QPS v White - [2015] QMC 10

MAGISTRATES COURTS OF QUEENSLAND

CITATION: QPS v White [2015] QMC 10

PARTIES:QUEENSLAND POLICE SERVICE
(Plaintiff)

JESSE STUART WHITE
(Defendant)

FILE NO: MAG-65199/15(7)

COOL-MAG-772/15

HEARING DATES: 22 & 26 June 2015

ORIGINATING COURT: COOLANGATTA

DELIVERED ON: 26 June 2015

DELIVERED AT: COOLANGATTA MAGISTRATES COURT

MAGISTRATE: K MAGEE

ORDER:The circumstance of aggravation is struck out.
CATCHWORDS: Transport – driver’s licencing – the effect of a licence suspension by the court.
LEGISLATION CITED: Transport Operations (Road Use Management) Act s 78(1)(a), s 78(3), 78(6), 79(a), 127(2), 127(4) and 127(5)
PROSECUTION: Sergeant G McKenzie for the Prosecution
DEFENCE:Defendant in person

On 22 June 2015 the defendant pleaded guilty to a charge that on the 27 day of March 2015 he drove a motor vehicle on Bauer Street, Bargara whilst he was not the holder of a driver licence, the licence having been disqualified by court order.
Upon a perusal of the file I noted that the matter had been previously adjourned by a different magistrate because it appeared that the charge should not be one of driving whilst disqualified by a court order, but driving whilst a licence was suspended under the provisions of section 79(9) of the Transport Operations Road Use Management Act 1995 [TORUM].
I raised this with the prosecutor who confirmed that the offence charged arose out of the defendant driving whilst his licence was suspended under section 79(9) TORUM, but was nonetheless insistent that in those circumstances the proper charge was driving whilst disqualified by a court order, pursuant to section 78(1)(a) and (3) TORUM.
I then adjourned the matter to today indicating that I would give my decision in relation to the charge and further inviting the prosecutor to make further submissions.
Section 79(9) TORUM provides as follows:
Suspension of driver licence on failure to appear
(9)If a person charged with an offence against any provision of subsection (1), (1F), (2), (2AA), (2A), (2B), (2D), (2J), (2K) or (2L) in relation to a motor vehicle does not appear personally before a Magistrates Court at any time and place when and where the person is required to appear, the court must then and there order that any and every Queensland driver licence held by the person be from that time suspended until—
(a) the court revokes the order in the interests of justice; or
(b)the time when the charge is heard and decided or otherwise disposed of.
Section 78 (1) (a) and 78 (3) relevantly provides as follows:
“(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, from holding or obtaining a driver licence—60 penalty units or 18 months imprisonment; or ….
(3)If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, whether or not any other sentence is imposed, 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;
(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;
(c)     if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended because of the allocation of demerit points—6 months;
(d)     if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because the person had been convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit—6 months;
(e)     if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended because the person had been convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit—6 months;
(f) if the person committed the offence while the person’s driver licence was suspended under the State Penalties Enforcement Act 1999—a period, of at least 1 month but not more than 6 months, decided by the court;
(g) if the person committed the offence while the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended under the State Penalties Enforcement Act 1999—a period, of at least 1 month but not more than 6 months, decided by the court;
(h)     if the person committed the offence while the person was a repeat unlicensed driver for the offence—a period, of at least 1 month but not more than 6 months, decided by the court;
(i)     if the person committed the offence while, under section 79B—
(i)the person’s Queensland driver licence was suspended; or
(ii)the person’s authority to drive on a Queensland road under a non-Queensland driver licence was suspended; or
(iii)the person was disqualified from holding or obtaining a Queensland driver licence;
for a period, of at least two years but not more than five years, decided by the court;
(j)     if the person committed the offence while the person was a person mentioned in subsection (1B) or (1C)—for a period, of at least one month but not more than six months, decided by the court;
(k)     if, at the time of committing the offence, the person had never held a driver licence—three months.”
It can be seen that the legislation details certain circumstances in which a court must disqualify a person from holding or obtaining a driver licence.
Section 78(6) TORUM provides: In this section – Disqualified Driver means a person –
(a)     “Who is disqualified from holding or obtaining a driver’s licence because of any court order
(b)     who is disqualified from holding or obtaining a driver licence because—
(i)of the allocation of demerit points; or
(ii)the person was convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit; or
(iii)the person’s driver’s licence is suspended under the State Penalties Enforcement Act 1999; or
(c)   whose authority to drive on a Queensland road under the person’s non-Queensland driver’s licence is suspended—
(i)because of the allocation of demerit points; or
(ii)because the person was convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit; or
(iii)under the State Penalties Enforcement Act 1999.”
It is effectively the contention of the prosecution that the terms disqualified and suspended are interchangeable.
Section 127 TORUM deals with the effect of a disqualification and suspension. Relevantly section 127(2) provides as follows:
“(2)Where under this or any other Act a judge of the Supreme Court or District Court or justices orders or order that any person shall be disqualified for a specified period from holding or obtaining a licence of any kind, class or description other than a Queensland driver’s licence), each subsisting such licence held by that person shall by virtue of the order, where such licence—
(a) would expire during the period of disqualification so ordered, be and be deemed to be cancelled on and from the date upon which that person became so disqualified; or
(b) would not expire during the period of disqualification so ordered, be and be deemed to be suspended on and from the date upon which that person became so disqualified and thereafter until the expiration of the period of disqualification specified in the order.”
Section 127 (4) TORUM provides as follows:
“(4)Suspension under this Act of any licence—
(a)     shall, whilst such licence is so suspended, have the same effect as the cancellation of the licence; and
(b)     shall, whilst such licence is so suspended, disqualify the person who held that licence from holding or obtaining a licence of the same kind, class, or description; and
(c)     (if the period of such suspension is less than the period during which that licence ordinarily would have remained in force) shall not, upon the termination of that suspension, extend the period during which that licence thereafter remains in force beyond the period during which that licence would have remained in force if it had not been so suspended.”
Section 127 (5) TORUM provides as follows:
“(5)Any cancellation or suspension of a Queensland driver’s licence shall apply and extend to such licence and to every other Queensland driver licence authorising the person in question to drive any vehicle.”
The prosecution asserts that the effect of s. 127(4)(b) is that a suspension under 79(9) TORUM is a disqualification by court order. This assertion confuses the order of the court suspending the licence under s 79(9) with the effect of the order under s 127(4)(b). The court suspends the licence. The effect of the suspension is that the person is disqualified for the duration of the suspension. The disqualification arises by operation of law, not by the order of the court. The court does not disqualify the defendant by its order, it merely suspends the licence.
Section 127 TORUM draws a legislative distinction between a disqualification and a suspension. The terms are not interchangeable. A licence that is suspended by a court is not a licence that has been disqualified by a court order.
It follows that the circumstance of aggravation is not supported on the agreed facts. As the prosecutor is not prepared to amend the charge I strike out the circumstance of aggravation.