Queensland Police Service v Klupfel
[2013] QDC 210
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- Unreported Judgment
- Queensland Police Service v Klupfel[2013] QDC 210
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Queensland Police Service v Klupfel[2013] QDC 210
Queensland Police Service v Klupfel[2013] QDC 210
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Police Service v Klupfel [2013] QDC 210 |
PARTIES: | SENIOR CONSTABLE NICHOLAS STRICKLAND and WAYNE WILLIAM KLUPFEL |
FILE NO/S: | D12/13 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Maryborough |
DELIVERED ON: | 13 September 2013 |
DELIVERED AT: | District Court of Maroochydore |
HEARING DATE: | 30 August 2013 |
JUDGE: | Robertson DCJ |
ORDER: | Appeal is allowed. In addition to the order made below, it is ordered that the respondent be disqualified from holding or obtaining a driver’s licence for a period of 2 years |
CATCHWORDS: | APPEAL : where Magistrate during hearing considered herself bound to impose a mandatory disqualification period on the respondent who had pleaded guilty to unlicenced driving whilst suspended but then took a different course when giving her decision; where police prosecutor applied for leave to re-open which was refused, where appellant asserts that sentence below was inadequate and involved an error of law STATUTORY CONSTRUCTION : where different Judges of this Court have reached different conclusions as to the proper construction of s. 78 (3) of the TORUM; whether on a proper construction the mandatory disqualification power is engaged when no “penalty” is imposed; WORDS AND PHRASES : Meanings of “convicts” “must” and “may”, “convicted and not further punished” considered. Legislation: Acts Interpretation Act 1954 (Qld) Criminal Code 1899 (Qld) Penalties and Sentences Act 1992 (Qld) State Penalties Enforcement Act 1999 (Qld) Transport Operations (Road Use Management) Act 1994 (Qld) Cases: Drivas v Bobbermen [2011] QDC 36 followed Olver and Manz v Commissioner of Police [2013] QDC 9 not followed R v Nathan Kirby [2010] QDC 110 distinguished Soames v Hogan [2012] QDC 160 followed Van Kuik v Zuanetti [2012] QDC 116 cited |
COUNSEL: | |
SOLICITORS: | Ms S Francis – ODPP (for the appellant) Mr T George – Suthers Lawyers (for the respondent) |
- [1]Before me is an appeal by Police against an order made in the Bundaberg Magistrates Court by her Honour Magistrate Vasta on 17 December 2012.
- [2]On that day Mr Klupfel pleaded guilty to unlicensed driving, which offence occurred on 4 October 2012. On that day he was stopped at a random breath test site and searches revealed that his license was in fact suspended as a consequence of the operation of s 79B(1)(a) and s 1(A) and (2) of the Transport Operations (Road Use Management) Act 1994 (“the TORUM”). It was common ground that on 17 September 2012, Mr Klupfel was charged with what is described as driving while over the middle alcohol limit but not over the high alcohol limit pursuant to s 79(1F) of the TORUM. His blood alcohol reading was measured as a percentage at .145.
- [3]Mr Klupfel appeared on his own behalf on 17 December 2012. Effectively he told her Honour that he was not aware of the law changes i.e. s 79B which came into effect on 15 December 2006.
- [4]The transcript of the proceedings reveals that her Honour was careful to explain to Mr Klupfel what his rights were. She told him that she had no choice but to disqualify him from driving for a minimum period of two years. He told her that he did not know that, and she offered to give him time to consult a lawyer but he wanted to proceed and she did.
- [5]Her Honour’s reference to a minimum mandatory disqualification period is a reference to s 78(3) which is (relevantly) in these terms:
- “(3)If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driving license for the period mentioned in relation to the circumstance –
…
- (i)If the person committed the offence while, under s 79B –
- (i)The persons Queensland driving license was suspended;
…
for a period, of at least two years but not more than five years, decided by the court.”
- [6]It is not clear from the transcript, but I think I can infer that her Honour adjourned and then returned and gave her decision.
- [7]She purported to rely in a decision of Judge Botting in R v Nathan Kirby [2010] QDC 110. She held that the offence was trivial. She said:
“I therefore release you upon entering into recognisance in the sum of $200, conditioned that you keep the peace and be of behaviour for four (4) months. Because I am not imposing any penalty and in following the case of Kirby, I’m therefore not imposing any disqualification period.”
