Washband v Queensland Police Service
[2009] QDC 243
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- Unreported Judgment
- Washband v Queensland Police Service[2009] QDC 243
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Washband v Queensland Police Service[2009] QDC 243
Washband v Queensland Police Service[2009] QDC 243
DISTRICT COURT OF QUEENSLAND
CITATION: | Washband v Queensland Police Service [2009] QDC 243 |
PARTIES: | Paul Edward WASHBAND (Appellant) and QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | D 81/2009 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Townsville |
DELIVERED ON: | 31 July 2009 |
DELIVERED AT: | Townsville |
HEARING DATE: | 23 July 2009 |
JUDGE: | Durward SC DCJ |
ORDERS: | 1. Appeal allowed. 2. The appellant to be re-sentenced in respect of the period of disqualification imposed. 3. The respondent to pay the appellant’s costs of and incidental to the appeal. |
CATCHWORDS: | APPEAL – sentence – whether 10 month period of disqualification from holding or obtaining drivers licence validly imposed – whether manifestly excessive. NOTICE OF INTENTION TO ALLEGE PREVIOUS CONVICTIONS – statutory construction – Justices Act 1887 section 47 – whether wrong description of previous offence – whether Notice invalidated – consequence of invalidity in determination of period of disqualification – whether nature of proceeding (ex officio or by appearance) relevant. PREVIOUS CONVICTIONS – whether s 47 (6) Notice invalid – whether open to magistrate to act on allegation of previous conviction otherwise provided to him. Justices Act 1886 s 47 and s 142; Transport Operations (Road Use Management) Act 1995 s 79(1), s 79(2), s 79A(3), s 86(2)(f), s 86(2)(B), s 86(5); Traffic Act 1949 ss 16, 20 and 54;Police Powers and Responsibilities Act 2000 s 382. Croft v Trusz; ex parte Croft (1966) QWN 14; Steinberg v Lundgaard (2001) QCA 332; Hughes v Hopwood (1950) QWN 21; House v R (1936) 55 CLR 504. |
COUNSEL: | D Honchin for the appellant K Wakefield for the respondent |
SOLICITORS: | Nelson Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
THE CHARGES
- [1]On 13 March 2009 in the Magistrates Court at Townsville the appellant was convicted and fined $600 on the summary charges and disqualified from holding or obtaining a driver's licence for a period of ten months, in respect of an offence of Driving a Motor Vehicle whilst over the General Alcohol Limit but not over the Higher Alcohol Limit (.057%) - made pursuant to s 79(2)(a) of the Transport Operations (Road Use Management) Act 1966 ("TORUM") - and an offence of Using a Handheld Mobile Phone whilst the Motor Vehicle was Moving. Both offences were committed in Townsville on 26 February 2009.
- [2]The appellant had been served with a Notice to Appear pursuant to section 382 of the Police Powers & Responsibilities Act 2000 (“PPRA”) in respect of an appearance in court on 13 March 2009. The officer who issued the Notice to Appear was Constable A Bye (a matter relevant to one secondary issue that was raised by the appellant).
- [3]A Notice of Intention to Allege Previous Convictions (“Notice”), made pursuant to s 47 of the Justices Act 1886 (“the Act”) and dated 28 February 2009, was served on the appellant on that date in respect of the offence of Driving a Motor Vehicle over the General but under the High Alcohol Limit, that is the subject charge. The Notice, so far as is relevant, set out the following:
"NOTICE is hereby given that in the event of your conviction for the offence charged, it is proposed to bring to the notice of the Court your previous conviction(s) set out hereunder:
OFFENCE |
| |||
DATE | PARTICULARS | DATE | PLACE | RESULTS |
17/12/2005 | Did Drive a Motor Vehicle Over General but Under High Alcohol Limit | 09/01/2006 | Brisbane | Disq 12 months $1,000 |
You are further notified that if you are not present in person before the Court, the Court may take account of any such previous conviction(s) here and before specified as if you had appeared and admitted it/them."
THE PROCEEDINGS BEFORE THE MAGISTRATE
- [4]The appellant entered a plea of guilty and a Breath Analysis Certificate and Traffic History were tendered to the Court. Both, upon the statement of the appellant's solicitor, Mr Nelson, were "admitted". His Honour and Mr Nelson then stated the following:
"MR NELSON: Thank you, Your Honour. The defendant's 28 years of age, he's been driving for 11 years and has in that time a reasonably good traffic history. He has one prior offence of driving over the legal limit of alcohol and that was a - a little over three years ago.
