Richards v Edwards

[2007] QDC 355

[2007] QDC 355

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE BOTTING

No 1620 of 2007

SHANE AARON RICHARDS	Appellant
and
NICHOLAS EDWARDS	Respondent
BRISBANE ..DATE 02/10/2007

ORDER
HIS HONOUR: This is an appeal from decisions made by the

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Magistrates Court sitting at Southport on 11th May 2007. On
that day the appellant, who now appears in person, pleaded
guilty to a count of disqualified driving and possession of
tainted property and to two further charges of failing to

appear contrary to provisions of the Bail Act.	10
The disqualified driving and possession of tainted property
offences were alleged to have been committed on 13th February
2006 and the failure to appear were both on the same day, that
is 22nd December 2007.	20
In respect of the disqualified driving and possession of
tainted property matters, his Honour imposed a sentence of one
month's imprisonment in respect of the former and seven days
in respect of the latter, those sentences to be concurrent.	30
In respect of the failure to appear he ordered that the appellant be imprisoned for six weeks in respect of one and effectively convicted the appellant in respect of the other but imposed no further punishment.
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He did order, as of course he is required to do under the Bail
Act, that that sentence of six weeks' imprisonment be
cumulative upon the other sentences which he had imposed that
day. The total effect of those sentences was therefore that
the appellant was ordered to serve a period of 10 weeks'	50

imprisonment.
His Honour fixed a parole release date about mid-way through 2 ORDER 60

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that sentence but, somewhat curiously, expressed a number of
times an intention that the appellant serve the whole of that
term. These are matters which are commented upon in the
submissions put before me on behalf of the respondent and

there is force in those submissions.	10
However, today Mr Hungerford-Symes has told me that the
respondent does not seek to pursue those arguments today and, which respect, I think that is the better course. The actual order as it would have been perfected by, I assume,	20
endorsement on the bench charge sheet, is quite clear and it
seems to me if there is to be any variation of it the
appropriate way to achieve that is to take the matter before
his Honour as it can be viewed that, in any event, for the
reasons I have explained, no longer a matter of concern before	30
me today.
As I mentioned, the appellant has appeared in person before me
today and has supplemented his original written submissions
with some oral submissions. His principal concern, as I	40
understand his only concern, is that his Honour has
disqualified him from holding or obtaining a driver's licence for a period of two years and that that order dates from 11th May 2007. That is, the date that he was before the
Magistrates Court rather than an earlier date. I suppose the	50
earliest date one might conceive that such a disqualification might arguably run from would be 13th February 2006, the date upon which he was discovered to be driving whilst disqualified

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and which is the date, as I have already mentioned, alleged in

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the charge brought against him.

One can understand, in the circumstances that Mr Richards has
outlined to me, his concerns and sense of grievance that the

disqualification runs from 11th May 2007 and not some earlier	10
date. I have no knowledge as to why matters took as long as they did to come on before the Magistrates Court in Southport.
However, it seems to me to be abundantly clear that the
Magistrate had no power to backdate, as it were, the	20
disqualification as counsel for the respondent has pointed
out. The authority, the power to disqualify in the Court, is
given only upon conviction. Were that otherwise, one might
have the strange situation that a person who had been driving
lawfully up until the date of the hearing of his or her matter	30
in Court might suddenly discover that, because of a backdated disqualification, that that lawful driving had suddenly been rendered unlawful.
There is, in my view, no statutory power to order the	40
backdating of a disqualification and it seems to me that must
be the end of the argument. Under the legislation, of course, the disqualification period must be a minimum of two years and can be anything up to five years. I do not know but it may be that his Honour took the delay into account in imposing the	50

statutory minimum.
But be that as it may, he had to impose that disqualification, 4 ORDER 60

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or at least that period, and it had to run from that date.

The order I make, therefore, is that the appeal is dismissed.

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