Police v Whitehead
[2012] QMC 18
•7 August 2012, 8 August 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Whitehead [2012] QMC 18
PARTIES:
POLICE
(prosecution)
v
JASON CHARLES WHITEHEAD
(defendant)
FILE NO/S:
MAG226003/10(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Caboolture
DELIVERED ON:
7 August 2012, 8 August 2012
DELIVERED AT:
Caboolture
HEARING DATE:
1 March 2012, 15 May 2012, 19 June 2012
MAGISTRATE:
Bucknall MW
ORDER:
In relation to the charge of driving while not the holder of a drivers licence the defendant is found guilty and convicted, the conviction is not recorded and the defendant released absolutely.
In relation to the charges of failing to notify a change of address and driving a vehicle not compliant with the vehicle standards the defendant is convicted, those convictions are recorded and pursuant to section 49 of the Penalties and Sentences Act one penalty is imposed for both offences, that is he is convicted and fined the sum of $400.
CATCHWORDS:
TRAFFIC LAW – OFFENCES – SENTENCING – driving while not the holder of a driver licence – does a disqualification interstate make the defendant unlicensed in Queensland - mandatory disqualification is not necessary if defendant released absolutely
Transport and Operations Road Use Management Act 1995 sections 60(2), 78(1), (3) & (6), 124
Transport Operations (Road Use Management-Driver Licensing) Regulation 2010 sections 124, 125 and 133(1)
Evidence Act section 53
Penalties and Sentences Act sections 12, 18 & 19
Acts Interpretation Act (1954) Qld sections 14A and 32CA
Fletcher v. The Chief Executive, Department of Transport and Main Roads [2011] QCAT 201. – followed
Commissioner of Police v Nathan Wayne Kirby [2010] QDC 110 – followed
Van Kuik v Zuanetti [2012] QDC 116 – followed
COUNSEL:
L Stephenson (Senior Constable) for prosecution
A McAdam for defendant
SOLICITORS:
Prosecution on own behalf
This is a hearing in relation to two contested charges namely:
1. Driving a car on a road while not being at that time the holder of a driver licence authorising the defendant to the drive the vehicle on the road and at the time of committing the offence the defendant was disqualified by a court order from holding or obtaining a driver licence pursuant to section 78(1) & (3)(a) of the Transport Operations and Road Use Management Act 1995 , and
2. Failing to notify of a change of address pursuant to section 133(1) of the Transport Operations (Road Use Management-Driver Licensing) Regulation 2010.
Both offences are alleged to have been committed on 2 November 2010.
FACTS
The defendant was intercepted driving his vehicle at approximately 6.00 pm on 2 November 2010.
It was ascertained by the arresting officer at that time that the defendant was both unlicensed and also not living at the address nominated on the defendant’s licence.
Later enquiries made by the arresting officer revealed that the defendant had been disqualified from holding or obtaining a drivers licence for a period of 6 months from 27 June 2010 until 26 December 2010 in the Local Court at Armidale in New South Wales.
The arresting officer made a recording of both of his conversations with the defendant, the first being on the roadside and the second being a telephone call to the defendant.
A copy of the order setting out the conviction in New South Wales was tendered and allowed into evidence by me in accordance with section 53 of the Evidence Act.
Further a certificate made in reliance of section 60(2) of the Transport Operations Road Use Management Act 1995 (TORUM) was received into evidence by me, that certificate certified that the defendant’s licence was cancelled with effect from 25 October 2010 until 27 December, 2010.
THE EVIDENCE
I note that the arresting officer was cross examined extensively in this matter and in particular as to his knowledge of the effect of an interstate conviction on a Queensland driver licence.
I note from the evidence given by the arresting officer that it was his belief that once the defendant was disqualified in New South Wales, then the defendant was automatically disqualified from holding or obtaining a driver licence in Queensland.
I note in answer to a question put to him by counsel for the defendant the defendant answered as follows:
In all honesty, if I was aware that the defendant was disqualified in New South Wales, the Armidale Court, imagine if I had…a friend in New South Wales, a police officer, who told me that the defendant had just received a disqualification in Court and he also told me the defendant was driving home. If the next day, before the show cause notice issued, before anything in Queensland said his licence was cancelled, if I intercepted him at Narangba, knowing that he’d just got disqualified in Armidale the day before, I’d still issue him a Notice to Appear for driving whilst disqualified, even though his Queensland licence would say it’s all current, prior to the show cause notice even being issued because the defendant is disqualified, because a Magistrate has told us that.
