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

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

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.

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

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.

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Details

Case: [2010] QDC 92
Decision Date: 12/02/2010

CaseChat Overview and Summary

Davidson was appealing against his conviction and sentence for three road traffic offences, which he had pleaded guilty to. The court had to determine whether the sentence imposed was excessive and if the disqualification period was appropriate. The court found that the disqualification period for the first offence was excessive, and so reduced it from 12 months to four months. The court also varied the fines and maintained the cumulative effects of the sentences, resulting in a three and a half year disqualification period and a total fine of $1,000. The court ordered that if the fines were not paid by specified dates, the unpaid amounts should be registered with the State Penalties Enforcement Registry.

Orders