Leyden v Venkat[2015] QDC 28

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal under s 222 of the Justices Act 1886 (Qld) from an order of a Magistrate made on 8 April 2014.

2. [2]
   On 17 March 2014, the appellant pleaded not guilty to two charges of unlicensed driving of a motor vehicle (in contravention of s 78(1) of the Transport Operations (Road Use Management) Act 1995 (TORUM Act)), relevantly, in circumstances where his driver licence was suspended under the State Penalties Enforcement Act 1999 (SPEA) (s 78(3)(f) of the TORUM Act).

3. [3]
   On 8 April 2014, following a hearing, the appellant was found guilty of each of the offences, and sentenced as follows:

1. (a)
   in respect of the first offence, committed on 11 January 2013, he was fined $350 and disqualified from driving for one month;

2. (b)
   in respect of the second offence, committed on 7 May 2013, he was fined $500 and disqualified from driving for two months.  The disqualifications were not cumulative.

4. [4]
   The appellant appeals against both his conviction of each charge, and the sentences imposed, on the following grounds:

1. (a)
   In respect of his conviction of both charges:

1. (i)
   “[t]here was insufficient evidence that the SPER suspension of the Defendant’s driver licence had satisfied the elements of s 39A of the Acts Interpretation Act 1954 (Qld) in respect to service” (ground 1);

2. (ii)
   the Magistrate “incorrectly decided that the certificate evidence tendered by the Prosecution had not been challenged on behalf of the Defendant” (ground 2);

3. (iii)
   the Magistrate “wrongly interfered in the cross-examination of the Prosecution witnesses by the Defendant’s counsel by disallowing questions as to the reliability of service by ordinary mail” (ground 3);

2. (b)
   In respect of his conviction of the second offence, committed on 7 May 2013:

1. (i)
   the Magistrate “failed to correctly apply the exculpatory provisions of s 24 Mistake of Fact of the Criminal Code (Qld)” (ground 4);

2. (ii)
   the Magistrate “wrongly interfered in the cross examination of the prosecution witnesses by the Defendant’s counsel by disallowing questions relating to the reasonableness of the Defendant’s belief and the credit of prosecution witnesses” (ground 5); and

3. (c)
   In respect of both sentences, that the sentences are excessive (ground 7).^[1]

5. [5]
   The appeal is by way of rehearing on the evidence given in the proceeding before the Magistrates Court.^[2]   No fresh evidence was sought to be adduced.  The appeal involves a “rehearing” in the technical sense of a review of the record of proceedings below rather than a completely fresh hearing.^[3]  This Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions.^[4]  In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.^[5]

6. [6]
   Further, in so far as the appeal against sentence is concerned, as this involved an exercise of discretion on the part of the Magistrate, this Court may not interfere unless an error of the kind identified in House v R (1936) 55 CLR 499 at 504-505 has occurred.  It is not enough that this Court, on appeal, considers that, if it had been in the position of the Magistrate, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.^[6] 

The Circumstances of the Offences

7. [7]
   On 11 January 2013, the appellant was driving along Beerburrum Road, Caboolture, and was intercepted by Snr Constable Andrew Carl (Carl) in respect of a speeding offence.

8. [8]
   A conversation between Carl and the appellant on this occasion was recorded, and a transcript of that was tendered (by agreement) as exhibit 1. Although not appearing in the transcript (some parts being indecipherable), it was not in dispute that the appellant produced his licence to Carl. Carl is recorded as asking “Is that your current address” (presumably by reference to the address on the licence), in response to which the appellant says “Ah no mate, I’ve only just moved this week”. The appellant gives the address where he is “living now” as 9 Anzac Avenue, Beerburrum.

9. [9]
   There does not appear to have been evidence led as to what address appeared on the licence, however, as I note below, there was in evidence a certificate, provided under s 124(1)(ge) of the TORUM Act, which showed that the address recorded by the Department of Transport and Main Roads for the appellant, from 2 February 2007 to 12 June 2013 was 23 Tinsey Ct, Caboolture.

10. [10]
    Carl went to his police car, where he wrote out an infringement notice for the speeding offence. He then returned to the appellant’s vehicle, handed him the infringement notice, and gave him back his licence, after which the appellant drove away.

11. [11]
    Carl did not carry out any checks in relation to the appellant’s licence, and had no conversation with the appellant about his licence.^[7]

12. [12]
    The appellant gave the following evidence in chief:

“Now, when you say he took your licence back to the car, can you be more specific? – He took it back to his car.  He took it back to the driver’s side seat and sat down and I just imagined was writing the ticket.

So after he’s come back to you, what are you able to say about your thoughts relating to your licence? – I imagine, like, he had checked my licence, that’s just what I assumed and when he said I was right to go I kept driving.

And what did you assume – or did you assume anything in relation to the licence? – I had no further thought.  I thought it was just a speeding ticket and I could keep driving.”^[8]

13. [13]
    There was reference made at the hearing to an Operational Procedures Manual which, among other things, was said to indicate that police officers should check the validity of driver licences when they are produced. It was not in dispute that the appellant had no knowledge of those procedures.

14. [14]
    On 7 May 2013, the appellant was again intercepted, this time by Snr Constable Venkat (Venkat), when driving on the Bruce Highway at Caboolture.  In the appellant’s written submissions on this appeal (p 2), it is said this interception was in respect of a “loud exhaust”, and that the appellant was issued with an infringement notice for a defective vehicle.  The conversation between Venkat and the appellant was also recorded on this occasion, and the transcript of that recording was tendered (again by agreement) as exhibit 2.  On this occasion, Venkat asked the appellant to produce his licence, and the appellant did so.  Again, presumably by reference to the address on the licence, exhibit 2 records Venkat asking the appellant “You still live at 23 Tinsey Court, Caboolture?”, in response to which the appellant said “Nah mate.  Just moved to 9, Beerburrum”.  The appellant was asked when he moved, to which he replied “About three weeks ago”.  He confirmed he had not given notification of his change of address.  He confirmed his current address was “9 Anzac Avenue at Beerburrum”.

15. [15]
    It may be noted that the appellant’s responses to Carl and Venkat, respectively, about when he had moved are inconsistent. In January, the appellant told Carl he had only just moved that week. In May, five months later, he told Venkat he had just moved about 3 weeks ago.

