Davies v Commissioner of Police [2025] QDC 9

DISTRICT COURT OF QUEENSLAND CITATION: Davies v Commissioner of Police [2025] QDC 9 PARTIES: DAVIES, RAEWYN TIANA REGENE (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: Beenleigh District Court No 15 of 2024 DIVISION: Appellate PROCEEDING: Appeal s 222 (Criminal) ORIGINATING COURT: Magistrates Court in Beaudesert DELIVERED ON: 14 February 2025 DELIVERED AT: Southport HEARING DATE: 31 January 2025 JUDGES: Prskalo KC DCJ ORDER: 1. The appeal is dismissed. 2. There is no order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – an appeal against sentence pursuant to s 222 Justices Act 1886 (Qld) – where the appellant was found guilty of one count of driving without a licence demerit point suspended – where it was submitted the magistrate erred in imposing a 9 month licence disqualification – whether s 187 of the Penalties and Sentences Act 1992 (Qld) empowered the Magistrate to impose a disqualification period beyond the prescribed period mandated in s 78(3)(b) of the Transport Operations (Road Use Management) Act 1995 (Qld). Acts Interpretation Act 1954 (Qld), s 14A, s 32CA Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 187 Transport Operations (Road Use Management) Act 1995 (Qld), s 78, s 86 -- 1 of 12 -- 2 Chakka v Queensland Police Service [2024] QCA 213 Leyden v Venkat [2015] QDC 28 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Purcell v Electricity Commission of New South Wales [1985] HCA 54 Queensland Police Service v Klupfel [2013] QDC 210 R v Nhu Ly (1996) 1 Qd R 543 R v Osbourne [2014] QCA 291 R v Wilson [2016] QCA 301 Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 COUNSEL: J Wallace for the Appellant E Fleetwood for the Respondent SOLICITORS: Bell Dore Lawyers for the Appellant Office of the Director of Public Prosecutions for the Respondent -- 2 of 12 -- Introduction [1] On 21 June 2024, the police randomly intercepted the appellant driving a car while her driver licence was suspended due to the accumulation of demerit points. [2] On 16 July 2024, in the Magistrates Court at Beaudesert, the appellant pleaded guilty to a charge of driving a motor vehicle without a driver licence in contravention of s 78 of the Transport Operations (Road Use Management) Act 1995 (Qld). The learned Magistrate fined the appellant $900 and disqualified her from holding or obtaining a driver licence for a period of 9 months. [3] Pursuant to s 222 of the Justices Act 1886 (Qld), the appellant appeals the order on the ground that the Magistrate erred in imposing a 9-month licence disqualification. The appellant submits that the imposition of a 9-month disqualification period was beyond the permissible disqualification period allowed by statute. [4] Section 222(1) provides for an appeal to a District Court judge if a person feels aggrieved by an order made by a Magistrate in a summary way on a complaint for an offence or breach of duty. Pursuant to s 222(2)(c) if a person pleads guilty or admits the truth of a complaint, they may only appeal on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. Section 223(1) provides that the appeal is by way of rehearing on the original evidence on the record. [5] Appellate intervention under s 222(2)(c) is justified where an error in the exercise of the discretion of the kind recognised by the House v The King is established, and the error has resulted in a sentence which is excessive: Chakka v Queensland Police Service [2024] QCA 213 at [87]. The statutory provisions [6] Pursuant to s 78(1) of the Transport Operations (Road Use Management Act) 1985 (TORUM Act), a person must not drive a motor vehicle on a road unless a person holds a driver licence authorising the person to drive the vehicle on the road. If the court convicts a person of an offence under s 78(1), and any of the circumstances in s 78(3)(a) to (k) apply, the sentencing court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance. -- 3 of 12 -- 4 [7] Section 78(3) of the TORUM Act provides: (3) If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance— (a) if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence—for a period, of at least 2 years but not more than 5 years, decided by the court; (b) if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because of the allocation of demerit points—6 months; Note— See section 127(4)(b) for the effect of a suspension because of the allocation of demerit points under the driver licensing regulation. (c) if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended because of the allocation of demerit points—6 months; (d) if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because the person had been convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit—6 months; (e) if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended