Baldwin v Commissioner of Police

[2007] QDC 380

[2007] QDC 380

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE DEARDEN

DAVID BRIAN BALDWIN	Appellant
and
COMMISSIONER OF POLICE	Respondent
BEENLEIGH ..DATE 20/12/2007

JUDGMENT
HIS HONOUR: This is an appeal by the appellant David Brian

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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	10
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	20
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	30
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,	40
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	50

was also unlawfully obtained in the same scenario.
The learned Acting Magistrate in the process of sentencing, 2 JUDGMENT 60

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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	10
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	20
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	30
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	40
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	50
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."

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In my view, firstly, the learned Acting Magistrate if	1
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.	10
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	20
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
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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	40
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.
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The relevant provisions of 187(1)(b) of the Penalties and

Sentences Act 1992 provide that in order to proceed to a licence disqualification - which is, as I have indicated, 4 JUDGMENT 60

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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	10
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	20
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."
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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

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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.	50
In all of the circumstances I accept, as submitted by both the

appellant, represented today by Mr Kelso, and the
prosecution/respondent, represented today by Mr McCarthy, that 5 JUDGMENT 60

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the disqualification period should be set aside but the

sentence should otherwise remain.

Accordingly, I order that the disqualification period of 12	10
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.
...	20
HIS HONOUR: There being no application for costs, there is no
order for costs.
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