Nolan v Gallagher

[2006] QDC 101

DISTRICT COURT OF QUEENSLAND

CITATION:	Nolan v. Gallagher [2006] QDC 101
PARTIES:	GARRY EUGENE NOLAN
Appellant
v SNR CONST J GALLAGHER Respondent
FILE NO/S:	367/2005
DIVISION:	Appellate Jurisdiction
PROCEEDING:	Appeal
ORIGINATING	District Court, Southport
COURT:
DELIVERED AT:	Southport
HEARING DATE:	21 March 2006
JUDGE:	Dearden DCJ
COUNSEL:	Mr B Carr (Appellant)
Mr R Falconer (Respondent)
SOLICITORS:	Butler McDermott & Egan Solicitors for Appellant

HIS HONOUR: This is an appeal pursuant to Justices Act s.222 against the sentence of the learned Magistrate at the Coolangatta Magistrates Court on 16 June 2005 in respect of one charge of driving a motor vehicle whilst "over the general alcohol limit but...not over the high alcohol limit". The appellant is Garry Nolan. The learned Magistrate imposed a fine of $1,050 and a license disqualification of five weeks. The notice of appeal asserts that the ground of appeal is that the penalty was manifestly excessive.

It appears from the transcript of the sentence that the appellant had been drinking at the Treetops Hotel (presumably somewhere near Reedy Creek Road, Reedy Creek which was where he was stopped for a random breath test). The appellant's blood alcohol level was 0.07 per cent, only marginally above the 0.05 per cent limit.

The appellant had one previous drink driving conviction in August 1984 when he was aged 19. The appellant was 40 years old at the time of the sentence for this offence. The appellant was not eligible to apply for a "work license" because of a demerit point suspension effective 6 November 2003 which, because of a mix-up in dates by the appellant, was not the subject of an application to the Magistrates Court to lift that suspension. As a consequence, his license was suspended for three months.

The appellant's solicitor, Mr Boyce, who appeared on the original sentence, outlined to the learned Magistrate the significant consequences of the loss of the appellant's license. The appellant, it was submitted, was a single man running two businesses, one a milk vending operation and the other an ice vending operation. The appellant worked long hours, seven days per week, and employed between four and seven employees, depending on the time of the year. The appellant himself took a hands-on role in the business and normally drove 80 to 90,000 kilometres per year. The appellant's previous suspension had forced him to employ a driver at a cost of not less than $500 per week.

Mr Boyce made a submission, quite appropriately in the circumstances, that the learned Magistrate consider increasing the monetary penalty that might otherwise have been imposed and decreasing the license disqualification period. Mr Boyce put forward two bases for this submission:-

1)

that in addition to any monetary penalty, the appellant another person as a driver;

2)

that the license disqualification would be fairly. business obligations regardless of the monetary penalty.

The learned Magistrate appears to have accepted the thrust of these submissions, but the sentencing discretion has miscarried in seeking to implement the submissions in practical sentencing terms. The learned Magistrate initially imposed a fine of $1,200 (in default 24 days' imprisonment) and a license disqualification period of one month. The disqualification period was the statutory minimum for an offence under the Transport Operations (Road Use Management) Act s.79(2), given the appellant's lack of relevant convictions in the previous five years (see Transport Operations (Road Use Management) Act s.86(2)(f)). Unfortunately, the monetary penalty imposed of $1,200 was in excess of the maximum applicable penalty under the Transport Operations (Road Use Management) Act s.79(2). That maximum penalty was 14 penalty units (ie $1,050).

It is clear Mr Boyce realised the difficulty with the monetary penalty imposed shortly after leaving the sentencing proceedings. Mr Boyce arranged for the matter to be rementioned before the learned Magistrate and, on Mr Boyce pointing out the error, the learned Magistrate set aside his original penalty and instead imposed a fine of $1,050 (as pointed out, the maximum applicable in the circumstances) and an alternate license disqualification of five weeks.

It is submitted by Mr Boyce (through his written submissions) and accepted by Mr Falconer (through his written submissions in reply) that the learned Magistrate's sentencing discretion miscarried. The learned Magistrate's initial sentence exceeded the maximum monetary penalty, but imposed the minimum license disqualification. The "resentence" which occurred when Mr Boyce pointed out the error in respect of the monetary penalty, resulted in the learned Magistrate imposing the maximum monetary penalty available, but also increasing the license disqualification to a period of five weeks.

Given that the learned Magistrate clearly accepted Mr Boyce's
primary submission to increase the monetary penalty and
decrease the license disqualification period, it appears to me
(given that I accept the penalty in toto is "manifestly
excessive"), that I should impose the statutory minimum

license

disqualification of one month and substitute a monetary
penalty for the original fine of $500.

That, in my view, reflects the fact that the appellant had only one relevant previous drink driving conviction some 20 years prior to this conviction, as well as recognising the mitigatory aspects of the circumstances of the offence (no issue as to the manner of driving; charged as a result of a random breath test) and also the appellant's personal and business circumstances (single man; no available drivers within his family; significant cost and non-financial consequences of a license disqualification).

I allow the appellant three months to pay the fine of $500, in default, order that recovery be referred to the Registrar of the State Penalties Enforcement Registry.

. . .

HIS HONOUR: This is my decision in respect of costs: this Court has the power to order costs pursuant to Justices Act s.226. The usual rule is that costs should follow the event unless there is some compelling circumstance requiring a departure from that rule.

The appellant had no alternative but to lodge and prosecute an appeal in order to seek to set aside and/or vary the sentence. Although the sentence appeal was ultimately conceded (entirely properly, in my view) by Mr Falconer on behalf of the

respondent, the appellant has had to expend legal fees to

achieve that outcome.

Pursuant to Justices Act Regulation schedule 2 part 1 s.4 and
part 2, the applicable maximum costs which can be awarded is

$1,500, plus 20 per cent equals $1,800.

Mr Falconer on behalf of the respondent submits that Mr Boyce,
on sentence, could have advised the learned Magistrate that the fine of $1,050 was the maximum and therefore excessive. Of course, however, by imposing a lawful sentence (on the
second occasion when the matter was reopened), the Magistrate
was functus officio, and therefore the only remedy available

to

the appellant on the lawful penalty being imposed (albeit a
penalty which I found to be manifestly excessive) was an
appeal pursuant to Justices Act s.222.

The appellant has briefed his legal representatives to conduct the appeal, that appeal has been conducted successfully (albeit without opposition), there are no disentitling factors and Mr Barr, who appears by telephone on behalf of the appellant, submits that the costs of the appeal sought by the appellant are in the sum of $1,200. That sum sought is significantly less than the applicable maximum and appears, in my view, to be reasonable in the circumstances.

Accordingly, in accordance with the usual rule, I order that the appellant is entitled to his costs and that the respondent pay those costs fixed at the sum of $1,200.

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