Crabbe v Queensland Police Service
[2013] QDC 122
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- Unreported Judgment
- Appeal Determined (QCA)
- Crabbe v Queensland Police Service[2013] QDC 122
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Crabbe v Queensland Police Service[2013] QDC 122
Crabbe v Queensland Police Service[2013] QDC 122
DISTRICT COURT OF QUEENSLAND
CITATION: | Crabbe v Queensland Police Service [2013] QDC 122 |
PARTIES: | JOHN CRABBE (Appellant) and QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | Appeal D82/12; MAG-00108915/12(9) |
DIVISION: |
|
PROCEEDING: | Criminal Appeal |
ORIGINATING COURT: | Magistrates Court, Rockhampton |
DELIVERED ON: | 13 May 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 March 2013 |
JUDGE: | McGill DCJ |
ORDER: |
|
| VEHICLES AND TRAFFIC – Driving offences – exceeding the speed limit – speed camera paper prosecution – whether charge proved Transport Operations (Road Use Management) Act 1995 Transport Operations (Road Use Management – Road Rules) Regulations 2009 Traffic Regulation 1962 Justices Act 1886 s 47(2) National Measurement Act 1960 (Cth) Dewberry v Dixon [2011] QCA 238 – cited. Dixon v Lekich [2010] QCA 213 – cited. Miers v Blewett [2013] QCA 23 – applied. Pearce v Dennis, ex parte Pearce [1999] QCA 239 – applied. R v Henderson, ex parte Attorney-General [2013] QCA 63 – cited. Rowe v Kemper [2008] QCA 175 – applied. Veen v The Queen (1988) 164 CLR 465 – cited. |
COUNSEL: | The appellant appeared in person. J Marsden for the respondent. |
SOLICITORS: | The appellant was not represented. Director of Public Prosecutions for the respondent. |
- [1]On 6 November 2012 the appellant was convicted after a summary trial before a Magistrate of one charge of driving over the speed limit applying to the driver for the length of road where the driver was driving, contrary to s 20 of the Transport Operations (Road Use Management – Road Rules) Regulations 2009 (“the Road Rules”). He was fined $400 with court costs of $78.50. The trial was what is described as a “paper prosecution”, that is to say, there were no witnesses called and a series of documents were tendered by the Police Prosecutor. The appellant did not give or call evidence. The appellant had not, prior to the hearing, given a notice as required by s 120(7) of the Transport Operations (Road Use Management) Act 1995 (“TORUM Act”). It follows that the appellant was not entitled at the trial to challenge the accuracy of the photographic detection device, the image from the photographic detection device, a marking or writing made by the photographic detection device on the image, or a matter mentioned in s 120A(4)(a), (b) or (c).[1]
National Measurement Act 1960 (Cth)
- [2]There were a number of matters advanced by the appellant in relation to the appeal. One particular matter was that the prosecution had failed to show that the speed camera complied with the requirements of the National Measurement Act 1960, a Commonwealth Act. The objects of that Act are set out in s 4, and include the establishment of a national system of units and standards of measurements of physical quantities, to provide for their uniform use throughout Australia, to coordinate the operation of the national system of measurement, to bring about the use of the metric system of measurement as the sole system of measurement of physical quantities, and to provide for a national system of trade measurement. Subsection (2) provides that the Act and the Regulations do not apply to the exclusion of any law of a State except in so far as that law is inconsistent with an express provision of the Act or of the Regulations. Accordingly any provision of applicable State legislation will be inconsistent with that Act and hence invalid under the Constitution s 109 only if it is inconsistent with an express provision of that Act.
- [3]Section 7 of the Act provides that the Australian legal units of measurement of a physical quantity are the sole legal units of measurement of that physical quantity. The Australian legal units of measurement are those prescribed by regulation: s 3(1). Item 4.1 in Schedule 1 of the National Measurement Regulations 1999 specifies a unit of measurement of metre per second as the measurement of velocity and speed. The Regulations also prescribe “kilo” as a prefix specifying a numerical value: Schedule 3. The Act also provides the means by which the term “metre” and “second” as standards of measurement are defined.
