Wylie v Rich[2010] QDC 433

DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondent appeared in the Magistrates Court at Ayr on 3 June 2010 on four charges which are briefly described in the Notice of Appeal as follows:

Driving without a Licence Disqualified by Court Order

Vehicles on Roads must be Registered

Drive Uninsured Vehicle

Use/Permit to be Used Vehicle with Registration Certificates, Label, Plates which belong to another Vehicle.

2. [2]
   The Magistrate recorded convictions in respect of each charge and in respect of charge 1, placed the respondent on twelve months' probation and disqualified her from driving for a period of two years.  In respect of each of charges 2-4, the respondent was convicted and not further punished.

3. [3]
   The Appeal (by the complainant police officer) complains that the sentence is manifestly inadequate in all of the circumstances.  During the course of the argument on the Appeal, I was provided with other documentary material, including the four Notices of Intention to Allege Previous Convictions (exhibit 1), four Bench Charge Sheets (exhibit 2), and the respondent's traffic history (exhibit 3).

4. [4]
   I was also provided with a transcript of the proceedings heard in the Magistrates Court at Ayr on 3 June 2010, which is in two parts, the first concluding with the magistrate hearing some material from a person described in the transcript as  "unidentified speaker" (it was common ground that I should infer that that person was the probation officer and the second consisting in the magistrate pronouncing sentence).

5. [5]
   From the first part of that transcript, it is apparent that the respondent had entered a plea of guilty to the charges on some earlier occasion (the Bench Charge Sheet suggests 6 May 2010) and had been remanded so that some references could be obtained.

6. [6]
   When the matter came on for hearing, the prosecution sought to tender four Notices of Intention to Allege a Previous Conviction.  The solicitor appearing for the respondent objected to the notice which referred to an offence of disqualified driving on the basis that "it's not filled out in the approved form.  It gives a misrepresentation of the actual penalty that my client received and under the legislation and life band, it can't be accepted."

7. [7]
   The ensuing argument makes it clear that what was being objected to was that the notice in respect of the previous convictions for disqualified driving and unlicensed driving, failed to mention in respect of one of them that the sentence of imprisonment referred to had been wholly suspended.  I am told that I should assume that the words in handwriting appearing on the exhibit were placed there after the exhibit was initially tendered to the Court.

8. [8]
   It seems clear that the magistrate regarded himself as bound by the decision in Washband v The Queensland Police Service (2009) QDC 243 (consistently referred to as Washban in the transcript) to reject the Notice of Intention referring to the conviction for disqualified driving because the form was not "filled out correctly".  Most of the discussion concerned the omission of the words wholly suspended where the result was described in respect of the conviction on 20 November 2007.  On the hearing of the Appeal, Mr Hibble for the respondent expanded the criticism to say that the offence was incorrectly described also because of the omission of the words "disqualified by Court order".

9. [9]
   After discussion in which it became clear that the magistrate proposed to reject to the notice in respect of the disqualified driving, the following exchange occurred:

"MR HINDS:  Your Honour's quite right in referring to the others and the Notice to Alleges.  I don't know the benefit of the Notice to Allege in  relation to those particular type of offences.  However, Your Honour, where the - and referring to my client's history, purely just by way of antecedents, my client's never been given a community based order.

BENCH:  Well, I can't see that because I can't see the history.

MR HINDS:  Well Your Honour can see it for the antecedents and - about the character through section 9 of the Sentencing and Penalties Act.  My client's never been afforded the opportunity of dealing with her offending behaviour …"

10. [10]
    The magistrate went on to hear some material from the probation officer before imposing the sentence that I have spoken of.  The criminal history which I received included the following relevant convictions.

1. 14 August 2005. Unlicensed Driving - fined $500 in default ten days' imprisonment - disqualified from holding or obtaining a driver's licence for six months - conviction recorded.

2. 24 December 2005. Disqualified Driving - convicted - fined $1,200 in default 20 days' imprisonment and disqualified for a period of two years.

3. 8 June 2007. Disqualified Driving - dealt with a number of other offences - fined $1,850 in default 37 days' imprisonment - disqualified for a period of 30 months - conviction recorded.

