Baldwin v Commissioner of Police [2007] QDC 380

1 [2007] QDC 380 DISTRICT COURT APPELLATE JURISDICTION JUDGE DEARDEN DAVID BRIAN BALDWIN Appellant and COMMISSIONER OF POLICE Respondent BEENLEIGH ..DATE 20/12/2007 JUDGMENT -- 1 of 6 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by the appellant David Brian Baldwin against the respondent, Commissioner of Police, in respect of a sentence passed by the learned Acting Magistrate at the Beenleigh Magistrates Court on 22 June 2007. Mr Baldwin appeared and through his counsel entered pleas of guilty to charges of unlawful use of a motor vehicle, unlawful possession of a vehicle, and drug offences of possession of cannabis, and possession of a utensil. Mr Baldwin was sentenced to six months' imprisonment, wholly suspended for an operational period of three years, in respect of the relevant unlawful use of a motor vehicle offence, fined $900, and ordered to pay $2,588 restitution. Critically, for the purposes of this appeal, his driver's licence was disqualified for a period of 12 months pursuant to section 187 of the Penalties and Sentences Act. Given that the Prosecutor has - in my view entirely appropriately, and pragmatically - conceded the appeal, it is not necessary to outline in any detail the relevant facts, other than to note that the appellant had driven a co-offender from Brisbane to Southport for the purpose of stealing a motor vehicle, and had pleaded guilty to the offence of unlawful use of a motor vehicle, although he himself had not actually driven that vehicle, nor an aluminium boat and trailer which was also unlawfully obtained in the same scenario. -- 2 of 6 -- 3 JUDGMENT 1 10 20 30 40 50 60 The learned Acting Magistrate in the process of sentencing, and I note without taking any submissions on this issue, proceeded in respect of the unlawful use charges (both with respect to the unlawful use of a motor vehicle and the unlawful possession of a vehicle, the trailer and vessel) not only to imprison the appellant for six months, which was then suspended, but ordered a 12 month disqualification. The appellant's counsel at that stage then sought to address the learned Acting Magistrate further in respect of the issue of disqualification. In particular, he placed before the learned Acting Magistrate a factual scenario in respect of the appellant's father who had cancer and was visiting the hospital between two and four visits per week, in circumstances where the father was otherwise dependent on public transport, and there were significant difficulties because of his condition, the medication, the duration and time of the journeys, and the uncertainty of the times and dates in respect of the appointments. Those matters being placed before the learned Acting Magistrate his response was: "And clearly he has got to be disqualified, and my decision in relation to the licence stands. I mean, at the end of the day, he has got to appreciate he cannot do this in using the vehicle, and perhaps that may be the most severe penalty in the circumstances. It may well impact on someone else. I can understand the father's frustrations, but at the end of the day it may be a lesson to him that he cannot use his vehicle to commit these offences. So I am not going to change my disqualification to that." -- 3 of 6 -- 4 JUDGMENT 1 10 20 30 40 50 60 In my view, firstly, the learned Acting Magistrate if contemplating a disqualification in circumstances where that disqualification was not mandatory but discretionary should as a matter of natural justice have called for submissions from both the appellant's counsel and the Prosecutor. Secondly, it is clear that the Acting Magistrate in the exercise of his discretion in imposing the disqualification, has effectively dramatically attenuated the outcome of the penalty without calling for any submissions. Thirdly, it seems to me that hearing submissions from counsel after the decision has been made and then seeking to have the decision reopened is, in effect, a situation where the counsel for the appellant in those circumstances is starting from well behind the eight ball and it is unlikely, one would have thought, that a judicial officer in those circumstances would be keen to set aside the disqualification once imposed. That of course delicately avoids the issue as to whether the Acting Magistrate's sentencing process has been concluded, and whether or not the Acting Magistrate by that stage had the power to set aside the disqualification. The relevant provisions of 187(1)(b) of the Penalties and Sentences Act 1992 provide that in order to proceed to a -- 4 of 6 -- 5 JUDGMENT 1 10 20 30 40 50 60 licence disqualification - which is, as I have indicated, discretionary under this provision - the Court must firstly be satisfied that the offence arose out of the driving of a vehicle; and secondly, that, "having regard to the nature of the offence or the circumstances in which it was committed that the offender should in the interest of justice be disqualified." As Macrossan CJ indicated in R v. Nhu Ly [1996] 1 Qd R 543, 547: "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. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term." In my clear view the learned Acting Magistrate erred in exercising his discretion to disqualify, particularly his decision to do so without seeking submissions as the interests of justice would have required from both the appellant and the prosecution, and in any event such a disqualification imposed, in addition to substantial punishment by way of both a prison sentence and substantial fines in respect of other offences dealt with at the same time, was excessive in the circumstances, when considering the totality of the sentence. In all of the circumstances I accept, as submitted by both the appellant, represented today by Mr Kelso, and the -- 5 of 6 -- 6 JUDGMENT 1 10 20 30 40 50 60 prosecution/respondent, represented today by Mr McCarthy, that the disqualification period should be set aside but the sentence should otherwise remain. Accordingly, I order that the disqualification period of 12 months imposed by the learned Acting Magistrate at the Beenleigh Magistrates Court on 22 June 2007 be set aside, but that the penalty otherwise imposed remain. ... HIS HONOUR: There being no application for costs, there is no order for costs. ----- -- 6 of 6 --