- [8]In her endorsement on the bench charge sheet, her Honour makes it clear that she was acting under s 19 of the Penalties and Sentences Act 1992.
- [9]Although the record does not reveal it, it is common ground that a few days later the Police Prosecutor applied for leave to re-open the sentence pursuant to s 188(1) of the Penalties and Sentences Act 1992 which her Honour refused. It should be noted that the Police Prosecutor, on the basis of the record before me, had no expectation that her Honour would deviate from the course as indicated in her conversation with the respondent before she gave her decision.
- [10]The appeal was lodged on 15 January 2013, and is only in relation to her Honour’s order on 17 December 2012. In effect, the appellant argues that the sentence is inadequate and that her Honour erred in law in not imposing at least the minimum period of disqualification which the appellant argues is mandatory.
- [11]There have been a number of decisions of this Court, in addition to the decision relied upon by her Honour, that have considered the wording of s 78(3) of the TORUM. Judges of this Court have reached different conclusions as to its proper construction. It is also clear that Magistrates have differing opinions as to the proper construction of s 78(3).
- [12]Judge Koppenol, in his decision in Olver and Manz v Commissioner of Police [2013] QDC 9, attempted to reconcile the conflicting decisions, so that Magistrates would be able to have regard to binding decisions of this Court which are consistent, in application of these mandatory disqualification provisions. As I respectfully disagree with his Honour’s conclusion, it is necessary for me to reconsider the various decisions.
- [13]The first in line is Police v Kirby the decision relied upon by her Honour. It is the only one similar to this that involves an appeal by Police against inadequacy of sentence. In that case, at first instance the magistrate had acted pursuant to s 19(1)(a) of the Penalties and Sentences Act and discharged the respondent absolutely.
- [14]His Honour’s analysis involves the construction of s 17 of the Penalties and Sentences Act 1992, in conjunction with s 19(1)(a). His Honour held that, in effect, a Court could make an order pursuant to s 19(1) (a) once it had considered, pursuant to s 17(1), that “it is appropriate that no punishment…should be imposed”. This is clearly correct.
- [15]In that case, Mr Kirby’s driving occurred at a time when his license was suspended under the State Penalties Enforcement Act 1999 (the SPEA). It was common ground that the period of suspension under the SPEA was to expire on the day that Mr Kirby was found driving his motor vehicle.
- [16]The critical part of his Honour’s analysis is at 1-8 to 1-9 of his judgment:
“It seems to me that the disqualification which must be imposed in subsection (3) of s 78 are disqualifications which are in addition to some other penalty which the court imposes. On the other hand when one looks at s 17 and 19 of the Penalties and Sentences Act, it seems to me to be clear that s 17 contemplates that a court may, in appropriate circumstances, conclude that no punishment is warranted.”
In other words, no penalty is to be imposed and that, if that is the view that the court takes, then the proper order is one under subsection (a) of subsection (1) of s 19 and that seems to be the course that his Honour took in this case. It seems to me that if one takes that view then one can accept that there is not necessarily an inconsistency between the provisions of subsection (3) of s 78 of the Transport Operations and Road Use Management Act and the provisions of s 17 and 19 of the Penalties and Sentences Act.
Taking that view, as I do, it seems to me that it was within his Honour’s power to conclude that these circumstances were such that it was appropriate that no punishment should be imposed and that he might make an order reflecting that conclusion under subsection (a) of subsection (1) of s 19 and order that the respondent be released absolutely.
In those circumstances, it seems to me that his Honour was entitled to take the course of not making an order under subsection (3) of s 78 of the Transport Operations Road Use Management Act 1995. In coming to that conclusion I have had some assistance by reference to the case which learned counsel for the respondent referred me, namely, that is the case of Re Stubbs of the Court of Appeal in New South Wales reported in Volume 47 of the State Reports of New South Wales at 329.”
- [17]It would follow from this analysis, that his Honour was of the view that as an absolute discharge under s 19(1)(a) of the Penalties and Sentences Act 1992 did not constitute a penalty, therefore the mandatory disqualification provision was not engaged.
- [18]It is immediately obvious that that is not the situation in this case. In this case, her Honour made an order under s 19(1)(b) of the Penalties and Sentences Act 1992 so it could not be said that a “penalty” was not imposed. For that reason alone, the decision in Kirby does not assist the respondent.