4. 20 November 2007 - Disqualified Driving - sentenced to imprisonment for a period of three months - conviction recorded - disqualified for a period of 36 months.

The Charges

11. [11]
    The charges brought against the respondent are set out in the Bench Charge Sheet and it is necessary to detail them here.

Charge 1 of 4

TRANSPORT OPERATIONS (RUM) ACT 1995 78(1) AND (3)(A) AND (3)(H) DRIVING OF A MOTOR VEHICLE WITHOUT A DRIVER LICENCE DISQUALIFIED BY COURT ORDER REPEAT OFFENDER

That on the Eighth day of April 2010 at Ayr in the Magistrates Courts District of Townsville in the State of Queensland, one SHEREE MARGARET RICH did drive a motor vehicle, namely a motor car on a road, namely Mannington Place, Ayr the said SHEREE MARGARET RICH not being at that time the holder of a driver licence authorising her to drive that vehicle on that road and at the time of committing the offence, the said SHEREE MARGARET RICH was disqualified by a Court order from holding or obtaining a driver licence.

AND at the time of committing the offence, the said SHEREE MARGARET RICH was a repeat unlicensed driver.

AND it is averred that the said motor car is a motor vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995.

AND it is averred that the said Mannington Place is a road as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995.

AND it is averred that on the Eighth day of April 2010, the said SHEREE MARGARET RICH was not the holder of a driver licence authorising her to drive the said motor vehicle on the said road.

Charge 2

TRANSPORT OPERATIONS (RUM - VEHICLE REGN) REG 1999 10 VEHICLES USED ON ROADS MUST BE REGISTERED

That on the Eighth day of April 2010, at Ayr in the Magistrates Courts District of Townsville in the State of Queensland, one SHEREE MARGARET RICH used on a road, namely Mannington Place, Ayr a vehicle namely a motor car which was not a registered vehicle contrary to section 10 of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999.

Charge 3

MOTOR ACCIDENT INSURANCE ACT 1994 20(1) DRIVE UNINSURED VEHICLE

That on the Eighth day of April 2010, at Ayr in the Magistrates Courts District of Townsville in the State of Queensland, one SHEREE MARGARET RICH did drive an uninsured vehicle namely a motor car on a road, namely Mannington Place, Ayr and further, the complainant namely CONSTABLE SIMON PETER WYLIE is authorised by the commissioner  to take the proceeding.

AND further the commission of the aforementioned alleged offence came to the knowledge of the complainant namely CONSTABLE SIMON PETER WYLIE on the Eighth day of April 2010.

Charge 4

TRANSPORT OPERATIONS (RUM - VEHICLE REGN) REG 1999 76(2)(E) USED/PERMIT TO BE USED VEHICLE WITH REGISTRATION CERTIFICATES, LABEL, PLATES WHICH  BELONG TO ANOTHER VEHICLE

That on the Eighth day of April 2010, at Ayr in the Magistrates Courts  District of Townsville in the State of Queensland, one SHEREE  MARGARET RICH without reasonable excuse, used on a road, namely  Mannington Place, Ayr a vehicle, namely a motor car whilst a number plate attached to the vehicle was issued for another vehicle.

12. [12]
    As indicated earlier, the respondent pleaded guilty to those four offences on 6 May 2010. No record of the proceedings on that day is available but there is no suggestion that the respondent disputed any of the elements of the offence.

13. [13]
    The present matter turns upon interpretation of section 47 of the Justices Act 1886 which provides as follows:

"47. What is sufficient description of offence?

1. (1)
   The description of any offence in the words of the Act, order, bylaw, regulation, or other instrument creating of the offence, or in similar  words, shall be sufficient in law.

1. (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(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.

1. (3)
   Any person who serves such a notice specifying any alleged previous conviction may serve such a notice in the same manner as is provided for in 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 deposed, on oath and in writing endorsed on the notice to the servicer thereof.

1. (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.

1. (4)
   Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of the 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.

1. (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.

1. (6)
   Despite subsections (4) and (5) if the proceedings are for the offence were started by a notice to appear, the alleged previous conviction must be stated in a notice served.

1. (a)
   With the notice to appear; or

1. (b)
   A reasonable time before the time appointed for the defendant's  appearance."