because the person had been convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit—6 months; (f) if the person committed the offence while the person’s driver licence was suspended under the State Penalties Enforcement Act 1999 or Transport Operations (Passenger Transport) Act 1994—a period, of at least 1 month but not more than 6 months, decided by the court; -- 4 of 12 -- 5 (g) if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended under the State Penalties Enforcement Act 1999 or Transport Operations (Passenger Transport) Act 1994—a period, of at least 1 month but not more than 6 months, decided by the court; (h) if the person committed the offence while the person was a repeat unlicensed driver for the offence—a period, of at least 1 month but not more than 6 months, decided by the court; (i) if the person committed the offence while, under section 79B— (i) the person’s Queensland driver licence was suspended; or (ii) the person’s authority to drive on a Queensland road under a non- Queensland driver licence was suspended; or (iii) the person was disqualified from holding or obtaining a Queensland driver licence; for a period, of at least 2 years but not more than 5 years, decided by the court; (j) if the person committed the offence while the person was a person mentioned in subsection (1B) or (1C)—for a period, of at least 1 month but not more than 6 months, decided by the court; (k) if, at the time of committing the offence, the person had never held a driver licence—3 months [8] The appellant was caught by the circumstance specified in s 78(3)(b) in that she committed the offence while disqualified from holding or obtaining a driver licence because of the allocation of demerit points. The specified disqualification period in s 78(3)(b) is 6 months. [9] After the sentence hearing, the appellant’s lawyers sought to re-open the hearing on the basis that an error had been made by the imposition of a 9-month disqualification period contrary to the terms of s 78(3)(b). -- 5 of 12 -- 6 [10] The registry subsequently notified the lawyers that the learned Magistrate had relied upon s 187 of the Penalties and Sentences Act 1992 (Qld) to impose the disqualification period of 9 months. The application to re-open the proceeding was refused. Contentions on appeal [11] The appellant submits that s 187 provides a source of power to disqualify a person but does not operate to increase the mandatory or maximum penalties which apply in s 78(3)(a) to (k). [12] The appellant relies upon s 14A of the Acts Interpretation Act 1954 (Qld), which provides: (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act. … [13] The appellant submits that, applying the principle in s 14A and having regard to the wording in s 78 as a whole, it is clear that parliament intended to impose minimum and maximum disqualification periods in specified circumstances and a single mandatory disqualification period in others. [14] For example, s 78(3)(a) provides for a mandatory minimum and maximum disqualification period for the more serious circumstance of driving while disqualified by court order. It is submitted that the use of the terms ‘at least’ and ‘but not more than’ thereby prescribes a minimum and maximum disqualification period. That subsection also contains the words ‘decided by the court’, which are absent in s 78(3)(b) and like subsections. [15] If a court were empowered to proceed under s 187, the appellant posits the bizarre scenario whereby a person might be disqualified absolutely (to take an extreme example) under s 78(3)(b) for unlicenced driving but could only be disqualified for a maximum of five years for driving while disqualified by court order under s 78(3)(a). -- 6 of 12 -- 7 [16] Finally, the appellant submits that the use of the words ‘decided by the court’ in some of the sub-sections shows a clear intention by parliament for the court to retain a discretion within the limits of the minimum and maximum periods allowed for in each of those circumstances. If parliament had intended for a similar discretion to apply for unlicenced driving while demerit point suspended under s 78(3)(b), it would have expressly provided for it. [17] In oral submissions, the appellant ultimately contended that s 187 of the Penalties and Sentences Act 1992 (Qld) provides a source of power only where there is otherwise no expressed specific power. [18] The respondent submits that the power of the court to order a longer disqualification period is derived from s 187 of the Penalties and Sentences Act 1982 (Qld). The respondent argues that the discretionary power is not confined to apply only where no other disqualification period is prescribed. [19] The respondent referred the court to the R v Osbourne [2014] QCA 291 in which the Court of Appeal discussed the breath