Cox v Commissioner of Police [2026] QDC 92

DISTRICT COURT OF QUEENSLAND CITATION: Cox v Commissioner of Police [2026] QDC 92 PARTIES: ADAM COX Appellant V COMMISSIONER OF POLICE Respondent FILE NO/S 273/25 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Pine Rivers DEVIVERED ON: 11 February 2026 DELIVERED AT: Southport District Court HEARING DATE: 11 February 2026 JUDGE: Jackson KC DCJ ORDERS: 1. The appeal is allowed 2. The orders made on 1 October 2025 in the Magistrates Court at Pine Rivers are set aside. 3. The appellant is fined the sum of $1,954 4. No conviction is recorded CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – where the appeal was brought pursuant to s 222 Justices Act 1886 (Qld) – appeal against sentence – where defendant entered plea of guilty for disobeying the speed limit – where the defendant’s licence was disqualified – whether there was an error of law – whether the sentence was excessive within the meaning of s 222(2)(c) Justices Act 1886 (Qld) LEGISLATION: Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) -- 1 of 10 -- 2 Transport Operations (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management – Driver Licencing) Regulation 2021 (Qld) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) CASES: AB v The Queen (1999) 198 CLR 111 Chakka v Queensland Police Service [2024] QCA 213 House v The King (1936) 55 CLR 499 -- 2 of 10 -- 3 Introduction [1] This is an appeal under s 222 of the Justices Act 1886 (Qld) (‘Justices Act’) against the decision of the learned Magistrate dated 1 October 2025, whereby the appellant was disqualified from holding or obtaining a driver’s licence for a period of six months. The appellant contends that the learned Magistrate made a specific error in the exercise of her sentencing discretion and that, in any case, the sentence imposed was manifestly excessive. Background [2] On 15 February 2025, the appellant was issued a Traffic Infringement Notice, which carried a penalty of $1,854, eight demerit points and a six- month suspension of the appellant’s driver’s licence. [3] The appellant subsequently elected to have the matter heard in court. On 14 April 2025, the appellant was charged under section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) (‘Road Rules Regulation’) for disobeying the sign-posted speed limit. [4] The matter proceeded on 1 October 2025 as a plea of guilty before the Pine Rivers Magistrates Court and a fine of $1,954 and a six-month disqualification of the appellant’s driver’s licence was ordered. No conviction was recorded. [5] On 9 October 2025, the appellant filed a Notice of Appeal in this Court against sentence. He filed written submission on 04 November 2025. The respondent filed written submission on 9 December 2025. In saying that the appellant took those steps, I should note that Mr Cox contends that he was not aware of the steps that his then lawyers were taking. I make no comment as to that one way or another because it is irrelevant to the issues I must decide. [6] The appellant relies on two grounds of appeal. The first ground is that the sentencing discretion miscarried due to an error of law. Namely, that the learned Magistrate was not informed of the standard, automatic six-month suspension that follows a conviction under section 20 of the Road Rules Regulation pursuant to sections 284 and 285 of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2021 (Qld) (‘Driver Licencing Regulation’). The appellant submits that the respondent incorrectly framed s 129B of the Transport Operations (Road Use Management) Act 1995 (QLD) (‘TORUM Act’) as the source of power to disqualify, thereby inviting the court to bypass the ‘interests of justice’ test pursuant to s 187 of the Penalties and Sentences Act 1992 -- 3 of 10 -- 4 (Qld) (‘PSA’). Further, that the sentencing discretion was exercised based upon an error arising out of a misunderstanding of the consequences of the order made, namely, the appellant’s eligibility to apply for a special hardship order under Chapter 10 of the Driver Licencing Regulation. The second ground of appeal is that the sentence imposed was, in all the circumstances, manifestly excessive. [7] The respondent submits that the learned Magistrate understood that suspension was required to allow for a special hardship order application and that disqualification was not mandatory. Rather, that the court adequately applied the ‘interests of justice’ test under s 187 of the PSA in exercising its discretion to disqualify. The respondent further submits that the sentence imposed was not manifestly excessive where the difference between a suspension and disqualification was sufficiently discussed and where the appellant’s personal circumstances do not demonstrate how disqualification would be any more onerous upon him than most other adults. Nature of a s 222 appeal [8] The principles applicable to a s 222 appeal under the Justices Act are clear. Such appeals occur by way of rehearing on the original evidence pursuant to s 223 of the Act. This requires the Court to conduct a real review of the proceeding, the reasons and reach its own conclusions as to the issues from the evidence, giving due deference to the learned Magistrate’s reasons.1 [9] To succeed on appeal, the appellant must demonstrate that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.2 When determining an appeal, such as this one, against an exercise of discretion, it is not sufficient that the appellate court may, in retrospect, have exercised the discretion differently. [10] This appeal is brought pursuant to s 222(2)(c) of the Justices Act which provides as follows: ‘If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate’. 1 McDonald v Queensland Police Service [2018] 2 Qd R 612 [47]; DU v Jackson [2024] QCA 122 [87]. 