BENCH: No, he's charged with Under the Influence of Liquor.
MR NELSON: Yes.
BENCH: Not Over the Alcohol Limit.
MR NELSON: Mmm.
BENCH: Point 202.
MR NELSON: Yes, on the earlier occasion."
- [5]In the sentencing decision his Honour said, inter alia, "I should say, I take into account your previous traffic history".
THE APPEAL
- [6]A Notice of Appeal was filed and served alleging the following grounds:
"1. That the disqualification period imposed was manifestly excessive.
2. That the learned magistrate erred by giving excessive weight to a prior conviction.
3. That the learned magistrate erred by giving insufficient weight to the consequences of the length of the disqualification period for the defendant."
- [7]At the hearing of the Appeal, I granted the appellant leave to add a further ground of appeal, namely:
"4. That the failure to provide a correct 'Notice of Intention to Allege Previous Convictions' makes the Notice a nullity and the learned Magistrate acted erroneously in considering the aggravated penalty applied."
- [8]Ground 4 was the principal ground argued on behalf of the appellant, there being no oral submissions made in support of grounds 1 to 3. Hence the Appeal proceeded in respect of the period of disqualification, it being submitted by the appellant that the Notice was ineffective and that the Magistrate should not have proceeded on the basis that the relevant previous conviction had been proved, which entitled him to consider and to make a period of disqualification greater than would otherwise have been the case.
- [9]An order disqualifying a defendant from holding or obtaining a drivers licence is part of a sentence imposed on a defendant.
- [10]The alleged error is said to arise from a discrepancy as between the Traffic Record, which was tendered to the Court, and the description of the offence in the Notice. The relevant prior conviction is described in the Traffic Record in the following terms:
OFFENCE/ ACTN DATE | DESCRIPTION/ COURT | DETAILS | RESULT DATE | RESULT |
17/12/2005 | Drive Under Influence of Liquor (0.150 and Over) Brisbane MC | 0.202 BAC | 09/01/2006 | $1,000 I/D 20 Days IMP DISQ 12 Months CONVICTED AND DISQUALIFIED |
- [11]It will be readily apparent that the offence as described in the Traffic Record is not the description which is provided in the Notice. Indeed, the two descriptions are descriptions of quite different offences which have generally a quite different outcome in the penalty that might be imposed on them.
SUBMISSIONS
- [12]Hence the appellant's submission was that no relevant offence was made the subject of the Notice because of the error in the description and that therefore the Notice was defective and the Court was not able to take into account the actual previous conviction (as disclosed on the Traffic Record).
- [13]The respondent, on the other hand, submitted that the error was, in effect, of little relevance because the appellant had appeared on the hearing in answer to the Notice to Appear and was represented by a solicitor who, when the Traffic Record was tendered, stated to the Court that it was "admitted". Hence the respondent submitted that the prior conviction, regardless of the Notice or its contents, had been admitted and therefore was able to be taken into account.
SECTION 47 OF THE ACT
- [14]Section 47 of the Act has been amended several times. The section in its current form provides as follows:
"47 What is sufficient description of offence
(1) The description of any offence in the words of the Act, order, by-law, regulation or other instrument creating the offence, or in similar words, shall be sufficient in law.
(2) Where a person is convicted of an offence by a Magistrates Court other than the Children's Court and it is proved to the satisfaction of the court on oath or as prescribed by subsection (3) that there has been served upon the defendant with the Summons or a reasonable time before the time appointed for the appearance of the defendant a Notice specifying any alleged previous conviction of the defendant for an offence proposed to be brought to the notice of the court in the event of the defendant's conviction for the offence charged and the defendant is not present in person before the court, the court may take account of any such previous convictions so specified as if the defendant had appeared and admitted it.
(3) Any person who serves such a notice specifying any alleged previous conviction may serve such notice in the same manner as is provided for the service of a summons by this Act and may attend before any justice having jurisdiction in the State or part of the State or part of the Commonwealth in which such notice was served and to depose, on oath and in writing endorsed on the notice, to the service thereof.
(3A) Such deposition shall upon production to the court by whom the case is heard and determined be sufficient proof of the service of the notice on the defendant.
(4) Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.
(5) However, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice served with the complaint.
(6) Despite subsections (4) and (5), if the proceedings for the offence were started by a notice to appear, the alleged previous conviction must be stated in a notice served - (a) with the notice to appear; or (b) a reasonable time before the time appointed for the defendant's appearance."
