DISTRICT COURT OF QUEENSLAND

1. [1]
   These 2 appeals under section 222 of the Justices Act 1886 were heard together. They involve unrelated offending but a common legal point.

2. [2]
   The appellants pleaded guilty in the Magistrates Court in 2012 to driving a motor vehicle whilst unlicensed. Ms Olver was sentenced to a good behaviour bond and a driver’s licence disqualification. Ms Manz was convicted and not further punished and her driver’s licence was disqualified.

3. [3]
   Each appeal argues that (a) the sentence imposed was “excessive”, in terms of section 222(2)(c) of the Justices Act (in that there should have been an absolute discharge under sections 17 and 19 of the Penalties and Sentences Act 1992) and (b) there should not have been a driver’s licence disqualification.

4. [4]
   The arguments focus on section 78(1) and (3) of the Transport Operations (Road Use Management) Act 1995 (TORUM Act), which reads (relevantly) as follows:

“78  Driving of motor vehicle without a driver licence prohibited

1. (1)
   A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.

Maximum penalty—

1. (a)
   if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence—60 penalty units or 18 months imprisonment; or
2. (b)
   otherwise—40 penalty units or 1 year's imprisonment.

…

1. (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 driver licence for the period mentioned in relation to the circumstance—

…

1. (c)
   if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended because of the allocation of demerit points—6 months;

…

1. (g)
   if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended under the State Penalties Enforcement Act 1999—a period, of at least 1 month but not more than 6 months, decided by the court;

… .”

5. [5]
   It was common ground that each of the sentences imposed constituted a “penalty” in terms of section 78(3) (line 2). Thus, under that section, a driver’s licence disqualification must also be ordered.  Ms Olver’s circumstances were caught by section 78(3)(c) and Ms Manz’s by section 78(3)(g).

6. [6]
   However, the appellants submitted that the learned magistrate approached the sentencing process by regarding herself as bound to impose a driver’s licence disqualification. It was said that if she had not so fettered her discretion, she would have discharged the appellants absolutely and not disqualified their driver’s licences.

7. [7]
   I am unable to accept that argument. Although the magistrate regarded section 78(3) as mandating a driver’s licence disqualification even if an absolute discharge were ordered, she did not consider that an absolute discharge was warranted on the facts of either case.

8. [8]
   Having examined each appellant's traffic history (which included speeding infringements and at least one demerit point suspension) and the relevant sentencing statistics imposed in comparable cases (as set out in the respondents’ submissions), I am not satisfied that either of the sentences imposed was excessive.

9. [9]
   Although that is sufficient to dispose of these appeals, I should also comment about the magistrate’s remarks that a driver’s licence disqualification was mandatory under section 78(3). 

10. [10]
    In Commissioner of Police v Kirby [2010] QDC 110, Judge Botting held that if no punishment or penalty is imposed upon a person under sections 17 and 19 of the Penalties and Sentences Act, no period of driver’s licence disqualification should then be imposed under section 78(3) of the TORUM Act. That approach was followed (albeit without detailed analysis) by Judge McGill in Van Kuik v Zuanetti [2012] QDC 116. But only a week after Van Kuik was decided, Judge Farr concluded in Soames v Hogan [2012] QDC 160 that a driver’s licence disqualification could still be ordered even if no other penalty were imposed. However, as it seems that neither Kirby nor Van Kuik was cited before Judge Farr, that decision should therefore be regarded in my opinion as having been made per incuriam.

11. [11]
    It was against that state of conflicting authority that the learned magistrate heard and determined the two matters here. In the circumstances, her Honour’s comments are understandable. 

12. [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 licence disqualification should not be imposed under section 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.

13. [13]
    In each appeal, the formal order will be: Appeal dismissed.