I also note that there was some evidence that the defendant had renewed his licence in Queensland subsequent to having been disqualified in New South Wales, and had not disclosed the interstate disqualification.
As I made clear during the course of the hearing, the belief of the police officer as to his understanding of the effect of the interstate disqualification or the way the defendant renewed his licence were not matters which I considered relevant when determining this matter.
Counsel for the defendant tendered and relied upon the decision of Fletcher v. The Chief Executive, Department of Transport and Main Roads [2011] QCAT 201 during the course of the hearing.
I accept the proposition contained in that decision, in so far that it was found that an interstate disqualification did not have the effect of immediately disqualifying a Queensland driver licence. I accept that in those cases where a defendant holds a Queensland driver licence and an interstate court has disqualified that person from holding or obtaining a driver licence then it is only after a show cause notice has issued and an opportunity given to the defendant to make submissions as to why his Queensland driver licence should not be cancelled that any cancellation of a Queensland driver licence becomes effective.
I note the decision of Fletcher contained an adequate summary of the law so far as the now repealed provisions of sections 32 and 33 of the Transport Operations (Road Use Management-Driver Licensing) Regulation 1999.
Similar provisions are now found contained in sections 124 and 125 of the Transport Operations (Road Use Management-Driver Licensing) Regulation 2010.
Section 124 of the Transport Operations (Road Use Management-Driver Licensing) Regulation 2010 is headed: Grounds for amending, suspending or cancelling licences.
The Regulation provides that each of the following is a ground for amending, suspending or cancelling a Queensland driver licence and includes at s 124(d): the licensee has been disqualified from holding or obtaining a driver licence in another State or another country.
Section 125(1) of the Regulation provides:
If the chief executive considers a ground exists to amend, suspend or cancel a person’s Queensland driver licence (the proposed action), the chief executive may give the person a written notice (the show cause notice).
Section 125(4) of the Regulation goes on to say:
If, after considering any personal or written representations made within the time stated or allowed, the chief executive still considers a ground exists to take the proposed action, the chief executive may…cancel the licence…
Once again as noted in the decision of Fletcher, section 32CA of the Acts Interpretation Act 1954 (Qld) indicates that the word “may” is to be interpreted that there is a discretion whether or not to exercise the power, i.e. to cancel a driver licence.
In this case however the defendant had been given such a show cause notice and his Queensland licence had been cancelled effective from 25 October 2010.
The show cause notice received by the defendant was as a result of the New South Wales conviction and the subsequent disqualification imposed by the New South Wales Court.
I accept the proposition put forward by counsel appearing for the defendant that the disqualification imposed by the New South Wales court of itself did not mean that the Queensland driver licence was automatically cancelled.
I therefore accept (contrary to the opinion expressed by the arresting officer in this case) that if the defendant had been intercepted following having been disqualified by the Local Court in Armidale but prior to 25 October 2010, then the first offence of disqualified driving (as charged) would not have been committed.
However, the date of this offence was subsequent to the date of 25 October 2010, which is the date from when the defendant’s Queensland driver licence had been cancelled.
The decision of Fletcher therefore does not assist the defendant in this case.
THE LAW
Section 78 of the Transport Operations and Road Use Management Act 1995 provides:
(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.
Maximum penalty-
(a) if the person committed the offence while the person was disqualified, by any court order…
(3) 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-
(a) if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence-for a period, of at least 2 years but not more than 5 years, decided by the court;
Section 78(6) of the Act defines a disqualified driver as a person who is disqualified from holding or containing a driver licence because of any court order.
The term any court order is defined as: an order of any Australian court.
In order to make out the charge the prosecution is required to prove beyond a reasonable doubt that the defendant, firstly, did not hold a driver licence authorising him to drive the vehicle on the road, and secondly, that the defendant was a person at the time of the offence to be a person disqualified by any court order.
There is evidence before me; namely the certificate signed by Karen Ruth Howell, (who has provided the appropriate delegation of authority authorising her to sign Certificates under section 60 and section 124 of the Transport Operations (Road Use Management) Act 1995 on behalf of the chief executive), with such certificate certifying that on 2 November 2010 there was not in force a driver licence issued to the defendant and that further the licence previously issued to the defendant was cancelled and was in a cancelled status with effect 25 October 2010 to 27 October 2010.
