Davidson v Police [2010] QDC 92

1-1 [2010] QDC 92 DISTRICT COURT APPELLATE JURISDICTION JUDGE PACK No 16 of 2009 ALAN LESLIE DAVIDSON Appellant and POLICE Respondent BOWEN ..DATE 12/02/2010 ORDER -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: In this matter the appellant pleaded guilty to three offences on the 17th of November 2009. The first count related to a charge that he was in charge of a motor vehicle contrary to section 791(c) of the Transport Operations Road Use Management Act of 1995. The second count related to driving a motor vehicle without a driver's licence contrary to section 78(1) and(l)ii of the same Act. And the third count - I'm not sure where I've got that. Have you got it in your outline, Mr Rees? What was the date of the - the third offence? MR REES: The third offence was the 8th of November 2009, your Honour. HIS HONOUR: And the third offence - count 3 was in similar terms to count 1. The - whilst the readings in relation to counts 1 and 2 with respect to alcohol concentration were significant and above point 15 in each case, the circumstances of the offending, as explained to the Magistrate, included a concession made by the prosecuting police officer that the appellant had no intention of driving the vehicle on both occasions. At material times the appellant was residing in his motor vehicle. He did so advisedly, rather than row a boat to his yacht after he had been drinking significant quantities of alcohol. It was significant also that the appellant had no prior traffic convictions. -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 The second account arose by the appellant's own admission that he had on the day before - count 3, that is the - the 7th of November 2009 - actually been driving his vehicle. The first of the counts was for - related to an offence dated the 30th of August 2009. In relation to those counts 1 and 3, the door of the vehicle - relevant vehicle was open, and that on at least one of those occasions attention to the vehicle had been drawn only by the fact that music which was being played by the appellant was somewhat loud. At the hearing no information was placed before the Magistrate that he had been - the appellant had been served with the relevant notice concerning the automatic suspension arising from the first offence under - pursuant to section 79B of the Act. The appellant was legally represented. No point was taken. That may be because, I have been informed, that notice - the relevant notice was in fact served upon the appellant and that is accepted for present purposes. The sentencing proceedings had some unusual features. The Magistrate proceeded upon the basis that the appellant had no capacity to pay a fine, despite the fact that the sale of his vehicle was thought to be imminent at the relevant time. The sentence also proceeded upon the basis that it appears that both his appellant's legal representative, and possibly the Magistrate, at least thought that there was some incapacity or complication about transferring a probation order that had -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 been made in this jurisdiction to another jurisdiction. The appellant had made it clear that he intended to go to New South Wales. So - particularly with persons who have no previous convictions - there is only slight complication in having probation orders transferred from one Court to another. The end result, it seemed to be conceded by the appellant's legal representative, that an appropriate penalty was four months imprisonment wholly suspended for an operational period of two years. That was the penalty imposed with respect to all of the offences - to each of the three counts. The learned Magistrate went to some considerable trouble to explain to the appellant that even minor transgressions of the kind he was before - of the nature of matters such as those for which he'd been before the Court, would make him vulnerable to the actual requirement to serve that four month period of imprisonment, unless good cause could be shown by him as to why he should not be required to do so. In the course of the Appeal hearing there have been - I've been informed by Mr Rees, who appears for the prosecution and for the - I should say for the Commissioner of Police, that the - if given time the appellant would have the capacity to pay a fine. That is something that he has affirmed during the course of the hearing of the appeal. The learned Magistrate also appeared to proceed with respect to count 1 on the basis that there was a necessity to -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 disqualify the appellant for a 12 month period. I may be incorrect in that perception, but in any event I am satisfied that a 12 month disqualification for the first offence - count 1 - was manifestly excessive. I draw similar conclusions with respect to the imprisonment that was imposed for these counts, despite the circumstances as explained, and the concession apparently made by the appellant's solicitor when before the Magistrate. Unhappily in this case, because the cumulative effect of the sentencing, which the appellant accepts is part of the legislation under section 90D of the Act, gave neither the Magistrate nor this Court the discretion to not impose cumulative penalties. It was only with respect to count 1 that the penalty may have been ameliorated in that context. In relation to count 1, I vary the sentence by imposing a fine of $250. I vary the disqualification period to a period of four months from 12 months. In relation to count 2----- MR REES: I'm sorry, your Honour, to interrupt, but with regards to the period----- HIS HONOUR: Six months minimum, is it? MR REES: Indeed, your Honour. HIS HONOUR: All right. MR REES: Thank you. HIS HONOUR: Six - six months. In relation to count 2, I vary the sentence by imposing a fine of $300. And in relation to -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 count 3, I vary the fine by imposing a - the penalty by imposing a fine of $450. The remaining suspension periods and the cumulative effects of them in counts 2 and 3 remain unaltered, so that in the end result there will be a three and a half year period of disqualification. And fines totalling - is it $1,000? Yes, $1,000 to be paid. Whilst there is capacity to pay the fine the appellant's income is of the order of $225 per week. He may have further funds available upon the sale of his vehicle. I order that the fine in count 1 be paid by the 31st of May 2010. I order that the fine in count 2 be paid by the 31st of August 2010. And the final fine of $450 be paid by the 31st of December 2010. If the fines are not paid by that date - they probably should be the Magistrates Court Registry, should it? MR REES: Indeed, your Honour, yes. HIS HONOUR: Yes. I order the Registrar of the Magistrates Court at Bowen to give to SPER for registration pursuant to section 34(2) of the States Penalties Enforcement Act, the prescribed particulars of any unpaid amount. Thank you. Thank you for assistance in this, Mr Rees. ----- -- 6 of 6 --