- [19]In Van Kuik v Zuanetti [2012] QDC 116, his Honour Judge McGill SC followed Kirby, without deciding whether the decision was correct, on the basis that it was not contended by counsel for the respondent Police Officer that it had been incorrectly decided, and also, as his Honour noted, in the interests of judical comity. That case involved an appeal by a driver in circumstances which the respondent conceded involved a mere technical offence, and that the sentence imposed below of a fine and mandatory disqualification was excessive. His Honour allowed the appeal against sentence, substituted an absolute discharge pursuant to s 19(1)(a), and, in following Kirby, held that as “no penalty is being imposed… the… disqualification is not mandatory”.
- [20]The next decision referred to by Judge Koppenol in Manz is a decision of Judge Farr SC in Soames v Hogan [2012] QDC 160. Again, his Honour was considering an appeal by a driver convicted of driving without a license in contravention of s 78(1) of the TORUM. It was common ground that the appellant was disqualified from driving at the time, which potentially invoked the mandatory operation of s 78(3)(a) of the TORUM. The judgment does not refer to the appellant’s circumstances, but the Magistrate had regarded them as so sympathetic that he imposed only the mandatory minimum disqualification period of two years. Although the actual order made below is not recorded, it is clear that the Court below did not impose any other penalty, but felt bound to impose the minimum period of disqualification.
- [21]Unfortunately the appellant in that case was not represented, and the respondent did not bring the cases of Kirby and Van Kuik to Judge Farr’s attention. His Honour proceeded to construe s 78(3) of the TORUM. His Honour referred to the acceptance by the Magistrate of the appellant’s mitigating circumstances, and to the fact that he had exercised leniency to the greatest degree possible by the imposition of only the minimum disqualification period allowed by law, if that be the correct interpretation of the provisions of s 78(3)(a). His Honour said:
“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.”
- [22]The final case in the series is the judgment of Judge Koppenol in Olver and Manz v Commissioner of Police. His Honour had before him the three decisions referred to above. Both appeals were against severity of sentence. The judgment is short and there is little detail of the offending. Both pleaded guilty to a s 78(1) offence, and Olver was subject to s 78(3)(c) (suspended because of the allocation of demerit points); and Manz was subject to s 78(3)(g) (suspended under the SPEA 1999). Olver was sentenced to a “good behaviour bond” and her licence disqualified. Manz was “convicted and not further punished” and her licence was also disqualified.
- [23]Each of the appellants argued that the sentence imposed was manifestly excessive, on the basis that a s 19(1)(a) order under the Penalties and Sentences Act 1992 should have been made, with the effect that no mandatory disqualification would follow based on the correctness of Kirby. The judgment does not refer to the length of the disqualification in either case but, it can be assumed that the Magistrate regarded herself as being bound to impose a period of disqualification by the wording of s 78(3) of the TORUM.
- [24]From the judgment it appears that the Magistrate regarded s 78(3) as mandating a period of disqualification (if (a) – (j) applied), even if an absolute discharge was ordered. At paragraph [7] his Honour notes “… she did not consider that an absolute discharge was warranted”.
- [25]His Honour dismissed both appeals on the conventional basis that neither sentence was excessive.
- [26]It appears that there was no argument to the effect that either of the sentences imposed was not a “penalty” in terms of s 78(3). Presumably this is a reference to the “good behaviour bond” in one case, and the “convicted and not further punished” order in the other.
- [27]Although not necessary to determine either appeal, in the interests of providing consistency and authority on the proper construction of s 78(3) of the TORUM, his Honour then went on to say:
- “[12]For the future, however, it would be appropriate in my opinion if Magistrates apply Judge Botting’s and Judge McGill’s (and not Judge Farr’s) approach – namely that if no penalty is imposed upon a person, a license disqualification should not be imposed under s 78(3) of the TORUM Act. As Magistrates are bound by decisions of District Court Judges – because (a) the District Court is a Court higher in the same hierarchy of courts, (b) it can correct on appeal the decisions of the Magistrates Court and (c) the accepted doctrine of precedent requires that Magistrates be so bound (see Viro v The Queen (1978) 141 CLR 88, 93; ANI Australia Pty Ltd v Hannay [1981] QdR 598, 601-2; Binskin v Kangaroo Transport Pty Ltd (1990) 12 MVR 499, 506-7 (NSWSC)), this approach will ensure certainty of application of these important and often encountered statutory provisions.”