Section 124(r) of the Transport Operations and Road Use Management Act 1995 being the Facilitation of proof provision says:
the allegation or averment in any complaint that-
(i) any person is or is not or was not at any time or date mentioned in the complaint…the holder of a driver licence authorising the holder to drive a motor vehicle on the road therein specified: or..
Shall be evidence of the matter or matters so averred or alleged, and in the absence of evidence in rebuttal thereof shall be conclusive of such matter or matters;
FINDINGS
There is no evidence before me which in any way rebuts the evidence that the defendant’s driver licence was in fact cancelled as at 2 November 2010, and I find that at that time of the offence the defendant was not the holder of a driver licence authorising him to drive.
Further, the evidence before me, namely the order of the Armidale Local Court leads me to find that at the time of committing the offence, the defendant was a person who was a disqualified driver having regard to the definition of that term as contained in s 78(6) of the Transport Operations and Road Use Management Act 1995.
I note counsel for the defendant urged upon me to interpret the provision disqualified driver as contained in s 78(6) by having regard to section 14A of the Acts Interpretation Act 1954 (Qld), that is the interpretation that will best achieve the purpose of the Act, which is to be preferred to any other interpretation.
I note that in part, the objectives of the Act as set out in section 3 provide for the establishment of rules for on-road behaviour, to allow the identification of vehicles, drivers and road users and to manage traffic to enhance safety and transport efficiency.
When having regard to achieving the best purpose of the Act, there is nothing which would enable me to interpret the definition of a disqualified driver in any other way other than the interpretation which I have applied; that is that the defendant was disqualified at the time of committing the offence.
I therefore find that the prosecution have made out all elements of the offence contained within the first charge and I find the defendant guilty.
FAILURE TO NOTIFY OF CHANGE TO ADDRESS
The defendant is also charged with an offence under section 133 of the Transport Operations (Road Use Management-Driver Licensing) Regulation 2010
Section 133(1) states:
If the holder of a Queensland driver licence changes the holder’s name or address, the holder must notify the chief executive of the change within 14 days of the change.
I note the evidence given by the defendant was that he often worked away from home and kept his mailing address, which was a former residence, as his address for Department of Transport requirements.
I accepted the submission made by the defendant’s counsel that there are circumstances where a person could have two or more addresses, and I myself referred to some decisions where this question is sometimes raised, particularly in relation to stamp duty concessions.
My understanding of the evidence was that Mr Whitehead used the address of a residence at 189 Scarborough Road (of which he is a co-owner) as his address, even though those premises were unoccupied for some considerable time as a result of damage caused by a leaking roof.
I note in this respect that Mr Whitehead was not a reliable historian and gave unreliable evidence as to dates and periods of time.
In evidence Mr Whitehead indicated that subsequent to vacating his jointly owned residence at 189 Scarborough Road he lived for some time at Murrumba Downs with a friend of his, Lachlan Queenan, and in fact with Mr Queenan jointly signed a rental lease for those premises.
He went on to say that Mr Queenan and himself broke the lease on the Murrumba Downs property and rented another property at Longland Street, Redcliffe.
During cross examination he said in response to a question as to whether he was renting there:
Yeah, we had – I rented that house – me and Lachlan Queenan rented that house for six months. Oh it might have been – yeah, only six months I think we signed a contract for…
I also note in the roadside conversation that the defendant had with the arresting officer, (with that interview having been recorded on a CD audio disc and tendered to the court as Exhibit 1 in these proceedings) that the defendant made admissions to the arresting officer that he no longer resided at the address shown on his driver licence.
I am satisfied on the evidence given by the defendant himself that he was no longer residing at the address shown on his licence and had quite clearly changed his address.
Notwithstanding the defendant is often away as part of his work, this is not a case which is to be confused with the types of scenarios as put forward by counsel appearing for the defendant concerning people with more than one principal place of residence.
I am satisfied that the defendant did not notify the Department of Transport of his change of address – as he was required to do – and I find the defendant guilty of this charge.
SENTENCE
Following my delivering my judgment in relation to the two charges of which I found the defendant guilty the defendant then entered a plea of guilty in relation to a third charge of driving a vehicle not compliant with the vehicle standards as set out in the Regulation.
