Faulkner v Morris - [2010] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

Faulkner v Morris [2010] QDC 33

PARTIES:

PETER LAWRENCE FAULKNER

(Appellant)

AND

SENIOR CONSTABLE K. MORRIS

(Respondent)

FILE NO/S:

D94/09

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Toowoomba

DELIVERED ON:

3 February 2010 (ex tempore)

DELIVERED AT:

Toowoomba

HEARING DATE:

3 February 2010

JUDGE:

Irwin DCJ

ORDER:

1. Appeal allowed.

2. Sentence at first instance varied by reducing the period of disqualification to 1 month.

CATCHWORDS:

CRIMINAL LAW – Appeal Against Sentence – where appellant convicted on his plea of guilty of one count of driving a specified motor vehicle over the no alcohol limit but under the general alcohol limit – where the appellant was fined $500 and disqualified from holding or obtaining a driver licence for a period of 9 months – whether the period of disqualification made the sentence manifestly excessive

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE NOTICE OF INTENTION TO RELY ON PRIOR CONVICTIONS – whether sentencing magistrate erred in taking into account previous traffic history where no Notice of Intention to Allege Previous Convictions had been served on the appellant as required by s 47 of the Justices Act 1886 (Qld) – whether open to magistrate to act on allegation of previous traffic conviction not otherwise provided to him

Justices Act 1886 (Qld) s 47, s 222(1), s 225

Penalties and Sentences Act 1992 (Qld) s 4

Transport Operations (Road Use Management) Act (Qld) 1995 s 79(2C)(a), s 86(2)(f), s 86(2A), s 86(2E)

House v The King (1936) 55 CLR 504, applied

Hughes v Hopwood (1950) QWN 21, applied

Steinberg v Lundgaard [2001] QCA 332, cited

Washband v Queensland Police Service [2009] QDC 243, applied

COUNSEL:

R Davies for the appellant

P.J Alsbury for the respondent

SOLICITORS:

MacDonald Law for the appellant

Director of Public Prosecutions (Qld) for the respondent

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

No 94 of 2009

PETER LAWRENCE FAULKNER	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

TOOWOOMBA

..DATE 03/02/2010

JUDGMENT

HIS HONOUR: The appellant was sentenced on the 30th of September 2009 by a Magistrate on his plea of guilty to a charge that on 24 July 2009, whilst he was over the no alcohol limit, but not over the general alcohol limit, he did drive a motor vehicle as defined in paragraph (a) of subsection (2C) of section 79 of the Transport Operations (Road Use Management) Act 1995 (Qld) (the TORUM Act) namely, a truck, on a road.

A conviction was recorded and he was fined $500, in default 10 months' imprisonment, while being allowed four months to pay. More significantly, for the purpose of this appeal, it was ordered that he be disqualified from holding or obtaining a driver licence for a period of nine months. The appellant's challenge to the sentence under section 222 (1) of the Justices Act 1886 (Qld) is limited…

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 Faulkner v Morris

Details

AGLC: Faulkner v Morris [2010] QDC 33
Case: [2010] QDC 33
Decision Date: 3 February 2010 (ex tempore)

CaseChat Overview and Summary

The appellant, Faulkner, appealed against his conviction and sentence on the basis that the period of disqualification from holding or obtaining a driver's licence was manifestly excessive and that the sentencing magistrate erred in taking into account his prior traffic history without providing the required notice. Faulkner had pleaded guilty to driving a specified motor vehicle with an alcohol level over the no alcohol limit but under the general limit. He was fined $500 and disqualified from holding or obtaining a driver’s licence for a period of nine months.

The court was required to determine whether the period of disqualification constituted a manifestly excessive sentence and whether the magistrate erred in considering Faulkner's prior traffic history without the requisite notice. The court examined the legal framework under which the sentencing magistrate operated, particularly the requirements of s 47 of the Justices Act 1886 (Qld) that mandates the service of a Notice of Intention to Allege Previous Convictions. The court also assessed whether the magistrate's decision to rely on the prior convictions, despite the lack of proper notice, constituted an error of law that warranted the appeal.

The court found that the period of disqualification was indeed manifestly excessive and that the magistrate had erred in taking into account Faulkner's prior traffic history without the appropriate notice. The court allowed the appeal, reducing the period of disqualification to one month. The fine of $500 remained unchanged.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence at first instance varied by reducing the period of disqualification to 1 month.

Background

Background to the litigation

Full text does not contain this section.

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:	Faulkner v Morris [2010] QDC 33
PARTIES:	PETER LAWRENCE FAULKNER (Appellant) AND SENIOR CONSTABLE K. MORRIS (Respondent)
FILE NO/S:	D94/09
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Toowoomba
DELIVERED ON:	3 February 2010 (ex tempore)
DELIVERED AT:	Toowoomba
HEARING DATE:	3 February 2010
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed. 2. Sentence at first instance varied by reducing the period of disqualification to 1 month.
CATCHWORDS:	CRIMINAL LAW – Appeal Against Sentence – where appellant convicted on his plea of guilty of one count of driving a specified motor vehicle over the no alcohol limit but under the general alcohol limit – where the appellant was fined $500 and disqualified from holding or obtaining a driver licence for a period of 9 months – whether the period of disqualification made the sentence manifestly excessive APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE NOTICE OF INTENTION TO RELY ON PRIOR CONVICTIONS – whether sentencing magistrate erred in taking into account previous traffic history where no Notice of Intention to Allege Previous Convictions had been served on the appellant as required by s 47 of the Justices Act 1886 (Qld) – whether open to magistrate to act on allegation of previous traffic conviction not otherwise provided to him Justices Act 1886 (Qld) s 47, s 222(1), s 225 Penalties and Sentences Act 1992 (Qld) s 4 Transport Operations (Road Use Management) Act (Qld) 1995 s 79(2C)(a), s 86(2)(f), s 86(2A), s 86(2E) House v The King (1936) 55 CLR 504, applied Hughes v Hopwood (1950) QWN 21, applied Steinberg v Lundgaard [2001] QCA 332, cited Washband v Queensland Police Service [2009] QDC 243, applied
COUNSEL:	R Davies for the appellant P.J Alsbury for the respondent
SOLICITORS:	MacDonald Law for the appellant Director of Public Prosecutions (Qld) for the respondent