2Allesch v Maunz (2000) 203 CLR 172, [23] followed in Teelow v Commissioner of Police [2009] 2 Qd R 489, [4]; White v Commissioner of Police [2014] QCA 121, [8]; McDonald v Queensland Police Service [2018] 2 Qd R 612, [47]. -- 4 of 10 -- 5 [11] As such, it is not sufficient to demonstrate that an error of the kind referred to in House v The King3 occurred. The appellant must also show that the error has resulted in a sentence which is excessive.4 Of course, such a construction may give rise to a potential injustice in that an error goes uncorrected if the sentence is not excessive; however, this accords with the inferred legislative intent of s 222(2)(c).5 [12] Brown J, with whom Mullins P agreed, said when discussing the operation of s 222(2)(c) in Chakka6 at [89], that: ‘Once the appellate judge is satisfied that without the error identified a lesser sentence should have been imposed in all of the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised’. [13] In AB v The Queen,7 Hayne J said as to ‘specific error’ at [130], that: ‘…once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.’ Legislative framework for license suspension and disqualification [14] I will say something now about the legislative framework for license suspension and disqualification. Section 285(2) of the Driver Licencing Regulation provides that, in relation to a person convicted under s 20 of the Road Rules Regulation: 2) ‘The chief executive must give the person a written notice stating – (a) the day the notice was given; (b) the person’s Queensland driver licence is suspended for a period of 6 months…; and 3 (1936) 55 CLR 499. 4 Chakka v Queensland Police Service [2024] QCA 213, [87]. 5 Ibid, [88]; Rongo v Commissioner of Police [2017] QDC 258, [23]. 6 [2024] QCA 213. 7 (1999) 198 CLR 111. -- 5 of 10 -- 6 (c) …if the Queensland driver licence is an open licence or a provisional licence – the person may be eligible to apply for a special hardship order…’ [15] Therefore, a conviction under s 20 of the Road Rules Regulation is met with an automatic suspension of the person’s driver’s licence for a period of 6 months. [16] Crucially, subsection (c) preserves the person’s statutory right to apply for a special hardship order under Chapter 10 of the Driver Licencing Regulation in relation to the suspension. That is pursuant to s 150(1A) of the TORUM Act, which empowers the court to make orders on the basis of special hardship in relation to persons whose licences have been suspended. In addition to this, there are provisions in the Driver Licencing Regulation that set out factors that make a person ineligible to apply for a special hardship order. In particular, s 311(1)(a) provides that where ‘the person was disqualified from holding or obtaining a Queensland driver’s licence within 5 years before the licence was suspended, the person is not eligible to apply for a special hardship order’. It is thus clear that a special hardship order cannot be applied for if the person is a subject of disqualification. [17] Section 187 of the PSA confers on the court the discretion to disqualify an offender from holding a Queensland driver’s licence: 1) ‘If – (a) an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and (b) the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence; the court may, in addition to any sentence that it may impose, order that the offender is, from the time of conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence.’ [18] Of key importance here is subsection (b) which sets out an ‘interests of justice’ test that the court must apply in deciding whether to disqualify the offender from holding or obtaining a driver’s licence. -- 6 of 10 -- 7 [19] Sections 129B(1) and (2) of the TORUM Act set out the disqualification period where this discretion is exercised: 1) ‘…if – (a) a person is convicted of an offence against a regulation for driving more than 40km/h over the speed limit; and (b) the court that convicts the person decides, under the Penalties and Sentences Act 1992, section 187, to disqualify the person from holding or obtaining a driver licence for a period…[then] 2) The disqualification must be for a period of at least 6 months’. Consideration Suspension vs disqualification [20] The appellant contends that the learned Magistrate was incorrectly led to impose a court-ordered disqualification without being properly informed that a mandatory six-month administrative suspension is the automatic and standard consequence for an offence of this kind. [21] The appellant does not contend that the learned Magistrate considered disqualification to be mandatory. Clearly, her Honour did not and it is clear that the question of discretion was ultimately clarified before sentence was imposed. This can be inferred from the learned Magistrate’s elucidation of the respondent’s position being that ‘not that [disqualification is] mandatory but that it’s his conduct that deserves the disqualification that arises under the provision’,8 and where her Honour refers to the ‘interests of justice’ test when ordering disqualification.9 [22] Rather, the appellant submits that the learned Magistrate was not placed in a position to appreciate that, even if she elected not to impose disqualification, the appellant would still be subject to a six-month sanction by way of suspension. [23] In my view, this misunderstanding appears to have arisen from the manner in which the appellant’s submissions were presented in the Magistrates Court, which may have conflated the terms ‘suspension’ and ‘disqualification’. For example, the appellant, through his lawyers, referred to ‘the suspension of the licence… which, it is conceded, is not 8 Hearing transcript, p 4, ll 21-22. 