Submissions were then received in relation to penalty with the primary focus of those submissions directed towards the first charge of driving whilst not the holder of a licence and at the time of committing the offence having been disqualified by way of a court order.
Counsel appearing for the defendant contended that the provisions, as contained in s 78(3), which provide for a mandatory disqualification of the defendant’s driver licence for a minimum period of two years and no greater than 5 years, did not apply if the court exercised its discretion not to record a conviction pursuant to section 12 of the Penalties and Sentences Act 1992 and if after considering those matters as contained in section 18 dealt with the defendant pursuant to section 19 of the Penalties and Sentence Act 1992 that is an absolute discharge or recognisance.
In support of those submissions counsel relied upon two decisions the first being a demission of His Honour, District Court judge Botting that decision being Commissioner of Police v Nathan Wayne Kirby [2010] QDC 110 and a decision of His Honour District Court judge McGill being Van Kuik v Zuanetti [2012] QDC 116.
Both of those cases involved a consideration of a similar scenario to that which is before this court, namely the effect of s 78(3) of Transport Operations and Road Use Management Act 1995, the mandatory nature of that provision so far as it relates to imposing a disqualification period and a consideration of sections 18 and 19 of the Penalties and Sentences Act 1992. [I note in the decision of Kirby there is an erroneous reference to section 17 of Penalties and Sentences Act 1992 however it is clear to me from reading that decision that His Honour was in fact considering section 18 of the Penalties and Sentences Act 1992.
In the decision of Kirby it was indicated at page 2 of that judgment
The appellant submits essentially that the orders made by the learned Magistrate were manifestly inadequate and, in any event ,were contrary to law in that pursuant to the provisions of section 78 of the Transport Operations Road Use Management Act of 1995 a period of disqualification should have been imposed.
His Honour pointed out that the provisions of s 78(3) applied whether or not a conviction was recorded and in this respect had regard to s 78(4).
He said in particular he had been referred to the words;
“that in addition to imposing a penalty the Court must”, I emphasis the word ‘must’, “disqualify the person holding or obtaining a Queensland driver’s licence. [page 6]
His Honour went on to say [page 8];
It seems to me that the disqualification which must be imposed in subsections 3 of section 78 are disqualifications which are in addition to some other penalty which the court imposes. On the other hand when one looks at section 17 and 19 of the Penalties and Sentences Act, it seems to me to be clear that section 17 contemplates that a Court may, in appropriate circumstances, conclude that no punishment is warranted.
…It seems to me that if one takes that view then one can accept that there is not necessarily an inconsistency between the provisions of subsection 3 of section 78 of the Transport Operations and Road Use Management Act and the provisions of section 17 and 19 of the Penalties and Sentences Act.
The decision of Kirby was expressly followed in the decision of Van Kuik where I note His Honour at paragraphs 16, 17 an 18 of that decision went on to say:
The magistrate also ordered that the appellant be disqualified from holding or obtaining a driver licence for a period of six months, commenting that this disqualification was mandatory under the Transport Operation (Road Use Management) Act 1995, s 78(3). It was submitted on behalf of the appellant, however, that where a defendant was discharged absolutely under s 19(1) no penalty” had been imposed, and that s 78(3)of the 1995 Act applied only when the court did impose a penalty, so that the mandatory six months’ disqualification was not activated. That is consistent with a decision of another judge of this court, Commissioner of Police v Kirby [2010] QDC 110. Counsel for the respondent did not contend that I should not follow the decision in Kirby, or that the reasoning and analysis of the relevant statutory provisions in that decision were incorrect.
In those circumstances, and bearing in mind the importance of judicial comity, I am content, without giving the matter detailed consideration, to follow that decision, and it follows that , as a result of the sentence which I consider ought to be substituted for the sentence imposed by the magistrate, no penalty is being imposed on the appellant, so that the six month’ disqualification is not mandatory. Assuming that there is a discretion to impose that or some other disqualification, for the reasons which justify an absolute discharge, it is in my view inappropriate for any disqualification to be imposed, and I will not do so.
Accordingly, so far as this is an appeal against sentence, the appeal is allowed. The sentence imposed in the Magistrates Court is set aside, and in lieu thereof no conviction is recorded, and the appellant is discharged absolutely pursuant to s 19(1) of the Penalties and Sentences Act 1992. I should formally record that I am deliberately not ordering that he be disqualified from holding or obtaining a driver licence for any period.
