Police v Cavendish

[2013] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Cavendish [2013] QMC 25

PARTIES:

POLICE

(prosecution)

v

SHAUN DAVID MARK CAVENDISH

(defendant)

FILE NO/S:

MAG93553/13(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Complaint

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

4 October 2013

DELIVERED AT:

Toowoomba

HEARING DATE:

27 September 2013

MAGISTRATE:

Ryan K

ORDER:

Guilty. Defendant discharged absolutely pursuant to Section 19(1)(a) of the Penalties and Sentences Act 1992 (Qld)

CATCHWORDS:

TRAFFIC LAW – OFFENCES – Power of State Penalties Enforcement Register to suspend driver licence – where defendant making payments to reduce debt – criminality of conduct

STATUTORY INTERPRETATION – meaning of “must” and “may” – weight given to explanatory notes – purpose and objects of State Penalties Enforcement Act 1999 (Qld)

Legislation –

Acts Interpretation Act 1954 (Qld)

Penalties and Sentences Act 1992 (Qld)

State Penalties Enforcement Act 1999 (Qld)

Transport Operations (Road Use Management) Act 1994 (Qld)

Cases –

Commissioner of Police v Kirby [2010] QDC 110

Drivas v Bobbermen [2011] QDC 36

Olver and Manz v Commissioner of Police [2013] QDC 9

Soames v Hogan [2012] QDC 160

Strickland v Klupfel [2013] QDC 210

Van Kuik v Zuanetti [2012] QDC 116

COUNSEL:

Kiesecker (Constable) for prosecution

D Haberman for defendant

SOLICITORS:

Prosecution on own behalf

Aboriginal and Torres Strait Islander Legal Service for defendant

1. Mr Cavendish has been charged that pursuant to Section 7(1) and (3)(F) of the Transport Operations (Road Use Management) Act 1995, he drove a motor vehicle on Baker Street, Toowoomba whilst his licence was SPER suspended.

1. Mr Cavendish has entered a plea of not guilty on the basis that Mr Cavendish has been making regular payments to reduce his SPER debt for a number of years, with the payments since 11 December 2012 being made without Mr Cavendish having entered into an instalment payment plan “in the approved form”.  This then raises the question as to the power of SPER to suspend his licence when he has continued to make payments to reduce his SPER debt.

1. The hearing consisted of submissions and the tendering of a Certificate of Registrar and a summary of contacts from SPER and the defendant’s SPER fine history report by the prosecution and submissions by Mr Haberman who appeared for the defendant Mr Cavendish.  No verbal evidence was called.

The Legislation

1. The State Penalties Enforcement Act 1999 came into force on 20 November 2000.  The objects of the Act are set out in Section 4.  They are –

“(a) maintaining the integrity of fines as a viable sentencing or punitive option for offenders; and

(b) maintaining confidence in the justice system by enhancing the way fines and oth        er money penalties may be enforced; and

(c) reducing the cost to the State of enforcing fines and other money penalties.”

1. In order to achieve these objects, the Act established the State Penalties Enforcement Register, commonly known as SPER.  SPER’s functions are set out in Section 8 as –

“(2) ……..

(a) collecting amounts payable to SPER under this or another Act;