16. [16]
    Venkat returned to his police car to carry out a check on the appellant’s licence, which revealed that the licence had been “SPER suspended since 29/11/12”. Venkat then returned to the appellant, and informed him that his licence had been “suspended by SPER”, in response to which the appellant said “Oh, really?” The following conversation then took place:

VENKAT: What can you tell me about your SPER suspension?

LEYDON: I know I have a fine but I believe they have to send me a letter.  I have a SPER account.

VENKAT: Mate, they would have sent you a letter, but you need to keep updating your address too.

LEYDON: Well, it would have been only a couple of weeks.

VENKAT: They (SPER) actually suspended your licence on 29^th of November.  Where were you in November?

LEYDON: 23 Tinsey Court.

VENKAT: Ok, so you had a SPER account.  How much were you paying every week?

LEYDON: Yeh, 20 bucks.  I topped it up.

VENKAT: When was the last time you topped it up?

LEYDON: (unintelligible) … It keeps getting taken out of my bank account.

VENKAT: So you have been making regular direct debit from your bank account?

LEYDON: Yeh, should be ongoing.

VENKAT: Did you change any bank accounts?

LEYDON: No.  Maybe its because was a new fine.

VENKAT: Yeh, every time you get a fine does not mean it automatically goes to your SPER account.

LEYDON: Yeh.

VENKAT: You need to nominate saying, you want to pay that off through SPER.  Did you do that?

LEYDON: No.  I haven’t got that form.”

17. [17]
    There was then a discussion about the reason for the appellant driving, and Venkat explaining that he cannot drive until the suspension is lifted, after which the following conversation took place:

“VENKAT: The other issue was on 11^th of January this year, you got picked up for speeding at Beerburrum Road, Caboolture.

LEYDON: That’s right, I haven’t paid that.

VENKAT: You were still suspended on that day too, ok.  Mate, basically you have committed two offences for driving whilst unlicensed according to our records.

LEYDON: Oh, really.

…

VENKAT: Now with your SPER account, you said you were making payments, when was the last time you checked to see if the payment was going through?

LEYDON: Honestly, I haven’t checked.

VENKAT: You got to check.  It’s your account you are paying.  It’s your responsibility once you make a payment plan to make sure the payment is going through.

LEYDON: There was always been money in there. ...”

18. [18]
    Venkat then issued the appellant with two notices to appear in relation to the offences the subject of this appeal.

19. [19]
    The appellant’s evidence was that 23 Kinsey Court, Caboolture was his brother’s house, and “that’s where I was living at the time”. In the context of the earlier questions, “the time” may be when the notification of SPER suspension was sent to the appellant (November 2012), although it is not entirely clear.

20. [20]
    In his evidence before the Magistrate the appellant confirmed that he had made no attempts to ensure that his SPER account was being paid;^[9] made no attempts from January to May 2013 to ensure the SPER account was coming out of his bank account;^[10] and made no efforts to update his address with Queensland Transport.^[11]

21. [21]
    Following his exchange with Venkat, the appellant contacted SPER by telephone, made a payment to “reinstate the payment plan”, after which the suspension of his driver’s licence was lifted.^[12]

22. [22]
    At the trial, a number of certificates were tendered in evidence by the prosecution, collectively, as exhibit 3.

23. [23]
    Although, unfortunately, in the form the Magistrate’s Court file appeared at the hearing of the appeal there was some confusion as to what was included in exhibit 3, it appears to have comprised:

1. (a)
   A certificate dated 18 September 2013, signed by Katherine Bowman, a delegate of the Chief Executive of the Department of Transport and Main Roads,^[13] issued under ss 60 and 124 of the TORUM Act, which certifies that on 11 January 2013:

1. (i)
   there was not in force a driver licence issued under the relevant legislation to the appellant; and
2. (ii)
   the driver licence, number 70448377, held by the appellant, was suspended, and that this suspension was effective from 29 November 2012 and removed on 7 May 2013 at 11.38 hrs.

2. (b)
   A similar certificate, certifying the same information, as at 7 May 2013.

3. (c)
   A further certificate, also prepared by Katherine Bowman, issued under s 124(1)(ge) of the TORUM Act, dated 18 September 2013, annexing the address history for the appellant for the period 20 October 2000 to 12 June 2013.  Annexure “A” to this certificate indicates that:

1. (i)
   From 2 February 2007, the address recorded by the Department of Transport and Main Roads for the appellant was 23 Tinsey Ct, Caboolture, 4510.

2. (ii)
   From 12 June 2013, the address recorded by the Department of Transport and Main Roads for the appellant was 9 Anzac Ave, Beerburrum, 4517.

4. (d)
   A five page document, prepared by the State Penalties Enforcement Registry, dated 26 September 2013, comprising:

1. (i)
   a cover page indicating that it relates to an “intercept date and time” of “11 Jan 2013 03.32 PM”;

2. (ii)
   a “contact summary”, setting out the various “contacts” (correspondence, phone calls, intercepts) with the appellant from 9 July 2012 to 24 September 2013; and

3. (iii)
   a “Certificate of Registrar”, prepared by Sheree Nitkiewicz, the “A/Manager, Compliance Management”,

4. (iv)
   issued under s 157(3) of the SPEA and s 95(4) of the Evidence Act 1977.

5. (e)
   A four page document, prepared by the State Penalties Enforcement Registry, dated 10 May 2013, comprising:

1. (i)
   a cover page indicating that it relates to an “intercept date and time” of “07 May 2013 11:15 AM”;

2. (ii)
   a “contact summary”, setting out the various “contacts” (correspondence, phone calls, intercepts) with the appellant from 9 July 2012 to 10 May 2013; and

3. (iii)
   a “Certificate of Registrar”, prepared by Sheree Nitkiewicz, the “A/Manager, Compliance Management”, issued under s 157(3) of the SPEA and s 95(4) of the Evidence Act 1977

24. [24]
    It is the documents referred to at sub-paragraphs (d) and (e) above that are relevant to one of the issues in the appeal (for convenience, I will refer to these as the SPER Certificates).  The remainder of the certificates were not the subject of any argument, either before the Magistrate, or on this appeal.

25. [25]
    In each case, the Certificate of Registrar is in the same terms, and certifies that the following information was obtained from the computer records (held by the State Penalties Enforcement Registry) in accordance with s 95(4) of the Evidence Act 1977:^[14]

“On 9 July 2012 infringement notice number A0062179425 issued to Scott Roderick Leyden (Date of birth 20 April 1984) by Queensland Police Service was registered with SPER for enforcement.

