R v Nhu Ly

[1995] QCA 139

IN THE COURT OF APPEAL	[1995] QCA 139
SUPREME COURT OF QUEENSLAND

C.A. No. 513 of 1994

Brisbane

[R v. Nhu Ly]

THE QUEEN

v.

NHU LY

Macrossan CJ
McPherson JA

Thomas J

Judgment delivered 11/04/1995

Separate reasons for judgment of each member of the Court. All concurring as to orders to be made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT ONLY OF SETTING ASIDE THE ORDER

F	OR DISQUALIFICATION. ALL OTHER ORDERS TO STAND.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - Applicant damaged car of one complainant and assaulted a second complainant after being verbally abused by the latter while in stationary vehicle at traffic lights - Disqualification from driving pursuant to s.187 of the Penalties and Sentences Act 1992 - Whether offences were "in connection with, or arising out of, the driving of a motor vehicle by the offender" - Comparative repealed provision: s.54 of the Traffic Act 1949.
Counsel:	Mr D. Lynch for the applicant.
Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the applicant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date: 23/02/1995 Judgment delivered 11/04/1995	REASONS FOR JUDGMENT - THE CHIEF JUSTICE

The applicant appeals against two sentences imposed following his summary conviction before a magistrate for offences of wilful and unlawful destruction of parts of a motor vehicle and of unlawful assault on the same occasion.

The offender, an eighteen year old without prior convictions, was convicted and fined $500 for the wilful destruction and $400 for the assault. Payment of compensation was ordered in each case: a sum of $1,199 to a female complainant whose car was damaged, and $200 to a male complainant who was assaulted. Default terms of imprisonment were ordered in the case of failure to pay the compensation. Further, a period of disqualification for six months from holding or obtaining a driver's licence was imposed in connection with the wilful destruction offence. A consequence of the order for a default term of imprisonment for non-payment of the compensation was that the magistrate was obliged to order the recording of convictions: see s.36(2) and (3) of the Penalties and Sentences Act 1992.

On the hearing of the appeal only two aspects of the orders were challenged. These were the orders for recording convictions with the associated default terms of imprisonment for non- payment of the compensation orders and the six months licence disqualification.

The circumstances of the offences emerge from the facts stated on the standard prosecution QP9 form, the substance of which it was accepted was read to the Court below. Certain further details which are not contested were deposed to in an affidavit of a Legal Aid solicitor who had represented the applicant.

On the evening of the offence the female complainant stopped her vehicle at traffic lights in an outbound lane of a road in Rocklea. A second vehicle driven by the applicant pulled up in the left hand lane next to her and in this vehicle there were also the applicant's brother and three sisters. While the vehicles were stationary side by side, a male passenger in the female complainant's car made certain derogatory and racist remarks directed towards the applicant and also invited the applicant to fight him. The precise words used do not appear. The evidence is that after these provocations (using the word in its general sense) continued for a period the applicant and his brother emerged from their vehicle armed with metal poles with which they proceeded to damage the female complainant's car breaking its windscreen and two side windows. When the male complainant got out of the car under attack, the applicant and his brother struck him with the pipes on his back, head and stomach. Other motorists at the scene then separated the parties.

Whatever was the exact nature of the provocations offered initially, the response was extreme and the applicant has pleaded guilty to the offences which were charged. Significant damage was caused to the property of the female complainant who is not shown to have been in any way culpable, and the male complainant would have been subjected to real risk of injury and would have experienced pain. Breaches of peace of the kind in question were justifiably treated with seriousness by the magistrate. It was reasonable to order payment of compensation and this is not challenged. However, it was also reasonable to make compliance effective by ordering default terms and this carried the consequence that a conviction had to be recorded. Considering the nature of the episode and the appropriateness of endeavouring to ensure that the compensation would be paid, it could not be held that the order for the recording of convictions was a manifestly excessive punishment.

Some submission was made to the magistrate that the applicant, who was unemployed, might find it more difficult to obtain employment in the future if convictions were recorded, but it seems that this submission was of a perfectly general kind and nothing is shown to have been said in support of it to distinguish the matter from the usual case. A submission of an equally general kind seems to have been made that an order disqualifying from holding a licence would render it more difficult for the applicant to obtain employment but, once again, the generality of the submissions would not have provided any strong inducement to the magistrate to refrain from making an order for disqualification if he were otherwise disposed to do so. Submissions of a more substantial kind were advanced on the appeal concerning the order for disqualification itself but before turning to them it may be mentioned that the magistrate had indicated that he was prepared to offer the applicant the benefit of an order for community service but the applicant was not prepared to consent to it.

