime. The strength of her belief has cost her dearly, leading to her remaining in custody for the period from her arrest for disqualified driving on 15 December 2007 to 14 September 2008, just two days hence. She was granted conditional bail, but refused to enter it. On 3 March 2008, after a defended hearing, she was convicted of the offence, fined, disqualified from holding a license for a further period, and placed on a five year good behaviour bond. She refused to enter the bond. Later that day, pursuant to s97 of the Crimes (Sentencing Procedure) Act 1999, she was sentenced to imprisonment for nine months, with a non-parole period of three months, to date from 15 December 2007. When the non-parole period expired she could not be released because she refused to accept the conditions of parole. Accordingly, she can be released only on the expiry of the nine month sentence. On an earlier occasion, when the matter was in for mention in the Local Court, the plaintiff foreshadowed that she would be raising a constitutional defence and a challenge to the jurisdiction of the court. She subsequently arranged for the service of a notice, pursuant to s78B of the Judiciary Act 1903 (Cth), that the case involved matters arising under the Commonwealth Constitution or involving its interpretation. As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end. Leave to appeal against the magistrate’s interlocutory order is refused. The appeal against the conviction and sentence is dismissed. If necessary, I shall hear the parties on costs. I would remind the plaintiff that, notwithstanding the fact that she has served her prison term rather than entering into the good behaviour bond, she remains subject to the period of disqualification of her licence pronounced by her Honour. That period now extends to 19 May 2023. She must be in no doubt that, if she drives a motor vehicle during that period, she could face a further significant term of imprisonment.”

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