On 9 July 2012 an Enforcement Order was issued to 23 Tinsey Ct Caboolture Qld 4510, being at that time the address of Scott Roderick Leyden recorded with SPER.  The notice has not been returned unclaimed.

On 15 October 2012 a Reminder Notice was issued to 23 Tinsey Ct Caboolture Qld 4510, being at that time the address of Scott Roderick Leyden recorded with SPER.  The notice has not been returned unclaimed.

On 06 November 2012 in accordance with section 105, 145 and 158 of the State Penalties Enforcement Act 1999, a Notice of Intention to Suspend Driver Licence was issued to Scott Roderick Leyden.  The notice was posted by ordinary mail to 23 Tinsey Ct Caboolture Qld 4510 being at that time the driver licence address recorded with Department of Transport and Mains Roads.  The notice has not been returned unclaimed.”

26. [26]
    The appellant’s evidence was that he had no knowledge that his licence was “SPER suspended”, prior to Venkat informing him of that on 07 May 2013.

The Magistrate’s Decision

27. [27]
    The Magistrate found that the prosecution had established the offences beyond reasonable doubt, and found the appellant guilty of both offences. Her Honour was satisfied the appellant was driving on each of 11 January and 7 May 2013; and that on each of those occasions, he was not the holder of a driver licence authorising him to drive, because his licence was suspended.

28. [28]
    Her Honour found that:

“There was also documentary  proof in terms of the relevant certificate of service of the notice suspending the defendant’s drives [sic] licence, which must be accepted on all of the evidence, including relevant parts of the Acts Interpretation Act, section 39 and 39(a) [sic], in my view, having been complied with.  The notices, having been sent to the last known address of the defendant and the certificates being before the court, relevantly unchallenged, make it irrelevant that the defendant says he never received them.”

29. [29]
    Her Honour found that s 24 of the Criminal Code was not available to the appellant on the basis that, even if honest and reasonable, a mistake by a person that he holds a valid licence is not a mistake of fact but a mistake of law (relying upon Coughlin v Curran [2008] QDC 66 and Lee v The Commissioner of Police [2010] QDC 275).   Her Honour further found that, even if s 24 were available to him on the occasion of the first offence, in her view “it would not be available on the second, as by that time, he has failed to change his address with Transport, incurred another fine, laid [sic, made] by his own evidence, no checks in relation to that or arrangements”.

30. [30]
    In sentencing the appellant, the Magistrate made the following remarks:

“I’ve taken into account all of those matters today that have been placed before me.  I did indeed find you guilty at the end of these hearings.  The first occasion of your driving under the SPER suspension, I convict and fine you $350 and you’re disqualified from driving for one month.  That, indeed, is the usual amount that I apply to someone pleading guilty at an early time, so, indeed, you’ve received the benefit there, where, perhaps, sometimes I’ve been persuaded to a lesser or even perhaps no fine, for persons whom I accept have no knowledge of their SPER suspension; a significant benefit, in all of the circumstances of your position.

In relation to the second, you’re convicted and fined the sum of $500. These disqualifications are not cumulative and, in my view, for the second disqualification, a longer disqualification ought ensue and I’ve taken into account, as I say, all of the matters and that previous history, you’re disqualified from holding or obtaining your drivers licence for a period of two months…”

The Appeal

31. [31]
    The grounds of appeal raise 3 issues for my consideration:

1. (a)
   First, whether the Magistrate erred in concluding that the SPER Certificates were sufficient to prove service of the notice of intention to suspend the appellant’s driver licence (ground 1, to which grounds 2 and 3 are related).

2. (b)
   Second, whether the Magistrate erred in concluding that s 24 was not available to the appellant (ground 4, to which ground 5 is related).

3. (c)
   Third, whether the sentences imposed by the Magistrate were excessive (ground 7).

Ground 1 - Service of the Notice

Relevant Provisions of the SPEA

32. [32]
    The reasons why a person’s driver licence may be suspended are set out in s 104 of the SPEA. They include, relevantly, in s 104(3)(a), that the registrar is satisfied an enforcement debtor has defaulted in paying instalments under an instalment payment notice.^[15]

33. [33]
    Section 105 of the SPEA provides as follows:

“(1) If the registrar decides to suspend an enforcement debtor’s driver licence the registrar must serve on the enforcement debtor a notice of intention to suspend the licence.

3. (2)
   If the enforcement debtor does not pay the unpaid amount stated in the notice within 14 days, the enforcement debtor’s driver licence is suspended.

3. (3)
   The driver licence is suspended until the enforcement debtor pays the unpaid amount or the amount is otherwise discharged under this Act.”

34. [34]
    Section 145 of the SPEA sets out what must be contained in a notice of intention to suspend a driver licence, including a statement that “if the person does not pay the amount stated in the notice within 14 days after the date of issue of the notice”, the person’s “driver licence will be suspended until the amount owing is paid or otherwise discharged”.

35. [35]
    Section 158(1) of the SPEA provides that:

“(1)  A document may be served under this Act –

1. (a)
   as provided for under the Acts Interpretation Act 1954, part 10; or

2. (b)
   if a person gives the person’s email address to SPER or the registrar – by sending the document by email to the person’s email address; or

3. (c)
   in another way prescribed by regulation.”

36. [36]
    It was not suggested the appellant had provided an email address to SPER, or that any other form of service was prescribed by regulation.

37. [37]
    Section 153 requires the registrar to keep a State penalties enforcement register, and requires various information to be included in that register, including particulars of various notices, and any enforcement action taken after the issue of such notices, including a notice suspending a driver licence.

38. [38]
    Section 157(3) provides that a certificate purporting to be signed by the registrar and stating various matters is evidence of the matter. Those matters include that “a notice of intention to suspend the driver licence of a stated person was served on the person in a stated way on a stated day”.

39. [39]
    That provision may also be read with s 95 of the Evidence Act 1977, which permits evidence of facts set out in a document or thing produced by a process or a device to be admitted.

Acts Interpretation Act 1954

40. [40]
    Part 10 of the Acts Interpretation Act 1954 (AIA) (referred to in s 158 of the SPEA) deals with service of documents.  Sections 39 and 39A of the AIA relevantly provide as follows:

“39 Service of documents

1. (1)
   If an Act requires or permits a document to be served on a person, the document may be served –

1. (a)
   on an individual –

1. (i)
   by delivering it to the person personally; or

2. (ii)
   by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document;

…

2. (2)
   Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.

