Cassidy v Gooch

[2015] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

Cassidy v Gooch [2015] QDC 275

PARTIES:

JAMES WILLIAM THOMAS CASSIDY
(Appellant)

v

CHRISTOPHER GOOCH

(Respondent)

FILE NO/S:

2849/15

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court of Queensland at Brisbane

DELIVERED ON:

6 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2015

JUDGE:

Searles DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

Drugs Misuse Act 1986 (Qld)

Justices Act 1886 (Qld)

Transport Operations (Road Use Management) Act 1995 (Qld)

Allesch v Maunz (2000) 203 CLR 172

Housev R (1936) 55 CLR 499

Kumar v Garvey [2010] QDC 249

COUNSEL:

C Reid for the Appellant

R Marks (Sol) for the Respondent

SOLICITORS:

Patrick Murphy Lawyers for the Appellant

The Office of the Director of Public Prosecutions for the Respondent

1. By notice of appeal, filed on 9 July 2015 and made pursuant to s 222(2)(c) of the Justices Act 1886 (Qld), the Appellant appeals part of a sentence imposed in the Magistrates Court on 2 July 2015.

1. On that day he pleaded guilty to two offences:-

(a) possessing dangerous drugs (oxycodone) on 9 October 2014, pursuant to s 9(1)(d) of the Drugs Misuse Act 1986 (Qld); and

(b) driving a motor vehicle while relevant drug present in his blood or saliva, pursuant to s 79(2AA) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM).

The “relevant drug” in the second charge was methamphetamine and Methylenedioxymethyl-amphetamine.

1. Upon his plea, he was placed on probation for a period of 12 months for the first charge, and disqualified from holding or obtaining a driver’s license for 5 months for the second charge.  It is this latter disqualification period which is the subject of the appeal.

Does the Appeal have the effect of Suspending Operation of the Disqualification Order Pending the Outcome of the Appeal?

1. At the hearing, the issue also arose as to whether, by operation of TORUM s 131(3A), the period of disqualification has been running since the filing of the notice of appeal on 9 July 2015. That sections provides:-

“(3A) Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver license and has commenced an appeal against that conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that appeal, be suspended pending the determination of that appeal.”

I am satisfied that that provision relates only to appeal against conviction and not against a sentence, as is the present case.[1]  So, I precede on the basis that the disqualification is extant and will expire on 1 December 2015.

[1]Kumar v Garvey [2010] QDC 249 at [16].

Appeal

1. To be successful, the Appellant must demonstrate error on the part of the sentencing magistrate.  In Housev R,[2] it was said:-

“It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant mattes to guide or affect him, if he mistakes the facts,…