- [15]Subsections (2) and (3) were added by the Justices Act Amendment Act 1963, No 10 s 2. Subsection (4) was added by the Justices Act Amendment Act 1964, No 32 s 22, which also made some other amendments to subsections (2) and (3) which are not relevant for the purpose of discussion in this judgment. Subsection (5) was added by the Justice & Other Legislation (Miscellaneous Provisions) Act 1997, No 9 s 39, which also made some further minor amendments to subsections (2) and (4). Subsection (6) was added by the Justice & Other Legislation Amendment Act 2003, No 77 s 86. The amendment also added a further subsection (7) which provided that "notice to appear" means a notice to appear under the PPRA.
- [16]The explanatory notes to the Justice & Other Legislation (Miscellaneous Provisions) Act 1997, No 9 relevantly state (with respect to sub-section 5) as follows:
"Clause 39 amends s 47 of the statute which requires that unless otherwise provided, when assessing penalty in respect of a simple offence, a circumstance of aggravation should be stated in the complaint except where the circumstance is a previous summary conviction. The purpose of this amendment is to require that, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice served with the complaint."
- [17]The explanatory notes to the Justice & Other Legislation Amendment Act 2003 No 77 relevantly state (with respect to sub-section 6) as follows:
"Clause 86 amends s 47 of the Act to remove the requirement for a notice alleging a previous conviction to be served at the same time as a complaint where the complaint is by way of notice to appear. The amendment will allow a notice alleging a previous conviction to be served either with the notice to appear or a reasonable time before the time appointed for the defendant's appearance.
The amendment overcomes the difficulties which arise in relation to the requirement in sections 47(4) and (5) that a notice alleging previous convictions is to be served at the same time as a complaint, where the complaint is by way of notice to appear. Notices to appear are routinely used to institute proceedings for unlicensed or drink driving including random breath testing operations where multiple offenders are identified. In these circumstances it is impractical to take a person back to the station to check criminal histories or to wait for checks to be done over the police radio. It also has the potential to defeat the purpose of issuing a notice to appear, which is to ensure that a defendant is not arrested and detained in police custody."
- [18]Subsection (6) was added to deal with proceedings by way of a Notice to Appear and compliments subsection (5), which specifically refers to proceedings by way of complaint and a requirement that the alleged previous conviction must be stated in a notice served with the complaint.
DISCUSSION
- [19]The point in contention between the parties is whether the requirement to allege the previous conviction in a notice served on a defendant is necessary in every instance in which a previous conviction, which can affect the quantum of penalty and the period of disqualification relevant to the subject offence, is mandatory in every case or only required if a defendant does not appear on the Complaint or a Notice to Appear; or whether that statutory requirement, if it is mandatory, can be waived or avoided - as the case may be - if a defendant appears on the Complaint or the Notice to Appear and admits, directly or by a lawyer representing him, the content of a Traffic Record which is tendered as an exhibit to the Court?
- [20]Stated in another way, can a Magistrate act upon the content of a Traffic Record regardless of the content of a Notice under Section 47 where a defendant appears, either represented or unrepresented, and admits the Traffic Record which contains the relevant previous conviction?
- [21]The appellant submitted that “the learned Magistrate’s reliance upon the notice of intention to allege previous convictions was in error since the notice was itself erroneous and of no effect” and that his Honour sentenced the appellant taking into account that previous conviction which had a specific consequence in increasing the applicable penalty and the period of disqualification. It was submitted that there should have been no previous conviction alleged and the appellant should only have been exposed to a maximum disqualification of not less than one month and not more than nine months (section 86(2)(f) TORUM).
- [22]The latter provision applies where a person has not been previously convicted of an offence against s 79(2), inter alia, in the period of five years before conviction. Where a person has been previously convicted of an offence under s 79(2) within the period of five years before the conviction, the person must be disqualified by such conviction for a period of not less than three months and not more than 18 months from the date of such conviction (s 86 (2)(B) TORUM). However, if within the period of five years before such conviction the person has been previously convicted of an offence under s 79(1), the person is disqualified by such a conviction and without any specific order for a period of nine months from the date of such conviction (s 79A (3) TORUM). Section 79(1) is the section relevant to the offence of driving over the general alcohol limit and over the high alcohol limit (that is, driving under the influence). Section 86(5) TORUM provides that where there is a disqualification without any specific order specified in the applicable section, the Magistrate may order that from the date of conviction “such person be disqualified absolutely or for a longer period than the period specified in the person’s case…” In this case the period of disqualification was ten months and it seems that the learned Magistrate had increased the period of disqualification by reference to the latter section.