- [4]Section 10 of the Act provides: “When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from” various specified things. These include in paragraph (h) “a certified measuring instrument”, that is to say a measuring instrument[2] that has been certified in accordance with the Regulation. The Regulation contains a mechanism by which a measuring instrument may be certified under the Regulation, but it is obvious from s 10 that the certification of the measuring instrument concerned is not the only means by which it can be ascertained whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made in terms of those units.
- [5]The appellant’s point appears to be that, in order to prove that a particular speed was detected by the speed camera, it is necessary to prove that the camera was a certified measuring instrument for the purposes of this section, and no evidence of that was put before the Magistrate. It seems to me however that this argument misunderstands the effect of s 10. It is concerned with ascertaining for a legal purpose whether measurement of a physical quantity is being made in terms of the Australian legal units of measurement, that is to say the reference to speed in terms of a multiple of a metre was by reference to a metre of the standard length specified in the Regulation,[3] and the unit of time was an hour derived from the standard unit of time, the second, as defined in the Regulation,[4] then those propositions have to be established in one of the ways specified in s 10.
- [6]Section 120(2) of the TORUM Act makes a certified image taken by a photographic detection device evidence of the things depicted in the image, and that any requirements required by regulation about the operation and testing of the device were complied with for the specified device at all material times. Section 120(2A) provides that a certificate purporting to be signed by the Commissioner, stating that a stated photographic detection device was tested at a particular time in a particular way and was found to produce accurate results at the time of testing, was evidence of the matters stated and evidence the device was producing accurate results when so tested and for one year after the day of testing. Subsection (7) then requires notice to be given if the defendant intends to challenge the accuracy of a photographic detection device. That notice had not been given, so it follows that the certificates referred to were evidence of the accuracy of the device and evidence of the things depicted in the image. One of the things depicted in the image is the data block which includes the recorded speed,[5] and the effect of the certificates is that they are evidence that the recorded speed is the speed recorded, and that that speed has been recorded accurately, that is to say, that the speed recorded was an accurate record of the actual speed of the vehicle concerned.
- [7]The speed was recorded in kilometres per hour. I think it may be accepted that a speed identified in terms of kilometres per hour for the purposes of the state legislation is to be taken to be a reference to a speed measured in accordance with the standard measurements fixed by the Commonwealth Act. It does not follow that it is necessary, for the purpose of a prosecution of an offence under s 20 of the Road Rules, to prove that the measurements have been made in terms of those units. This is so at least in a case where the effect of state legislation is that a certificate is evidence that a speed measuring device was accurate, and the legislation prohibits the defendant from disputing the accuracy of that device. When that situation arises, it is not necessary for the prosecution to prove for the purposes of the prosecution that the measurements were in terms of the Australian legal units of measurement, and therefore not necessary for that to be proved in one of the ways specified in s 10 of the Commonwealth Act.
- [8]It follows from s 4(2) of the Commonwealth Act that the provisions of the TORUM Act containing the presumption and prohibition are not invalid as inconsistent with the Commonwealth legislation, because the Commonwealth Act does not expressly provide to the contrary. Accordingly it was not necessary for the prosecution to prove that the measurements had occurred in accordance with the requirements of the Commonwealth Act, and the prosecution was therefore not deficient in failing to produce any certificate under that Act.
- [9]There is no general requirement in the National Measurement Act 1960 that prosecution for an offence which involves some form of measurement requires proof that the measurement was conducted in a way verified under that Act, in circumstances where state legislative provisions give rise to a presumption of accuracy, or at least evidence of accuracy: Pearce v Dennis, ex parte Pearce [1999] QCA 239, a decision concerning a breathalyser.[6]
- [10]The appellant also referred to s 18GB of the Commonwealth Act, which makes it an offence to install a measuring instrument if the measuring instrument is installed for the use of trade and is not of an approved pattern. The short answer to this submission is that a speed camera is not an instrument used for trade as that term is defined by the Act, because it is not used to determine the consideration in respect of a transaction, or used to determine the amount of a tax. Even though the practical effect of the use of speed cameras may be seen as raising revenue for the Government, the purpose of their use is to detect infringements of the Road Rules and in that way to enforce the law. This is not a use for trade, and it follows that s 18GB has no application.