14. [14]
    The section has been amended on a number of occasions and was subsequently amended to add a subsection (7) which provided that "Notice to Appear" means a Notice to Appear under the Police Powers and Responsibilities Act.

15. [15]
    It seems to me to be a very curious result that, in a case in which a person appears and pleads guilty to an offence including a circumstance of aggravation being that the person was, at the relevant time, disqualified by a Court order, that the Court should proceed on the basis that the circumstance of aggravation must be disregarded unless a notice in accordance with section 47 has been given. It would seem to me to be an unintended consequence of the section and a result which I would reach only with considerable reluctance as it is difficult to imagine that it was the intention of the legislature that such a result should occur unless it was thought that the procedure referred to in Croft v Trusz; ex parte Croft (1966) QWN 14 was to be followed. In that case the Full Court, dealing with earlier legislation said:

"The correct practice, to which we have been referred is well established under summary jurisdiction procedure in various States, and requires the magistrate to ask the accused whether he admitted the previous convictions, and if he did so, then the prosecuting officer would have been entitled to recite the relevant 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 formerly proved those convictions; whereupon the magistrate's duty would have been to take them into account …"

16. [16]
    However attractive such a procedure might be, the express wording of section 47 seems to require the service of such notices prior to the initial Court appearance.

17. [17]
    The result, it is said, is that although the charge is a charge with a circumstance of aggravation and the respondent has pleaded guilty to the charge with the circumstance of aggravation, she should be dealt with as though she was before the Court for the offence simpliciter.

18. [18]
    Judge Durward S.C. gave detailed consideration to this issue in the case of Washband v The Queensland Police Service (2009) QDC 243. Having considered all of the authorities and the explanatory notes to the amending legislation, His Honour concluded:

"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 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 of the prosecutor. Nor does it appear whether the appellant had been asked to admit the previous convictions.

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 section 47 of the Justices Act does not in fact occur. It is a practice which, in my opinion, ought to be changed immediately.'"

(The "Court" referred to in the last part of that quotation is the Court of Appeal in Steinberg v Lundgaard (2001) QCA 332.)

19. [19]
    Steinburg v Lundgaard (2001) QCA 332 was a very different case. In that case, the applicant had been twice previously 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 should have been imposed. The magistrate took the view he was obliged to impose such a sentence. However, no notice pursuant to section 47(5) of the Act had been served. The Court of Appeal took the view that the sentence should be set aside and remitted the matter for further determination.

20. [20]
    In the instant case the relevant circumstances of aggravation are stated in the charge and is accepted by the respondent when she pleads guilty to the charge. In that circumstance, does section 47 require that a notice under section 47 be given notwithstanding her admission?

21. [21]
    In my opinion it does not.

22. [22]
    The reasons for that conclusion are as follows.

23. [23]
    Section 78(1) creates an offence of unlicensed driving with a circumstance of aggravation where the offence is committed while the offender is disqualified by a court order from holding or obtaining a licence.

24. [24]
    Sub-section (3) of s 78 requires that a person convicted of an offence against ss 1 be disqualified from holding a licence for specified periods where the person committed the offence whilst disqualified by a court order or where the person was a repeat unlicensed driver in respect of the offence.

25. [25]
    A repeat unlicensed driver for the offence means a person who is both unlicensed and who has in the five years before committing the offence been convicted of an offence against s 78(1) – see s 78(6).

26. [26]
    “A circumstance of aggravation” is defined in the Criminal Code:

“any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”^[1].

27. [27]
    Thus it is seen that the circumstances of aggravation relevant to the charge of disqualified driving brought against the respondent were (1) that the offence occurred whilst the respondent was disqualified by a court order from holding or obtaining a driver's licence and (2) that the offence charged was committed whilst the respondent was a repeat unlicensed driver. Those are the matters which rendered the respondent liable to a greater punishment than that to which she would have been liable had the offence been committed without the existence of the relevant circumstance. The focus is on the maximum penalty to which the offender is exposed, not the calculation of the appropriate penalty in any given case.

28. [28]
    A previous conviction is not a relevant circumstance of aggravation in this case.