9 Decision transcript, p 2, ll 17-24. -- 7 of 10 -- 8 mandatory’,10 and later submitted that it is required that the learned Magistrate make a decision ‘whether… she should exercise her discretion to suspend’.11 [24] It is clear from the legislative principles which I have set out previously that suspension is not a discretionary mechanism and that it is, in fact, the automatic administrative sanction. [25] When considering the respondent’s own inaccurate explanation of the operation of s 129B, to which I have referred, I suspect that the learned Magistrate may have been misled into treating the sentence options as a binary choice between a six-month disqualification on the one hand, and no court-imposed penalty beyond the accruing of eight demerit points on the other. Special Hardship order [26] Nonetheless, the more compelling aspect of the appellant’s argument on appeal is in relation to the special hardship order. The appellant contends that the learned Magistrate was uncertain about the consequences of her order insofar as the appellant would be eligible to apply for a special hardship order. I accept this contention. [27] This is plain from a reading of the decision transcript, where the learned Magistrate, whilst handing down her sentence, says to the appellant that ‘you are to be applying for a hardship licence regardless of the order that I make today’.12 [28] The legislative principles regarding a person’s ineligibility to apply for a special hardship order are quite clear. A special hardship order could only have been applied for by the appellant if his licence was suspended, not disqualified. It is a shame that this was not brought to her Honour’s attention as clearly as it should have been in which case the error might have been avoided. [29] To this effect, I am satisfied that there were material errors of the kind described in House v the King. The matter I must next turn to is whether these errors resulted in a sentence that was excessive, which is the second requirement of s 222(2)(c). [30] The offence, of course, remains serious. The appellant was driving at 115km/h in a 60 zone, which is, clearly enough, 55km/h over the limit or almost double the limit. It is necessary to consider that the six-month 10 Hearing transcript, p 4, ll 40-45. 11 Hearing transcript, p 5, l 22. 12 Decision transcript, p 2, ll 12-13. -- 8 of 10 -- 9 automatic suspension applies for speeds over 40km/h over the limit, and the appellant well exceeded even that high threshold. The speed involved would have posed a significant risk to other road users and the community, particularly around midday on a Saturday which is when the offence occurred. [31] The appellant’s history, comprising of three pages of prior offences including a 12-month disqualification in 2002 to 2003, is of some significance and is relevant to the assessment of the appropriateness of the sentence imposed. [32] It is also necessary to consider the practical effect of such sentence. The effect of a special hardship order, pursuant to s 320(1)(b) of the Driver Licencing Regulation, is that ‘the person is authorised to continue to drive motor vehicles under a Queensland driver licence in the circumstances, and subject to the restrictions, stated in the order’. [33] The material before the learned Magistrate was limited in this regard as, obviously enough, it was not the intention of the appellant, at that stage, to seek a determination on whether a special hardship order should be made. That was a step that would have to be taken after the matter was dealt with in court. It was submitted that the appellant is a sole parent responsible for the care of his two teenage daughters, and that his licence assists in maintaining those responsibilities. The respondent here submits that those circumstances are not materially different from those faced by other offenders. That may be accepted. However, the present issue is not whether a special hardship order would or will be granted, but that the possibility to seek such an order was a matter to which the Magistrate plainly had regard. A period of disqualification removed that avenue altogether, producing a much more onerous outcome than a suspension which would have preserved the possibility of conditional relief in this respect which her Honour clearly appeared to have in mind as something that Mr Cox could pursue. [34] During the course of the hearing, the learned Magistrate asked whether her decision to disqualify necessarily means that the appellant still cannot apply for a special hardship order.13 The response that followed not only left this query unanswered, but further misled her Honour insofar as failing to appreciate the automatic six-month suspension and distinguishing it from disqualification. The appellant’s lawyers said this: ‘the effect of [her Honour] making the order today is that he can’t drive 13 Hearing transcript, p 6, ll 24-25. -- 9 of 10 -- 10 away from here…initially, it is a challenged ticket with eight demerit points and the ticketable sum’.14 [35] I am satisfied that her Honour’s remarks in this respect indicated an intention that the appellant be subject to a six-month sanction that saw him off the road for a period of 6 months, but while retaining the capacity to seek a special hardship order. [36] The order that was ultimately imposed denied the appellant of a pathway, being one which the learned Magistrate appeared to consider relevant, perhaps as a result of the reasons which had been outlined earlier. Had the statutory scheme under the TORUM legislation been correctly appreciated, it was reasonably open for the appellant to be subject to the automatic suspension rather than a disqualification. [37] It is in that way, that the error resulted in the imposition of a more onerous sentence than would otherwise likely have been imposed, and the sentence must be regarded as excessive within the meaning of s 222(2)(c) for those reasons. [38] Given this finding, it is unnecessary to determine the appellant’s remaining ground of appeal that the sentence was manifestly excessive. [39] What all of that means is that it is necessary for me to re-sentence Mr Cox, and I am satisfied that it is appropriate that there be an ability to apply for a special hardship order, with whether or not he is eligible for that to be determined by others. It is also appropriate that the overall fine imposed, which was $1,954 and which is not complained of in relation to the appeal, be imposed, and otherwise it is unnecessary to make any further orders. Orders [40] The orders are as follows: 1) The appeal is allowed; 2) The orders made on 1 October 2025 in the Magistrates Court at Pine Rivers are set aside; 3) In lieu thereof, the appellant is fined the sum of $1,954; and 4) No conviction will be recorded. 14 Hearing transcript, p 6 ll 28-29, 32-33. -- 10 of 10 --