Davidson v Police

[2010] QDC 92

[2010] QDC 92

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE PACK
No 16 of 2009

ALAN LESLIE DAVIDSON	Appellant
and
POLICE	Respondent
BOWEN ..DATE 12/02/2010 ORDER

1-1

HIS HONOUR: In this matter the appellant pleaded guilty to

1

three offences on the 17th of November 2009. The first count
related to a charge that he was in charge of a motor vehicle
contrary to section 791(c) of the Transport Operations Road
Use Management Act of 1995. The second count related to

driving a motor vehicle without a driver's licence contrary to	10
section 78(1) and(l)ii of the same Act. And the third count - outline, Mr Rees? What was the date of the - the third offence?
20
MR REES: The third offence was the 8th of November 2009, your Honour.
HIS HONOUR: And the third offence - count 3 was in similar
terms to count 1. The - whilst the readings in relation to	30
counts 1 and 2 with respect to alcohol concentration were
significant and above point 15 in each case, the circumstances
of the offending, as explained to the Magistrate, included a
concession made by the prosecuting police officer that the
appellant had no intention of driving the vehicle on both	40
occasions.
At material times the appellant was residing in his motor
vehicle. He did so advisedly, rather than row a boat to his
yacht after he had been drinking significant quantities of	50

alcohol. It was significant also that the appellant had no
prior traffic convictions.
The second account arose by the appellant's own admission that 1-2 ORDER 60

1

he had on the day before - count 3, that is the - the 7th of of the counts was for - related to an offence dated the 30th of August 2009.

10

In relation to those counts 1 and 3, the door of the vehicle -
relevant vehicle was open, and that on at least one of those
occasions attention to the vehicle had been drawn only by the
fact that music which was being played by the appellant was

somewhat loud.	20
At the hearing no information was placed before the Magistrate
that he had been - the appellant had been served with the
relevant notice concerning the automatic suspension arising
from the first offence under - pursuant to section 79B of the	30
Act. The appellant was legally represented. No point was taken. That may be because, I have been informed, that notice - the relevant notice was in fact served upon the appellant and that is accepted for present purposes.
40
The sentencing proceedings had some unusual features. The
Magistrate proceeded upon the basis that the appellant had no capacity to pay a fine, despite the fact that the sale of his vehicle was thought to be imminent at the relevant time. The sentence also proceeded upon the basis that it appears that	50

both his appellant's legal representative, and possibly the
Magistrate, at least thought that there was some incapacity or
complication about transferring a probation order that had
been made in this jurisdiction to another jurisdiction. 1-3 ORDER 60

1

The appellant had made it clear that he intended to go to New
South Wales. So - particularly with persons who have no
previous convictions - there is only slight complication in

having probation orders transferred from one Court to another.	10
The end result, it seemed to be conceded by the appellant's
legal representative, that an appropriate penalty was four
months imprisonment wholly suspended for an operational period
of two years. That was the penalty imposed with respect to
all of the offences - to each of the three counts.	20
The learned Magistrate went to some considerable trouble to
explain to the appellant that even minor transgressions of the
kind he was before - of the nature of matters such as those
for which he'd been before the Court, would make him	30
vulnerable to the actual requirement to serve that four month period of imprisonment, unless good cause could be shown by him as to why he should not be required to do so.
In the course of the Appeal hearing there have been - I've	40
been informed by Mr Rees, who appears for the prosecution and
for the - I should say for the Commissioner of Police, that
the - if given time the appellant would have the capacity to
pay a fine. That is something that he has affirmed during
the course of the hearing of the appeal.	50

The learned Magistrate also appeared to proceed with respect to count 1 on the basis that there was a necessity to disqualify the appellant for a 12 month period. I may be 1-4 ORDER 60

1

incorrect in that perception, but in any event I am satisfied
that a 12 month disqualification for the first offence - count

1 - was manifestly excessive.

I draw similar conclusions with respect to the imprisonment	10
that was imposed for these counts, despite the circumstances as explained, and the concession apparently made by the appellant's solicitor when before the Magistrate.
Unhappily in this case, because the cumulative effect of the	20
sentencing, which the appellant accepts is part of the
legislation under section 90D of the Act, gave neither the
Magistrate nor this Court the discretion to not impose
cumulative penalties. It was only with respect to count 1
that the penalty may have been ameliorated in that context.	30
In relation to count 1, I vary the sentence by imposing a fine of $250. I vary the disqualification period to a period of four months from 12 months. In relation to count 2-----
40
MR REES: I'm sorry, your Honour, to interrupt, but with regards to the period-----
HIS HONOUR: Six months minimum, is it? MR REES: Indeed, your Honour. HIS HONOUR: All right. MR REES: Thank you.	50

HIS HONOUR: Six - six months. In relation to count 2, I vary the sentence by imposing a fine of $300. And in relation to count 3, I vary the fine by imposing a - the penalty by 1-5 ORDER 60

1

imposing a fine of $450.

The remaining suspension periods and the cumulative effects of
them in counts 2 and 3 remain unaltered, so that in the end

result there will be a three and a half year period of	10
disqualification. And fines totalling - is it $1,000? Yes, $1,000 to be paid. Whilst there is capacity to pay the fine the appellant's income is of the order of $225 per week. He may have further funds available upon the sale of his vehicle.
20
I order that the fine in count 1 be paid by the 31st of May
2010. I order that the fine in count 2 be paid by the 31st of
August 2010. And the final fine of $450 be paid by the 31st
of December 2010. If the fines are not paid by that date -
they probably should be the Magistrates Court Registry, should	30
it?
MR REES: Indeed, your Honour, yes.
HIS HONOUR: Yes. I order the Registrar of the Magistrates Court at Bowen to give to SPER for registration pursuant to
40
section 34(2) of the States Penalties Enforcement Act, the prescribed particulars of any unpaid amount. Thank you. Thank you for assistance in this, Mr Rees.

----- 50

1-6 ORDER 60