Kelly v Queensland Police Service
[2015] QDC 72
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- Unreported Judgment
- Appeal Determined (QCA)
- Kelly v Queensland Police Service[2015] QDC 72
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Kelly v Queensland Police Service[2015] QDC 72
Kelly v Queensland Police Service[2015] QDC 72
DISTRICT COURT OF QUEENSLAND
CITATION: | Kelly v Queensland Police Service [2015] QDC 72 |
PARTIES: | MARK JOHN KELLY (Appellant) and THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2766/14 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 2 April 2015 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 13 February 2015 and 6 March 2015 |
JUDGE: | Devereaux SC DCJ |
ORDER: | Application for extension of time refused. Appeal is dismissed. |
CATCHWORDS: | APPEAL: where the appellant pleaded guilty and was sentenced to failing to stop motor vehicle when directed under s. 754 of the Police Powers and Responsibilities Act 2000 (Qld) – where the appellant was sentenced to 6 months probation and a 2 year licence disqualification – where appellant appealed against disqualification of licence – where s. 754 carries a mandatory 2 year licence disqualification – where appeal made out of time and appellant appealed for an extension of time – whether 2 year licence disqualification mandatory Legislation: Police Powers and Responsibilities Act 2000 (Qld) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) Cases: Maxwell v The Queen 1996 184 CLR 501 Queensland Police Service v Klupfel [2013] QDC 210 |
R v Jerome and McMahon [1964] Qd R 595 | |
COUNSEL: | |
SOLICITORS: | Mr M Kelly – the appellant appeared in person Ms K Mant – ODPP for the respondent |
- The appellant faced four charges which arose out of his conduct on 1 March 2013. The first was that he failed to stop on a red traffic light (Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s. 56(1)(a)(i)). The second was that he failed to ensure his car remained at the place where it was stopped for a time reasonably necessary for the police officer to enforce a traffic regulation (Police Powers and Responsibilities Act 2000 s. 62). The third charge was failing to stop his car when directed to do so by a police officer in a police car in the exercise of a power under an Act (Police Powers and Responsibilities Act s 754(1) and (2)). The fourth charge was proceeding through a red arrow before it changed to green or flashing amber (Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s. 56(2)(b)(i)).
- The appellant pleaded guilty to all charges. On 10 January 2014, the learned magistrate sentenced him, with respect to the third charge, to six months’ probation and ordered the appellant be disqualified from holding or obtaining a licence for 2 years. He appeals against the disqualification part of the sentence imposed on the third charge. The appeal was filed well out of time and the appellant applies for an extension of time. His explanation for the delay is that he was led to believe, in conversations with a probation officer, that he could appeal once the probation order was completed. If the appeal had merit, I would grant the extension of time.
- One matter which concerned the learned magistrate was whether the disqualification was mandatory. His honour concluded it was, referring to the decision of Robertson DCJ in Queensland Police Service v Klupfel [2013] QDC 210. At the time, subs. 754(3) provided:
(3) If a court convicts a person of an offence against subsection (2), the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.[1]
- I respectfully agree that the terms of subs. 754(3) were clear and mandatory. Relevantly its terms were identical to the part of s. 78(3) of the Transport Operation (Road Use Management) Act 1994 considered in QPS v Klupfel.
- Certainly the court convicted the appellant – he entered an unequivocal plea of guilty which the court acted upon by sentencing him: See Maxwell v The Queen 1996 184 CLR 501; R v Jerome and McMahon [1964] Qd R 595. I am satisfied the plea was unequivocal because, despite the appellant taking up much court time in discussion with the learned magistrate and the matter being stood down so that trial dates could be ascertained, the appellant returned to court and unequivocally told the magistrate he wished to maintain his pleas of guilty. It is easy to infer sound reasons for taking such a course.
- The learned magistrate made plain his view that the disqualification period was excessive in the circumstances of this particular case but the court had no discretion in the matter. On the other hand, the learned magistrate ordered probation instead of the minimum penalty then prescribed by subs. 754(2), namely 50 penalty units. That part of the learned magistrate’s order is not under appeal.
- The particulars of the second charge were that the defendant returned to his vehicle and drove off before the police could give him the infringement notice. He disputed that, saying, “I got the licence and the ticket. That’s why I left.” (Transcript 10 January 2014 1-9.40).
- The particulars of the third charge seem to have been that police followed him because he had ‘left the intercept site without approval’ and he failed to stop when the police activated the emergency siren and lights. After this, charge four was committed and a long slow car chase proceeded to outer northern Brisbane.
- An element of the charge brought under s 754(1) and (2) of the Police Powers and Responsibilities Act is that the officer who gives the driver of another motor vehicle a direction to stop does so in the exercise of a power under an Act. While considering this appeal, I was concerned whether there was any evidence in support of this element, given these particulars, namely that the power the police sought to exercise was the enforcement of the regulation by giving the infringement notice. I convened the court to air that concern and have since received further written submissions from Ms Mant, who appeared at the hearing on behalf of the respondent. Ultimately, I have no concern about the manner in which charge 3 was particularised. Nor do I have any lingering doubt about the appellant’s plea of guilty to the charge. As I have already recounted, it was unequivocally entered deliberately and in the exercise of his free will. Among other things, the pleas of guilty are understandable given the period the appellant had already gone without a licence and the further delay, without a licence, that would occur with setting the matter down for trial.
- The result is the appellant pleaded guilty and incurred a mandatory fine. His appeal against that mandatory penalty cannot succeed. In the circumstances, I refuse the application for an extension of time, with the result that the appeal itself fails.
Footnotes
[1] The subsection now provides: “whether or not any other sentence is imposed” instead of “in addition to imposing a penalty”