Caspani v Queensland Police Service [2011] QDC 360

1 [2011] QDC 360 DISTRICT COURT APPELLATE JURISDICTION JUDGE BAULCH SC CRAIG WILLIAM CASPANI Appellant and QUEENSLAND POLICE SERVICE Respondent TOWNSVILLE ..DATE 09/12/2011 JUDGMENT -- 1 of 6 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Craig Caspani was convicted of a series of traffic offences in the Townsville Magistrates Court on the 19th of August 2011. He complains in respect of two aspects of the sentence imposed on him on that day. First, he says the fine and disqualification for the general alcohol limit offence was excessive. Second, he says that a condition imposed upon the restricted or work licence granted to him on that occasion was outside the power of the Court. The alcohol reading that caused him to be brought before the Court was a reading of 0.063 grams of alcohol per 100 millilitres of blood. There is a schedule of penalties in use in the Magistrates Court, in the interests of maintaining consistency, and that schedule indicates that a fine of two to three hundred dollars, with disqualification for a period of one or two months, is the appropriate way to deal with an offence of that sort. By section 87, subsection (6) of the Transport Operations (Road Use Management) Act, it is required that the period of disqualification should be doubled where a restricted or work licence is given. In the present case, the appellant was fined $800 and disqualified for a period of six months. -- 2 of 6 -- 3 JUDGMENT 1 10 20 30 40 50 60 The respondent concedes that the fine was excessive and says the fine should have been in the vicinity of $300. The respondent, however, says the disqualification was appropriate because, leaving aside the question of the work licence and the need to double the disqualification, a period of disqualification of the order of three months was within the appropriate range. So far as the offending is concerned, Mr Caspani was intercepted by police at 11.25 a.m. on the 25th of June, driving a utility which was unregistered and therefore uninsured. It was loaded with unsecured building material. Mr Caspani told the police he had consumed alcohol the previous evening, between 3 p.m. and 10 p.m., but thought he would be under the limit, following his having had a sleep. It was submitted on Mr Caspani's behalf at the hearing that the matter should be regarded as one of misjudgment rather than a deliberate course of drink driving, that Mr Caspani was generally a responsible citizen and had seven employees through his building company. Also, he had entered a very early plea, cooperated with the police and had only one previous conviction, which was nine years old and therefore of limited relevance. The grant of a restricted licence to Mr Caspani was not opposed. A -- 3 of 6 -- 4 JUDGMENT 1 10 20 30 40 50 60 restricted licence was granted, authorising Mr Caspani to drive for purposes directly connected with the means of earning his livelihood as a carpenter and subject to the following conditions. First, that he drive only between the hours of 5.30 a.m. and 8 p.m., seven days a week. Second, that he maintain a log book, available for inspection on demand by members of the Queensland Police Force and, third, that any passengers travelling with him in the vehicle must wear clothing with the words, "Four C Constructions" appearing on them. It is the third of those conditions that is the focus of Mr Caspani's complaint. The legislation which permits the grant of a restricted or work licence allows such a licence to be issued authorising driving directly connected with the defendant's means of earning an income and may specify the class of vehicle, the purpose for which it's to be driven and the time or times at which it might be driven. I infer, from the record, that the Magistrate took the view that requiring the passengers to wear the shirts specified would somehow make it more likely that Mr Caspani would comply with the conditions of the licence. I must say I fail to see how that could be so. It does not seem to me that it can possibly be described as a condition which restricts the use of the restricted licence to circumstances directly connected -- 4 of 6 -- 5 JUDGMENT 1 10 20 30 40 50 60 with the appellant's means of earning his livelihood. The legislation contemplates restrictions on the conduct of the licensee, and not restrictions on the conduct of others. In my opinion, the appeal should be allowed. In my opinion, an appropriate penalty would have been that Mr Caspani be fined the sum of $200 and that payment of that fine should be referred to the State Penalties Enforcement Registry. An appropriate period of disqualification would have been disqualification for a period of two months from the 19th of August 2011. The matter of disqualification requires further consideration because of the fact that the licence disqualification imposed on the 19th of August 2011 was suspended by the filing of the notice of assessment on the 2nd of September 2011, after operating for a period of 14 days. The effect of the filing of the notice of assessment is to suspend the order suspending Mr Caspani's licence. It does not, however, have the same effect in respect of the restricted licence. The consequence of that is that Mr Caspani has continued to be subject to the conditions imposed by the restricted licence and, in reality, has continued to be subject to the disqualification because of that. -- 5 of 6 -- 6 JUDGMENT 1 10 20 30 40 50 60 In respect of those matters, it seems to me to be appropriate to impose the minimum period of disqualification and I would order that the appellant by disqualified from holding or obtaining a driver's licence for a period of one month. Accordingly, the appeal is allowed and there is substituted for the fine imposed on Mr Caspani in the Magistrates Court a fine of $200. That fine is referred to the State Penalties Enforcement Registry and Mr Caspani is disqualified from holding or obtaining a driver's licence for a period of one month. I note that, during that period, he will continue to be subject to provisions of the restricted or work licence granted to him in the Magistrates Court. ----- -- 6 of 6 --