The argument for the applicant on the appeal suggested that the magistrate had no power in the circumstances to order the disqualification and, alternatively, that as a matter of discretion he should not have ordered it.

Orders for disqualification on conviction were previously provided for under s.54 of the Traffic Act 1949, but that section has now been repealed by s.33 of the Traffic Amendment Act 1994. The current statement of a corresponding general power to disqualify on conviction is found in s.187 of the Penalties and Sentences Act 1992. The earlier Traffic Act provision which has been considered in a number of decisions was in these terms:

"54. Power of Courts to disqualify convicted persons from holding or obtaining licences. (1) 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 license or licenses under this Act held by the offender, or the powers and authorities conferred upon the offender by any such license or licenses, 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 license or licenses 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 license or all of any of such licenses, or be so disqualified for such period as the Judge or justices shall specify in the order.

Such disqualification may be absolute as respects any one or more of the licenses concerned and for a period as respects another or other such licenses, and different periods of disqualification may be ordered as respects different licenses."...

Section 187(1) of the Penalties and Sentences Act 1992 now provides:
"If-

(a)an offender is convicted of an offence in connection with, or arising out of, the driving of a

motor vehicle by the offender; and

(b)the court by or before which the offender is convicted is satisfied having regard to the nature of the offence or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a driver's licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a driver's licence."

It has to be assumed that the quite radical redrafting of the disqualification provisions was intended to effect significant changes. There are noteworthy differences in the approach taken. Under the earlier provision, a conviction of an offence of any kind enlivened the jurisdiction in question which then was narrowed by a superimposed restriction to cases where the holding of a licence by the offender enabled, aided or facilitated his commission of the offence (subs.(a)) or where having regard "to the nature of the offence or to the circumstances in which it was committed", the offender should "in the interests of the public" be disqualified (subs.(b)). In R v. Brix [1973] Qd.R. 5, the Court of Criminal Appeal, in view of the context and wording of subs.(b) as it then stood decided that before the jurisdiction arose, there had to be "something in the offence committed related to the use of a motor vehicle" and some connection probably between "the use of a motor vehicle and the commission of an offence". In R v. Kingma C.A. No. 882 of 1992, 22 December 1992 unreported, this Court decided that if a disqualification were to be ordered under s.54 there must be "a connection of some sort between the offence committed and a motor vehicle or its use". An earlier decision of the Court of Criminal Appeal had held that the operation of subs.(b) was not restricted to traffic offences as such although it could be expected that it would be in the context of traffic offences that its use would generally be more appropriate: R v. Breakell [1977] Qd.R. 122 at 124.

The new provision s.187 retains some of the phrasing found in the earlier legislation ("having regard to the nature of the offence, or to the circumstances in which it was committed",) but it more explicitly adopts the notion that emerged in the decided cases that there was an underlying concept of connection between the relevant offence on the one hand, and on the other, a motor vehicle or its use (see now in s. 187(1)(a) "offence in connection with, or arising out of, the driving of a motor vehicle by the offender"). While new and more precise elements have been introduced, some narrowing is detectable in other areas. Thus, for the jurisdiction to be enlivened it now has to be the offender himself who has done the driving and the offence of which he has been convicted must be one which is "in connection with, or arising out of" that driving. The alternative requirements which were a feature of subparagraphs (a) and (b) of s.54 are to be contrasted with the cumulative requirements imposed under subss (a) and (b) of s.187(1) in respect of the jurisdiction to disqualify. Changes to the structure of the legislation have been so extensive that the earlier Queensland decisions provide no precise guide to the overall scope of the current legislation. However, while the meaning must be gathered primarily by concentrating on the wording as it now appears, some assistance is provided by those decisions to the extent that they bear upon one or other aspect still reflected in the legislation.

