Flatters v. Newman

[2007] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

Flatters v Newman [2007] QDC 274

PARTIES:

TIMOTHY IAN FLATTERS

(Appellant)

V

RAYMOND PATRICK NEWMAN

(Respondent)

FILE NO/S:

129 of 2006

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate’s Court of Queensland at Beenleigh

DELIVERED ON:

18 September 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

18 September 2007

JUDGE:

Dearden DCJ

ORDER:

Appeal against conviction and sentence dismissed

CATCHWORDS:

APPEAL AGAINST CONVICTION AND SENTENCE – where the appellant was convicted of 2 charges of speeding – where counsel for the appellant argued that the 1 of the charges was duplicitous because the 2 offences were part of one ongoing course of conduct – where the appellant was fined $1,500 and his driver’s licence was disqualified for a period of 6 months – whether the sentence imposed was manifestly excessive

COUNSEL:

Mr J. Moore for the appellant

Ms S. Farnden for the respondent

SOLICITORS:

Direct referral for the appellant

Director of Public Prosecutions for the respondent

HIS HONOUR:  This is an appeal in respect of the decision of the learned Magistrate at Beenleigh on 10 October 2006 in which the appellant was found guilty of a single charge of speeding.  The Magistrate, in finding the appellant guilty, concluded that the particular of the speeding was that the appellant had been speeding at 145 kilometres per hour.

In the trial that proceeded on that day the Magistrate heard evidence from two police officers who were in the motor vehicle which was conducting patrols at the relevant time.  Their observations of speed, both of their own vehicle and of the motor bike of the appellant, and the video which they took on that night (Exhibit 2 in the trial proceedings) which I have had the benefit of viewing, supported the Magistrate's conclusion, based on the evidence before him as to that speed. 

Although the defendant neither gave nor called evidence, as was his right, the effect of that is that the Magistrate was left only with the evidence of the investigating police officers and he was persuaded to the requisite standard of beyond reasonable doubt, both as to the offence itself and as to the particular of the speeding.

At the conclusion of that trial the defendant also entered a plea of guilty to a second charge of speeding with a particular that it occurred at 160 kilometres per hour. 

As I understand the appellant's argument it is that, in effect, one of those two charges (by implication the one that proceeded to trial) is duplicitous because, as Mr Moore effectively says in his submissions, the whole thing happened so quickly that effectively the two offences of speeding were really part of one ongoing course of conduct.

The difficulty with that argument, of course, is that the facts, as outlined, by investigating police and accepted by the learned Magistrate were that, effectively, the defendant had been travelling at an estimated speed of 145 kilometres per hour, he then slowed down to a speed of 100 kilometres per hour, the police car came fairly close to him, as part of their investigatory steps to obtain the registration of the motor bike and in an attempt to look at the defendant's face.  Then the police car sped off after another motor cycle which was travelling on one wheel and which travelled at a significant and excessive speed.  At that point this appellant then sped up after them and was doing 160 kilometres per hour when he reached them again. 

This appellant, of course, pleaded guilty to that count and was found guilty of the first charge of speeding.  The outcome of that was that the appellant was fined a total sum of $1,500 and his driver's licence was disqualified for a period of six months from the 10th of October 2006.

In my view, the facts, as found by the learned Magistrate, do not support the submission that the first charge was bad for duplicity.  Clearly in the circumstances of these two offences there were two separate identifiable incidents of speeding, each of them at a very high level, one of them at 145 kilometres per hour and one at 160 kilometers per hour.
There is an argument, of course, which is the contra-argument to duplicity which is essentially that where there are a number of incidents which could be charged as separate charges and where there is the potential, for example, for a defence, perhaps a separate defence to each charge, then it is not inappropriate (if I can use the double negative) to charge more than one charge in those circumstances.

In this particular case it is clear, on the evidence, that the appellant was identified by police as travelling at 145 kilometres per hour; that he then slowed down.  The police car then moved off after another vehicle and at that point, had the appellant remained at the speed limit, of course there would have been no problem, but he then chose, for whatever reason (apparently, as he informed police on the evening, to check them out) up to a speed of 160 kilometres per hour.

In those circumstances I do not consider that there has been duplicity and that ground of appeal is dismissed.  In respect of the appeal against sentence the ticketed amount, if the appellant had chose to utilise that method of responding to the charges, was an amount of $700 per ticket, and it is clear therefore that the fine of $1500 could not be said to be manifestly excessive in any way.

Similarly, the six month disqualification was the applicable disqualification had the ticket been paid, given that either of the speeding offences involved a speed in excess of 40 kilometres per hour over the speed limit and it could not, in those circumstances, be said to be manifestly excessive.

The appellant complains, entirely legitimately, in my view, through his counsel, that through some form of difficulty (the details of which are unclear from the submissions made to me) that as of April 2007 the Department of Transport was unaware of the disqualification effective 10 October 2006, and therefore appears to have treated the matter on the basis that a six month disqualification should run from that date. 

It is quite clear, in my view, that the Magistrate intended to and in fact imposed a six month disqualification effective 10 October 2006.

This appeal, although unsuccessful, does nothing more than reinforce that the six month disqualification was the applicable period and that that disqualification ran from 10 October 2006 and consequently expired on 9 April 2007.

The response of the Department of Transport to assert that the disqualification only applied from April in the absence of any application for a stay of the proceedings, either to this Court or to the Magistrates Court, is, in my view, completely unsupportable and the records of the department should be amended to reflect that in law the appellant was disqualified as at 10 October 2006 and that that disqualification ceased as of midnight on 9 April 2007.

The logic for that, of course, is clear and plain - had the appellant chosen (and thankfully it appears that he has not) to have driven a motor vehicle at any time after that point on the 10th of October 2006 when he was disqualified, he would have quite appropriately and properly have been charged with disqualified driving and would have suffered the consequences of disqualification.

In the circumstances, then, it is clearly my view that he has served the disqualification period which was effective as of 10 October 2006 and that whatever steps, which may be necessary from the Department of Transport, should be taken to ensure that their records reflect that disqualification and the expiration of that disqualification as I have indicated on 9 April 2007 at midnight.

The appellant, of course, will need to satisfy whatever usual requirements are necessary for the re-issue of a driver's licence but it is clear, in my view, that having served his disqualification, which, as I have found, was not a manifestly excessive disqualification, in the circumstances, he is entitled to the re-issue of a licence in accordance with the usual obligations and requirements for such licensing.

Given that there has been, it seems, some difficulties as between the appellant and the department in respect of this matter I give the appellant leave to apply, if it is necessary, to clarify any issues arising out of this appeal and my decision in respect of the appeal.

...

HIS HONOUR:  The Crown indicating very fairly and appropriately, in my view, that it does not seek costs from today I make no order as to costs.

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