Johnstone v Jessen[2016] QDC 144

DISTRICT COURT OF QUEENSLAND

HER HONOUR: The appellant pleaded guilty to an offence that, on the 12^th of January 2016 at Ipswich, he drove a motor car and, at the time, he wasn’t the holder of a driver’s licence, and it was a circumstance of aggravation that he was a repeat unlicensed offender.  He pleaded guilty to that offence on the 10^th of February 2016 in the Magistrates Court at Ipswich.  He was not legally represented.  The Magistrate convicted him and sentenced him to five months imprisonment, wholly suspended for an operational period of three years, and disqualified him from holding or obtaining a driver’s licence for 12 months.  The proceedings before the Magistrate were very short, as the transcript reveals.  The facts that were placed before the Magistrate by the police Prosecutor were these:

It was the 12^th of January 2016.  It was about 12.40 pm.  Police conducting patrols on Roderick Street, Ipswich intercepted the defendant, who was the driver of the vehicle at the time.  They conducted a check on the defendant’s driver’s licence, which revealed he had not held a Queensland driver’s licence since 22^nd of June 1989.  His last known driver’s licence was held in the ACT, which had expired in the year 2000.

The Magistrate was further informed:

There was no emergent reason for driving at the time.

The appellant’s traffic history was tendered to the Magistrate, and it’s true to say that, even for a 55 year old man, which the appellant was at the time, it is a shocking traffic history which covers five pages.  The history includes a number of convictions in the past for unlicensed driving and disqualified driving.  In particular, the appellant was convicted of disqualified driving on previous occasions – with respect to two such offences on the 27^th of February 2004, again on the 14^th of September 2004 and again on the 4^th of April 2005.  He has also been convicted of a number of offences of unlicensed driving, the last such conviction being on the 29^th of November 2012.  It seems from his history that the disqualification from him holding or obtaining a driver’s licence was removed on the 20^th of April 2010. 

The appellant has been sentenced to periods of imprisonment, it seems to be served by way of intensive corrections orders or wholly suspended, in the past for disqualified driving but, of course, it is of note that his last conviction for disqualified driving was in 2005 and that the current offence is one of unlicensed driving rather than disqualified driving. 

The relevant provisions of the Transport Operations (Road Use Management) Act 1995, namely, section 78, provides, with respect to the offence, a maximum penalty of 40 penalty units or one year’s imprisonment and, in relation to a period of disqualification, it’s clear from the legislation that the Court was obliged to disqualify the defendant because of him being a repeat unlicensed driver. 

But the provisions of subsection (3)(h) of section 78 of the Act provides that the period of disqualification when a person is a repeat unlicensed driver is a period of at least one month but not more than six months.  The 12-month period of disqualification imposed by the sentencing Magistrate, therefore, was contrary to the relevant legislation. 

The respondent concedes, rightly, that the period of disqualification imposed exceeds the maximum and the sentence of imprisonment of five months wholly suspended for three years is also conceded to be excessive.  The respondent contends that a significant fine should be imposed or a short period of imprisonment of about one month, wholly suspended for a lengthy operational period, is appropriate, whereas the appellant argues that the appropriate penalty should be one of a fine and a disqualification period of between one and three months.

In his sentencing remarks, the sentencing Magistrate made the comment that imprisonment was the only appropriate penalty.  It is clear that the sentencing Magistrate placed undue weight on the appellant’s traffic history, and apparently overlooked the fact that his last conviction for disqualified driving was over 10 years prior to the current offence.  The appellant did attempt to make some explanation to the Magistrate as to why he had failed to obtain a driver’s licence but, unfortunately, was repeatedly cut off by the Magistrate and was not given the opportunity to explain himself, and it does appear from the transcript that, in fact, the Magistrate failed to give the appellant the opportunity to raise any factors in mitigation.  The appellant spoke about him being forgetful and indicated that there were some reasons for that, but that was not explored at all by the sentencing Magistrate. 

The Magistrate, therefore, did err with respect to the penalty imposed by giving undue weight to the appellant’s traffic history and by imposing a disqualification period which was clearly beyond the statutory maximum.  This appeal, therefore, must succeed.  I agree with the submission on behalf of the appellant that a fine is the appropriate penalty.  Under the Penalties and Sentences Act, the appellant’s financial circumstances and ability to pay a fine must be considered, and I have been advised today on behalf of the appellant that he is in receipt of a disability support pension and will need time to pay any fine. 

In those circumstances, a fine of $300 is appropriate.  With respect to the disqualification period, in the circumstances I’m not persuaded that the maximum disqualification period of six months is appropriate, but that a disqualification period of three months is appropriate. 

So the appeal is allowed.  The penalties imposed in the Magistrates Court at Ipswich on the 10^th of February 2016 are set aside and, in substitution, the appellant is fined the sum of $300, which I will refer to the State Penalties Enforcement Register, and he is disqualified from holding or obtaining a driver’s licence for three months from the 10^th of February 2016.

The appellant applies for costs. That is opposed by the respondent, or alternatively the respondent submits that I should make an order pursuant to section 15 of the Appeal Costs Fund 1973 and grant to the respondent an indemnity certificate in respect of the appeal as the appeal has been successful on a question of law and the error was not instigated by the prosecutor.  I accept that the error was not instigated by the prosecutor, but, as I stated before during argument, a police prosecutor does have a duty to inform the relevant sentencing judicial officer of the law, and particularly when a defendant is not legally represented that duty is even more onerous.  The prosecutor in this case did not seek to correct the sentencing judge in any way, and in those circumstances, in my view, it’s not appropriate for me to make any order pursuant to section 15, subsection (2) of the Appeals Costs Fund 1973. 

I will therefore make an order that the respondent pay the appellant’s costs on the appeal.

...

HER HONOUR: So I’m satisfied that’s what’s prescribed.  So I’ll order that the respondent pay the appellant’s costs fixed at $1800.

MR FAIRCLOUGH: Thank you, your Honour.

HER HONOUR: Nothing else?

MR FAIRCLOUGH: No, thank you.

HER HONOUR: No. Okay.

MR FAIRCLOUGH: If I might be excused.

HER HONOUR: You’re excused. Thank you.

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