29. [29]
    While it might be said that the circumstance of aggravation will only be present where a person has been previously convicted of offences it is the state of things as at the date of committing the relevant offence rather than the previous conviction that is the circumstance of aggravation. Accordingly, in my opinion there was no difficulty for the Magistrate in determining the matter because the circumstance of aggravation was expressly stated in the complaint made in respect of the offence as required by s 47(4) and admitted by the Respondent when she entered her plea. Further, the circumstance of aggravation was not that the defendant had been previously convicted of an offence but was that her status was, at the date of committing the offence, that she was firstly, disqualified by a court order from holding and obtaining a licence and secondly, a repeat unlicensed driver within the meaning of that expression where used in the Act. When her plea of guilty was entered she admitted both of those matters and accordingly in my opinion no notice of intention to allege a previous conviction was required.

30. [30]
    Section 47 (2) did not arise for consideration as there was no issue as to the accuracy of the traffic history later relied upon by the respondent’s solicitor in making submissions as to penalty.

31. [31]
    This view is, in my opinion, not inconsistent with the decision in Washband. I note that in that decision the appellant appeared in response to a notice to appear. It is not suggested in the decision that the charge was in the form of the charge that I have set out in this judgment.

32. [32]
    The Magistrate having accepted the respondent's plea of guilty in respect of the charge of disqualified driving was required by s 78(2) to consider:

3. “(a)
   all the circumstances of the case, including circumstances of aggravation or mitigation; and

2. (b)
   the public interest; and

2. (c)
   the person's criminal history and traffic history; and

2. (d)
   any information before (him) relating to the person's medical history, or the person's mental or physical capacity, that the court considers relevant; and

2. (e)
   whether the offence was committed in association with the commission or attempted commission of another offence and, if so, the nature of the other offence; and

2. (f)
   any other matters that (he) considers relevant."

33. [33]
    It was not suggested before the Magistrate or before me that the convictions detailed in the remaining three notices of intention to allege previous convictions had the effect of exposing the respondent to an additional punishment in the sense that they were required to be considered as circumstances of aggravation.

34. [34]
    The prosecutor submitted that a period of imprisonment (wholly suspended) was an appropriate penalty.

35. [35]
    It is clear from the transcript of proceedings that the Magistrate regarded himself as bound by the decision in Washband to deal with the respondent as though the prior convictions had not occurred.

36. [36]
    On that basis, it is my opinion that the sentencing process miscarried.

37. [37]
    The Magistrate, in my view, was required to consider the respondent's history and in particular the matters I have referred to in paragraph 10 of this judgment.

38. [38]
    For the respondent it was urged upon me that one cannot conclude that a penalty was manifestly inadequate simply by comparing it with the history of the penalties previously imposed. I disagree. To say that it was appropriate to place the respondent upon probation for her fourth offence of disqualified driving where she had previously been fined $1200 for the first offence, $1850 for the second offence and sentenced to three months' imprisonment (wholly suspended) for the third offence is an extraordinary submission. The offence of disqualified driving has long been regarded as serious not least because of the inherent contempt for the court order that it demonstrates.

39. [39]
    In respect of the other three offences the Magistrate, properly approaching the matter, would have seen that these offences were also offences which the respondent had combined previously and should have considered that some penalty was appropriate in view of the history of the Respondent.

40. [40]
    In my opinion one can only conclude that the Magistrate erred and that the sentences were manifestly inadequate because of his failure to pay attention to the traffic history as he was required to do.

41. [41]
    On that basis, I would allow the appeal and set aside the orders made in the Magistrate Court on 3 June 2010.

42. [42]
    I raised with counsel during the argument on the appeal the prospect that if the appeal was allowed, I would send the matter back to the Magistrates Court with directions for re-hearing in accordance with s 225(2) of the Justices Act.

43. [43]
    Counsel were of the view that that would be an appropriate course. It seemed appropriate to me because the Magistrates Court is much better placed to determine an appropriate penalty for an offence of this type.

44. [44]
    Accordingly, I allow the appeal, set aside the orders made on 3 June 2010 and order that the matter be returned to the Magistrates Court at Ayr to be dealt with according to law and in accordance with these reasons.

45. [45]
    There will be no order as to costs.