McKinley v Commissioner of Police

[2008] QDC 148

[2008] QDC 148

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE HOWELL

TIMOTHY JOHN McKINLEY	Appellant/Defendant
and
COMMISSIONER OF POLICE	Respondent/Complainant
HERVEY BAY ..DATE 07/04/2008
ORDER

07042008 T(2)24/FLC(CAB) M/T HERV03 (Howell DCJ)

HIS HONOUR: The appellant was born on the 26th of July 1969.	1
His traffic history had his place of residence as 163 Hill Street, Woorabinda. The appellant was charged that on the 15th of December 2007 at Maryborough he drove a motor vehicle
on a road namely Alice Street, Maryborough at the said time

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not being the holder of a driver's licence authorising him to
drive that vehicle on that road.

There are many categories of driving without a licence, the most serious being driving whilst disqualified by a Court

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order and as the Full Court stated in Groning CA89/71 that
"driving whilst disqualified by a Court order is a very
serious offence", making it clear that the deterrent element
is more than ordinarily important. Driving whilst

disqualified by a Court order was viewed so seriously in the

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mid 1970s that the minimum penalty had to be six months'
imprisonment. It is now an open-ended discretion.

The next most serious would seem to be driving whilst disqualified by virtue of a disqualification because of the

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allocation of demerit points. Other serious offending can
involve a person who is disqualified by a Court from holding
or obtaining a driver's licence and that shortly after that
period has expired, without the driver's attempting to do

anything about a license, driving. There can be a person who

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was a knowing unlicensed driver, who on a number of occasions
continued to drive as an unlicensed driver.
07042008 T(2)24/FLC(CAB) M/T HERV03 (Howell DCJ) 2 ORDER 60

For an unlicensed driver is the argument not reasonably open	1
that this matter falls clearly towards the lower end of the scale. The appellant, for a number of years, had been a licensed driver. One is able to renew a licence for a maximum of five years but usually for financial constraints some

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drivers only renew a licence for 12 months at a time.

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30

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3 ORDER 60

07042008 T(2)25-26/SIB/CAB HERV3 (Howell DCJ)

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I am informed the appellant fell into that category. The
appellant's open licence expired on the 30th of November 2007.

This offence was committed some 16 days later.

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Four days after committing this offence the appellant took the necessary steps to renew his licence. The offence was committed on a Friday. He renewed his licence the following Tuesday. The evening before this offence occurred, the appellant's sister passed away. Just to make it clear, it

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does not follow that that is the reason on that particular day
he realised or recalled that he did not have a driver's
licence at the time. Two weeks before he did not have a
driver's licence and that particular situation regarding his

sister was not relevant.

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In his explanation for the offence, the appellant arguably had five bob each way. Firstly, he said, "Yeah, I just forgot." Then he added, for whatever reason, "I just found out that I lost my sister the night before." He wanted to establish that

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it was something the Magistrate accepted, that his sister had
died the night before.

The real question is, his licence had expired 16 days before and he said he forgot about it. It is not said that there was

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anything else about his driving that offended against TORUM that drew the attraction of the police to his driving. The police said they made checks in relation to registration of the vehicle. They noted that the owner was unlicensed and

4 ORDER 60

07042008 T(2)25-26/SIB/CAB HERV3 (Howell DCJ)

that was the reason for their subsequent interception of the	1
vehicle of which the appellant was the driver.
Unlicensed drivers often have appalling traffic histories. The appellant's traffic history for one aged 38 at the time

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was certainly less than one generally sees. Working backwards
there is a three points speeding on the 21st of August 2006,
one point speeding on the 22nd of June 2004 and the remaining
one which is the one that would ordinarily be of concern is

another unlicensed driving but that occurred as far back as

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the 10th of August 1990.

The unrepresented appellant entered a plea of guilty at the first opportunity, therefore there should be allowance for cooperation in the administration of justice. A defendant in

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such situation would be advised by any experienced legal
adviser that it was highly unlikely that any action would be
taken in relation to his driver's licence although in an
appropriate case such would clearly be within the sentencing

discretion.

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With an unrepresented appellant with the learned Magistrate considering something as comparatively severe in the circumstances as disqualifying him from holding or obtaining a driver's licence for a period such as three months. In my

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view he should have given some indication to the appellant.
He was considering that and arguably should have allowed him
an adjournment to obtain legal advice.
07042008 T(2)25-26/SIB/CAB HERV3 (Howell DCJ) 5 ORDER 60

The submissions of the unrepresented appellant were very very	1
licence disqualification. I do not have the Court of Criminal
brief indeed and there was no reference in relation to a had sentenced the defendant to imprisonment.

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His counsel, Mr G Fitzgerald QC as he then was argued before the Court of Criminal Appeal that neither the prosecution nor the defendant had considered imprisonment and there were no submissions thereon before the Magistrate ordered

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imprisonment. The Court of Appeal allowed the appeal against
sentence.

If it were necessary for today's decision, I would get it and refer to it in full. I have it back in Brisbane and not with

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me on the circuit. Whichever way one looks at it, whichever
way one approaches it, this is a matter in which I am
comfortably of the view that the disqualification of three
months was manifestly excessive and the order is that the

appeal is allowed with the sentence being varied to the extent

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of removing the licence disqualification.

There is no order as to costs. Thank you Mr Cummings. Thank you Mr Hunter.

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6 ORDER 60