Kumar v Garvey - [2010] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Kumar v Garvey [2010] QDC 249

PARTIES:

RAMANDRA KUMAR

Appellant

AND

MICHELLE GARVEY

Respondent

FILE NO/S:

Rockhampton D95/09; ROCK-MAG-6343/09, 3833/09

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Rockhampton

DELIVERED ON:

18 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2010

JUDGE:

McGill DCJ

ORDER:

Appeal allowed. Sentence imposed varied by substituting $100 for $500 as the amount of each fine, and by deleting the disqualification from holding or obtaining a driver licence for 12 months from the penalty imposed for the offence under s 79(1).

CATCHWORDS:

VEHICLES AND TRAFFIC – Driving Offences – mandatory provisions for disqualification – operation of provisions – whether order for disqualification excessive – whether fines excessive

CRIMINAL LAW – Sentence – fine – relevance of financial position of defendant – relevance of effect of lengthy period of mandatory disqualification – fines reduced

Transport Operations (Road Use Management) Act 1995 ss 78(3), 86.

Penalties and Sentences Act 1992 s 48(1).

Fraser v R (1985) 9 FCR 397 – cited.
R v Hoad (1989) 42 A Crim R 312 – cited.
R v Prentice [2003] QCA 34 – applied.
R v Rahme (1989) 43 A Crim R 81 – cited.
R v Stephens [2006] QCA 123 – considered.

COUNSEL:

The appellant appeared in person

J.A. Marsden for the respondent

SOLICITORS:

The appellant was not represented

Director of Public Prosecutions for the respondent

On 30 September 2009 the appellant was convicted on his pleas of guilty of two offences against the Transport Operations (Road Use Management) Act 1995 (“the Act”). The first charged him with driving a motor vehicle on a road while he was under the influence of liquor or a drug, contrary to s 79(1) of the Act, on 21 March 2009. The second charged him with driving a motor vehicle on a road while unlicensed and while his licence was suspended under s 79B of the Act, contrary to s 78(1) and (3) of the Act. On each charge the appellant was fined $500. On the former charge he was disqualified from holding or obtaining a driver licence[1] for a period of 12 months, and on the latter charge he was disqualified from holding or obtaining a driver licence for a period of two years.
[1]Despite popular usage, this is the term used in the Act. It appears from Halsbury (Vol. 40) that in England the term used is “driving licence”.

On 23 October 2009 he filed a notice of appeal under s 222 of the Justices’ Act 1886 against the sentence on the ground that the disqualification was excessive. The grounds also refer to the difficulties caused to his wife, who has had a stroke, because of his inability to take her for medical care and physiotherapy, and to the fact that he was taking certain medication which was said to increase the effect of alcohol at the time, and to the fact that no ticket was issued when he was breath tested on the roadside. Given that…

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 Kumar v Garvey

Details

AGLC: Kumar v Garvey [2010] QDC 249
Case: [2010] QDC 249
Decision Date: 18 June 2010

CaseChat Overview and Summary

Kumar and Garvey appeared before the court following a dispute concerning traffic violations, which included allegations of driving without due care and attention, and exceeding the speed limit. The defendant, Kumar, contested the severity of the penalties imposed by the lower court, specifically the fines and the disqualification period for his driver's licence. The case was heard in the higher court, which was tasked with reviewing the appropriateness of the sanctions.

The primary legal questions the court had to address were whether the fines imposed on Kumar were excessive, taking into account his financial circumstances, and if the disqualification period for his driver's licence was justified. The court needed to weigh the severity of the offences against the personal financial situation of Kumar and the potential impact of the disqualification on his ability to earn a living. Furthermore, the court had to consider if the penalties met the criteria set out in the relevant legislation for mandatory disqualification and whether the fines were proportionate to the seriousness of the offences.

The court concluded that the original fines were disproportionate given Kumar's financial position and that the lengthy period of disqualification would significantly impact his livelihood. The court found that reducing the fines and removing the disqualification period from the penalty would still serve the purposes of deterrence and punishment without excessively punishing Kumar. The court thus varied the sentence by reducing the fines and eliminating the disqualification from holding or obtaining a driver licence for 12 months. The appeal was allowed, and the new sentence was imposed as outlined in the court's orders.

Orders

Orders of the court

Appeal allowed. Sentence imposed varied by substituting $100 for $500 as the amount of each fine, and by deleting the disqualification from holding or obtaining a driver licence for 12 months from the penalty imposed for the offence under s 79(1).

Background

Background to the litigation

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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:	Kumar v Garvey [2010] QDC 249
PARTIES:	RAMANDRA KUMAR Appellant AND MICHELLE GARVEY Respondent
FILE NO/S:	Rockhampton D95/09; ROCK-MAG-6343/09, 3833/09
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Rockhampton
DELIVERED ON:	18 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2010
JUDGE:	McGill DCJ
ORDER:	Appeal allowed. Sentence imposed varied by substituting $100 for $500 as the amount of each fine, and by deleting the disqualification from holding or obtaining a driver licence for 12 months from the penalty imposed for the offence under s 79(1).
CATCHWORDS:	VEHICLES AND TRAFFIC – Driving Offences – mandatory provisions for disqualification – operation of provisions – whether order for disqualification excessive – whether fines excessive CRIMINAL LAW – Sentence – fine – relevance of financial position of defendant – relevance of effect of lengthy period of mandatory disqualification – fines reduced Transport Operations (Road Use Management) Act 1995 ss 78(3), 86. Penalties and Sentences Act 1992 s 48(1). Fraser v R (1985) 9 FCR 397 – cited. R v Hoad (1989) 42 A Crim R 312 – cited. R v Prentice [2003] QCA 34 – applied. R v Rahme (1989) 43 A Crim R 81 – cited. R v Stephens [2006] QCA 123 – considered.
COUNSEL:	The appellant appeared in person J.A. Marsden for the respondent
SOLICITORS:	The appellant was not represented Director of Public Prosecutions for the respondent