of the discretionary power under s 187. That applicant was disqualified from holding or obtaining a driver licence for a period of 5 years upon a plea of guilty for one count of dangerous operation of a motor vehicle. In the absence of a court order disqualifying the applicant he would, by reason of his conviction and the operation of s 86 of the TORUM Act, have been disqualified for 6 months: [53]. At [57], the Court of Appeal stated that the breath of the discretion arising under s 187(1) is broad and not expressed as being confined solely to the nature of the offence, or to the circumstances in which it was committed. The judgment was ultimately concerned with whether the disqualification period of 5 years was manifestly excessive. [20] The respondent referred to R v Wilson [2016] QCA 301 at [33], in which Morrison JA emphasised the wide import of the phrase ‘in connection with’ in s 187, which ‘is capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote.’ [21] The respondent also relies upon the Queensland Police Service v Klupfel [2013] QDC 210, in which the appeal judge at [36] described the circumstances set out in s 78(3)(a) to (j) as requiring a disqualification for ‘at least the minimum period set out in the -- 7 of 12 -- 8 relevant subsection.’ As properly conceded by the Crown on the hearing of this appeal, the reference to the ‘minimum period’ at [36] is obiter. [22] Ultimately, the respondent submits that the cases do not support the appellant’s argument. Rather, they support a conclusion that 6 months is the minimum period of disqualification and that s 187 empowers a Magistrate to impose a higher penalty, if satisfied it is appropriate to do so. The modern approach to statutory construction [23] In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14], Kiefel CJ, Nettle and Gordon JJ articulated the modern statutory approach in the following way: “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose that meaning must be rejected.” (Citations omitted) [24] In Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [70], McHugh, Gummow, Kirby and Hayne JJ stated: “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. -- 8 of 12 -- 9 … A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.” (Citations omitted) Disposition [25] Pursuant to s 32CA of the Acts Interpretation Act 1954 (Qld) the use of the word ‘must’ indicates that the power is required to be exercised. Therefore, s 78(3)(b) requires a court to disqualify a person from holding or obtaining a driver licence for a period of 6 months. [26] As a general principle of statutory construction, where there is a conflict between general and specific provisions, the specific provision will prevail. [27] The generalia specialibus approach should only be called in aid ‘where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation’ (Purcell v Electricity Commission of New South Wales [1985] HCA 54) and where ‘contrariety is manifest’: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 53. [28] Thus, in s 78(3) where a court is required to disqualify a person for at least a specified period but not more than another specified period, the general power under s 187 cannot be otherwise reconciled and must yield to the specific constraint in s 78(3). [29] In my view, a similar constraint upon the operation of s 187 does not apply in respect of s 78(3)(b), nor in similar subsections which mandate a prescribed fixed period but do not specify a minimum or maximum. In other words, ss 187 and 78(3)(b) are not in true ‘contrariety’. [30] While s 78(3)(b) and like provisions may be referred to as mandatory ‘minimums’ in the case law, as in Queensland Police Service v Klupfel at [36], they are perhaps better understood as ‘prescribed’ periods, which must be imposed. Once imposed as required, the prescribed period may stand alone or form a component of a greater period of disqualification pursuant s 187 of the Penalties and Sentences Act 1992 (Qld). [31] The appeal judge in Queensland Police Service v Klupfel sought to reconcile the conflict that marred the case law at that time, in so far as some judges had determined -- 9 of 12 -- 10 the mandatory periods did not apply if a person had been discharged upon a bond. The appeal judge’s reference in obiter to the mandatory ‘minimum’ disqualification periods in s 78(3)(a) to (j) does not necessarily advance the argument for the Crown on this appeal, the present issue not having been agitated in that appeal. [32] The conflict in the case law was resolved by an amendment to s 78 in the Transport and Other Legislation Amendment Act 2014 (Act No. 43 of 2014). The words “in addition to imposing a penalty” in s 78(3) were replaced with the words “whether or not any other penalty is imposed.” In that context, the explanatory memoranda to the 