Before a discretion to disqualify can arise under s.187 it is necessary that the offence be one "in connection with or arising out of" the offender's act of driving a motor vehicle. It might be thought that the phrase "in connection with" will have a potential scope wider than "arising out of" and it might be further thought that the use of the former phrase in conjunction with the latter could have some tendency to alter the meaning it would otherwise possess, perhaps by widening it. The latter phrase, "arising out of", was the subject of attention in the South Australian Supreme Court in Muegel v. Fast Freight Pty Ltd (1987) 45 S.A.S.R. 20, a decision which helpfully collects references to a number of other decisions dealing with the same matter. The case itself concerned the scope of compulsory insurance cover where the relevant phrase was "arising out of the use of". Broad though the phrase just quoted is, Olsson J. emphasised that it nevertheless "carries some sense of consequence". It can be suggested that what might be described as a traffic or driving offence will be one "arising out of the driving of a motor vehicle". The other phrase with which we are concerned, "in connection with", may carry broader meanings because although it, too, points to a relationship, it may not necessarily be causal. Thus, the connection may be a temporal one. Some helpful observations upon the meaning of the phrase, "in connection with", are to be found in two Victorian cases dealing with a power to disqualify: Rochow v. Pupavac [1989] V.R. 73, and Murdoch v. Simmonds [1971] V.R. 887. However, the meanings there attributed may not be transposable to the Queensland context without qualification, especially since, for relevant purposes, the phrase in the Victorian legislation stood alone, whereas in the Queensland Act it appears in association with "arising out of".

Whatever width can be attributed to the two qualifying categories in subs. (a) it will be narrowed by the super-added requirement of subs. (b) where the exercise of the discretion is most directly dealt with. It is at this stage that the tribunal in question will consider whether justice calls for a disqualification because of the nature of the offence or the circumstances in which it was committed.

Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty is not meant to be simply a gratuitous addition to other available punishments. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term. It must, in the relevant sense, be grounded in the act of driving and there will usually be detectable some abuse of the privilege of driving or of the opportunity taken to drive. Examples where the discretion would more obviously arise for consideration are cases where the offence is a traffic one as usually understood, or where a vehicle is driven for the very purpose of committing the offence at some selected destination especially perhaps if its use facilitates the commission. While these examples should not be understood as exhaustive of possible categories, the considerations stated in this paragraph are likely to play a key role in the exercise of the discretion.

In the circumstances with which we are concerned, I would be prepared to hold that the offence was committed by the applicant "in connection with" his driving of a motor vehicle. His act of driving resulted in his being in a vehicle in a traffic lane abreast of another vehicle in which, as it happened, the male complainant was seated. In this situation the remarks which apparently upset the applicant could be directed to him. He responded then and there by alighting from his vehicle and attacking the adjoining vehicle and the person of the male complainant when he emerged from it. These circumstances constitute a reasonable basis for the conclusion that the offence was committed in connection with his driving. This, however, satisfies the requirements of only subs. (a) of s.187(1) and subsection (b), a cumulative requirement, remains to be considered.

In what happened, the offence had so little relation to the act of driving by the applicant that the imposition of a disqualification has the appearance of a gratuitous additional penalty (to use the description given above) rather than in some clear way serving purposes contemplated by the section (as discussed in the analysis attempted above). Some justification within the terms of subsection (b) must appear if a disqualification is to be sustained. A disqualification should not automatically be imposed simply because an offender has been driving shortly before an offence has been committed.

I would grant the application and allow the appeal to the extent only of setting aside the order for disqualification, allowing all of the other orders to stand.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 11th day of April 1995

To have the potential to attract the penalty under s.187(1)(a) of the Penalties and Sentences Act of disqualification from holding or obtaining a driver's licence, an offence must, at the very least, be "in connection with ... the driving of a motor vehicle by the offender". To satisfy that requirement I do not think it is enough to show merely that the offence took place at the same time as the driving. The statutory provision does not say "while the offender was driving a motor vehicle", and the fact that two events occur at the same time and even at the same place, is not ordinarily enough by itself to demonstrate a connection between them. There must be something more than that, such as, for example, that they are related to one another as cause and effect, or in some other way. Driving the vehicle in order to facilitate the commission of an offence is an obvious but by no means the only instance that springs to mind.

