Lampton v Police

[2010] QDC 241

[2010] QDC 241

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BRADLEY
No 140 of 2009

GAIL KRISTINE LAMPTON	Applicant
and
POLICE	Respondent
IPSWICH ..DATE 04/05/2010 JUDGMENT

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HER HONOUR: On the 2nd of September 2009, in the Toogoolawah

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Magistrates Court, the defendant, on her own plea of guilty, was convicted of three counts of disqualified driving. Those offences were committed on the 26th of April 2009; the 19th of May 2009; and the 12th of August 2009.

10

It's conceded that she must have been subject to a bail undertaking, at least when she committed the third offence, with respect to the first two.

The appellant was, with respect to the offence that was	20
committed first in time, convicted and fined $1,200; with
respect to the offence committed second in time, convicted and
sentenced to three months' imprisonment; and with respect to the offence committed third in time, convicted and sentenced to eight months' imprisonment.	30
She was disqualified from holding or obtaining a drivers
licence for an effective period of three and a half years, and
a parole release date was fixed at the 1st of January 2010,
which would mean that she would serve four months'	40
imprisonment.
As a result of obtaining bail pending the hearing of this appeal, the appellant has, in fact, served 52 days of the sentence of imprisonment.	50

It is conceded on behalf of the respondent that the Magistrate proceeded on an incorrect principle, in that he viewed the three disqualified driving offences as being subsequent 1-2 JUDGMENT 60

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convictions to each other, and, therefore, when he sentenced
her with respect to the second and third offences, he was
sentencing her as effectively being convicted of her fourth -
third and fourth disqualified driving matters, because the

appellant did, in fact, have a previous conviction for	10
disqualified driving, which was one in the Toogoolawah Magistrates Court on the 4th of March 2009.
It's conceded that as a result of the principle in R v Miller
[1986] 2 Queensland Reports 518, the Magistrate proceeded	20
incorrectly. In that case the Court of Appeal held that a - the term "previously convicted" is a reference to a conviction recorded prior to the hearing which the conviction is sought to be classified as subsequent, was recorded.
30
In other words, the appellant was entitled to be sentenced on the basis that this was only the second occasion upon which she'd appeared before a Court, and been convicted of disqualified driving.
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In those circumstances it’s conceded that the sentencing discretion of the Magistrate miscarried, and that I should sentence afresh.
The respondent submits that the appropriate penalty should,	50
nevertheless, be one of a short period of imprisonment
followed by three years probation, and that the 52 days
already served is sufficient.

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The appellant argues that in light of her previous history, and the fact that she has not been given the opportunity of community based orders in the past, that the appropriate

sentence is one of probation without a term of imprisonment at

all.	10
The appellant has an extensive traffic history that dates back
to 1993. Most of the entries in her traffic history are for
speeding. She does have convictions in 2001 for unlicensed
driving. And I should say that she has lost her licence over	20
the years because of an accumulation of points.
It is because she'd lost her licence because of an
accumulation of points that she was, in fact, driving whilst
disqualified on the 2nd of January 2009, which led to her	30
conviction for disqualified driving on the 4th of March 2009.
On the 4th of March 2009, she was given a fine of $700 and
disqualified from holding or obtaining a drivers licence for
two years. It was in breach of that order that she committed	40
the subsequent three offences which are the subject of this appeal.
The appellant also does have a criminal history, but that is a
relatively minor one, essentially consisting of a number of	50
taking of shop goods, and drug offences.

The appellant is, or was at the time of sentencing, 38 years of age. She was separated but not divorced, with a five year 1-4 JUDGMENT 60

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old daughter. She lives with her mother, and is a carer for
her mother who is suffering the beginnings of dementia, and

she resides with her mother and daughter in Nanango.