2014 amendment states: “The original policy intention of the legislation was that if a person was convicted of one of the identified serious offences, it was mandatory for a court to impose the specified licence disqualification.” [33] While that makes clear the legislative intent behind the operation of s 78(3), it says nothing about the interaction between the mandatory disqualification periods in s 78(3) and the discretionary power in s 187 of the Penalties and Sentences Act 1992. [34] While not concerned with the point in contention on this appeal, in Leyden v Venkat [2015] QDC 28 at [101] to [106], Bowskill QC DCJ (as the Chief Justice then was) helpfully summarised the legislative history of s 78. Her Honour considered that having regard to the legislative history, and the words of s 78(3) itself, ‘the intention of the legislature was to impose a mandatory (further)1 disqualification on certain persons convicted of the offence of driving without a licence.’ [35] As to the operation of s 187 of the Penalties and Sentences Act 1992, in R v Nhu Ly (1996) 1 Qd R 543, Macrossan CJ observed: “Orders for disqualification on conviction were previously provided for under s 54 of the Traffic Act 1949, but that section has now been repealed by s 33 of the Traffic Amendment Act 1994. The current state of a corresponding general power to disqualify on conviction is found in s 187 of the Penalties and Sentences Act 1992. (545) 1 My emphasis. -- 10 of 12 -- 11 …. Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty, is not meant to be simply a gratuitous addition to other available punishments. … Examples where the discretion would more obviously arise for consideration are cases where the offence is a traffic offence as usually understood, … (547)” [36] Moving back to the statutory text in the TORUM Act, pursuant to s 78(2), if a person commits an offence against subsection (1), in deciding what penalty to impose a court must consider the factors listed in (a) to (f). Leaving aside for the moment the operation of s 78(3), for an offence committed against s 78(1), the court may impose up to the maximum penalty expressed in s 78(1) and may also impose an additional ‘penalty’ by way of a disqualification period pursuant to s 187. [37] Once it is accepted, as it must be, that the discretionary power under s 187 applies to the ‘simpliciter’ offence provision in s 78(1)2, there is no logical reason to prohibit its operation to s 78(3), except to the extent that the broader power is constrained by an express mandatory minimum or maximum disqualification period. [38] In R v Osbourne at [53], Henry J referred to the uncontroversial proposition that the discretionary power under s 187 of the Penalties and Sentences Act 1992 (Qld) may be exercised by a court even though lesser disqualification periods apply ‘without any specified order’ pursuant to the various subsections within s 86 of the TORUM Act. [39] Section 86 largely, although not exclusively, provides for automatic disqualification periods which apply in the absence of a specific order. Further, in the case of any conviction referred to in s 86, and in respect of which a person is disqualified ‘without any specific order’ for a specified period, s 86(5) permits a court to disqualify that person absolutely or for a longer period than specified. Section 78 does not contain an analogous subsection. 2 See for example s 90C(c) of the TORUM Act which, for an offence under s 78(1), contemplates a disqualification under either s 78(3)(a) to (h), (j) or (k) or the Penalties and Sentences Act 1992, section 187. -- 11 of 12 -- 12 [40] Irrespectively, R v Osbourne is not authority for the proposition that the power under s 187 may only be exercised where no other express power is stated or where disqualification periods apply without court order. Conclusion [41] In my view, the learned Magistrate was empowered to impose a 9-month period of disqualification pursuant to s 187 of the Penalties and Sentences Act. In doing so, the order complied with the imposition of the ‘prescribed period’ as required by s 78(3)(b), as a component of a lengthier period of disqualification. [42] Upon a review of the proceedings in the Magistrates Court, I do not consider that the disqualification period rendered the sentence excessive. The learned Magistrate alerted the appellant’s lawyer that a period of disqualification beyond the prescribed period was being contemplated, so it cannot be said that the appellant was denied procedural fairness. In my view, the sentence imposed was within the proper bounds of the exercise of the sentencing discretion. [43] There being no error in the exercise of the sentencing discretion, the ground of appeal fails. Orders: [44] The appeal is dismissed. [45] There is no order as to costs. -- 12 of 12 --