Parkin v Thiele

[2007] QDC 359

[2007] QDC 359

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE NEWTON

No 1188 of 2007

MATTHEW WILLIAM PARKIN	Appellant
and
T M THIELE	Respondent
BRISBANE ..DATE 12/11/2007

ORDER
HIS HONOUR: The appellant in this matter, Matthew William

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Parkin, was charged under section 79 subsection 2A of the
Transport Operations Act of 1995, that on the 3rd day of
February 2007 at Brisbane in the central division of the
Brisbane Magistrates Court District in the State of Queensland

he, whilst he was over the general alcohol limit but was not	10
over the high alcohol limit, did drive a motor vehicle, namely
a motor car on a road, namely Main Street, Brisbane, and it
was averred that the said motor car was a motor vehicle as
defined in schedule 4 of the Transport Operations Road Use
Management Act of 1995 and it was further averred that the	20
said Main Street is a road as defined in schedule 4 of the Transport Operations Road Use Management Act of 1995. The blood alcohol reading in this case was 0.052 per cent thus being 0.002 per cent over the permitted level of alcohol.
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Mr Parkin entered a plea of guilty to the charge and that
seems to have been accepted by both sides as a timely plea of
guilty. He had no prior traffic convictions or criminal
convictions of any description. Character references were
placed before the Magistrate attesting to the good character	40
of the appellant. The Magistrate imposed a fine of $200 together with a period of disqualification of three months.
Mr Christie, who appears on behalf of the appellant in this
matter, correctly points out that although the fine was at the	50
lower permissible end of the range available, the period of disqualification, being three months, was above the minimum that could have been imposed, that being one month. Why the

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sentence that was imposed, was imposed by the Magistrate, is

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very difficult to understand from the reasons provided.

The Magistrate indicated that the early plea of guilty was taken into account, which is entirely proper, and then the Magistrate said as follows, 10

"I take into account the provisions of section 86 relates
to those periods of disqualification that occur by
operation of law but the Court has a discretion to impose

a period that is greater than the minimum in each case."

No further reasons were provided by the Magistrate in ordering	20
a period of disqualification of three months. It is
undoubtedly the case that the Court did have a discretion to
impose a period greater than the minimum provided by the legislation. What troubles me in this appeal is that no reasons have been given by the Magistrate for his decision to	30
impose a disqualification period of three months and secondly
that the sentencing process may, and I put it no higher than
that, may have been to some extent confused by the question
discussed at page 4 of the transcript of how long the
appellant had been residing in the State of Queensland.	40
Of course had he been residing in the State for a period
greater than three months he would have been obliged to obtain a Queensland driver's licence. That seems to be common ground but it seems to have been accepted by the Magistrate	50

ultimately that Mr Parkin had been residing in this State for
no longer than two and a-half months. That being the case any
reference to the period he had been in Queensland was entirely
irrelevant. It may be, as Ms Balic, advocate for the 3 ORDER 60

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respondent has submitted, that the Magistrate took the view
that because he had been in this State only for a very short
period of time and had managed in that short period to
transgress the drink driving laws, that this indicates that a

period greater than the minimum in terms of disqualification	10
would be appropriate. If that was the Magistrate's view it
finds no expression whatsoever in his reasons and, as Ms Balic
very properly has conceded, it is entirely speculation on her
part as to whether the Magistrate did form a view of that
nature.	20
As I indicated during submissions, it is very hard to
understand in this case why anything other than the minimum
period of disqualification would be appropriate. It should be
borne in mind that the reading of 0.052 per cent is barely	30
over the legal limit and that the offender himself came before the Court with no prior history, with good character references and who had entered an early plea of guilty.
Shortly put, I am unable to discern from the Magistrate's	40
reasoning why he made the order he did. In my view, the appropriate order in this case would have been a fine of $200 and a period of disqualification of one month. The appeal is therefore allowed to reflect those orders.
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...

4 ORDER 60

HIS HONOUR: Well in that case I further order that the

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appellant is to have his costs of the appeal fixed in the sum

of $1,800.

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