…

39AMeaning of service by post etc

1. (1)
   If an Act requires or permits a document to be served by post, service-

1. (a)
   may be effected by properly addressing, prepaying and posting the document as a letter; and

2. (b)
   is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”

Appellant’s Argument

41. [41]
    The appellant contends that the SPER Certificates relied upon by the prosecution to prove service of the notice of intention to suspend the appellant’s licence do not comply with s 39A(1) of the AIA, such as to enable the prosecution to rely upon the presumption of service provided for in that section.

42. [42]
    The appellant contends that because of the very serious consequences for citizens of notices such as a notice of intention to suspend a driver licence, “adopting a strict interpretation of [section] 39A of the Acts Interpretation [Act] is mandated”.

43. [43]
    On this appeal, the appellant did not argue (as he did before the Magistrate) that, having regard to those serious consequences, a different method of posting (such as registered mail) ought to be used when serving notices of intention to suspend a driver’s licence. The appellant accepted, appropriately having regard to s 158 of the SPEA and s 39 of the AIA, that posting of the notice by ordinary mail is sufficient.

44. [44]
    The appellant’s argument in essence was that the words in the SPER Certificates (“The notice was posted by ordinary mail to 23 Tinsey Ct Caboolture Qld 4510 being at that time the driver licence address recorded with Department of Transport and Mains Roads”) are not sufficient for the purposes of s 39A(1). The appellant does not dispute that a certificate may be used to prove such matters. However, he submits that, in order to rely upon s 39A, the certificates must “strictly comply” with s 39A(1)(a) by setting out evidence of “properly addressing, prepaying and posting” the document.

45. [45]
    In support of that submission, the appellant relied upon a decision of Mr Peter Lohrisch, as a member of the Queensland Commercial and Consumer Tribunal, in Thunder Corp Pty Ltd v Queensland Building Services Authority [2008] QCCTB 214.  In that decision at [29] and [30], the learned Member expressed the view that, “for a document as important as this document is,^[16] affecting, as it does, a person’s rights in a significant respect, the requirements of section 39A must, in my view, be strictly complied with, if the Authority is to expect the benefit of the postal method of service”.  In his view, that strict compliance required evidence of the envelope being properly addressed (not just the letter); evidence as to pre-paying by means of affixing a stamp or some other mechanism arranged with Australia Post; and evidence of actual posting.

Crown’s Submissions

46. [46]
    For the Crown it was submitted that when the SPER Certificates state that the notice was “posted”, that implies all of the constituent sub-factors, namely addressing the envelope, addressing the letter, putting a stamp on it, and actually delivering it to a post box. Further, the Crown relied on the certificate being made under s 95 of the Evidence Act.

Consideration

47. [47]
    The focus of s 39(1)(a)(ii) and s 39A(1) of the AIA is on delivery (in the sense of the act of sending), rather than upon receipt. As the High Court observed in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 97:

“… delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.”^[17]

48. [48]
    The policy underlying statutory provisions, such as ss 39 and 39A, enabling the service of all manner of documents by means other than personal service, including service by post, has been described as one of public convenience.^[18]   Whilst there may be some (albeit low) risk of non-receipt as a result of use of the postal system, the policy underlying such provisions places that risk on the intended recipient.^[19]   Of course, one means of addressing that risk, is to ensure that relevant official records, such as the records of contact details held by the Department of Transport, are up to date, a responsibility which must be borne by the citizen.^[20]

49. [49]
    It is well-established that proof of non-receipt is not sufficient to prove that service did not occur. However, s 39A(1)(b), by the words “unless the contrary is proved”, leaves open the possibility of proving non-delivery – that is, proving that the acts which are deemed by s 39A(1)(a) to constitute service were not done. Proof of non-delivery means that service cannot be deemed to have taken place under s 39A(1)(b).^[21]

50. [50]
    As noted above, the appellant does not challenge the appropriateness of evidence of service being given in the form of a certificate. This is clearly correct, having regard to s 157(3)(h) of the SPEA and s 44 of the Evidence Act 1977.^[22]  Nor does the appellant challenge the pre-requisites for admissibility of the information held by the computer records kept by the State Penalties Enforcement Registry, for the purposes of s 95 of the Evidence Act 1977.

51. [51]
    The only question is, whether the words used in the SPER Certificates are sufficient evidence for the purposes of s 39A(1)(a).

52. [52]
    The three pre-requisites in s 39A(1)(a) are “properly addressing”, “prepaying” and “posting”. The SPER Certificates state that the “notice was posted by ordinary mail to 23 Tinsey Ct Caboolture Qld 4510”. In my view, that is sufficient to establish those pre-requisites.

53. [53]
    The phrase “posted by ordinary mail” in my view is apt to capture the steps which need to be taken in order to post something by ordinary mail, which includes pre-payment of the postage. The reference to “ordinary mail” may be accepted as a reference to one of the means by which mail may be posted, being the “ordinary” means, as compared with some other, expedited, or more secure, method of delivery.^[23]  In this regard, I note that in Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167 at 170 Young J, by reference to the phrase “pre-paid post” in s 109Y(a) of the Corporations Law (then in force), commented that the words “pre-paid post” “are used in contradistinction to a system of post whereby the recipient pays the postage”.    In my view, the certificate is not deficient, in terms of s 39A(1)(b) of the AIA, because it does not expressly state that the postage was “prepaid”.  In my view, that is implicit in the composite phrase “posted by ordinary mail”.

54. [54]
    I am not persuaded that the Thunder Corp decision supports any different conclusion.   The conclusion reached by the learned Member in that case turned on the evidence of two QBSA employees as to the steps they had taken in relation to the sending of the disputed letter,  neither of whom could say the letter “was posted”, as opposed to describing the office procedures for dealing with outgoing mail. 

55. [55]
    There are two remaining matters to deal with in relation to this issue.

56. [56]
    First, I note that before the Magistrate, there was argument about the words “The notice has not been returned unclaimed” where they appear in the SPER Certificates. For the appellant, it was argued that was not a matter permitted to be dealt with in such a certificate and, in any event, is not probative of whether or not the person received the notice. Ultimately, it was agreed that the Magistrate need not rule on that, because the prosecutor placed no reliance on that sentence, on the basis that it was not necessary to prove receipt, only delivery. At the hearing before me, the appellant’s counsel confirmed that no further issue was being taken with that sentence, or the manner in which the Magistrate dealt with that issue.