- [23]The respondent submitted that s 47(2) of the Justices Act 1886 related to ex parte proceedings, whilst conceding that s 47 subsections (4), (5) and (6) seemed to expand the circumstances that were applicable pursuant to s 47. The respondent submitted that a court is not precluded from taking account of a prior conviction for an applicable previous offence even if a Notice has not been served. Reliance was placed on Croft v Trusz; ex parte Croft (1966) QWN 14. The appellant submitted that this authority was no longer relevant given the subsequent amendments to s 47 and that there is more recent authority relevant to this issue in Steinberg v Lundgaard (2001) QCA 332.
THE AUTHORITIES
- [24]When Croft v Trusz was decided, s 47 then comprised only ss (1), (2) and (3). The respondent in that case had pleaded guilty to a charge of driving a motor vehicle whilst under the influence of liquor or a drug and the Magistrate refused to allow reference to be made to a previous conviction for that offence on the ground that there had been ample time for service upon him of a Notice. The respondent had appeared in person on the hearing and had objected to any reference being made to his previous convictions because of the non-service of any relevant notice. The respondent was therefore dealt with in a way that would not have been permitted if the previous convictions had been alleged and established; that is, he was dealt with under more lenient provisions. If the provisions that applied upon the proof of previous convictions had been used, mandatory imprisonment was required to be part of or the whole of the punishment imposed.
- [25]The Traffic Act 1949 was the source of the equivalent summary charge and the disqualification period regime at the time Croft v Trusz was decided. The relevant sections of the traffic act appear to have been s 16 (Driving under the Influence of liquor) and ss 20 and 54 (Disqualification).
- [26]The Full Court found that the Magistrate was wrong in law:
“The correct practice, to which we have been referred is well established under summary jurisdiction procedure in various States, and it requires the Magistrate to ask the accused whether he admitted the previous convictions, and if the accused did so, then the prosecuting officer would have been entitled to recite the relative facts to the Magistrate. If, upon enquiry, the accused had not admitted them, the proper course for the Magistrate to have adopted was to adjourn the hearing so as to enable the prosecution to serve Notice of intention to prove previous convictions upon him, and upon resumption the prosecution could then have formally proved those convictions; whereupon the Magistrate’s duty would have been to take them into account …”
- [27]Two relevant matters appear from that judgment: firstly, if the respondent had admitted the previous convictions the prosecution would have been entitled to rely upon them, if he had not so admitted them, the prosecution – after serving a Notice upon the respondent – could have formally proved the convictions. The implication was that the presence or otherwise of the respondent was not a relevant factor; that is, whether the proceedings were conducted ex parte or in the presence of the respondent was not a relevant factor.
- [28]In Steinberg v Lundgaard, so far as is relevant, the applicant had twice previously been convicted of driving under the influence of liquor. The consequence of those prior convictions, if they were proved, was that on the subject offence of driving under the influence of liquor a mandatory period of imprisonment was required to be imposed. The Magistrate believed that he was obliged to impose such a sentence. However, no Notice pursuant to s 47(5) of the Act had been served. It was conceded by the respondent that in the circumstances the Magistrate was in error. The applicant had appeared and had pleaded guilty to the offence. The Court of Appeal stated that “it is plain that the sentence should be set aside…” but remitted the matter to the Magistrates Court with a direction that all necessary adjournments be entered and that the Magistrate proceed according to law.
- [29]Hence, it seems to me that even where a defendant appears upon the charge, if a relevant Notice has not been served at all then the Magistrate cannot impose a sentence on the basis of a previous conviction or convictions that has the effect of rendering the defendant liable to a greater penalty than that to which the defendant would otherwise be have been liable. It is not clear on the face of the judgment whether the previous convictions had been brought to the attention of the Magistrate by tendering a traffic record or simply by oral submission by the prosecutor. Nor does it appear whether the appellant had been asked to admit the previous convictions.
- [30]The Court referred to what it described as a “practice”, in the Magistrates Court, which it disapproved of. The ‘practice’ referred to seems to be the alleging of previous convictions without having served a Notice. The Court said the following:
“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.”