As the learned author of the annotations to the TORUM, in Volume 3 of Carters Criminal Law of Queensland notes ,(at 432, 250), the decision “relied upon the law of precedent.”
- [28]His Honours’ intentions are laudable, however, there is still confusion which may undermine his Honour’s intention.
- [29]As I have noted, it was apparently conceded that both sentences involved a “penalty” for the purposes of construing s 78(3).
- [30]An order “convicted but not further punished” is not one sanctioned by the Penalties and Sentences Act 1992, although it is an order commonly made at all levels of the Court hierarchy, including the Court of Appeal. “Conviction” is defined in s 4 of the Penalties and Sentences Act 1992 as meaning “a finding of guilt, or the acceptance of a plea of guilty, by a court.” In my opinion, an order by a Court to the effect that an offender is “convicted but not further punished” is another way of saying “I accept your plea of guilty but elect to impose no penalty”. This form of order has nothing to do with whether or not a conviction is recorded. The definition of “penalty” in the Penalties and Sentences Act 1992 plays no part in construing s 78(3). This construction of the meaning of “conviction” is confirmed by s 78(4) of the TORUM which is in these terms:
- “(4)Subsection (3) applies whether or not a conviction is recorded for the offence.”
- [31]It would follow therefore, that in relation to one of the appellants before Judge Koppenol, as a matter of law no penalty was imposed, so if Kirby was correct, as his Honour held, he should have allowed the appeal. That he did not, adds to the confusion, which I will seek to resolve by construing the words of s 78(3) by reference to first principles.
- [32]I respectfully agree with Judge Farr SC’s opinion. I agree that the wording of s 78(3) is clear and unambiguous.
- [33]The word “must” qualifies the word “disqualify”, and not the phrase “in addition to imposing a penalty”. Section 32CA(2) of the Acts Interpretation Act 1954 provides:
“… the word must, used in relation to a power indicates that the power is required to be exercised.”
- [34]The draftsperson has not used the word “may” which indicates “that the power may be exercised or not exercised at discretion”: section 32CA(1) Acts Interpretation Act 1954.
- [35]The learned author of the annotations to this section, in an implied criticism of Kirby and Manz, points out that the word “may” is used to describe other discretionary powers to disqualify given to a Court in other sections of the TORUM, such as s 89 and s 90, and also in s 187 of the Penalties and Sentences Act 1992. The annotations also refer to a decision of Judge Samios in Drivas v Bobbermen [2011] QDC 36 to which no reference is made in Manz. That case was factually different, but nevertheless his Honour favoured the construction of s 78(3) that I favour and that was favoured by his Honour Judge Farr SC.
- [36]The use of the word “must” evinces a clear legislative intention that, whether a Court imposes a penalty or not, when a person is convicted of unlicensed driving pursuant to s 78(1), and any of the circumstances set out in s 78(3)(a)-(j) apply, the Court must disqualify for at least the minimum period set out in the relevant subsection. This meaning is confirmed by the terms of the offence creating provision itself in s 78(1), which provides for a maximum penalty which does not include any requirement to disqualify from holding or obtaining a Queensland drivers licence.
- [37]It would follow that the appeal is allowed and in addition to the order imposed by her Honour, the respondent is disqualified from holding or obtaining a drivers licence for a period of the minimum mandatory two years.
- [38]In my opinion this case is a clear example of the individual injustice that inevitably follows when mandatory sentencing regimes are introduced. The same result followed, but with much more severe consequences, when mandatory six month imprisonment terms were introduced in the last century for disqualified driving, and mandatory life imprisonment was introduced for the offence of trafficking in Schedule 1 dangerous drugs.
- [39]It is not however for courts to make the law. It is the role of the courts at this level to interpret and apply the law and give effect to it.
- [40]I am conscious that my decision will not greatly assist Magistrates who will still be faced with conflicting decisions from this Court as to the proper construction of s 78(3). It is an important issue, as unlicensed driving is a prevalent offence as his Honour Judge Koppenol noted. With that in mind, I recommend that a copy of my judgment be forwarded to the Attorney General. This will enable him to consider in an appropriate case (such as this one) whether or not to exercise his right to appeal against an allegedly inadequate sentence imposed under s 78, pursuant to s 669A of the Criminal Code, to the Court of Appeal. This would enable that Court to settle the law in this important area.