Bhardwaj v Commissioner of Police
[2009] QDC 131
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- Bhardwaj v Commissioner of Police[2009] QDC 131
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Bhardwaj v Commissioner of Police[2009] QDC 131
Bhardwaj v Commissioner of Police[2009] QDC 131
[2009] QDC 131 | |
DISTRICT COURT | |
APPELLATE JURISDICTION | |
JUDGE TUTT | |
No 25 of 2009 | |
JATIN BHARDWAJ | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
BRISBANE | |
DATE 20/04/2009 | |
ORDER |
HIS HONOUR: The current matter before the Court is an appeal by Jatin Bhardwaj against the decision of the Magistrates Court imposed on the 8th of December 2008 in the Richlands Magistrates Court wherein he was convicted after a summary trial of the offence of driving a motor vehicle without a driving licence while disqualified by a Court pursuant to sections 78(1) and subsection 3(a) of the Transport Operations Road Use Management Act 1995.
The Magistrate imposed a 3-months imprisonment as his sentence on the appellant, with a parole release date of 6 March 2009 which would mean that the appellant would be required to serve all but 1 day of his 3 months imprisonment before being released on parole.
It is necessary for sentencing authorities to fix a parole release date where the period of imprisonment imposed is 3 years or less and the Magistrate was complying with that provision under the Penalties and Sentences Act, being section 160B thereof. However, it has been clearly established in the matter of Queen v Kitson [2008] QCA 86 that where a sentencing authority imposes a parole release date beyond the midpoint of any sentence then the sentencing authority must inform the defendant of the reason for doing so and hear submissions in respect of why a parole release date beyond the midpoint of the sentence should be fixed, as opposed to the midpoint.
The reason for the halfway point of any sentence being important, so far as a parole release date is concerned, is that under the Corrective Services Act a person who is sentenced to a period of imprisonment is entitled to apply for parole after that person has served half of his or her sentence. Consequently, under the new provisions of the Penalties and Sentences Act it is reasonable to expect that if a parole release date is fixed beyond the halfway point of any tern of imprisonment then there should be not only notice of that given to an individual to receive submissions thereon, but logically, it would seem to be necessary that there be some special reason for fixing a parole release date beyond the midpoint if that were to occur.
In this instance the Magistrate did not seek any submissions on point or give notice of his intention to do so and consequently it would seem to me that he committed an error in law by so doing and I therefore find that he did so, which makes his decision appellable.
In accordance with the Justices Act on the hearing of any appeal a Judge may "confirm, set aside or vary the appealed order or make any other in the matter the Judge considers just." - see section 225, subsection 1.
In all the circumstances of this matter there is no doubt that the appellant has an unenviable traffic history which includes numerous traffic offences, some of a serious nature, and also including previous instances of unlicensed driving and driving whilst disqualified, as well as failing to stop at a red traffic control signal and quite a number of offences of speeding.
In those circumstances the imposition of a 3 months sentence of imprisonment is well within range to be imposed by a Court in the circumstances of the appellant again being convicted of driving a motor vehicle without a licence whilst disqualified but it is then a matter of what should be done so far as the imposition of a term of imprisonment is concerned.
It was probably more appropriate that if a term of 3 months imprisonment was to be imposed, which I would consider to be reasonable in the circumstances, that such a term be suspended after a short period in custody for an operational period beyond that.
However, in the circumstances which presently apply, namely, the appellant having served a period of 58 days in custody, that would probably be more than he would have served had the remainder of a period of imprisonment been suspended and of course, it is certainly longer than he would serve if he was given a parole release date at the half point of his sentence. So taking all matters into account at this stage it seems to me that the appropriate order would be that I should impose a term of imprisonment on the appellant of 58 days and declare the time that he has served as presentence custody and therefore the order would be that he not serve any further period of time in custody.
In the circumstances therefore, I allow the appeal. I set aside the Magistrate's order imposed on the 8th of December 2008 and in lieu thereof I sentence the appellant Jatin Bhardwaj to 58 days imprisonment, and I further order pursuant to section 159A of the Penalties and Sentences Act it is declared that the 58 days spent in presentence custody between the 8th of December 2008 and the 3rd of February 2009 be deemed time already served under the sentence.
I further order that he be disqualified from holding or obtaining a driver's licence for a period of 2 years from the 8th of December 2008.
MS FREEMAN: Your Honour, just with the declaration in relation to the custody order to be served, it should be till the 3rd of February.
HIS HONOUR: The 3rd of February? Yes. Well, I will amend that accordingly to the 3rd of February.
MS FREEMAN: Thank you.
HIS HONOUR: So the 58 days will be from the 8th of December 2008 to the 3rd of February 2009. I further order that there be no order as to costs.
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