It is submitted by the prosecutor that those decisions should be distinguished because the facts of those cases involved offences of unlicensed driving whilst this offence is one of unlicensed driving whilst disqualified by way of a court order.
I do not accept that submission and consider that both of the decisions of Kirby and Van Kuik are binding on this Court and are on point.
That then leads me to consider the various provisions provided for in sections 12, 18 and 19 of the Penalties and Sentences Act.
12 Court to consider whether or not to record conviction
(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including-
(a) the nature of the offence; and
(b) the offender’s character and age; and
(c) the impact that recording a conviction will have on the offender’s
(i) economic or social wellbeing; or
(ii) chances of finding employment.
18 Matters to which court must have regard
Before making an order under section 19, the court must have regard to-
(a) the offender’s character, age, health and mental condition and
(b) the nature of the offence; and
(c ) circumstances (if any) under which the offence was committed that make the offence less serious than what it would be if it had been committed under other circumstances; and
(d) anything else to which the court considers it proper to have regard.
19 Order of court
(1) The court may make an order-
(a) releasing the offender absolutely; or
(b) that the offender be released if the offender enters into a recognisance, with or without sureties, in such amount as the court considers appropriate…
I note in particular one of the relevant matters under section 12(2)(c) is the impact the conviction will have on an offender’s economic or social wellbeing.
Section 18 of the Act requires a consideration of the nature of the offence, the circumstances under which the offence was committed that make the offence less serious than what it would be if it had been committed under other circumstances and anything else which the court considers it proper to have regard.
The circumstances going to the first charge of which I have found the defendant guilty is that he was driving in Queensland on a Queensland licence after having been disqualified in New South Wales.
I accept he was told by a New South Wales police officer following having been charged that he was unable to drive in New South Wales and would require one of his apprentices to drive him to the Queensland border where he could resume driving.
I am made aware that after having been charged with the offence there is an automatic disqualification until the matter is dealt with by a Court.
The defendant in fact believed that this advice was in fact the same after he was disqualified by the New South Wales court and I have found in this case that in fact is correct, that is there was no action on his Queensland licence until the Queensland Transport Department took steps to cancel or suspend his licence which in fact happened several months later in October.
Further the defendant gave evidence that he at no time recalled ever having received the show cause notice from Queensland Transport and that in fact the Notice that was produced to the court was obtained from Queensland Transport by his barrister.
I also note that it was not too long after his Queensland licence had been cancelled that he was charged with this offence and no doubt for the remainder of the disqualification period, which was approximately seven weeks from the date he was charged he desisted from further driving.
I agree with prosecutions so far as it is asserted that an offence of this kind cannot be regarded as of a trivial nature.
In fact it would be an unusual or exceptional case for an offence of this type which warranted the court to deal with an offender under the provisions of section 19 of the Penalties and Sentences Act.
However I am of the view that this is one of those cases.
I accept that the defendant did not knowingly drive unlicensed whilst disqualified by a court order.
If he had of received the show cause notice there is no reason to believe that he would have necessarily failed to have in fact shown cause why his licence should not have been cancelled or suspended.
Further there was only a relatively short period of some 7 weeks left during the disqualification period imposed by the New South Wales court.
On a sentence I am entitled to receive information as compared to evidence (see s 15) and in this case I am told that the defendant is of otherwise good character with no criminal history, and a modest traffic history which discloses no offences of a like nature.
Further , I am told that he is self employed and because of the global financial crisis has had to travel interstate to secure work and is currently working in remote aboriginal communities in the Northern Territory.
I am told that if disqualified for a period of two years the economic impact on him will be in the vicinity of $120,000 of lost earnings.
For those reasons I am of the view that it is appropriate in this case to exercise my discretion not to record a conviction in relation to the first charge.
Further, having considered those matters which I am required to consider in section 18 and in particular the circumstances in which this offence was committed, I deal with the defendant pursuant to s 19(1) of the Penalties and Sentences Act and release him absolutely.
In those circumstances I am not of the view that the imposition of a period of disqualification is necessary or desirable. I therefore decline to do so.
In relation to the remaining two offences the defendant is convicted, those convictions are recorded and pursuant to section 49 of the Penalties and Sentences Act I impose one penalty for both offences, that is he is convicted and fined the sum of $400.
Mark Bucknall
Magistrate
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