Nguyen v Chand[2010] QDC 227

[2010] QDC 227

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE MARTIN SC

No 1111 of 2010

BRISBANE 

DATE 07/05/2010

ORDER

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act against a decision of the learned Stipendiary Magistrate at Richlands on the 8th of April 2010 to sentence the appellant to nine months' imprisonment with a parole release date fixed after three months, namely, the 8th of July 2010 for the offence of driving whilst disqualified.

Pursuant to section 223 of the Act this appeal is by way of rehearing.  It is submitted, on behalf of the appellant, that "This Court is not required and, in fact, cannot entertain an argument that seeks to correct error in the House -v- The King sense, for example, plainly unjust".  It is further submitted, "The appellant here is not required or, indeed, permitted to rely on any argument seeking to demonstrate error".

In my view, these submissions are contrary to clear authority, (see, for example, Teelow -v- The Commissioner of Police [2009] QCA 84).  There is certainly nothing in the legislation which indicates that the powers of this Court maybe exercised whether or not there was an error at first instance.  Indeed, the statutory ground of appeal that the punishment was excessive makes it obvious that the appellant must demonstrate error.  The error being that the punishment was excessive because it was beyond the permissible range of sentence.

As to the merits of the appeal, the respondent has most properly conceded that error infected the learned Stipendiary Magistrate's decision and that the appellant is to be sentenced afresh.  Whilst clearly disagreeing with the submission that demonstration of error is not necessary on this appeal, the respondent otherwise accepts the submissions of the appellant at paragraphs 18 to 26 of the outline.

I, too, agree that error in the sentencing process had infected the learned Stipendiary Magistrate's decision.  In any event, I'm of the view that the sentence imposed was excessive because it went beyond the permissible range of discretionary judgment.  No doubt the identified errors in the sentencing process contributed to the excessive penalty.

The true mischief in this offence is, in my view, the refusal or avoidance of the appellant to suffer the punishment involved in an order for disqualification from driving.  Total prohibition from driving for a lengthy period involves a substantial burden.  The appellant is clearly a person unwilling to suffer this penalty.  This offence is the appellant's fourth offence of driving whilst disqualified.

The relevant history is set out in the respective outlines.  In particular, in the outline on behalf of the respondent, this is disclosed:

On the 14th of April 2008 the appellant was dealt with for driving a motor vehicle with a blood alcohol concentration of .097.  He was then disqualified from driving for a period of four months.  On the 27th of June 2008 the appellant was dealt with for driving whilst disqualified.  He was then disqualified for a period of two years.

On the 22nd of June 2009 the appellant was dealt with for driving whilst disqualified.  He was then sentenced to two months' imprisonment wholly suspended for an operational period of 30 months and disqualified from driving for a period of 30 months.

On the 29th of September 2009 he was dealt with for driving whilst disqualified.  He was then sentenced to four months' imprisonment.  He was also dealt with for the breach of suspended sentence from his conviction on the 22nd of June 2009.  On that occasion the Court ordered that he serve the whole period of suspended imprisonment but fixed the release date on parole as the 13th of October 2009.  That meant that the appellant suffered actual incarceration on that occasion of two weeks.  He was then also disqualified from driving for a period of two years.  He was then dealt with for this offence committed on the 25th of February 2010 and dealt with on the 8th of April 2010.

Unsurprisingly, the penalties inflicted on the appellant have become increasingly harsher.  Clearly, deterrence from this type of offending or, put another way, encouragement to the appellant to suffer the penalty of disqualified driving, is an important factor in the determination of penalty today.  However, one must not lose sight of the fact that the original offence which brought about an order that the appellant be disqualified from driving was a drink driving offence involving quite a moderate blood alcohol concentration.  He was then disqualified from driving for a period of only four months.

Furthermore, there is no suggestion that on the occasion of this offence the appellant's manner of driving was anything other than appropriate.  The appellant is 26 years' of age.  There is no doubt that given the history of offending a stringent penalty for this offence is warranted.  However, the penalty must be proportionate to the mischief involved in the offending.

The appellant has to date suffered one month's actual incarceration.  In my view, that is a very substantial penalty in itself for having failed to comply with the order for disqualified driving.  I set aside the decision of the learned Stipendiary Magistrate.  The appellant is sentenced to five months' imprisonment.  I fix his release date on parole at the 7th of May 2010.

The appellant is to report to a probation and parole office in relation to the order for parole by the close of business on Monday, the 10th of May 2010.

The appellant seeks costs of this appeal.  I shall reserve the question of costs.

...

HIS HONOUR:  I find that the appellant has been in custody in relation to this offence only from the 8th of April 2010 to the 7th of May 2010.  I calculate that period to be a period of one month.  I declare that period as time served under the sentence which I've just imposed.