- [11]The same applies to s 18GH, because that is concerned with the question of who is permitted to verify measuring instruments, and the requirement for measuring instruments to be verified, which is in s 18GA, applies only if the measuring instrument is used “for trade”. The Act also provides in s 19A that the Regulations may make provision for the examination of patterns of measuring instruments and the approval and verification of patterns in measuring instruments as patterns of measuring instruments suitable for use for trade and any other legal purpose, and the issuing of certificates in respect of the approval and verification of patterns in measuring instruments, and the reception of such a document in evidence. However, the section does not require that such a document be put in evidence in circumstances such as that which arose in the case of the prosecution here. Unless there is some requirement in an Act for such a certificate to be produced, the fact that the Act provides a mechanism by which such a certificate may be produced and, if produced, has a legal effect, is of no particular consequence.
- [12]The appellant did not refer to any other provision of the National Measurement Act 1960 which was relied upon as in some way invalidating the certificates tendered before the Magistrate, or in some way requiring proof of some additional matter before the appellant could be convicted of the offence charged. I am not aware of any. It follows that his argument based on that Act fails.
- [13]There is also the consideration that the respondent may well have been entitled to rely, in relation to a matter of this nature, on the presumption of regularity. The operation of this presumption in a particular situation was considered by the Court of Appeal in Dixon v Lekich [2010] QCA 213. In that case the Court held that, for reasons it set out, the presumption of regularity should not be applied, but it does not appear that the particular reasons which excluded the operation of the presumption in that case would apply here. However, this point was not the subject of argument on the hearing of the appeal, so it is not appropriate for me to say anything more about it.
Trade Measurement Act 1990
- [14]The appellant also referred to the Trade Measurement Act 1990, a Queensland Act, which in s 13 talks about the requirements of verification or certification of a measuring instrument. That section is concerned with the requirements for verification or certification of a measuring instrument for the purposes of that Act, and that Act is concerned with the use of measuring instruments for the purpose of trade, which is defined in s 4 of the Act in terms which are essentially the same as the definition in the Commonwealth Act. It follows that the use of a speed camera was not the use of a measuring instrument for trade for the purposes of the Trade Measurement Act 1990 either, and the requirements of that Act do not apply to it.
Agar v Baker
- [15]The appellant referred to a decision of the Victorian County Court said to be Agar v Baker, a decision of Judge Allen on 20 October 2011. He was unable to provide me with a citation for that decision, or a copy of it, and a search of the decisions of the County Court of Victoria on the AustLII website did not turn up such a decision. I have however found a summary of the case on the internet in the “Victorian Traffic Law Forum”.[7] From that summary it appears that in that case any notice requirements entitling the appellant to challenge the accuracy of the measuring instrument had been satisfied, and that the appeal was heard de novo, as the prosecution called the camera operator and a testing officer, and the appellant gave evidence. The case, to some extent, turned on the effect of certain provisions of the Victorian legislation, and otherwise it appears it largely turned on what had, or had not, been proved in the light of all of the evidence which was before that Judge. In these circumstances, it does not seem to me that it would operate as a useful precedent in the situation which arose in the present case, where the appellant had failed to give the notice required by s 120(7) of the TORUM Act, and the issue is, what was proved by the certificates in evidence.
Identification of the vehicle
- [16]It was submitted by the appellant that proper vehicle identification was in doubt as there were many reflective objects shown in the image Exhibit 1. In fact, the image shows one vehicle, a Mitsubishi four wheel drive bearing registration number 099 GHW. There is a small portion of a second car visible on the extreme right edge of the image. The Magistrate evidently had no reasonable doubt that the vehicle, the speed of which had been measured, was the Mitsubishi; having considered that evidence myself, I am in the same position.
