Edalaty v Caie - [2009] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

Edalaty v Caie [2009] QDC 301

PARTIES:

RAMIN EDALATY

(Appellant)

V

LISA ROSEMARIE CAIE

(Respondent)

FILE NO/S:

BD851/09

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

13 August 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2009

JUDGE:

Irwin DCJ

ORDER:

1. (a)     Appeal allowed.

(b)     The sentence is varied by deleting the order that the appellant be disqualified from holding or obtaining a driver licence for a period of seven months.

(c)     Instead, it is ordered that the appellant be disqualified from holding or obtaining a Queensland driver licence for a period of three months from 13 August 2009.

(d)     Sentence otherwise confirmed.

2. No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to giving a false document, disobeying the speed limit and contravention of a requirement and sentenced to one penalty of a $1500 fine and disqualified from holding or obtaining a driver licence for 7 months – where the appellant was a taxi driver who received an infringement notice for disobeying the speed limit – where he stated a false name in contravention of a police officer’s direction – where he subsequently submitted a false statutory declaration that his wife was the driver – where the disqualification period heavily impacted on his ability to make a living – where the magistrate made no reference to his early guilty plea or circumstances of mitigation – where imprisonment was not a penalty available for the offences – where the magistrate referred to a former judge having gone to gaol for exactly the same behaviour, said that the appellant was borderline to go to gaol and if he engaged in that sort of behaviour again he would go to prison – whether in these circumstances the magistrate incorrectly sentenced the appellant on the basis that imprisonment was an option – whether there was an error in the exercise of the sentencing discretion

Criminal Code 1899 (Qld), s 194(1), 666A

Justices Act 1886, s 222(1), s 222(2)(c), s 225(3)

Penalties and Sentences Act 1992, s 13(1), s 49(1), s 187(1)

Police Powers and Responsibilities Act 2000, s 791(2)

Transport Operations (Road Use Management) Act, s 53(2)

Transport Operations (Road Use Management – Road Rules) Regulation 1999, s 20

House v The King (1936) 55 CLR 499, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Briese (1997) 92 A Crim R 75, cited

R v Briody [2002] QCA 364, cited

R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited

R v Einfeld [2009] NSWSC 119, cited

R v Mallon [1997] QCA 058, applied

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied

R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited

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 Edalaty v Caie

Details

AGLC: Edalaty v Caie [2009] QDC 301
Case: [2009] QDC 301
Decision Date: 13 August 2009 (ex tempore)

CaseChat Overview and Summary

The appellant in this case pleaded guilty to charges of providing a false document, disobeying the speed limit, and contravening a requirement. The respondent was sentenced to a penalty of a $1500 fine and disqualified from holding or obtaining a driver’s licence for seven months. The appellant, who was a taxi driver, received an infringement notice for speeding and subsequently provided a false name in contravention of a police officer’s direction. He further submitted a false statutory declaration that his wife was the driver. This disqualification significantly impacted his ability to earn a living.

The primary legal issue before the court was whether the magistrate had erred in imposing a sentence that was manifestly excessive or inadequate. The court had to consider whether the sentence was inappropriate given that imprisonment was not available for these offences. Additionally, the court examined whether the magistrate had correctly exercised the sentencing discretion by failing to adequately consider the appellant’s early guilty plea and mitigating circumstances.

The court found that the magistrate had incorrectly sentenced the appellant by suggesting that imprisonment was an option for the offences, which was not the case. The court also found that the disqualification period of seven months was excessive. The sentence was varied to a disqualification period of three months from 13 August 2009, while the fine remained at $1500. The sentence was otherwise confirmed.

The final orders were that the appeal was allowed, the disqualification period was reduced to three months, and the sentence was otherwise confirmed with no order as to costs.

Orders

Orders of the court

1. (a) Appeal allowed.

(b) The sentence is varied by deleting the order that the appellant be disqualified from holding or obtaining a driver licence for a period of seven months.

(c) Instead, it is ordered that the appellant be disqualified from holding or obtaining a Queensland driver licence for a period of three months from 13 August 2009.

(d) Sentence otherwise confirmed.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Edalaty v Caie [2009] QDC 301
PARTIES:	RAMIN EDALATY (Appellant) V LISA ROSEMARIE CAIE (Respondent)
FILE NO/S:	BD851/09
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	13 August 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2009
JUDGE:	Irwin DCJ
ORDER:	1. (a) Appeal allowed. (b) The sentence is varied by deleting the order that the appellant be disqualified from holding or obtaining a driver licence for a period of seven months. (c) Instead, it is ordered that the appellant be disqualified from holding or obtaining a Queensland driver licence for a period of three months from 13 August 2009. (d) Sentence otherwise confirmed. 2. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to giving a false document, disobeying the speed limit and contravention of a requirement and sentenced to one penalty of a $1500 fine and disqualified from holding or obtaining a driver licence for 7 months – where the appellant was a taxi driver who received an infringement notice for disobeying the speed limit – where he stated a false name in contravention of a police officer’s direction – where he subsequently submitted a false statutory declaration that his wife was the driver – where the disqualification period heavily impacted on his ability to make a living – where the magistrate made no reference to his early guilty plea or circumstances of mitigation – where imprisonment was not a penalty available for the offences – where the magistrate referred to a former judge having gone to gaol for exactly the same behaviour, said that the appellant was borderline to go to gaol and if he engaged in that sort of behaviour again he would go to prison – whether in these circumstances the magistrate incorrectly sentenced the appellant on the basis that imprisonment was an option – whether there was an error in the exercise of the sentencing discretion Criminal Code 1899 (Qld), s 194(1), 666A Justices Act 1886, s 222(1), s 222(2)(c), s 225(3) Penalties and Sentences Act 1992, s 13(1), s 49(1), s 187(1) Police Powers and Responsibilities Act 2000, s 791(2) Transport Operations (Road Use Management) Act, s 53(2) Transport Operations (Road Use Management – Road Rules) Regulation 1999, s 20 House v The King (1936) 55 CLR 499, applied Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Briese (1997) 92 A Crim R 75, cited R v Briody [2002] QCA 364, cited R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited R v Einfeld [2009] NSWSC 119, cited R v Mallon [1997] QCA 058, applied R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited