Police v Millar
[2007] QMC 10
•26 October 2007
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Millar [2007] QMC 10
PARTIES:
POLICE
(prosecution)
v
ANDREW JOHN MILLAR
(defendant)
FILE NO/S:
MAG85213/07(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
26 October 2007
DELIVERED AT:
Brisbane
HEARING DATE:
26 October 2007
MAGISTRATE:
Previtera T
ORDER:
Defendant is found guilty of the offence charged
CATCHWORDS:
TRAFFIC LAW – LICENCING OF DRIVERS – OFFENCES – disqualified driving – periods of suspension from the accumulation of demerit points
COUNSEL:
Defendant appeared on own behalf
SOLICITORS:
Prosecution appeared on own behalf
Defendant appeared on own behalf
In this matter the Defendant Andrew John Millar is charged, pursuant to s 78(1) and 78(3)(b) of the Transport Operations (Road Use Management) Act 1995, that on 10 May 2007 at Woolloongabba he drove a motor vehicle, not being at that time the holder of a driver’s license authorising him to drive, and at the time of committing the offence he was disqualified from holding or obtaining a driver’s license because of the allocation of demerit points.
S 78(1) states:
“(1) A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road”.
S 78(3) provides that:
“If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance—
(b) if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because of the allocation of demerit points—6 months;
The matter proceeded to hearing before this court on 1 October 2007. The prosecution called one witness, Constable Kim Newman. The Defendant, Mr Millar gave evidence on his own behalf and, in response to the issue of a summons directed to the Director General of the Department of Transport, as filed by Mr Millar; Mrs Jane Wass, a Customer Services manager, gave evidence and produced certain documents.
The onus is on the prosecution to prove each and every element of the offence beyond a reasonable doubt.
The following matters are not in dispute:-
1. As a result of accumulating 6 demerit points within a twelve month period while the holder of a provisional driver licence, Mr Millar was sent a “Notice of accumulation of demerit points – notice to choose” dated 2 April 2005. This notice was sent pursuant to Section 25(2) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (hereinafter referred to as the TORUM – DLReg 1999); which provides:
“The chief executive must give the person a written notice (a
notice to choose) requiring the person, within a specified time
of at least 21 days, to choose between—
(a) having the person’s licence suspended for the requisite
suspension period; or
(b) agreeing to be of good behaviour while driving for a
year.
Section 25(3) then provides:
“A person is of good behaviour while driving for a year, if no more than 1 demerit point is allocated to the person’s traffic history during the year”.
2. Mr Millar nominated the one year good driving behaviour period which took effect from 26 April 2005 to the 25 April 2006.
3. The consequence to a person of taking this choice is that, as provided by Section 25(5) of the TORUM – DLReg, if two (2) or more demerit points are allocated to the person’s traffic history during the one year period; the chief executive must give the person a written notice stating that the person’s licence is suspended for double the requisite suspension period; (in Mr Millar’s case, this would be six months); starting on the day after the date stated in the notice.
4. During Mr Millar’s good behaviour driving period, demerit points were allocated to his traffic history; in relation to which he received a number of written notices referred to above.
5. The first notice, a “Notice of Accumulation of Demerit Points while on a Good Driving Behaviour Period” was dated 10 June 2006 (Exhibit 4) detailing the following offences;-
(a) 21 December 2005-Driving at night/no lights-1 demerit point-finalised 17/2/07;and
(b) 30 December 2005-exceed speed limit- 4 demerit points-finalised 19/5/06.
The information for each of the offences was recorded by Queensland Transport on 17 February 2006 and 6 June 2006 respectively (Exhibit 2).
6. Mrs Wass’ evidence was that details of demerit point offences are recorded on a person’s traffic history after the person has either been convicted of an offence, has paid a fine or the matter has been referred to the State Penalties Enforcement Registry (“the finalised date”). Section 23(4) TORUM DLReg then provides that demerit points allocated to a person’s driving history are taken to be allocated on the day the offence was committed. A notice is then sent to the person.
7. The Notice dated 10 June 2006 stated that Mr Millar’s suspension period for the two December 2005 offences would start on the day after 5 July 2006. On 11 July 2006 Mr Millar then received a “Driver Licence Suspension Notice – Good Driving Behaviour” confirming the suspension of his license from 6 July 2006 to 5 January 2007. Mr Millar served this suspension period.
8. The next notice received by Mr Millar was a “Driver Licence Suspension Notice – Good Driving Behaviour” dated 7 November 2006 (Exhibit 5) detailing the following offence:-
18 March 2006 - Exceed speed limit - 3 demerit points - finalised on 19 September 2006. This information was recorded by Queensland Transport on 3 October 2006 (Exhibit 2).
9. The notice (Exhibit 5) advised Mr Millar that his licence was, as a result of the accumulation of the further three (3) demerit points, suspended from 2 November 2006 to 1 May 2007. Mr Millar served that suspension period.
10. The final notice received by Mr Millar was dated 17 April 2007 (Exhibit 3) advising of the following offence:-
29 November 2005 – Exceed speed – 6 demerit points – finalised 6 November 2006.
This information was not recorded by Queensland Transport until 14 March 2007. The notice advised Mr Millar that his licence was suspended from 12 April 2007 to 11 October 2007.
11. The reason for the delay in the finalisation of the 29 November 2005 offence was that Mr Millar elected, as was his right, to contest the matter and requested that it be set for a defended hearing in the Ipswich Magistrates Court. However, due to work commitments, he did not appear on the hearing date and was convicted in his absence. There is no evidence, however, to indicate the reason for the delay between this finalisation date and the date the result was recorded on the Queensland Transport data system.
12. In relation to each of the notices received, Mr Millar was aware of his rights of appeal under s 29 TORUM-DLReg 1999. He did not exercise his right of appeal under that section on any of those occasions as he was of the view that he did not satisfy the only ground for such an appeal, that is, that the suspension would cause extreme hardship to him by depriving him of the means of earning his living. He formed this view on the basis that he did not need his licence for his employment. Neither did Mr Millar appeal under s 131(1AA) TORUM which provides that:
“A person aggrieved by the refusal of the chief executive or commissioner or of a superintendent to issue or renew a licence, or by the suspension or cancellation of a licence by the chief executive or commissioner, or by the imposition of a condition in respect of a licence by or by direction of the chief executive or commissioner or a superintendent may appeal against such refusal, suspension, cancellation or imposition to the court”.
13. Section 25(8) TORUM-DLReg provides:
“If a person does not appeal the suspension of the person’s licence, the person’s licence is suspended for double the requisite suspension period starting on:- the day after the date stated in the notice; or, if the person notifies the chief executive that the person wants the suspension to start earlier than the date stated in the notice – the day, not before the date on which the person gives the notice to the chief executive, chosen by the person”.
14. On 10 May 2007 Mr Millar was intercepted by Constable Newman driving a green coloured Mitsubishi Sedan registration 546 KCQ along Logan Road, Woolloongabba in relation to another matter. A tape-recorded conversation occurred between Constable Newman and Mr Millar, in which Mr Millar conceded that he was driving knowing that the Department of Transport had suspended his licence.
15. However, Mr Millar maintained then, as he does now, that the Department was in error in issuing the Notices on each of 7 November 2006 (Exhibit 5) and 17 April 2007 (Exhibit 3) and that, therefore the suspensions were invalid/illegal and he was, therefore, entitled to drive on 10 May 2007. Mr Millar’s evidence was that he was driving on the 10 May 2007 to the offices of Queensland Transport specifically to sort the matter out.
16. Mr Millar also contacted the Transport Department by email subsequent to 10 May 2007 seeking to resolve the issue, with no success.
17. Mr Millar advances the following arguments in support of his submission of invalidity of the notices/illegality of the suspensions:
(a)That, by reference to s 25(5) TORUM-DLReg, a person who is allocated “2 or more demerit points,” (regardless of the number of points exceeding such 2) should only have their licence suspended for ONE “requisite driving period”; in Mr Millar’s case – one (1) six (6) month period, being the initial period from 6 July 2006 to 5 January 2007;
(b) That the issuing of three separate notices in relation to the accumulation of 14 demerit points resulting in three separate suspension periods totalling sixteen (16) months amounted to double jeopardy;
(c) That, in allocating demerit points and issuing a notice in relation to the 29 November 2005 offence after Mr Millar had exercised his right to defend the matter, the Department had committed an offence of imposing a detriment upon Mr Millar.
In relation to Mr Millar’s first argument, it simply does not make sense to suggest that the legislators intended that once a person accumulates 2 or more points, having elected to take a good driving behaviour period as a result of poor driving, that such a person can only be suspended from driving for one requisite period, no matter how far in excess of 2 points they accumulate during that period and no matter that the excessive points are accumulated as a result of multiple offences. The Objectives of the TORUM Act include
“…..
(a) information about their obligations under this Act
should be made available to road users;
.. (c) enforcement should be aimed primarily at deterring
noncompliance by road users;
(d) enforcement strategies should, accordingly, try to
increase road users’ perceptions of the risk of being
detected if they offend; AND
(2) Preventing the continued commission of offences and
imposing appropriate penalties should be seen as objectives
that support the other objectives..”.
In relation to Mr Millar’s second argument - Whilst s 23 TORUM-DLReg 1999 provides that s 16 of the Criminal Code applies to Part 6 of the TORUM-DLReg 1999, s 16 has no application to Mr Millar’s particular circumstances in this matter. Mr Millar has not been punished more than once for each of the traffic offences the subject of the written notices. Each of the written notices relates to different offences. None of the notices contain reference to offences contained in any other notice.
There is also nothing in the TORUM-DLReg 1999 that prevents a person from being suspended multiple times for multiple offences committed whilst on a good driving behaviour period. In this court’s view, the intended effect of s 23(5) TORUM-DLReg 1999 is that each time a person accumulates two or more demerit points while on a good driving behaviour period those points need to be dealt with. The imposition of a suspension period does not cancel a good driving behaviour period; or prevent the issue of further notices advising of further suspension periods if points continue to be allocated to a person’s traffic history as a result of the continuation of behaviour which offends against the traffic laws.
In relation to Mr Millar’s third argument; It is unfortunate that the effect of Mr Millar’s exercise of his rights to defend the 29 November 2005 charge was to delay the matter so significantly as to result in the finalisation of that offence at such a stage as to warrant the issue of the third written notice and the imposition of a further period of suspension. The issue by the Department of the third notice, however, does not give rise to either an administrative error or an invalid action, or, as argued by Mr Millar, any criminal offence. Whilst certainly Mr Millar has suffered a detriment occasioned by the delay in the recording of the result of the 29 November 2005 offence, that detriment is no bar to the issue of the notice for the reasons indicated herein.
For all of the above reasons, and by reference to the admitted facts, the court finds the defendant guilty of the offence charged.
In conclusion, however, the court expresses its concern that there is no statutory obligation on the Department of Transport to process information within a reasonable time and there is also no statuary obligation on the Courts to communicate to the Department of Transport the results of matters of this kind within a reasonable time. These matters should be addressed by the legislators as a matter of some urgency to avoid the inevitable potentially detrimental consequences that will flow to persons in relation to whom such delays occur.
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