- [17]The Magistrate said that it was not possible to tell from the image whether there were vehicles travelling in the other direction on the other side of a median strip which was behind the appellant’s vehicle. Whether there were such vehicles is irrelevant; the data block on the image includes the letter “F” which indicates that the vehicle, the speed of which was measured, was one travelling towards the camera.[8] Any vehicle on the other side of the median strip would have been travelling in the opposite direction. As to the question of whether the camera might have detected something other than the appellant’s vehicle, the appellant was not entitled to dispute that his vehicle had been detected because he had failed to give the notice required by subsection (7). Accordingly he was not entitled to dispute the accuracy of the speed measurement of 71kph included in the data block. That this was attributable to the appellant’s vehicle, rather than any other vehicle, also follows from inspection of the image, the accuracy of which the appellant was not entitled to dispute.
Testing of the camera
- [18]The appellant submitted that the effect of the Traffic Regulation 1962, s 210C(b) was that the speed camera needed to be tested after the camera was installed in the vehicle. It is apparent from the certification which forms part of Exhibit 1 that the image relied on in this case was taken by a Gatso speed camera system operator AUS24. According to Schedule 10 of the Traffic Regulation 1962, such a device is an approved analogue speed camera system: see s 4 of the Regulation. Section 210C of the Regulation applies to a digital speed camera system used to provide evidence of a prescribed offence. It had no application in the present case.
- [19]Section 210 of the Traffic Regulation prescribed the provisions which must be complied with if an analogue speed camera system was used to provide evidence of a prescribed offence. Section 120(2) of the TORUM Act provides:
“(2) An image produced by the prosecution purporting to be certified by the commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—
- (a)the image was taken at the specified location and time;
- (b)the accuracy of the image;
- (c)the things depicted in the image;
- (d)any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.”
- [20]Exhibit 1 included the certification that the image was properly taken by the specified photographic detection device at the specified location and time. The certificate was by a delegate of the Commissioner. The Commissioner may delegate the power of issuing such a certificate under the Police Service Administration Act 1990 s 4.10. There was no issue about the validity of the delegation before the Magistrate. It follows that the effect of this certificate was that the requirements prescribed by Regulation, in this case by s 210 of the Traffic Regulations 1962, had been complied with. There was accordingly evidence before the Magistrate that the applicable provision of the Regulation had been complied with. There was no evidence to the contrary. There is nothing in s 210 about the camera being tested specifically after it has been installed in a vehicle.
- [21]A further difficulty for this argument by the appellant arises from Exhibit 2, which was a certificate that the speed camera in question was tested on 15 November 2011 in accordance with the specifications of the device’s manufacturer and any further requirements about calibration testing prescribed under a Regulation, and that such photographic detection device was found to be producing accurate results. Under s 120(2A) of the TORUM Act, this was evidence of the matters stated and that the device was producing accurate results when so tested and for one year after the day of testing. The prosecution in the present case alleged an offence on 1 February 2012, within one year after the day of testing. The certificate Exhibit 2 was therefore evidence that the relevant device was producing accurate results at the time of the detection of the speed of the vehicle driven by the appellant. That the vehicle was driven by the appellant was proved by further certificates and a series of statutory presumptions. It is not necessary to go into these, because there was no dispute before the Magistrate that the appellant was driving the vehicle in question.
- [22]It follows that there was evidence before the Magistrate that the device was producing accurate results, as well as evidence that the device had detected a speed of 71kph when it photographed the vehicle driven by the appellant. In circumstances where the appellant had not given notice of intention to challenge the accuracy of the detection device, or the speed that was recorded in the data block forming part of the image, the appropriate conclusion for the Magistrate to reach in the light of that evidence was that the appellant’s vehicle was at the time when the image was taken in fact travelling at a speed of 71kph. That was obviously the conclusion arrived at by the Magistrate, and on the evidence before the Magistrate I arrive at the same conclusion. Given the evidence was uncontradicted, it is not difficult to arrive at that conclusion beyond reasonable doubt.
