Abdullah v Queensland Police Service
[2022] QDC 64
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- Abdullah v Queensland Police Service[2022] QDC 64
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Abdullah v Queensland Police Service[2022] QDC 64
Abdullah v Queensland Police Service[2022] QDC 64
DISTRICT COURT OF QUEENSLAND
CITATION: | Abdullah v Queensland Police Service [2022] QDC 64 |
PARTIES: | Zayne William Abdullah (Appellants) v The Commissioner of Police (Respondent) |
FILE NO: | 194/2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Southport |
DELIVERED ON: | 3 February 2022 (ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 3 February 2022 |
JUDGE: | Jackson QC DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – APPEAL BY WAY OF RE-HEARING – Where the appellant was mistaken and applied to court for a work licence permit instead of the Department of Transport – Where the learned Magistrate increased the initial sentence imposed – Where the appellant claims that the increased sentence was manifestly excessive – Whether the appeal should be allowed. |
LEGISLATION: | Justices Act 1886 (Qld) |
CASES: | Cole v Australia Securities & Investments Commission [2017] QDC 270 |
COUNSEL: | The appellant was self-represented N Lima for the respondent |
SOLICITORS: | The appellant was self-represented Office of the Director of Public Prosecutions |
- [1]On 19 May 2021, the appellant was convicted on his own plea of one count of driving without due care and attention or driving without reasonable consideration for other persons using the road or place which occurred on 30 January 2021. He was sentenced to a fine of $1500 and was disqualified from holding or obtaining a driver’s licence for a period of six months.
- [2]Although the appeal was filed relatively soon thereafter, it has unfortunately taken until now for the matter to be heard such that the disqualification has been served. Appellants in matters such as this should not hesitate to request consideration be given to whether the hearing of the appeal is able to be expedited so as to prevent the unfortunate outcome which has transpired here. I would encourage the respondent to alert the court to such an issue in circumstances where an appellant is self-represented.
Grounds of appeal
- [3]The sole ground of appeal is that that the sentences imposed were, in all the circumstances, manifestly excessive.
- [4]The grounds of appeal as set out in the notice of appeal are as follows:
- (a)The applicant misunderstood how to apply for a work licence permit and thought that he had to apply for a court hearing. He only found out on the day of the hearing that the application should be made to the Department of Transport.
- (b)For this, the applicant was given a $1500 fine and had his licence disqualified, instead of the original penalty which was a$533 fine and a six-month license suspension.
- (c)The applicant does not deny that he did the wrong thing. He accepts that what he did was wrong and plainly it was. It was also very dangerous.
- (d)The applicant states that had he have known the processes, he would have paid the fine and applied to the Department of Transport for a work licence.
- (a)
Nature of the appeal
- [5]This is an appeal pursuant to s 222 of the Justices Act 1886. Such an appeal is an appeal by way of re-hearing on the evidence given at trial.[1] Where, as here, a defendant has pleaded guilty, sub-section 222(2)(c) provides that the sole ground of appeal which remains available is that the sentence was excessive.
- [6]That a sentence was excessive may be shown in a number of ways. As the High Court said in Wong v The Queen (2001) 207 CLR 584 at [58] Gaudron, Gummow and Hayne JJ said, in respect of the error which must necessarily be established, that:
“…Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. ”[2]
The appellants’ submissions
- [7]The appellant’s argument on appeal appears in a document headed “main argument” which was filed on 16 July 2021.
- [8]The submissions of the appellant may be summarised as follows:
- (a)He argues that he is being punished for misunderstanding that he needed to apply to the Department of Transport for a work licence permit and not take the matter to a court hearing.
- (b)The outcome of the imposition of a licence disqualification and the increase in fine from $533 to $1500, given this mistake is unfair.
- (a)
The respondent’s submissions
- [9]The submissions of the respondent dated 14 September 2021 can be summarised as follows:
- (a)The respondent submits that the penalty imposed by the learned Magistrate was not excessive and was acceptable having considered the appellant’s antecedents.
- (b)When formulating the decision, the learned Magistrate considered the fact that the appellant was on a provisional license and was on a good driving behaviour period. It was also noted that between 21 June 2019 and 8 November 2020 (prior to committing the offence) the appellant had accumulated seven demerit points. The respondent submits that this prior driving behaviour exposed him to the penalty he received.
- (c)That the appellant’s outline of submissions stating that he was given the ‘maximum penalty’ was incorrect.
- (a)
That latter submission may be accepted.
Consideration
- [10]It is evident that that the learned Magistrate had consideration for the applicant’s antecedents and driving history. The respondent’s submissions highlight this.
- [11]In submissions to the learned Magistrate (at page 3 of the transcript), the appellant’s solicitor made it clear that Mr Abdullah was not contesting his behaviour or actions, but that he had simply misunderstood how the special hardship order process works. This important contextual matter was not disputed. It appears that no consideration was given to this by the learned Magistrate, which is where, in my view, error occurred.
Disposition
- [12]In the circumstances, I find that the learned Magistrate fell to error in increasing the sentence imposed on the appellant. To do so, in all of the circumstances, created a result which, in my view, was excessive. It failed to “take into account a material consideration”[3] as to guide the decision. The appellant should not be punished for a misunderstanding of the legal system when making an application to the Court instead of the Department of Transport.
- [13]The result of that means that I must exercise the discretion afresh as to the sentence.
- [14]Having considered all of the relevant matters, the orders will be:
- The appeal is allowed.
- The sentences imposed below on 19 May 2021 be set aside.
- In lieu thereof, the appellant is fined the sum of $533.00 to be paid within 30 days.