In the present case I am unable to identify anything more than a temporal sequence between the appellant's driving of a vehicle and his criminal act or offence of breaking the windows of the complainant's car. It was not his driving that precipitated the derogatory remarks which led on to that offence. It is true that it was through driving a vehicle that the appellant happened to be on the road at the time when, and place where, those remarks were uttered; but that was a circumstance wholly accidental to the events which followed. It is not, in my respectful opinion, sufficient to make the appellant's offence one that was committed in connection with the driving of a motor vehicle by him. The same sequence might equally have followed if the appellant had simply been standing beside the road when he and his companions were seen and insulted by the passenger in the complainant's car.

I may add that I agree with the observations of Thomas J. concerning the two Victorian

decisions referred to in his reasons for judgment which I have had the advantage of reading. I concur in the order proposed by the Chief Justice for disposing of this application.

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 11 April 1995 him, was justified in imposing the additional penalty of disqualification from holding a driver's licence.

The applicant happened to be in his vehicle, stationary at a stop-light, when he was
wrongfully insulted by the occupant of another vehicle, also stationary at the stop-light. He left
his vehicle and attacked the person responsible for the insult and also damaged the vehicle in
which that person was sitting.

Section 187(1) of the Penalties and Sentences Act 1992 provides:

"If -

(a)an offender is convicted of an offence in connection with, or arising out of, the driving

of a motor vehicle by the offender; and

(b)the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a driver's licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a driver's licence."

Under that section there are two pre-requisites to the making of an additional order for disqualification with respect to a driver's licence. First, the offence of which he is convicted must be one in connection with or arising out of his driving of the motor-vehicle. Second, the Court must conclude "having regard to the nature of the offence or the circumstances in which it was committed" that it is in the interests of justice that a disqualification order be made.

I am concerned with the first of these. I agree with the Chief Justice that it cannot reasonably be thought that this applicant's offence arose out of his driving of the motor vehicle. However I do not think that his offence was in connection with his driving either. There was a spontaneous incident. The applicant did not drive to the intersection in question for the purpose of committing any crime, and his driving of the vehicle had at most a casual or coincidental connection with the eventual assault.

The connection between the applicant's driving and the commission of the offence in the present matter is certainly less than that in Murdoch v. Simmonds [1971] V.R. 887, where a driver became annoyed at the manner of driving of another motorist, followed the other vehicle to a shopping centre to remonstrate, and in the ensuing confrontation kicked the other driver. Adam J. considered the connection insufficient to satisfy the relevant Victorian section which authorised a disqualification upon the conviction "of any offence in connexion with the driving of a motor-car". These words are not relevantly distinguishable from s.187(1)(a) of the Penalties & Sentences Act, apart from the fact that our legislation contains the alternative test "arising out of". I do not think that this requires a different meaning to be given to the phrase "in connection with the driving of a motor-vehicle". Each phrase can be given full effect, and there is no reason to think that the inclusion of the second phrase "or arising out of" either increases or decreases the intrinsic meaning of "in connection with". It is therefore appropriate to consider the Victorian authorities to the extent to which they throw any light upon the application of the phrase "offence in connection with the driving of a motor-car".

I am by no means sure that that case would be decided the same way today, but it is unnecessary to pursue that question. It is more instructive to examine a more recent decision (Rochow v. Pupavac [1989] V.R. 73, 75-76) where the provision was usefully discussed. In that case the offender used his car to reconnoitre and eventually to drive to a car-yard for the purpose of stealing a cigarette lighter. I agree with Nathan J's conclusion that "if the purpose or reason for driving the vehicle is to commit an offence, even if other means are available to do so, the vehicle is being 'driving in connection with' that offence". His Honour suggested other examples which will satisfy the test, such as where the vehicle is used as an actual instrument or tool to perpetrate the offence (such as the infliction of damage), or where the vehicle is driven as a mobile depot for a drug-pusher. These examples are not exhaustive, but they serve to exemplify the need for something more than a fortuitous or happenstance use of the vehicle with no criminal purpose in mind.

I would therefore not be prepared to hold that this offence was committed by the applicant "in connection with" his driving of the motor vehicle. I am also of the view, for the reasons expressed by the Chief Justice, that the circumstances do not justify the imposition of an additional penalty by way of disqualification "in the interests of justice" under s.187(1)(b).

I would allow the appeal to the extent of setting aside the order for disqualification.