Other matters
- [23]The appellant submitted that the site of the speed camera did not comply with the relevant Australian standard. It is true that the TORUM Act provides in s 112 that, when using a radar speed detection device, a police officer must comply with the appropriate Australian standard for using the device as in force from time to time or, if there is no appropriate Australian standard, the manufacturer’s specifications for the device.
- [24]It was submitted for the respondent that this section did not apply, on the basis that the relevant detection device was a photographic detection device, which is within Division 2 of Part 7 of the TORUM Act, while s 112 is within Division 1 of Part 7. I am not at all sure this is correct. There is no statement in the Act that the divisions of Part 7 are mutually exclusive. Neither “radar based speed detection device” nor “photographic detection device” is defined, or at least the former is not defined in a way which would exclude the latter. It may be that the provisions of s 112 would be inapt in their application to a fixed photographic detection device, but it is not clear why they could not apply to a mobile device operated by a police officer. As far as I know, the Gatso speed camera system is in fact, or incorporates, a radar based speed detection device, and if so, on the face of it s 112 would apply. It is however not necessary to decide this.
- [25]The difficulty for the appellant is that, in circumstances where no notice had been given of an intention to challenge the accuracy of the device, the image from the device or a marking made by the device on the image (which were the matters by which the charge was proved because of the evidentiary effect of the image and the certificates referred to earlier) it was not necessary for the police to call evidence to establish that the requirements of s 112 had been complied with. There is also the consideration that there was no evidence led by the appellant, and therefore no evidence that the requirements of s 112 had not been complied with. This is not a matter which can be dealt with by way of assertion from the Bar Table. Accordingly, there is no substance to this ground.
- [26]It was also submitted that there was no evidence that the camera operator had conducted a drive by test using a vehicle with a certified speed detection device fitted to verify the target speed detected by the speed camera. That might be another way of obtaining evidence that the device was accurate, but the effect of the certificate referred to earlier was evidence that the device was accurate anyway, and in the circumstances where the appellant had not given notice of intention to challenge the accuracy of the device, no further proof was necessary.
- [27]Overall the appellant has failed to show that the Magistrate erred in convicting him of the charge. Having considered the evidence before the Magistrate, in my opinion that evidence proved the appellant guilty of the charge beyond reasonable doubt.[9] The appeal against conviction is dismissed.
Sentence
- [28]The appellant also appealed against sentence, on the basis that his traffic history was produced in Court before the Magistrate, which he submitted was contrary to the Road Safety Act, s 90(4). This appears to be reference to s 90 of the Road Safety Act 1986 of Victoria, which does provide that a document alleging prior convictions served with a summons may not be tendered in evidence without the consent of the accused if the accused is present at the hearing of the information. The immediate answer to this submission is that the Victorian Act does not apply in Queensland, and there is no Road Safety Act in Queensland. There is a provision like this in the Justices Act 1886 s 47(2), although it does not contain the limitation in subsection (4) of the Victorian section.
- [29]There are however other provisions in s 47:
- “(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 circumstances 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.”
- [30]At first glance it might be thought that the effect of those provisions is that the conviction of the appellant for previous offences of speeding, or indeed other offences, could not be taken into account before the Magistrate for the purpose of sentence unless they had been included in a notice served on the appellant in the way indicated. The Court of Appeal has however determined that the section only applies in a situation where the effect of the previous conviction is to increase the maximum penalty the defendant would otherwise be liable to as a result of the conviction: Miers v Blewett [2013] QCA 23 at [13]-[15].
- [31]In the present case the effect of s 20 is that there is a maximum penalty of 40 penalty units, but there is (as far as I am aware) no provision which has the effect of increasing the maximum penalty, or imposing some other additional penalty, by reference to any previous conviction for speeding offences. The situation may be contrasted with the Criminal Code s 328A which in subsection (2) provides a more severe penalty for a person convicted of dangerous operation of a vehicle if the offender has been previously convicted either upon indictment or summarily of an offence against that section. Subsection (3) contains a further provision touching on the severity of the penalty if the offender has been twice previously convicted of the same prescribed offence or different prescribed offences. This is the sort of situation contemplated by the Court of Appeal in Miers v Blewett, not the situation where a previous conviction for the offence is taken into account when imposing a particular sentence within the specified maximum penalty. That is appropriate pursuant to the Penalties and Sentences Act 1992 s 9(2)(f), as touching on the offender’s character,[10] or as another relevant circumstance under s 9(2)(r). It follows that there was no legislative obstacle to the prosecution’s relying on the previous speeding offences as matters which were relevant to the sentence imposed by the Magistrate.
