Cutler v Zollar - [2015] QDC 10

DISTRICT COURT OF QUEENSLAND

CITATION:

Cutler v Zollar [2015] QDC 10

PARTIES:

Carl Cutler
(appellant)
v
Jurgen Zoller
(respondent)

FILE NO:

2221/14

DIVISION:

Appellate

PROCEEDING:

s222 Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

05.02.15 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

05.02.15

JUDGE:

Farr SC DCJ

ORDER:

1.   The appeal is allowed.

2.   The order imposed in the Magistrates Court on the 14^th of May 2014 fining the respondent $300 is set aside.

3.   The respondent is fined $700 in default, seven days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registrar for registration.

4.   No conviction is recorded.

5.   The respondent is disqualified from holding or obtaining a driver’s licence for two months.

6.   The order for compensation made in the Magistrates Court on the 14^th of May 2014 in the amount of $500 is affirmed.

CATCHWORDS:

APPEAL - Justices Act 1886 s222 – whether order inadequate – leave to add grounds of appeal granted.

APPEAL –one charge of driving without due care and attention – where the learned Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate - where no reference was made to general deterrence – where appellant drove up against the kerb and onto the footpath- where serious injury occasioned - where the sentence imposed was inadequate and inconsistent with Tschirpig v Martin (2011) QDC 111.

COUNSEL:

SOLICITORS:

McCartny Durie Lawyers
Office of the Director of Public Prosecutions

The respondent entered a plea of guilty on the 7^th of April 2014 in the Cleveland Magistrates Court to one charge of driving without due care and attention. His matter was adjourned to allow him the opportunity to attend an Attitudinal Drivers Workshop which he successfully undertook. He then next appeared in Court on the 14^th of May 2014 and was fined $300 and ordered to pay the complainant $500 compensation.

The appellant has appealed that order on the ground that it is manifestly inadequate in the circumstances. Leave has also been sought to add the following grounds: (1) the learned Magistrate erred by not imposing a disqualification period; (2) the learned Magistrate erred by placing too much weight on the respondent’s conduct at the time of the collision; and (3) the learned Magistrate erred by placing insufficient weight on matters of denunciation and deterrence. The respondent has not voiced any opposition to leave being granted to add those grounds of appeal. In the circumstances it is appropriate to grant such leave, and I so order. I turn now to the circumstances of the offending conduct.

On Tuesday the 5^th of November 2013 at approximately 4.15 pm, the respondent drove his four-wheel drive vehicle east along Gordon Road at Redland Bay. The route he drove was his usual route to his residence. The complainant, Mr Meehan, was simultaneously riding his bicycle west along the footpath which ran alongside the same side of the roadway that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cutler v Zollar

Details

AGLC: Cutler v Zollar [2015] QDC 10
Case: [2015] QDC 10
Decision Date: 5 February 2015

CaseChat Overview and Summary

In Cutler v Zollar, the appellant sought to appeal the decision of the Magistrates Court, which imposed a fine of $300 on the respondent for driving without due care and attention. The respondent's vehicle collided with the kerb and onto the footpath, resulting in a serious injury to a pedestrian. The appellant argued that the sentence imposed by the Magistrate was inadequate and inconsistent with relevant case law. The appeal was heard in the District Court, where the appellant sought to have the fine increased, and for a conviction to be recorded against the respondent.

The central legal issue before the court was whether the order imposed by the Magistrate was inadequate and inconsistent with the principles of sentencing articulated in Tschirpig v Martin. The appellant contended that the Magistrate had placed too much emphasis on the lack of deliberate intent in the respondent’s actions and had failed to adequately consider the need for general deterrence. The court was required to determine if the sentence imposed was manifestly inadequate and whether leave should be granted to add grounds of appeal.

The court found that the sentence imposed by the Magistrate was manifestly inadequate and did not adequately reflect the seriousness of the respondent’s actions. The court noted that the respondent’s conduct had caused serious injury to a pedestrian, and the lack of general deterrence was a significant concern. The court held that the Magistrate had erred in not considering the principles of general deterrence as articulated in Tschirpig v Martin. The court granted leave to add grounds of appeal and allowed the appeal. The order imposing a fine of $300 was set aside and replaced with a fine of $700, along with a seven-day imprisonment term in default. The court also disqualified the respondent from holding or obtaining a driver’s licence for two months. The order for compensation made in the Magistrates Court was affirmed.

The court’s final orders were that the appeal was allowed, the original fine was set aside, and a new fine of $700 was imposed along with a seven-day imprisonment term in default. Additionally, the respondent was disqualified from holding or obtaining a driver’s licence for two months, and no conviction was recorded. The order for compensation made in the Magistrates Court was affirmed.

Orders

Orders of the court

1. The appeal is allowed.

2. The order imposed in the Magistrates Court on the 14th of May 2014 fining the respondent $300 is set aside.

3. The respondent is fined $700 in default, seven days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registrar for registration.

4. No conviction is recorded.

5. The respondent is disqualified from holding or obtaining a driver’s licence for two months.

6. The order for compensation made in the Magistrates Court on the 14th of May 2014 in the amount of $500 is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cutler v Zollar [2015] QDC 10
PARTIES:	Carl Cutler (appellant) v Jurgen Zoller (respondent)
FILE NO:	2221/14
DIVISION:	Appellate
PROCEEDING:	s222 Appeal
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	05.02.15 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	05.02.15
JUDGE:	Farr SC DCJ
ORDER:	1. The appeal is allowed. 2. The order imposed in the Magistrates Court on the 14^th of May 2014 fining the respondent $300 is set aside. 3. The respondent is fined $700 in default, seven days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registrar for registration. 4. No conviction is recorded. 5. The respondent is disqualified from holding or obtaining a driver’s licence for two months. 6. The order for compensation made in the Magistrates Court on the 14^th of May 2014 in the amount of $500 is affirmed.
CATCHWORDS:	APPEAL - Justices Act 1886 s222 – whether order inadequate – leave to add grounds of appeal granted. APPEAL –one charge of driving without due care and attention – where the learned Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate - where no reference was made to general deterrence – where appellant drove up against the kerb and onto the footpath- where serious injury occasioned - where the sentence imposed was inadequate and inconsistent with Tschirpig v Martin (2011) QDC 111.
COUNSEL:
SOLICITORS:	McCartny Durie Lawyers Office of the Director of Public Prosecutions