Huckel v The Commissioner of Police (No 2)
[2014] QDC 86
•Ex tempore 15 April 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Huckel v The Commissioner of Police (No 2) [2014] QDC 86 |
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 15 April 2014 |
DELIVERED AT: | Maryborough |
HEARING DATE: | 15 April 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Order the sentence imposed by the learned Magistrate on 18 December 2013 be varied by deleting the disqualification of the Appellant from holding or obtaining a drivers licence for three months |
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 disqualification imposed on the Appellant by the learned Magistrate in the exercise of his discretion should be deleted Legislation Penalties and Sentences Act 1992 (Qld) s 187(1) Transport Operations (Road Use Management) Act 1995 (Qld) s 78 |
COUNSEL: | No appearances by Counsel on behalf of the Appellant No appearances by Counsel on behalf of the Respondent |
SOLICITORS: | Ms AM Geerlings of Corser Sheldon & Gordon for the Appellant Ms AC Schooth of the Office of the Director of Public Prosecutions for the Respondent |
HIS HONOUR: On Monday the 7th of April 2013 I heard an appeal from the decision of the learned Magistrate who on 18 December 2013 on the Appellant’s plea of guilty sentenced the Appellant to a $350 fine and recorded a conviction and disqualified the Appellant from holding or obtaining a drivers licence for three months. The two issues, when I heard the appeal, were whether the conviction should have been recorded and, very faintly, whether the disqualification should have been – should be removed. I made a mistake in that I took the Appellant’s submissions to be to the effect that as the disqualification had expired or very nearly expired prior to the matter being dealt with by me I should not disturb the order of the learned Magistrate insofar as he imposed that – imposed the disqualification.
Having given my reasons for removing the recording of a conviction I have since then recognised the error that I made. I have asked for further submissions and they have been helpful. I thought at one stage the learned Magistrate may not have had power to impose the disqualification because I looked at section 78 of the TORUM Act[1] and it did not seem to provide for a disqualification to automatically follow the Appellant’s conviction for this offence. The offence that the Appellant committed, I should say, was driving a motor vehicle while her licence – while she did not have a current licence. It had expired on her 60th birthday in April 2000 and ‑ ‑ ‑
[1] Transport Operations (Road Use Management) Act 1995 (Qld).
MS GEERLINGS: ’13, your Honour.
HIS HONOUR: What year?
MS GEERLINGS: 2013.
HIS HONOUR: 2013 and she was detected by a – by Police who were conducting licence and breath analysis checks in November 2013. What had happened – and it should have been accepted and was accepted is that the Appellant inadvertently failed to renew her drivers licence which was due for renewal on 13 April 2013 as she didn’t receive a reminder notice in the mail because she had moved and she had no other mechanisms in place to ensure her responsibility was met in a timely fashion. It was clearly a case of inadvertence and that’s how I approached the matter last Monday. With regard to the Appellant, she had no prior criminal history and with regard to her prior traffic record it was very minor.
She exceeded the speed limit by less than 13 kilometres per hour on 4 April 2013. However, before that when she had committed an offence it occurred on 18 May 1995. If I’m right with my mathematics, that’s about 18 years earlier. Her speed limit on that occasion was exceeded by 15 to 29 kilometres per hour in a local traffic area. Prior to that the previous offence was a disobey no right turn sign on 11 July 1989. The reference tendered spoke very well of her. And, as I said, for a woman of 60 years of age her prior traffic record was very creditable. The learned Magistrate’s power, I have been told, to impose the disqualification is section 187 subsection (1) of the Penalties and Sentences Act 1992.[2]
[2] Penalties and Sentences Act 1992 (Qld).
Looking at that it shows that the court can impose a disqualification where an offender is convicted if the court is satisfied having regard to the nature of the offence or the circumstances in which it was committed the offender should, in the interest of justice, be disqualified from holding or obtaining a Queensland drivers licence. It just seems to me that when regard is had to the nature of the offence this was a case of inadvertence. The Appellant was detected in a check by Police for licences and roadside breath testing. While there had been some months between April and November 2013 while she obviously was driving without a licence it is explicable by inadvertence.
She was not some 20 year old who could not care less about having a drivers licence. She was not a 20 year old who had driven numerous occasions whilst disqualified in the past. The circumstances in which it was committed was, as I said, very minor and she was a person of good character and with no criminal history and with very limited traffic history. She was also prevented by the disqualification from being able to assert in her life dealings that she had not been disqualified from holding or obtaining a Queensland drivers licence. That is, if the disqualification remains it is simply – it is, to my mind, very much the same as having a conviction recorded against you. There would be occasions when the Appellant would have to disclose having been disqualified.
I cannot see how it could be in the interests of justice, in this case, to disqualify her from holding or obtaining a drivers licence. Therefore, I come to the view the learned Magistrate erred in the exercise of his discretion in this respect. I order the sentence imposed by the learned Magistrate on 18 December 2013 be varied by deleting the disqualification of the Appellant from holding or obtaining a drivers licence for three months. Yes. Nothing further.
MS GEERLINGS: Nothing further, your Honour.
MS SCHOOTH: Nothing, your Honour. Thank you.
HIS HONOUR: Thank you, Ms Schooth. Thank you, Ms Geerlings.
MS GEERLINGS: Thank you, your Honour.
HIS HONOUR: I’ll just give that to you. Yes. We’ll just adjourn the court, Mr Bailiff.
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