- [32]Ordinarily a criminal history or a traffic history is tendered to a court at a sentencing hearing, and relied upon unless some objection to its accuracy is taken by or on behalf of the defendant.[11] In the present case no objection was taken to the accuracy of the traffic history relied upon by the prosecutor, although the appellant did take the objection based on the provision of the Road Safety Act, which does not apply. He would have been entitled to dispute that the previous convictions related to him, or indeed to put the prosecution to proof of them, and if he had taken either course it would have been necessary for the prosecution to prove the previous convictions otherwise they could not be taken into account for any purpose. The proceeding would have become in effect a contested sentence. It does not appear however that that was done by the appellant in this matter. It would perhaps have been better if the Magistrate had asked the appellant whether he disputed the traffic history, but in all the circumstances the absence of any express dispute meant that the Magistrate was entitled to proceed on the basis that the history was accurate.
- [33]The prosecution alleged that there were four previous speeding offences since 2008, and two of them in 2011. The prosecution sought a much higher fine than the amount of the ticket, and asked for a higher fine than would be usual simply because of a trial because of the appellant’s history with running trials. The Magistrate in imposing the fine referred to the fact that there was a trial and the fact that the appellant’s previous history would seem basically to be speeding offences. It is not clear that he acceded to the submission of the prosecutor that there should be a higher fine specifically because of the appellant’s history of running trials.
- [34]That there was a trial rather than a plea is a matter properly taken into account, in the sense that, if an offender pleads guilty to a charge, that is a factor which can, and normally will, be taken into account by way of mitigation.[12] Although to a layman it may appear that the effect of this approach is that a more severe penalty is imposed on someone who goes to trial compared with the situation a person who pleads guilty, in principle it is the penalty imposed following a trial which sets the standard as the appropriate penalty in all the circumstances, and a person who does plead guilty is ordinarily entitled to have that taken into account as a matter going in mitigation of penalty. In the present case the appellant was not entitled to any benefit that would otherwise have accrued to him had he pleaded guilty to the charge. That did not involve any error of law on the part of the Magistrate.
- [35]The Magistrate also properly took into account previous offences; these are matters relevant to the character of the appellant which in turn is a matter relevant to sentence: Penalties and Sentences Act 1992 s 11(a). In so far as the police officer submitted that it was relevant to take into account, as a further aggravating feature, that the earlier offences had also followed trials (if that were the case), that in my opinion was incorrect as a matter of law, because of the way in which the plea operates as referred to earlier.
- [36]It was relevant to considerations of personal deterrence that there had been previous convictions for speeding, and also appropriate to take into account the amounts of the fines imposed on the earlier occasions, though it is not clear that that was considered by the Magistrate. It is commonplace that persistence in committing a particular offence will generally lead to more severe penalties being imposed.[13] One matter which it appears the Magistrate did not take into account is the requirement in s 48 of the Penalties and Sentences Act 1992 that, in determining the amount of the fine, the court must as far as practicable take into account the financial circumstances of the offender and the extent of the burden payment of a fine will be on the offender. There is nothing to indicate that this provision was complied with in this case, but in circumstances where the fine was only $400 and where no issue of straitened financial circumstances was raised by the appellant, I would not interfere with the sentencing discretion simply on that basis.
- [37]It was submitted that the Magistrate had imposed a heavier penalty as a result of an acceptance of the prosecution’s submission that the appellant was wasting the court’s time. There is nothing in the reasons of the Magistrate to indicate that that submission was accepted. It ought not to have been made, but there is no reason to think the Magistrate did in fact accept it. In principle any defendant is entitled to put the prosecution to proof of the charge, and the only consequence in terms of penalty is that the offender does not have the benefit of the mitigating effect of having entered a plea of guilty.
