Drivas v Bobbermen [2011] QDC 36

[2011] QDC 36 DISTRICT COURT APPELLATE JURISDICTION JUDGE SAMIOS No 2909 of 2010 GEORGE EMMANUAL DRIVAS Appellant and KENNETH JOHN BOBBERMEN Respondent BRISBANE DATE 28/01/2011 ORDER -- 1 of 5 -- HIS HONOUR: On the 13th of September 2010 the appellant pleaded guilty to a charge that on 8 August 2010 he did drive a motor vehicle not being the holder of a driver's licence and at that time he was disqualified from holding or obtaining a driver's licence by virtue of the accumulation of demerit points contrary to section 78 subsection 1 and subsection 3 paragraph (b) of the Transport Operations (Road Use Management) Act 1995. The appellant was fined by the learned Magistrate $466 and disqualified from holding or obtaining a driver's licence for a period of six months, expiring on 12 March 2011. The appellant appeals from the orders made by the learned Magistrate. The grounds of appeal are the sentence was manifestly excessive, that the learned Magistrate failed to have due regard to the submissions in mitigation on sentence and that the learned Magistrate erred in law in finding that the disqualification period was mandatorily fixed at six months and that she had no discretion in respect to that period. At sentence what was submitted for the appellant was a fine or a sentence that did not carry a period of disqualification of driver's licence. There is no doubt there was a preponderance of reasons to look upon the appellant favourably with respect to his driver's licence. However, the learned Magistrate, as the grounds of appeal state, took the view that she was -- 2 of 5 -- mandatorily obliged to disqualify the appellant for a period of six months. Submissions have been made on behalf of the appellant going to this disqualification period. Issue does not seem to be taken with the fine in the circumstances. Reference has been made before the learned Magistrate and again on appeal to section 41 of the Acts Interpretation Act which prescribes that where a penalty is specified the offence is punishable by a penalty not more than the specified penalty. That is, that the penalty prescribed is a maximum as opposed to a mandatory penalty. I have also been referred to, as was the learned Magistrate, the decision in Walden v Hensler (1987) 163 CLR 561 at various pages, namely page 576, 584 and 585. I was also referred to the judgment of Mr Justice Deane. Submissions have also been made about the decision of his Honour Judge Botting in this Court in Commissioner of Police v Kirby (2010) Queensland District Court 110 at page 8. What is submitted basically is that in the legislation where the expression "must" is used this permits the Court to consider the penalty as a maximum rather than a mandatory period of disqualification. I should set out section 78 subsection 3 paragraph (b), it provides, "If the Court convicts a person of an offence against subsection 1" - as was the case here - "and any of the following circumstances apply, the Court in -- 3 of 5 -- addition to imposing a penalty must disqualify the person from holding or obtaining a Queensland driver's licence for the period mentioned in relation to the circumstance." Subparagraph (b), "If the person committed the offence while the person was disqualified from holding or obtaining a driver's licence because of the allocation of demerit points, six months." I have had regard to the provisions of the Acts Interpretation Act section 41 and those references in Walden v Hensler that I was taken to and the decision of his Honour Judge Botting. However, I come to the view that where the word "must" is used in this legislation that it is mandatory that a period of six months' disqualification be imposed. As the learned Magistrate noted, in various other places of the legislation different expressions are used. For example, at least two years but not more than five years, at least one month but not more than six months and others just say six months. As the learned Magistrate said, the legislation could have said "at least six months" but it does not say that it says "six months." I do not arrive at the view that it's a maximum penalty in the circumstances. Therefore, while the appellant certainly had reasons to be favourably looked upon in terms of the period of disqualification, if any, the fact remains the legislation -- 4 of 5 -- prescribes a mandatory period if those circumstances are made out in subsection 1 and in subsection 3, paragraph (b). Therefore, I dismiss the appeal. HIS HONOUR: I think in the circumstances the respondent should have its costs. So I order the appellant to pay the respondent's costs fixed in the sum of $1,800. -- 5 of 5 --