DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 13^th June 2002, the appellant pleaded guilty in the Caloundra Magistrates Court to one count of driving without due care and attention. He was fined $450.00 in default nine days imprisonment and a conviction was recorded. The learned Magistrate disqualified the appellant from holding or obtaining a drivers licence for a period of six months. The appellant was not legally represented.

2. [2]
   He appeals only against the order for disqualification. As I apprehend the argument of Mr Courtney on the appeal, it is that the Magistrate did not have power to order disqualification under the Transport Operations (Road Use Management) Act 1995; alternatively if he purported to act pursuant to s. 187(1) of the Penalties and Sentences Act 1992, his discretion miscarried in that he based the penalty on the past history and not only “the nature of the offence, or to the circumstances in which it was committed”; and finally the sentence of six months disqualification was, in all the circumstances, manifestly excessive.

3. [3]
   There is no transcript of the proceedings before the learned Magistrate. All that this Court has is the lower Court file including the Bench Charge Sheet and the appellant’s prior traffic history.

4. [4]
   Fortunately there is no real argument about what occurred in the lower Court.

5. [5]
   It is common ground that the appellant was sentenced on the following facts: At about 4.00pm on the 16^th May 2002 he was driving east along Caloundra Road, Caloundra approaching the intersection of Sugarbag Road. Faced with a red light, the appellant has moved sharply to the left and turned into Sugarbag Road in accordance with a “Turn Left Anytime With Care” sign. The appellant travelled down Sugarbag Road beyond the traffic island, performed a u-turn over double white lines, drove back up Sugarbag Road and turned left into Caloundra Road through a green light. A member of the public reported the appellant’s conduct to the police. The appellant was contacted by police and, on the 18^th May 2002, he presented himself to the Caloundra Police Station for an interview. When interviewed he made full admissions.

6. [6]
   The appellant was charged under s. 83 of the Transport Operations (Road Use Management) Act 1995 (TORUM). Mr Courtney’s first argument is that TORUM constitutes a Code and that because s. 83 does not itself contain a power to impose a licence disqualification, the Magistrate is not permitted to so order under any other Act. There is no substance in this argument. Section 3 sets out the objectives of the Act, and I can detect no legislative intention to establish a Code. Indeed, it might be a surprising result to many that a person convicted of an offence against s. 83 could not be disqualified from holding or obtaining a drivers licence. Indeed s. 90 empowers a Magistrate on dismissal of a complaint against a person of an offence … against section … 83 to disqualify that person … if satisfied “in the interest of the public” that such person should be prohibited from driving a motor vehicle either absolutely or for a period. As a matter of construction, it would be remarkable if the legislative intended that a Magistrate who dismisses a complaint can nevertheless exercise the power to disqualify; but a Magistrate who convicts a person of the offence cannot. There is no substance in this ground.

7. [7]
   Mr Courtney did not argue that the offence was not one “in connection with, or arising out of, the driving of a motor vehicle” by the appellant: R v Ly [1996] 1 Qd.R. 543. He submitted that s.187(1)(b) (as a penal provision) should be read down, in the event of ambiguity in favour of the appellant: Smith v. Corrective Services Commission (NSW) (1980) 147 CLR 104 at 139. In Smith the Court seems to apply this principle of statutory construction to a “penal statute” and “an Act which affects the personal liberty of the subject”. Clearly s.187 is a penal provision, but I am satisfied that there is no ambiguity in its interpretation. I interpret words in s.187(1)(b)

“having regard to the nature of the offence, or to the circumstances in which it was committed”

as meaning that these factors are the primary factors to be considered, but not the only factors. To hold otherwise, in my opinion would be to undermine the purpose of the section in the overall context of the Penalties and Sentences Act 1992. The reference to “the interests of justice” must, in my opinion, permit a Court to take into account the previous traffic history of the offender.

8. [8]
   The final ground is that the sentence of six months disqualification was manifestly excessive. In deciding this ground, the Court is bound by the approach mandated by cases such as R v. Melano; Ex parte Attorney-General [1995] 2 Qd.R. 186 at 189, and that is unless the court below has erred in principle in the sense that it has imposed a sentence that is manifestly excessive, this court should not interfere. The appellant did not file an affidavit setting out what he says occurred before the Magistrate. Mr  Hastie, for the respondent, accepts in his submission (at 15.7) that the appellant made submissions regarding the effect of a drivers licence disqualification upon him. This I assume to be a reference to what Mr Courtney said that his client needs his licence for his work. I will proceed therefore on the basis that the learned Magistrate was informed of this, although there is nothing  on the Court record to support this. Certainly, the Magistrate had before him the appellant’s prior traffic history, which, for a man of 26, is very poor. Mr Hastie tells me there are 24 traffic infringements, many of which are for speeding, and on seven previous occasions his licence has been cancelled because of the accumulation of demerit points. Significantly, this was his first offence against s. 83; and his first disqualification by a Court. In determining whether the sentence (which includes the disqualification) was manifestly excessive, this Court must look at the total sentence which included a substantial fine, the recording of a conviction, and a default term for non-payment. Consistent with the proper approach to the way in which s. 187(1)(b) is to be interpreted, in exercising the discretion imposed by s. 187, the sentencing court should have regard primarily to “the nature of the offence or the circumstances in which it was committed”. In my opinion, the offence was not a particularly serious example of careless driving. It was not alleged that he put anyone at risk, or that he drove at excessive speed. His driving was stupid and irresponsible and the substantial fine reflected that. Mr Courtney informs me and Mr Hastie accepts, that automatically, upon conviction of an offence against s. 83, the appellant suffers three demerit points. Having regard to the mitigating factors, namely his full co-operation and early plea, and the importance of a licence to his livelihood I am satisfied that the sentence imposed was manifestly excessive, and I allow the appeal to the extent of removing the disqualification order.