O'Shannassy v Seddon

[2009] QDC 31

[2009] QDC 31

DISTRICT COURT
CIVIL JURISDICTION

JUDGE NOUD

No 2299 of 2008

JASON PETER O'SHANNASSY	Appellant
and
DAVID T SEDDON	Respondent
BRISBANE ..DATE 23/02/2009
ORDER

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23022009 D.1 T(2)14-15/TAC(BNE) M/T BRIS29 (Noud DCJ)

HIS HONOUR: This is an appeal against sentence. The	1
appellant committed an offence while in his motor vehicle. He screeched the wheels of the vehicle and smoke was emitted. He did this over a distance of about 20 metres outside a hotel. That was on 10 May 2008.

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The appellant, a young man, was dealt with by the Magistrate on 6 August 2008. The Magistrate fined the appellant $600 and disqualified him from holding or obtaining a drivers' license for six months.

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The appellant instituted an appeal three weeks after the sentence. I am told and I accept that the appellant was without his license for that three weeks, but that after that until today he has been free to drive.

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Helpful submissions have been made by the representatives. opinion is that the appellant's offending, although, of course, involving a motor vehicle, is unlike other cases where there is speeding and other hazardous activities engaged in. The present case causes me concern because it is, to say the least, a case of gross hooliganism, and extremely irritating for those nearby. Ms Overell says it has the potential for danger; Ms Overell may be right, but I am not convinced of that.	40
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I think it is important to keep in mind the appellant's

history. It is not good, although my discussions with 23022009 D.1 T(2)14-15/TAC(BNE) M/T BRIS29 (Noud DCJ) Mr Fenton have enabled me to get it into context. I have 1-2 ORDER 60

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noted as well the details about the appellant's work. I think

this is an important aspect of the appeal.

After sorting the details out in the course of my discussions with Mr Fenton and Ms Overell I am satisfied that it can be said that not enough weight was given to this by the Magistrate. Mr Fenton is right as well, I think, to say that one has to balance all the features in the exercise of the sentencing discretion and moreover not err in sentencing an offender for what he has done in the past even though that is relevant.	10
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Without further attempting to identify error, I think this is a case where on the facts the sentence was plainly unjust and should be set aside. I have discussed other possible	30
sentences with the representatives. I now proceed to make the relevant orders and they are these:

1. Appeal allowed.

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2. Set aside the sentences imposed by the Magistrate.

3. I now proceed to sentence the appellant myself.

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The sentence is that he is fined the sum of $1,000 for the
offence. That fine is to be paid within four months and in
the event of failing to pay the matter will be referred to

SPER, and finally I disqualify the appellant from holding or

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23022009 D.1 T(2)14-15/TAC(BNE) M/T BRIS29 (Noud DCJ)

obtaining a drivers' license for a period of one month. I	1
shall hear the parties as to costs.
...

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HIS HONOUR: In this matter I consider that the appellant has substantially succeeded, even to the point where there should be no adjustment to the normal order for costs. The normal
order, of course, is that the successful party has his or her

costs paid by the unsuccessful party. I do not think I should

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depart from that in this case. It is common ground that,
subject to complex cases which this one is not, the limit is
$1,800. I do not think that that is unreasonable for a case
such as this, so I will make an order that that be the amount

of costs to be paid. For these reasons I order that the

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respondent pay the appellant's costs of the appeal fixed in

the sum of $1,800.

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