57. [57]
    As is apparent from ground 2, however, the appellant does contend that the Magistrate incorrectly decided that the certificate evidence tendered by the prosecution had not been challenged by the appellant. It was not in dispute that, before the Magistrate the appellant did not challenge the admissibility of the certificates; but rather challenged the extent to which the certificates were evidence, or sufficient evidence, of the facts set out in them (in particular, service of the notice of intention to suspend the appellant’s driver licence).   In my view, the Magistrate’s comment, in her decision, that the certificates were “relevantly unchallenged” reflects that position.  I do not consider that the Magistrate can be said to have made any error, or misunderstood in any way, the appellant’s argument regarding proof of service.  What is apparent, however, is that she formed the view that ss 39 and 39A of the AIA had been complied with, such as to enable her to be satisfied as to service of the notice of intention to suspend the appellant’s driver licence, notwithstanding the appellant’s evidence that he never received them.

58. [58]
    Second, as to ground 3, in my view there is no basis to conclude that the Magistrate “wrongly interfered in the cross examination of the Prosecution witnesses by the [appellant’s] counsel by disallowing questions as to the reliability of service by ordinary mail”. The appellant did not seek to elaborate on this in oral submissions, and I was not directed to any particular parts of the cross-examination. My own review of the evidence reveals that the appellant’s counsel sought to elicit from one of the police officers his agreement to the proposition that “sometimes mail goes astray in the post”.^[24]  The prosecutor objected to that, and the Magistrate, in my view quite properly, upheld the objection.   The police officer’s response to such a general proposition is not relevant, and therefore not admissible.

59. [59]
    For the foregoing reasons, I would dismiss the appeal against the convictions of both charges on grounds 1, 2 and 3.

Ground 4 - Mistake of Fact

60. [60]
    Ground 4 contends that the Magistrate failed to correctly apply the exculpatory provisions of s 24 of the Criminal Code (mistake of fact).  This ground relates only to the second conviction (of the offence committed on 7 May 2013).

61. [61]
    Section 24(1) provides as follows:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”

62. [62]
    Section 24 must be read with s 22(1) of the Criminal Code, which encapsulates the common law principle that ignorance of the law affords no excuse.

63. [63]
    As was explained by Philp J in Loveday v Ayre; Ex parte Ayre [1055] St R Qd 264 at 267-268:

“Section 24 provides that a person is ‘not criminally responsible’ if he acts under an honest and reasonable mistake of fact; the onus then is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of operative mistake. Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake.”

Appellant’s Argument

64. [64]
    The appellant contends that he held an “honest and reasonable, but mistaken, belief in the existence of any state of things”, namely that he held a valid driver’s licence, and that that was brought about the conduct of the police officer on the occasion of the first offence on 11 January 2013 (taking his licence, returning it without comment, and permitting the appellant to drive away).

65. [65]
    The appellant’s argument is that it was reasonable for him to assume that the police officer had checked his licence, on 11 January 2013, and because he was allowed to continue driving, having received the infringement notice for the speeding offence, it was reasonable for him to assume that there was no problem with his licence.

Crown’s Submissions

66. [66]
    For the Crown it was submitted that the Magistrate correctly proceeded on the basis that an honest and reasonable mistake by a person that he or she holds a valid licence when they do not is a mistake of law, not a mistake of fact, referring to Carolan v Cohen [2010] QDC 103 at [9], a decision of his Honour Judge Robertson, which in turn refers to Coughlin v Curran [2008] QDC 66 and Lee v Commissioner of Police [2010] QDC 275. 

67. [67]
    The Crown further submitted that, even if I were to find that the appellant had made a mistake of fact, it was not a reasonable one, because the appellant did not check his SPER account despite the fact he knew he had new fines; and did not make any attempts to update his address with Queensland Transport.

68. [68]
    Further, the Crown submitted that the first police officer’s failure to check the appellant’s licence could not have “constituted a positive declaration that his licence was intact”. Rather, it was an assumption the appellant made, in circumstances where he (the appellant) gave no evidence he was aware of the standard police procedure.

Consideration

69. [69]
    In support of that last submission, the Crown referred, by way of contrast, to Edgerton v Taylor (1996) 90 A Crim R 186.    I commence by reference to that, because it is a useful starting point for my consideration of this issue.

70. [70]
    In Edgerton v Taylor, the issue was whether the Magistrate erred in accepting a plea of guilty in circumstances where the defendant said at the time of entering the plea that he did not realise that he had lost his licence, and had made a “commercial decision” not to seek legal assistance, because the police officer told him, at the time of informing him that his driver’s licence had been suspended for non-payment of a fine, and that he would be charged with driving without a licence, that the fine for that offence “would not be hefty and that he would not lose his driver’s licence”.

71. [71]
    The Court in Edgerton v Taylor did not find that the defendant could rely on s 24 (the equivalent WA provision being in identical terms) to escape criminal responsibility; merely that it was arguable, and was a matter that ought to have been considered by the Magistrate, rather than simply accepting his plea of guilty.

72. [72]
    In expressing the view that it was “arguable” that a defence under s 24 was open to the defendant, Walsh J in Edgerton v Taylor referred to and relied upon the decision of Commissioner Buss QC in Ottobrino v Espinoza (1995) 83 A Crim R 435.

73. [73]
    Ottobrino is also a case about the need for care to be taken in accepting a plea of guilty, which is qualified in some way.  In Ottobrino, like Edgerton v Taylor, the defendant pleaded guilty to an offence of driving without a licence, in circumstances where he told the Magistrate that he had not received notice of the licence suspension order. 

74. [74]
    The conclusion, by Commissioner Buss QC, in Ottobrino, that the defendant may have a defence under s 24 (and therefore that the Magistrate ought not have accepted his guilty plea) turned upon his analysis of the relevant legislative scheme in that case, including, importantly, that disqualification (or suspension) was not an automatic statutory consequence; but rather required administrative action to be taken to effect the suspension (the issue of a notice confirming licence suspension).   In that situation, Commissioner Buss QC considered that the defendant may have been able to rely upon s 24, if at the relevant time he had not received a notice confirming licence suspension.^[25]

75. [75]
    In Illich v Young (2000) 32 MVR 354, the distinction between a case of that kind, and a case where suspension operates automatically, was referred to by Roberts-Smith J at [22] where his Honour said:

“The point of distinction, it seems to me, between that case [Ottobrino] and the present is that the learned Commissioner was dealing with a situation in which administrative action had to be taken to effect the suspension; it was not something which operated automatically, that is not simply as a matter of law.  In those circumstances one can readily see, I think, the validity of an argument that the mistake is one of fact, the relevant fact being whether or not the administrative action has been taken.”