FURTHER DISCUSSION
- [31]It does not seem that the Court of Appeal considered it necessary to consider the issue of whether the proceedings were by way of ex parte procedure or upon the appearance of a defendant in obedience to a Complaint or a Notice to Appear. A literal reading of the judgment carries with it the implication that if the prosecution intend to rely upon a previous conviction for the purpose of rendering a defendant to a greater penalty, then it must comply with the relevant provisions in s 47 of the Act.
- [32]It follows that a Magistrate can only impose a penalty, including the period of disqualification (subject to s 86 (5) of the Act), that does not take into account a relevant previous conviction, which may otherwise have been permitted if a valid Notice had been served on a defendant. This is so regardless whether the defendant appeared on the hearing of the charge or if the charge proceeded ex officio.
- [33]The ex parte procedure is provided for in sections 142 (1)(c), (2)(a), (3), (3A) and (4) of the Act. If a licence disqualification, inter alia, is open to be part of the penalty, then the Magistrate will adjourn the hearing if the defendant does not appear in the first instance and a notice in the relevant form prescribed in the Act will be served on the defendant. If the defendant does not appear as required on the further hearing date referred to in the notice the Magistrate can proceed to determine the charge in the absence of the defendant in accordance with s 142 (1)(c) of the Act.
- [34]If on the other hand, the decision in Croft v Trusz (and I do not know whether it was referred to in submissions to the Court of Appeal in Steinberg v Lundgaard) had the implication that service of a Notice is not a mandatory or required step if a defendant appeared on the charge and admitted the previous conviction, then s 47 (4), (5) and (6) would be largely superfluous.
- [35]The content of the Notice follows the wording of s 47(2), which relevantly provides:
“(if) the defendant is not present in person before the Court, the Court may take account of any such previous convictions so specified as if the defendant had appeared and admitted it.”
- [36]However, s 47 (4) makes reference specifically to the liability of a defendant, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable and proscribes that “that circumstance shall be expressly stated in the complaint made in respect of that offence.”
- [37]In my view the allegation of a prior conviction to which reference is made in sub-paragraph (2), is made in respect of the allegation of a prior conviction for all circumstances rather than necessarily for the specific circumstance of rendering the defendant to a greater penalty than he would otherwise have been liable. The absence of the specific words that appear in s 47 (4) make that clear.
- [38]Further, s 47 (2) is clearly directed towards ex parte proceedings because of the qualifying words “…and the defendant is not present in person before the Court…” The implication is, however, that the court could rely on the previous conviction with respect to penalty if the defendant was present in court and admitted the previous conviction.
- [39]The word “circumstances” is used in s 47 (4) without any specificity as to what it includes. The word is not defined in the Act. Whatever else it may include, it would of necessity include an allegation of a previous conviction.
- [40]Section 47 (5) has the effect of refining “a circumstance” – as that expression is used in s 47 (4) – to the specific allegation of a previous conviction and restricting service of a Notice to “service with the complaint” and omitting the alternative of service in a “reasonable time before the time appointed for the appearance of the defendant…”.
- [41]Section 47 (6) extends the time for service to a proceeding commenced by way of Notice to Appear (rather than by complaint), but restores the “reasonable time” means of service in addition to service with the Notice to Appear.
- [42]None of s 47 (4), (5) or (6) refer to an “ex parte” proceeding. Those sections may each be read in isolation from s 47 (2). The former sub-sections refer to a specific circumstance, that circumstance being the allegation of a previous conviction.
- [43]Whether a prior conviction is admitted by a defendant or not, if the allegation of a prior conviction has not been made in a Notice, then the prior conviction cannot be relied upon by the prosecution and cannot be used by the Magistrate in determining the penalty or period of disqualification to be imposed. In my view this so regardless whether the allegation of the prior conviction may otherwise be before the Magistrate by reason of its inclusion in a traffic history or by other means, such as an oral submission by the prosecutor.
- [44]The decision in Croft v Trusz is was and remains limited in its application to s 47 (2) and is not applicable to s 47 (5) or (6). The Court of Appeal in Steinberg v Lundgaard regarded the non-compliance with the mandatory statutory requirements of s 47 (5) and (6) as sufficient to vitiate the proceeding in so far as reliance on prior convictions was concerned.
