Bhardwaj v Commissioner of Police

[2009] QDC 131

[2009] QDC 131

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE TUTT

No 25 of 2009

JATIN BHARDWAJ	Appellant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 20/04/2009
ORDER

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HIS HONOUR: The current matter before the Court is an appeal

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by Jatin Bhardwaj against the decision of the Magistrates
Court imposed on the 8th of December 2008 in the Richlands Magistrates Court wherein he was convicted after a summary trial of the offence of driving a motor vehicle without a

driving licence while disqualified by a Court pursuant to	10
sections 78(1) and subsection 3(a) of the Transport Operations Road Use Management Act 1995.
The Magistrate imposed a 3-months imprisonment as his sentence
on the appellant, with a parole release date of 6 March 2009	20
which would mean that the appellant would be required to serve all but 1 day of his 3 months imprisonment before being released on parole.
It is necessary for sentencing authorities to fix a parole	30
release date where the period of imprisonment imposed is 3
years or less and the Magistrate was complying with that
provision under the Penalties and Sentences Act, being section
160B thereof. However, it has been clearly established in the
matter of Queen v Kitson [2008] QCA 86 that where a sentencing	40
authority imposes a parole release date beyond the midpoint of
any sentence then the sentencing authority must inform the
defendant of the reason for doing so and hear submissions in
respect of why a parole release date beyond the midpoint of
the sentence should be fixed, as opposed to the midpoint.	50

The reason for the halfway point of any sentence being important, so far as a parole release date is concerned, is that under the Corrective Services Act a person who is 1-2 ORDER 60

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sentenced to a period of imprisonment is entitled to apply for
parole after that person has served half of his or her
sentence. Consequently, under the new provisions of the
Penalties and Sentences Act it is reasonable to expect that if

a parole release date is fixed beyond the halfway point of any	10
tern of imprisonment then there should be not only notice of
that given to an individual to receive submissions thereon,
but logically, it would seem to be necessary that there be
some special reason for fixing a parole release date beyond
the midpoint if that were to occur.	20
In this instance the Magistrate did not seek any submissions
on point or give notice of his intention to do so and
consequently it would seem to me that he committed an error in
law by so doing and I therefore find that he did so, which	30
makes his decision appellable.
In accordance with the Justices Act on the hearing of any
appeal a Judge may "confirm, set aside or vary the appealed
order or make any other in the matter the Judge considers	40
just." - see section 225, subsection 1.
In all the circumstances of this matter there is no doubt that the appellant has an unenviable traffic history which includes numerous traffic offences, some of a serious nature, and also	50

including previous instances of unlicensed driving and driving
whilst disqualified, as well as failing to stop at a red
traffic control signal and quite a number of offences of 1-3 ORDER 60

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speeding.

In those circumstances the imposition of a 3 months sentence
of imprisonment is well within range to be imposed by a Court

in the circumstances of the appellant again being convicted of	10
driving a motor vehicle without a licence whilst disqualified but it is then a matter of what should be done so far as the imposition of a term of imprisonment is concerned.
It was probably more appropriate that if a term of 3 months	20
imprisonment was to be imposed, which I would consider to be reasonable in the circumstances, that such a term be suspended after a short period in custody for an operational period beyond that.
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However, in the circumstances which presently apply, namely,
the appellant having served a period of 58 days in custody,
that would probably be more than he would have served had the
remainder of a period of imprisonment been suspended and of
course, it is certainly longer than he would serve if he was	40
given a parole release date at the half point of his sentence.
So taking all matters into account at this stage it seems to
me that the appropriate order would be that I should impose a
term of imprisonment on the appellant of 58 days and declare
the time that he has served as presentence custody and	50

therefore the order would be that he not serve any further
period of time in custody.
In the circumstances therefore, I allow the appeal. I set 1-4 ORDER 60

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aside the Magistrate's order imposed on the 8th of December
2008 and in lieu thereof I sentence the appellant Jatin
Bhardwaj to 58 days imprisonment, and I further order pursuant
to section 159A of the Penalties and Sentences Act it is

declared that the 58 days spent in presentence custody between	10
the 8th of December 2008 and the 3rd of February 2009 be deemed time already served under the sentence.
I further order that he be disqualified from holding or
obtaining a driver's licence for a period of 2 years from the	20
8th of December 2008.
MS FREEMAN: Your Honour, just with the declaration in
relation to the custody order to be served, it should be till
the 3rd of February.	30
HIS HONOUR: The 3rd of February? Yes. Well, I will amend that accordingly to the 3rd of February.
MS FREEMAN: Thank you.	40
HIS HONOUR: So the 58 days will be from the 8th of December 2008 to the 3rd of February 2009. I further order that there be no order as to costs.
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...

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