76. [76]
    To similar effect, in Shire of York v Rosmill Pty Ltd [2010] WASC 189, Hall J said, at [57]:

“There is ample authority for the proposition that a mistaken belief that a person has a licence or approval can be a mistake of fact where the licence or approval depends upon the exercise of a discretionary power:  Ottobrino v Espinoza (1995) 14 WAR 373, 385-386; Wroblewski v Starling [1987] WAR 233; Proudman v Dayman (1941) 67 CLR 356, 540 (Dixon J).  However, where the licence or approval is one that depends upon the application of the law to accepted facts, a mistake as to the application of the law is a mistake of law:  Ostrowski v Palmer (2004) 218 CLR 493; Dodd & Dodd Pty Ltd  v Shire v Mundaring [2010] WASC 37.”

77. [77]
    The defendant (respondent in the High Court) in Ostrowski v Palmer (2004) 218 CLR 493 was a fisherman who “was induced to fish in forbidden waters by the provision to him of inaccurate or incomplete materials by an official of the State government department responsible for administering fisheries”.^[26]   Nevertheless, all members of the High Court held that his mistaken belief that he could lawfully fish in the area where he was, was as to a matter of law, not a matter of fact.  He was under no mistake as to where he was located; he was, however, unaware that fishing in that location was prohibited, as a matter of law.^[27]  As McHugh J said, at [59], “without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law rather than to a matter of fact” and “the fact that [the respondent’s] mistake was induced by the conduct of an employee of Fisheries WA cannot convert what is a mistake of law into a mistake of fact”.

78. [78]
    Consistent with the reference to “accepted facts”, in the passage quoted at paragraph [76] above, and the qualifier “without more” in the passage just quoted from McHugh J’s judgment in Ostrowski, Holmes JA (with whom Fraser JA and Ann Lyons J agreed) in Cook v Commissioner of Police [2012] QCA 118 at [16] said:

“The applicant is correct, in my view, in saying that even in an automatic cancellation case, there may be scope for mistake of fact about whether the underlying events which will give rise to cancellation have occurred.  Such a mistake might arise in relation to whether conduct attracting demerit points had in fact occurred; or how the Chief Executive had actually exercised what appears to be a discretion in relation to the recording of points against a traffic history; or whether a choice to be of good behaviour rather than have the licence suspended had successfully been notified to the Chief Executive…”

79. [79]
    Having said that, such mistakes as were adverted to by the applicant in that case (including a general belief that his licence was not suspended, because he did not appreciate that he had accrued sufficient demerit points for that to occur, and a belief that renewal of his licence meant his demerit points would be expunged) were not found to be such as to raise s 24.

80. [80]
    In this case, as the analysis of the relevant provisions of SPER above demonstrates, suspension of a person’s driver’s licence occurs automatically, in the circumstances outlined in s 105(1) and (2) of the SPEA – that is, where the registrar has served a notice of intention to suspend a licence, and the person does not pay the unpaid amount stated in the notice within 14 days. There was no evidence of any mistake on the part of the appellant about whether the underlying events which gave rise to the suspension had occurred. The only evidence was of his belief, or assumption, that he “could keep driving”, because he was not told otherwise by Snr Constable Carl. He cannot rely upon his own failure to check whether instalments payments were being made to establish any such mistake.^[28] 

81. [81]
    The appellant’s evidence that he assumed he “could keep driving” because Snr Constable Carl returned his licence without any comment, and allowed him to drive away, does not transform what is a mistake of law, into a mistake of fact, for the purposes of s 24.

82. [82]
    Accordingly, in my view, the Magistrate made no error in concluding that s 24 was not available to the appellant. The mistake on the part of the appellant was a mistake of law which, by force of s 22 of the Criminal Code, provides no excuse to the offences charged.

83. [83]
    In so far as ground 5 is concerned, I do not consider that there was any error in the manner in which the Magistrate dealt with the appellant’s counsel’s questions of the two police officers, “relating to the reasonableness of the Defendant’s belief and the credit of prosecution witnesses”.

84. [84]
    The appellant’s counsel sought to ask the police officers:

1. (a)
   whether a person, stopped by a police officer for a traffic offence, who handed their licence to that police officer, might believe or assume their licence was being checked;^[29] and

2. (b)
   whether they themselves would assume that a police officer, having intercepted them, and taken their licence away, was checking whether the licence was valid^[30] and having given the licence back and sending them on their way, would assume they had a valid licence.^[31]

85. [85]
    On each occasion, objection was taken by the prosecutor on the basis that the answers could be no more than speculation, and/or inadmissible opinion. Counsel for the appellant agreed that it was opinion, but said it was relevant, particularly, to what was “reasonable” for the purposes of s 24. The Magistrate upheld the objection, and indicated that what the police officers might think would not aid her on that point.

86. [86]
    In my view it cannot be said the Magistrate “wrongly interfered” in the cross-examination. Her honour dealt, appropriately, with objections taken by the prosecutor to questions put in cross-examination.

87. [87]
    Accordingly, I would dismiss the appeal against the convictions of each offence, on grounds 4 and 5 also.

Sentence

88. [88]
    It remains for me to consider the appellant’s appeal against the sentences imposed.

89. [89]
    In this regard, the appellant submits that:

1. (a)
   It was open to the Magistrate, in the circumstances of this case, to proceed under ss 17-19 of the Penalties and Sentences Act 1992, and to impose no penalty on the appellant, as occurred in the matter of Commissioner of Police v Kirby [2010] QDC 110.

2. (b)
   Secondly, if that submission is accepted, and no (other) penalty is to be imposed, that as a matter of statutory construction, the mandatory disqualification in s 78(3) of the TORUM Act does not apply.

3. (c)
   Thirdly, even if both the former submissions are not accepted, in the circumstances of this case (in particular, where the appellant did not know of the suspension of his licence), he ought only to have been sentenced to a small fine, of $100, and the minimum disqualification of one month, for both offences.

4. (d)
   Fourthly, that there was no basis for the Magistrate imposing a higher penalty for the second offence which was, like the first offence, a “technical breach of the law”.

90. [90]
    The Crown submits that the sentences imposed are appropriate and, in particular:

1. (a)
   In so far as the mandatory disqualification provision in s 78(3) is concerned, that notwithstanding whether or not any other penalty is imposed, a mandatory period of disqualification follows upon conviction; and

2. (b)
   In any event, the offences cannot be described as trivial or technical, such as to justify proceeding to release the appellant absolutely, under ss 17-19 of the Penalties and Sentences Act 1992.

