Soames v Hogan[2012] QDC 160

QDC [2012] 160

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE FARR SC

No 405 of 2012

BRISBANE 

DATE 25/05/2012

ORDER

HIS HONOUR:  The appellant was convicted of the offence of driving without a licence, pursuant to section 78 of the Transport Operations (Road Use Management) 1995 in the Holland Park Magistrates Court on the 24th of November 2011.

The Court ordered that he be disqualified from obtaining or holding a driver's licence for a period of two years; that was the only penalty that was imposed. The maximum penalty for that offence was a fine of $6,000 or 18 months' imprisonment.

The offence was committed in the context of Mr Soames having been disqualified from driving by Court order since the 30th of March 2010. A six month period of disqualification was imposed on that date for an offence of unlicensed driving. Then on the 28th of May 2010, his driver's licence was disqualified for a period of two years for a driving offence committed on the 23rd of April 2010. The offence, the subject of this application and appeal, took place on the 21st of July 2011.

Section 78 subsection (3)(a) of the Transport Operations (Road Use Management) Act provides, it is submitted on behalf of the respondent, for the mandatory disqualification of a person from holding or obtaining a driver's licence, in the circumstances that exist in this case, for a period of at least two years but not more than five years. The mandatory disqualification period is to be imposed in addition to any other penalty that is imposed by the Court.

Now, Mr Soames was 40 days out of time in the filing of his notice of appeal but has provided to the Court an explanation for the late filing; that being the fact that he was given incorrect advice as to the time period during which an appeal could be lodged. He was self represented in the Court below and is self represented here today.

The principles regarding whether a Court should grant an extension of time for an appeal are now well established. The Court in the Queen v. Tait [1999] 2 Qd R 667, outlined the primary principles when considering an application for an extension of time and summarised them as follows: (a) whether there is good reason shown to account for the delay and the length of the delay; (b) whether it is in the interests of justice to grant the extension; (c) consideration of whether the appeal is a viable one; and (d) any prejudice to the respondent, which is not ordinarily a live issue in the case of a criminal appeal.

The respondent, in this matter, concedes that there is no prejudice to it due to the late filing of the notice of appeal and acknowledges that in the circumstances of a self represented litigant who has received incorrect advice and there is no evidence to the contrary, has shown good reason to account for delay and the length of the delay.

The respondent has submitted, however that the application for the extension of time should not be granted because it would not be in the interests of justice to grant the extension as the appeal is not a viable one. In that regard, the respondent relies upon the provisions of section 78 subsection (3)(a) and submits that the minimum penalty allowable at law was imposed by the Magistrate in the course of the proceedings in the Court below.

I've had the opportunity of reading the transcript of the proceedings in the Magistrates Court and it's quite apparent upon reading that transcript that the Magistrate accepted the mitigating circumstances that were place before him by Mr Soames and exercised leniency to the greatest degree possible by the imposition of only the minimum disqualification period allowable by law, if that be the correct interpretation of the provisions of section 78(3)(a).

In my view, it is the correct interpretation of that section. The section is clearly worded and contains no ambiguity. Any penalty that the Magistrate could have imposed that varied from that which was imposed could only have been a more severe penalty. The Magistrates Court was bound by the provisions of that section to impose as the very minimum the sentence of disqualification or the order of disqualification that was, in fact, imposed.

As I've indicated to Mr Soames in the course of submissions today, this Court is similarly bound by the law and that the law does not vary dependent upon the seniority of the courtroom. Given that in my view, the provisions of section 78 subsection (3)(a) are clear that it is a mandatory requirement and that the absolute minimum was imposed by the Magistrate, then there is no prospect of success for the appeal before this Court as this Court could only impose exactly the same penalty as a minimum. That's not to say that Mr Soames might not have some particularly powerful or significant mitigating circumstances which he placed before the Magistrate and which he has placed before this Court today in the course of his submissions.

Notwithstanding his unfortunate circumstances, the mandatory provisions are such that there is no other order that this Court could entertain in the circumstances. I similarly note that the Magistrate did not act upon any error in the course of his determination and that he did not fail to have regard to any relevant feature. I note that he was careful in providing to Mr Soames the opportunity to speak and to place his position before the Court and that Mr Soames did so to the best of his ability.

But nevertheless, for that reason, this appeal is doomed to fail. It would, therefore, not be in the interests of justice to grant the extension of time sought and for that reason, the application for an extension of time is dismissed and if necessary, the order is the appeal against sentence is dismissed as well and there is no order as to costs.

Any other orders required, Ms Francis?

MS FRANCIS:  No, thank you, your Honour.

HIS HONOUR:  All right. Well, Mr Soames, unfortunately for you, your application's unsuccessful. I hope you understand the reasons for that. I'm not asking that you agree with the reasons for that‑‑‑‑‑

APPELLANT:  Could you - there's no way you can impose a prison sentence on me now, so I could go to gaol until I can get my licence back?

HIS HONOUR:  No, Mr Soames, that can't happen.

APPELLANT:  There's no way. I feel I will have no - I have no other way but to re-offend to be able to work and to be able to function in society. So, I suppose my next step will be to go to gaol and to come here and to go to gaol by trying to provide and to work for my family because that is the only reason explanation or become a theft or something like that like - which I'm not 'cause I’m a worker.

So, I must try to go to work and try to drive to work and to drive home which I know won't last very long. So, but anyway, there's nothing else I can do. I - but I can't - like - it's like to lay down and die if I stay at home to do nothing with my life, to become a burden on everybody. I would rather be dead.

So, all I can say is I can give it a chance. I'll get caught and go to gaol and my life would probably be better for my children and my family anyway. Thank you for the opportunity to be able to come here today - putting my views forward. Thank you.

HIS HONOUR:  All right.