R v Kingma

[1992] QCA 465

IN THE COURT OF APPEAL [1992] QCA 465

QUEENSLAND

C.A. No. 282 of 1992

T H E Q U E E N

v.

NORMAN KINGMA

CATCHWORDS:  CRIMINAL LAW - SENTENCE - Applicant fined $1000 and disqualified from holding driver's licence for attempting to steal starter

motor for use in his own car - whether necessary connection between the offence and the motor vehicle to enliven s.54(1)(b) - whether 6 months disqualification excessive.

Counsel:	D. Lynch for the Crown P. Alcorn for the Applicant
Solicitors:	The Director of Prosecutions for the Crown The Legal Aid Office for the Applicant
Hearing Date(s):	9 November 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 282 of 1992

Before the Court of Appeal

The Chief Justice
Mr. Justice Pincus

Mr. Justice de Jersey

JUDGMENT - THE CHIEF JUSTICE AND de JERSEY J.

Delivered the 22nd day of December, 1992.

The applicant pleaded guilty to a charge of attempting to steal a starter motor from a firm of motor dealers. He was fined $1,000 and disqualified from holding a driver's licence

for six months.

The challenge which is made is to the order for

disqualification. It was said that in the circumstances such an

order should not have been made at all and also that in

combination with the fine it was excessive.

It is obvious that the magistrate in imposing the order for

disqualification purported to act under s. 54(1)(b) of the

Traffic Act 1949. That subsection authorised the Court to have

regard to the nature of the offence and the circumstances in

which it was committed.

The circumstances of the offence were accepted as being

that the applicant, having planned to steal a starter motor for

his own vehicle, equipped with tools, entered a dealer's car

yard at night, jacked up a selected vehicle and removed two bolts from the starter motor but was then disturbed in his act

of attempted stealing.

The charge was simply one of stealing a car part but the

facts mentioned show both that the offence had serious aspects

and also that the offender's object in the attempted theft was
to render his own car mobile for his own subsequent use.

The holding of a driver's licence has an obvious relationship to the theft of a car or a car part for intended future use by an offender as a licensed driver. To impose a

penalty of disqualification in such cases can have effect as a

deterrent of the actual offender and of others who might be

similarly inclined because it deprives the offender of some of the benefit which he hopes to achieve by his criminal actions.

The interest of the public is involved in the discouragement of

such activity.

Subsection (b) of s. 54(1) is, in terms, a wide provision obviously intended to supplement the grounds specified in subs. (a) under which, in what may be different circumstances,

disqualification orders can also be imposed. The necessity for

the existence of a connection of some sort between the offence

committed and a motor vehicle or its use seems to be suggested by the wording of subs. (b): cf. the examination of the

subsection undertaken in R. v. Brix [1973] Qd.R. 5.

When the nature of the offence and its circumstances are considered, we would conclude that the jurisdiction of the magistrate to make an order for disqualification in the present case was enlivened by the provisions of s. 54(1)(b) and that he was authorised, having regard to the interests of the public, to make an order of disqualification.

That leaves for consideration the question whether in view

of the fact that a substantial fine was imposed the order for
disqualification should be regarded as an excessive penalty.

The applicant before the offence was committed had recently arrived in Cairns and was looking for employment but he was still unemployed when he attempted to steal the vehicle part. His previous criminal history was insignificant. There was

simply a conviction for stealing two packets of cigarettes. In all the circumstances we would conclude that a disqualification for six months was excessive.

We would grant leave and allow the appeal to the extent of reducing the period of the order for disqualification to one of three months from the date of conviction, in other respects

allowing the sentence imposed to stand.

JUDGMENT - PINCUS J.A.

Delivered the Twenty-second day of December 1992

This is an application for leave to appeal against sentence. The applicant was convicted of attempted stealing in the Magistrates Court at Cairns; he was fined $1,000 and an order was made that he be prohibited from holding or obtaining a driver's licence for a period of six months. The application

relates, in substance, to the disqualification.