Consideration

91. [91]
    I propose first to deal with the issue concerning the proper interpretation of s 78(3) of the TORUM Act.

92. [92]
    At the time these offences were committed, and at the time the sentences were imposed, s 78(3) of the TORUM Act provided, relevantly, as follows:

“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 –

…

6. (f)
   if the person committed the offence while the person’s 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;

…”

93. [93]
    In Commissioner of Police v Kirby [2010] QDC 110 his Honour Judge Botting dealt with an appeal by the Commissioner against the sentence imposed by a Magistrate on Mr Kirby for an offence of driving without a licence, to which Mr Kirby pleaded guilty.  The Magistrate made an order under s 19(1) of the Penalties and Sentences Act 1992 releasing Mr Kirby absolutely, and made no order that he be disqualified from holding or obtaining a driver’s licence.  That was in circumstances where the Magistrate accepted that at the date of the offence Mr Kirby was unaware of the fact that his licence had been suspended and, in addition, where the suspension was for a defined period (24 May 2009 to 10 July 2009), and Mr Kirby was stopped by police for a random breath test in the early hours of 10 July 2009, which resulted in the suspension being brought to his attention.  Mr Kirby pleaded guilty before the Magistrate.  The Magistrate took the view that the offence was, in the circumstances, a trivial one.  Judge Botting said that finding was one which was well and truly open to the Magistrate. 

94. [94]
    Judge Botting then turned to consider the effect of s 78(3) of the TORUM Act. His Honour made reference to s 17(1) of the Penalties and Sentences Act 1992 (which enables a court, if it considers it is appropriate that no punishment or only a nominal punishment should be imposed on an offender, to make an order under s 19 of that Act, as the Magistrate did in that case).   By reference to ss 17 and 19 of that Act, and s 78(3) of the TORUM Act, his Honour said (at p 8):

“I have had some misgivings in trying to reconcile these provisions.  I certainly accept the apparently mandatory requirements which are set out in section 78 to which I’ve already referred.  But those provisions are prefaced by the phrase that the Court must disqualify, … ‘in addition to imposing a penalty’.

It seems to me that the disqualification which must be imposed in [s 78(3)] … are disqualifications which are in addition to some other penalty which the Court imposes.  On the other hand when one looks at section 17 and 19 of the Penalties and Sentences Act, it seems to me to be clear that section 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 [s 19(1)(a)] … and that seems to have been the course that his Honour took in this case…”

95. [95]
    The decision in Kirby was applied by his Honour Judge McGill SC in Van Zuik v Zuanetti [2012] QDC 116.  That was also an appeal against a sentence imposed by a Magistrate for a charge of unlicensed driving, to which the defendant pleaded guilty.   He was fined and disqualified from holding a driver licence for 6 months.  On the appeal, the prosecution/respondent accepted that it was “a mere technical offence” (committed in circumstances where the suspension was a demerit point suspension, and the defendant had in fact attempted to exercise the election offered in such cases, to have a good driving behaviour period of 1 year rather than immediate suspension, but his notice of election had not been received by the Department).  The prosecution did not oppose the defendant/appellant’s contention that no conviction ought be recorded, and that the defendant ought be discharged absolutely under s 19(1) of the Penalties and Sentences Act (at [14]).   In relation to the disqualification, Judge McGill SC was referred to Kirby by the appellant, and noted, at [16] and [17] that:

“Counsel for the respondent [prosecution] did not contend that I should not follow the decision in Kirby, or that the reasoning and analysis of the relevant statutory provisions in that decision were incorrect. In those circumstances, and bearing in mind the importance of judicial comity, I am content, without giving the matter detailed consideration, to follow that decision.”

96. [96]
    Accordingly, his Honour held that, since the sentence that he considered ought to be substituted was no penalty, the disqualification was not mandatory and, as a matter of discretion, it was inappropriate for any disqualification to be imposed (at [17]).

97. [97]
    Shortly after Judge McGill’s decision in Van Kuik was delivered, Judge Farr reached a different conclusion in Soames v Hogan [2011] QDC 160, albeit without being referred to Kirby or Van Kuik.  That is, Judge Farr found that s 78(3) imposed a mandatory requirement, regardless of whether any other penalty was imposed.   Judge Samios reached the same conclusion in Drivas v Bobbermen [2011] QDC 36.

98. [98]
    The issue also arose in an appeal heard by Judge Koppenol in Olver v Commissioner of Police [2013] QDC 9.   In Olver his Honour formed the view that neither of the sentences imposed in that matter were excessive (in one case, the imposition of a good behaviour bond and licence disqualification, and in the other “convicted and not further punished”, and licence disqualification), and therefore dismissed the appeals.  It is apparent that Judge Koppenol considered that both sentences involved a “penalty” for the purposes of construing s 78(3) of the TORUM Act.^[32]  That conclusion meant that the argument regarding the construction of s 78(3) did not arise - the argument based on Kirby only arising where no penalty is imposed (because the defendant is released absolutely under s 19(1)(a) Penalties and Sentences Act).   However, Judge Koppenol went on to express the view that in future Magistrates ought to apply Kirby to “ensure certainty of application of these important and often-encountered statutory provisions”. 

99. [99]
    Later that year, the issue again arose in an appeal before Judge Robertson in Strickland v Klupfel [2013] QDC 210.  In light of the conflicting, and in some respects confusing decisions, Judge Robertson undertook the task of carefully construing s 78(3) in order to resolve the issue.  His Honour said, at [33]-[37]:

“[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.

…

[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 driver’s licence.”

100. [100]
     I respectfully agree with Judge Robertson’s interpretation of s 78(3). It is consistent with the ordinary and grammatical meaning of the words used in s 78(3) and, in my view, reflects the meaning that the legislature may be taken to have intended them to have.^[33] As the High Court recently affirmed in Thiess v Collector of Customs (2014) 250 CLR 664 at [22]:

‘Statutory construction involves attribution of meaning to statutory text. As recently reiterated:

“This Court has stated on many occasion that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.’” (Footnotes omitted)

101. [101]
     A brief review of the history of s 78(3), in its various forms, reveals a consistent pattern. Prior to its relocation into the TORUM Act,^[34] the equivalent provision was s 15 of the Traffic Act 1949.  In respect of a person who, at the time of the commission of an offence under s 15(1) (driving without a driver’s licence), was disqualified from holding or obtaining a driver’s licence, s 15(5) provided that “the justices before whom the person is convicted of the offence, in addition to any punishment they may impose upon the person on conviction, shall order that the person shall, on and from the date of the conviction, be disqualified absolutely from holding or obtaining a driver’s licence…”.^[35]  Upon relocation into the TORUM Act, that provision became s 78(5).