In view of the appellant's personal circumstances, despite her	10
unenviable traffic history, given the nature of these
offences, and the principles upon which she must be sentenced,
in my view a sentence involving any imprisonment would be
excessive, and the appropriate penalty is one of probation,
and an appropriate term of probation would be one of two	20
years.
So I will set aside the Magistrate’s order, and substitute
with respect to each of the offences or convictions, a penalty
of two years' probation. Now, that's assuming, Mr	30
Kissick-----
MR KISSICK: I have instructions that she would consent to probation.
HER HONOUR: Has anyone explained to her conditions?	40
MR KISSICK: Yes. My instructing solicitor has taken her through both on - both on the original sentencing date and also again last week. Sorry, yesterday. Yesterday.
HER HONOUR: Okay. All right. Well, upon that - that	50

information, I will substitute the order of two years'
probation for each offence. The term of the disqualification
period has also appealed against, and it's conceded by the
respondent that an appropriate period of disqualification or
total period would be one of two and a half years. 1-5 JUDGMENT 60

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Now, the way that the Traffic Act works, does other - is it - would it be cumulative?

MS CANTATORE: Your Honour, I don't believe so. I believe the	10
- the cumulative sentences only deal with drink driving.
HER HONOUR: When it's drink driving. Okay.
MR KISSICK: Drink driving offences. Yes.	20
MS CANTATORE: Yes. They don't deal with offences of disqualified driving.
HER HONOUR: All right. Well, in that case I will substitute
the order of the Magistrate with respect to the	30
I'm afraid I don't have the full file from the Toogoolawah
disqualification period, and - or periods if I can find it. originally.
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MR KISSICK: The-----
HER HONOUR: All right. It's set out in Ms Cantatore's submissions, so I-----
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MR KISSICK: And it's also in the transcript of the judgments.
Yes.

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HER HONOUR: All right. Okay.

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MR KISSICK: Of the decision.

HER HONOUR: So with respect to the disqualification - it's

probably easiest if I just say with respect to each of the	10
three offences, the appellant is disqualified from holding or obtaining a drivers licence for two and a half years.
MR KISSICK: Yes. Thank you, your Honour. And I take it the effect of your Honour's order is to - is to set aside each of the convictions and order of the Magistrate.	20
HER HONOUR: On those three offences.
MR KISSICK: On those three offences. Yes.
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HER HONOUR: Yes.
MR KISSICK: Yes.
HER HONOUR: Now, your client lives in Nanango. Where's the	40
closest-----
MR KISSICK: No, Kingaroy. I'd ask for 48 hours perhaps, your Honour.
HER HONOUR: All right. Well, I order that the appellant	50
report to the Kingaroy Probation and Parole Office within 48 hours.
MR KISSICK: Thank you, your Honour. I am instructed to make

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application for costs in respect of the matter, your Honour.

My client is privately funded in respect of her appeal.	1
HIS HONOUR: Okay. Ms Cantatore?
MS CANTATORE: Your Honour, I have no submissions in relation to that.	10
HER HONOUR: All right. Well, I think it's fixed at $1,000-----
MR KISSICK: Eighteen hundred dollars, your Honour. Yes.
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HER HONOUR: Eighteen. Yes.
MR KISSICK: And - and under section 232, your Honour is
required to order or direct that the costs be paid to the
registrar to be paid over to the party entitled to the same
within a stated time.	30
HER HONOUR: How long would the police service need?
MS CANTATORE: Your Honour, I don't have those instructions.
40
MR KISSICK: The normal statutory time should be 28 days but-----
MS CANTATORE: Usually three weeks I believe.
MR KISSICK: Yes.	50
MS CANTATORE: Three or four weeks.

HER HONOUR: Yes. Okay. Well, I will order that the respondent pay the appellant's costs of this appeal fixed at 1-8 JUDGMENT 60

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$1,800, and direct that the respondent pay that sum to the
registry at the District Court, Ipswich, within 30 days, to be

paid out to the appellant's solicitors.

MR KISSICK: Thank you, your Honour. 10

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