- [38]The appellant also complained that the Magistrate increased the original penalty substantially. I take it this is a reference to the fact that the fine imposed was greater than the amount which would have been payable in response to the original notification of the offence, but again that is because of the mechanism under which that notification is given, which is based on legislation and which in substance provides a concession for a person who accepts the allegation at that early stage. If the matter proceeds to a court, then the sentencing discretion operates by reference to the maximum penalty referred to in the section, and other relevant considerations. The Magistrate was certainly not confined to imposing the amount which would have been payable had the appellant responded by admitting the offence at the earliest opportunity.
- [39]Overall I do not consider that there is any substantial ground upon which it has been shown that the sentencing discretion miscarried, or that the sentence imposed is manifestly excessive. It follows that the appeal against sentence fails as well.
Costs of appeal
- [40]Counsel for the respondent sought costs. The Justices Act 1886 provides in s 226 that the Judge may make such order as to costs to be paid by a party as the Judge may think fit. There is a limitation on that power in s 232(4) which is not applicable in the present case, and a limitation on the amount of costs which may be awarded imposed by s 232A and the Justices Regulation 2004.
- [41]In the present matter the appeal was entirely unsuccessful. It is apparent that the appellant has strong feelings about the speed camera system, but the legislature has provided for the operation of such a system in Queensland, and any complaints of that nature are matters which ought to be dealt with at a political level. The courts cannot entertain any challenge to the appropriateness or fairness of legislation. It does appear in this case that there were no grounds raised by the appellant which were seriously arguable, the major difficulty confronting the appellant being his failure to give the notice required by s 120(7) of the TORUM Act. In those circumstances it is open to the prosecution to proceed without calling witnesses, and it chose to do so in this case. It has been established by earlier decisions of the courts that this procedure is legitimate provided that the legislative requirements for it have been satisfied.
- [42]In the circumstances, the mere fact that the appellant feels strongly about these matters is not a reason for departing from the ordinary principle in relation to costs, that costs follow the event, that is to say that an order for costs should be made in favour of the successful party. There are different considerations applying at the trial level: see Division 8 of the Justices Act. Accordingly in all the circumstances I consider it is appropriate to order that the appellant pay the respondent’s costs. Schedule 2 of the Justices Regulation 2004 provides for costs to be allowed up to an amount of $1,500 plus 20 per cent, that is to say, $1,800. There was some complexity involved in this matter, given the breadth of the appellant’s arguments and the complexity of the relevant statutory provisions, and I consider that costs in the sum of $1,800, which is quite moderate as legal costs go, should be awarded.
- [43]The orders therefore are:
- Appeal dismissed.
- Order the appellant to pay the respondent’s costs of and incidental to the appeal, fixed at $1,800, to be paid to the Registrar of the District Court at Rockhampton within three months from the date judgment is delivered, to be paid over by the Registrar to the respondent.
Footnotes
[1] The matters mentioned in that subsection were irrelevant for this prosecution.
[2] That means a thing by means of which a measurement may be made.
[3] “The length of the path travelled by light in a vacuum during a time interval of 1/299,792,458 of a second.”
[4] “The duration of 9,192,631,770 periods of the radiation corresponding to the transition between the two hyperfine levels of the ground state of the caesium 133 atom.” (whatever that means)
[5]Traffic Regulation 1962 s 211(1)(c); Schedule 11 Part 3.
[6] See also Dewberry v Dixon [2011] QCA 238 at [12].
[7] See: http://www.trafficlaw.com.au/forum/viewtopic.php?f=5&t=2011.
[8] See Traffic Regulation 1962 s 211(1)(c); Schedule 11 Part 3.
[9]Rowe v Kemper [2008] QCA 175.
[10] See s 11(a) of that Act.
[11]Evidence Act 1977 s 132C.
[12]Penalties and Sentences Act 1992 s 13; R v Henderson, ex parte Attorney-General [2013] QCA 63 at [59].
[13]Veen v The Queen (1988) 164 CLR 465 at 477-8.