The applicant was found by a security guard in a car

dealer's yard at night. He had with him a bag containing a

wheel brace and some spanners; he went into the yard to get a starter motor for his vehicle. The applicant said he had gone looking for a Datsun Sunny in the car yard from which he could

remove a starter motor to replace that fitted to his own, which had broken. To this end he had jacked up a Datsun Sunny in the car yard and begun the process of removal when he was interrupted.

Mr. Alcorn, on behalf of the applicant, submitted that the six months' disqualification was a manifestly excessive sentence. He said that it was not a case in which the applicant had used a motor vehicle in the commission of an offence and

pointed out that the applicant had told the magistrate that he

had just arrived in Cairns and that if he lost his licence it would ruin any chance of obtaining employment. There was evidence before this Court that the applicant had been promised a particular employment if he had a driver's licence.

Mr. Alcorn also contended that there was not enough before

the magistrate to warrant the conclusion that the cancellation

was justifiable, since the incident was an isolated one. The applicant had a previous conviction for shoplifting, but there was nothing to suggest that he had ever committed an offence relating to a vehicle on another occasion.

The statutory provision in question is s.54(1) of the

Traffic Act 1949 and has two limbs. It reads in part as

follows:

"Where any person is convicted of an offence under this Act or is convicted upon indictment or summarily of an offence against any other Act or law, then, if the Judge of the Supreme Court or District Court presiding at his trial upon indictment is, or the justices before whom he is summarily convicted are, satisfied upon the evidence (or, upon a plea of guilty, upon the facts relevant to the offence and the circumstances thereof stated by the prosecutor and not rebutted by the defendant) -

(a)That any licence or licences under this Act held by the offender, or the powers and authorities conferred upon the offender by any such licence or licences, enabled, aided, or facilitated the commission of the offence by him; or

(b)That, having regard to the nature of the offence, or to the circumstances in which it was committed, or to both, the offender should, in the interest of the public, be prohibited from holding or obtaining any particular licence or licences under this Act either absolutely or for a period,

the Judge or justices may order that the offender shall, from the date of the order, be disqualified absolutely from holding or obtaining such licence or all or any of such licences, or be so disqualified for such period as the Judge or justices shall specify in the order".

There was no suggestion that the matter fell within

paragraph (a) and the question therefore is whether the

magistrate was justified in treating (b) as applicable. It is clear that paragraph (b) should not be read as subject to a condition of the kind which was expressed in para. (a); para. (b) may be used although (as here) no vehicle licence was used

in committing the offence in question. The discretion given by para. (b) is a broad one and I see no reason why it should not

be exercised against a thief of vehicle parts, in appropriate

circumstances.

A more difficult question is whether what was proved before

the magistrate was sufficient to establish that a

disqualification should be imposed "in the interest of the

public". The magistrate had to be satisfied upon evidence and

having regard to the matters set out in paragraph (b) that the

offender should be prohibited from holding or obtaining a licence in the public interest. The magistrate gave reasons

which are said to have been that the offence was "deliberately planned and ... in view of the overall circumstances, which he

viewed seriously, and in the public interest a period of disqualification was warranted". One might assume that his

Worship thought that the interest of the public required, or

rendered desirable, the disqualification in question to discourage the applicant from further similar thefts. But

unless one is prepared to go so far as to say that any "deliberately planned" theft or attempted theft of a vehicle part makes a disqualification of the offender appropriate, it is

difficult to see how the order can be upheld.

Nothing more of relevance to paragraph (b) having been

proved, except a single pre-meditated attempt to steal a vehicle

part, I am driven to the conclusion that there was not evidence

before the magistrate on which he could properly be satisfied of

the matters paragraph (b) specifies. This conclusion makes it unnecessary to consider whether, from the point of view of the propriety of an exercise of discretion, the magistrate's order

could have stood.

In my opinion, and although I have some sympathy with the course the magistrate took, the order made was not justified by the evidence placed before the Court. I would grant the

application and allow the appeal, to the extent that the order disqualifying the applicant from holding or obtaining a driver's

licence for a period of six months from 21 September 1992 be set

aside.