Huckel v The Commissioner of Police (No 1)

[2014] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

Huckel v The Commissioner of Police (No 1) [2014] QDC 85

PARTIES:

MARIANNE HUCKEL

(Appellant)

v

THE COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

2/2014

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court in Maryborough

DELIVERED ON:

Ex tempore 7 April 2014

DELIVERED AT:

Maryborough

HEARING DATE:

7 April 2014

JUDGE:

Samios DCJ

ORDER:

1. Appeal allowed

2. Order the sentence imposed by the learned Magistrate on 18 December 2013 be varied by deleting the recording of a conviction against the Appellant

CATCHWORDS:

APPEAL AND NEW TRIAL – DISCRETION – where the Appellant drove a motor vehicle whilst unlicensed – where the learned Magistrate sentenced the Appellant to a fine of $350, a three month disqualification from holding or obtaining a drivers licence and the recording of a conviction for driving a motor vehicle whilst unlicensed – whether the learned Magistrate erred in the exercise of his discretion in recording a conviction against the Appellant

Cases

House v The King (1936) 55 CLR 499

COUNSEL:

No appearances by Counsel on behalf of the Appellant

No appearances by Counsel on behalf of the Respondent

SOLICITORS:

Ms J Tweddell of Corser Sheldon & Gordon for the Appellant

Ms AC Schooth of the Office of the Director of Public Prosecutions for the Respondent

1. HIS HONOUR:   This is an appeal against the sentence imposed by the learned Magistrate in Maryborough who sentenced the Appellant to a fine of $350 and a three-month disqualification from holding or obtaining a drivers licence, and the recording of a conviction for the offence that the Appellant was – had drove a motor vehicle while she was unlicensed.  The offence occurred on the 17^th of November 2013.  The learned Magistrate’s sentence was imposed on the 18^th of December 2013. 

1. The Appellant was born on 13 April 1953.  She was 60 years of age when she committed the offence and is still 60 years of age.  She had no criminal history.  She pleaded guilty before the learned Magistrate to having driven while not licensed.  The Appellant had a minor traffic history.  It included two convictions for speeding and one conviction for disobeying a Do Not Turn Right sign.  For someone of her age, that is very much to her credit.  It would tend to demonstrate she was a very careful driver. 

1. The way the offence was detected was that on 17 November 2013, the Police intercepted the Appellant while driving her car in order to conduct a breath and licence check.  The Appellant identified herself and produced a drivers licence as required.  A check, though, revealed that her drivers licence had expired on 13 April 2013, that is, when she was 60 years of age.  She had failed to have her licence renewed.  She told the Police that she was unaware that her licence had expired, as she not received notification of this.  She also informed them that she had not checked her licence.  As can be seen, the period over which her licence had been expired was from 13 April 2013 to 17 November 2013.  The Appellant submits the fine was excessive.  However, in particular, the Appellant submits a conviction should not have been recorded in all the circumstances.  The sentence has had an effect on the Appellant.  I have been told by Ms Tweddell, her solicitor, that it did have an impact on her insurance standing. 

1. The imposition of the sentence was a matter for the discretion of the learned Magistrate.  As has been said in House v The King (1936) 55 CLR 499, between pages 504 and 505 by the High Court with regard to the exercise of discretion:

But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the Court imposing it.  The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the Judges composing the appellate Court consider that, if they had been in the position of the primary Judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If a Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.

1. In this matter, it is clear the Appellant had a very limited prior traffic record, which did not include an offence of this kind.  Further, she was 60 years of age and clearly must have been accepted to be of good character.  The lack of previous convictions would attest to that.  Clearly, again, it must have been apparent that she was not a person who had a propensity to offend or re-offend.  It was not the case that she was a person trying to avoid her responsibilities by not applying for a licence.  In my view, the material before the learned Magistrate clearly showed that the Appellant was someone who simply overlooked renewing their licence.  The recording of a conviction could have a serious effect, as it clearly has, on her standing with her insurer.  It also appears that the learned Magistrate did not give notice of his intention to record a conviction. 

1. In these circumstances, I have come to the view that the learned Magistrate did err, and not only in not giving notice of his intention to record a conviction, but in recording a conviction.  I cannot dispute on this appeal that the $350 fine is reasonable.  I have some concern about the disqualification period.  However, overall I would not interfere with the fine nor the disqualification period.  However, I will order that the sentence imposed by the learned Magistrate should be varied to remove the recording of the conviction.  Therefore, the appeal is allowed.  I order the sentence imposed by the learned Magistrate on 18 December 2013 be varied by deleting the recording of a conviction against the Appellant.  Ms Tweddell, any other orders that you seek here this morning?

1. MS TWEDDELL:   No, your Honour.

1. HIS HONOUR:   Yes.  Ms Schooth?

1. MS SCHOOTH:   No, your Honour.

1. HIS HONOUR:   All right.  Well, they’ll be the orders, then.  The appeal is allowed.  I order the sentence imposed by the learned Magistrate on 18 December 2013 be varied by deleting the recording of a conviction against the Appellant.  Have I got the right date that the conviction was recorded?  18 December?

1. MS TWEDDELL:   Yes.  Yes, you do.

1. MS SCHOOTH:   That’s the right date, your Honour. 

1. HIS HONOUR:   Yes.  Yes.  Well, see – that’s the end of my decision, but just as an aside, you know, the Appellant pleaded guilty within a month.  Yes.  Look, I won’t say any more about it.  They’ll be the orders. 

1. MS TWEDDELL:   Thank you.

1. HIS HONOUR:   Thank you.

1. MS SCHOOTH:   Thank you, your Honour.

1. MS TWEDDELL:   Thank you.