102. [102]
     The provision remained in that form until 2001, when a new s 78 was substituted.^[36]  Relevantly, s 78(3) provided, in absolute terms, as follows:

“A person convicted of an offence under subsection (1) is, in addition to the penalty imposed, disqualified from holding or obtaining a Queensland driver licence -

1. (a)
   if the person committed the offence while the person was disqualified, under a court order, from holding or obtaining a driver licence—absolutely; or

2. (b)
   otherwise - for 6 months.”^[37]

103. [103]
     The explanatory memorandum in respect of the Bill which became the Transport Legislation Amendment Act 2001 explained that:

“Section 78(3) clarifies that a person found guilty under s 78(1) must be further disqualified from holding or obtaining a driver licence by the court.  If the offence happened when they were already disqualified by a court, then the court must impose an absolute disqualification. If the offence happened when they were otherwise disqualified, the court must impose a 6 months disqualification.”

104. [104]
     Earlier in that memorandum, it was explained that a person may have been “otherwise disqualified” if their driver licence was suspended because of unpaid fines or the accumulation of enough demerit points”.

105. [105]
     Section 78(3) was amended by the Transport Operations (Road Use Management) Amendment Act 2002 (Act No. 4 of 2002), following which the opening paragraph of s 78(3) was in the form that it was at the time of the offences the subject of this proceeding, namely:

“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.” 

106. [106]
     The “circumstances”, which are now set out in s 78(3)(a) to (k), were limited to four (namely, a person who committed the offence under s 78(1) while disqualified by a court order; while disqualified other than by court order; who had never held a licence; and whose licence had expired more than 5 years before). In addition, s 78(3B) was inserted which provided that, if the court convicts a person of an offence under s 78(1), and subsection 78(3) does not apply, the court, in addition to imposing a penalty, may disqualify the person from holding or obtaining a licence.  That provision was removed later in 2002.

107. [107]
     In my view, it is clear, having regard to the legislative history of the provision, and the words of section 78(3) itself, that the intention of the legislature was to impose a mandatory (further) disqualification on certain persons convicted of the offence of driving without a licence. That was to be imposed in addition to any penalty that was otherwise imposed in respect of the offence and, by logical extension, even if no penalty was imposed.   As can be seen, in earlier versions of the provision, the word “any” was expressed.  However, in my view, the absence of the word “any” from s 78(3) in the form it was at the time the offences the subject of this proceeding were committed does not alter the otherwise plain meaning of the provision, having regard to the clear legislative intention.

108. [108]
     As a result of a further amendment to s 78, made by the Transport and Other Legislation Amendment Act 2014 (Act No. 43 of 2014), s 82(3), the words “in addition to imposing a penalty” in s 78(3) have been replaced with the words “whether or not any other sentence is imposed”, so that the position is now beyond doubt.  That amendment took effect from commencement of the provision on 5 September 2014, and therefore does not apply in relation to the offences subject of this provision.^[38]

109. [109]
     Nevertheless, in my view, the Magistrate was bound, by the express terms of s 78(3)(g), as that provision stood prior to its recent amendment, to disqualify the appellant from holding or obtaining a driver licence, for a period of at least 1 month but not more than 6 months, regardless of whatever other penalty she had imposed.

110. [110]
     It remains to consider whether the Magistrate’s discretion miscarried, in so far as her Honour considered that a penalty ought to be imposed (cf ss 17-19 of the Penalties and Sentences Act 1992) and in terms of the penalties that her Honour in fact imposed.

111. [111]
     Whilst it may be accepted that the appellant did not know his driver licence had been suspended, and whilst lack of knowledge may be a mitigating factor;^[39] in my view that must be balanced against the fact that the appellant took no steps to ensure his SPER account was being paid; made no attempts to ensure the required instalments were coming out of his bank account; and made no attempts to update his address with Queensland Transport.   This includes the period from 11 January, after which he knew he had received another fine for speeding, and clearly took no steps to address that either.  It seems to me that the appellant’s circumstances are clearly distinguishable, in that regard, from the circumstances in Ostrowski in which Callinan and Heydon JJ at [84] described the respondent as having been “most diligent”.  The circumstances are also, in my view, distinguishable from the facts as they appear in both Kirby and Van Kuik.  In my view,  it would be inappropriate to essentially reward a person for failing to act responsibly in that regard, by not imposing any penalty following conviction after a trial.

112. [112]
     For those reasons, in my view, it was entirely appropriate for the Magistrate to impose a penalty on the appellant.

113. [113]
     Section 78(2) of the TORUM Act sets out a number of matters the sentencing court must consider, including the circumstances of the case, the public interest, the person’s criminal history and traffic history; any information before the court relating to the person’s medical history, or mental or physical capacity that the court considers relevant; and “any other matter the court considers relevant”.

114. [114]
     The Magistrate was told that the appellant was 30 years of age, is a plumber, and whilst having been gainfully employed since leaving school, had a period of some difficulty with employment and income around the time that the suspension was imposed. Reliance was placed, as noted, on the fact that he did not knowingly commit the offences.

115. [115]
     There was before the Magistrate the appellant’s traffic history, comprising two pages, and referring to a variety of traffic offences dating back to November 2003. Whilst not demonstrating a serious history of traffic offences, it is nonetheless not an insignificant one.

116. [116]
     The maximum penalty for an offence under s 78(1), committed in the present circumstances, is 40 penalty units or 1 year’s imprisonment. So the maximum fine would be approximately $4500 for each offence. The fines imposed, of $350 and $500, respectively, can be seen to be modest by reference to that maximum.

117. [117]
     In terms of the increase in penalty from the first to the second offence, both in terms of the amount of the fine, and the term of the disqualification, in my view that was entirely appropriate in the exercise of the Magistrate’s discretion, having regard to the circumstances including, as I have said, the appellant’s continuing failure to take any proactive steps to check his SPER account.

118. [118]
     Having regard to all the circumstances, including the fact that the conviction followed a hearing, as opposed to a guilty plea,^[40] I do not consider that the sentences imposed were excessive.   

119. [119]
     Accordingly, I would dismiss the appeal against the sentences also.