- [45]In both of the authorities to which I have referred, the relevant Notice was not given. In this case, of course, the Notice was given pursuant to s 47 (6) but the wrong offence was referred to in the Notice. The respondent submitted that the details of the previous conviction were incorrect only in respect of the “word description“ of the offence and that the other details were correct. The appellant submitted that the offence as described in the Notice was a completely different offence from the offence upon which reliance was sought. The relevant section of TORUM is not referred to in the Notice with respect to the previous conviction. In the absence of that detail it is impossible in my view to maintain – even tenuously - that the offence has not been mis-described. The description of the offence in the Notice is incorrect and the Notice on its face contains a significant error. It should not be left to the person who receives then Notice to divine whether the offence is one or another or whether it is a proper description of an offence that he or she may have committed previously. In other words, the statement of the offence must be correct in every particular if the Notice is to be effective.
APPEALS AGAINST EXERCISE OF DISCRETION
- [46]The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood (1950) QWN 21 (at p31), Macrossan CJ stated that an appeal court is not entitled to interfere unless it “… can find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under a misapprehension of fact or on some wrong principle in awarding sentence.”
Similarly, in House v R (1936) 55 CLR 504 (at p505), Dixon, Evatt and McTiernan JJ stated that “… it is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.”
CONCLUSION
- [47]There having been a significant error made in the Notice was vitiated entirely. It those circumstances it could not have been relied upon on the prosecution of the appellant in the Magistrates Court.
- [48]The appellant submits that the Magistrate relied on the Notice. I am not sure that that is correct. The Notice was not tendered as an exhibit on the hearing. The Magistrates Court file, to which reference was made in the course of the hearing before me, does not contain a copy of the Notice. The only copy of the Notice provided to me was exhibited to an affidavit by the appellant filed by leave on the day of the hearing of the appeal. If the Notice was not before the Magistrate, and it is not apparent from the transcript of the proceedings nor from his Honour’s decision that it was, then it could hardly be said that he relied upon it. What he did rely on, it seems to me, was the Traffic Record which refers correctly to the more serious offence of driving over the general limit and over the high limit. It seems to me that the Traffic Record was the source of his Honour’s knowledge of that previous conviction.
- [49]In any event, even though his Honour may not have had before him or otherwise had relied upon a relevant Notice, in the absence of a valid Notice he could not rely on his knowledge of the previous conviction for the purpose of making a greater penalty than that to which the appellant would otherwise have been liable. If he did in fact make reference to the Notice, the same consequence would ensue. The Notice was a nullity and the learned Magistrate was in error in imposing the greater penalty, whether he had the Notice or otherwise.
- [50]In the premises I do not need to consider the other grounds of appeal.
THE SECONDARY ISSUE
- [51]Mr Honchin for the appellant made a submission that the complainant was not properly described or named in the respondent’s material files on the appeal. I have in this judgment adhered to practice in referring to the respondent in these proceedings as “Queensland Police Service”, on the basis that the complainant was a police officer acting in the execution of his duty whilst employed by the Queensland Police Service. Mr Honchin took issue with the description of the respondent as “Queensland Police Service” and submitted that the proper description comprised the rank, initials and name of the police officer who made and signed the Notice to Appear, that is Constable A. Bye. The respondent was not in a position to respond to the submission, it having been raised orally on the hearing. I gave the parties liberty to provide further submissions if the necessity arose. The thrust of the submission by Mr Honchin was directed to the issue of costs, but in the circumstances I do not need to consider and determine the submission on the merits.
FURTHER PROCEEDINGS
- [52]The appellant submitted that in all the circumstances the proper period of disqualification was three months, in the context of a range of disqualification of not less than one month and not more than nine months, pursuant to s 86 (2) (f) of TORUM. The respondent submitted that the period of ten months was not manifestly excessive and should be applied in any event and ought to be imposed.
- [53]The appellant in his written submission had referred to a “minimum disqualification period of nine months” being appropriate. However, I think that this was an error and in any event in oral submissions the appellant correctly referred to the period of ten months being beyond the applicable range and thereby excessive. As have indicated he submitted that the appropriate period was three month disqualification. The applicable range is one to nine months.
- [54]It is open for me to re-sentence the appellant in respect of the period of disqualification (the monetary penalty not having been the subject of the appeal) and I propose to do so. However, it is necessary for the appellant to appear for re-sentencing and I propose to request the Registrar of this Court to make the necessary arrangements for that to occur.
ORDERS
1. Appeal allowed.
2. The appellant to be re-sentenced in respect of the period of disqualification imposed.
3. The respondent to pay the appellant’s costs of and incidental to the appeal.