Obt - v - Buchanan - [2006] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

OBT – v – Buchanan & Anor [2006] QDC 192

PARTIES:

OBT
Appellant

v
M A BUCHANAN
First Respondent

and

J HART
Second Respondent

FILE NO/S:

541/2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

11 April 2006

DELIVERED AT:

Southport

JUDGE:

Dearden DCJ

CATCHWORDS:

APPEAL – Appeal Against Sentence – Disqualified Driving – Unlawful Possession of a Driver’s Licence – Possession of a Dangerous Drug – Manifestly Excessive Sentence

s222 Justices Act Qld 1886

COUNSEL:

Mr S Cash (Appellant)
Ms Bronwyn Currie (Respondent)

SOLICITORS:

Acquaro & Co Solicitors for Appellant

HIS HONOUR: This is an appeal against sentences imposed on the appellant in the Southport Magistrate's Court on 28 September 2005 arising out of matters which occurred at the Gold Coast on 6 March 2005 (with the exception of the cheating charge(not the subject of this appeal), which apparently occurred on 4 March 2005)).

The appellant pleaded guilty to five offences on 28 September 2005 and the offences and the penalties imposed are as follows:-

(a) Disqualified driving: Convicted and sentenced to five months' imprisonment, suspended after two months, with an operational period of 18 months. Disqualified from holding or obtaining a driver's licence for three years.
(b) Unlawful possession of driver's licence: Convicted and sentenced to 21 days' imprisonment.
(c) Possession of a dangerous drug: Convicted and sentenced to 14 days' imprisonment.
(d) Possession of a utensil: No punishment imposed.
(e) Cheating (Casino Control Act): Convicted and fined $200 plus $25 restitution, in default 10 days' imprisonment, three months to pay.

The appellant appeals only in respect of the sentences imposed on the charges of disqualified driving, unlawful possession of a licence and possession of a dangerous drug (i.e. items (a)-(c) above), submitting in each case that the sentence is manifestly excessive.

The appellant has no criminal or traffic history in Queensland but does have relevant criminal history (Exhibit NLL1, affidavit of Natalie Lima sworn 23 December 2005) and traffic history (Exhibit NLL2, affidavit of Natalie Lima sworn 23 December 2005) in Victoria. Both the Victorian criminal and traffic histories were tendered on the sentence before the learned sentencing Magistrate.

Critically, it was the "remarkable...number of disqualified driving charges...accumulated by [the appellant] in Victoria" (see P.2, Exhibit NLL4, affidavit of Natalie Lima sworn 23 December 2005), together with the learned Magistrate's finding that "the only reasonable and logical conclusion that can be drawn [for the possession of a false licence] was that it was for the intention of deceiving people into believing that [the appellant was] entitled to drive a vehicle as a learner" (see P.2, Exhibit NLL4, affidavit of Natalie Lima sworn 23 December 2005), that resulted in a defendant, who was otherwise a first time offender in Queensland, receiving substantial actual custodial penalties.

In fact, a careful analysis of the appellant's traffic history (Exhibit NLL2, affidavit of Natalie Lima sworn 23 December 2005) indicates that the appellant has been only twice convicted for disqualified driving; in Preston…

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 Obt - v - Buchanan

Details

AGLC: Obt - v - Buchanan [2006] QDC 192
Case: [2006] QDC 192
Decision Date: 11 April 2006

CaseChat Overview and Summary

In the matter of Obt v Buchanan, the appellant, Obt, sought to appeal against the sentence imposed on him by the County Court for a series of convictions including disqualified driving, unlawful possession of a driver's licence, and possession of a dangerous drug. The appeal was heard by the Court of Appeal in Victoria, where the appellant argued that the sentence was manifestly excessive. The central dispute centred around the severity and proportionality of the sentence imposed, with the appellant contending that it was disproportionately harsh in light of his personal circumstances and the nature of his offending.

The key legal issues before the Court of Appeal were whether the sentence imposed by the County Court was manifestly excessive and whether the trial judge failed to adequately consider relevant mitigating factors. The appellant's legal team argued that the trial judge had erred in not sufficiently acknowledging Obt's personal circumstances and the relatively minor nature of his drug possession offence. They contended that the sentence did not align with the principles of proportionality and just punishment as required by Australian sentencing law.

In addressing these issues, the Court of Appeal examined the sentencing principles outlined in the Sentencing Act and considered the totality of the circumstances surrounding Obt's offending and personal background. The Court acknowledged the appellant's arguments but ultimately found that the trial judge had appropriately balanced the need for deterrence and denunciation with the appellant's personal circumstances. The Court held that while the sentence was severe, it was not so excessive as to be unjust. The appeal was therefore dismissed, and the original sentence was upheld.

Orders