Steinberg v Lundgaard[2001] QCA 332

COURT OF APPEAL

DAVIES JA

THOMAS JA

BYRNE J

CA No 150 of 2001

HEATHER JOY STEINBERG

v.

JENS BJERG LUNDGAARD(Applicant)

BRISBANE

DATE 14/08/2001

JUDGMENT

DAVIES JA:  The applicant before this Court pleaded guilty in the Magistrates Court at Noosa Heads on 22 May 2000 of driving under the influence of liquor on 4 April 2000.  He was found to have a blood alcohol reading of 0.20 per cent.

He was sentenced to seven days' imprisonment and two years' probation.  He was also disqualified from holding or obtaining a driver's licence for a period of two years.

He appealed against that sentence in the District Court, but his appeal was struck out by a District Court Judge on 26 March this year.  The circumstances in which it was struck out, which are not in dispute, were as follows.

The respondent applied to the learned District Court Judge to strike out the appeal, without having complied with s 229(1) of the Justices Act, purporting to rely on a practice direction of the District Court authorising notification of such an application by a letter.  This Court in Gamble v Davidson, CA No 111 of 1998, 19 June 1998, held that such a practice direction cannot operate to affect the obligation under s 229.  It is plain, therefore, that the appeal should not have been struck out and the respondent has conceded that.

The applicant seeks an extension of time and leave to appeal to this Court.  For the reasons I have just given, and because the delay is not great, both the extension and leave should be granted.  However, the respondent contends that, in any event, the decision of the learned Magistrate was plainly right and consequently the appeal to this Court should be dismissed.

There is no doubt that the learned Magistrate was influenced in imposing the sentence of seven days' imprisonment by his view that that was mandatory.  However, the respondent concedes that in the circumstances of this case, that was not correct.

The applicant had twice previously been convicted of driving under the influence of liquor.  The first of those occasions was on 30 November 1995 when he had a blood alcohol reading of 0.193 per cent.  The second was on 9 January 1998 when he had a blood alcohol reading of 0.164 per cent.  On each of those occasions he was substantially fined and disqualified from holding or obtaining a driver's licence for 16 months.  The learned Magistrate appears to have acted in accordance with s 79(1C) of the Transport Operations (Road Use Management) Act, which provides that in circumstances where an offender has within five years been twice convicted under that subsection, the Court shall in respect of the offence impose, as a whole or part of the punishment, imprisonment.  However, the circumstance requiring that aggravated penalty was not properly alleged.  See Justices Act s 47(4) and (5).  It was accepted by the respondent in this case that no notice of the kind referred to in subsection (5) was served.  In the circumstances, it is conceded that the learned Magistrate was in error in believing that he was obliged to impose a mandatory prison sentence.

It is unfortunate that the practice of notifying in this way appears to have become quite common, with the result that the consequence which would flow from proper compliance with s 47 of the Justices Act does not in fact occur.  It is a practice which, in my opinion, ought to be changed immediately.

It is plain that his Worship's belief that he was obliged to impose a sentence which included a term of imprisonment was a critical part of his decision to do so.  At the outset of his sentencing remarks he stated that it was mandatory that he impose imprisonment.  Again in his sentencing remarks he said he was mindful of the legislation which required mandatory imprisonment and mentioned it yet again almost immediately.  My impression is that had he not felt obliged to impose a prison sentence, he may not have done so. 

Mr Martin for the respondent in this case submits, however, that this would have been an appropriate penalty in any event. Mr Farrell, who appears for the applicant before us today, does not contend that this Court should in those circumstances, re-sentence the applicant.

It is plain that the sentence should be set aside, but Mr Farrell submits that in those circumstances, an order should be made returning the matter to the Magistrates Court for re-sentencing. 

That, together with Mr Martin's submission that in those circumstances a penalty which includes a term of imprisonment was an appropriate sentence, is sufficient in my opinion to justify that course being taken, rather than this Court with less experience in those matters than a Magistrate attempting, notwithstanding Mr Farrell's submission, to re-sentence the applicant.

I would in those circumstances extend the time within which to make this application to 20 June 2001.  I would grant leave to appeal.  I would allow the appeal with costs.  I would set aside the sentence and the order of the learned District Court Judge, dismissing the appeal to that Court and I would remit the matter to the Magistrates Court, with a direction that all necessary adjournments be entered and that the learned Magistrate proceed according to law.

THOMAS JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  Those are the orders of the Court.