Schubert v Queensland Police Service

[2010] QDC 192

[2010] QDC 192

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE EVERSON
Appeal No 65 of 2010

STEVEN MAXWELL SCHUBERT	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
CAIRNS ..DATE 07/05/2010

JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 222 of the

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Justices Act 1886. It is an appeal against the decision of
Magistrate Pinder on 5 May 2010 wherein he fined the appellant
$500 and disqualified him from holding or obtaining a driver's

licence for a period of nine months.

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The offence was pursuant to section 79(2) of the Transport
Operations (Road Use Management) Act 1995 which states that
any person who is over the general alcohol limit but not over
the high alcohol limit who relevantly drives a motor vehicle

is guilty of an offence and liable to a penalty not exceeding	20
14 penalty units or to a term of imprisonment for a term not exceeding three months.
Pursuant to section 79A, the general alcohol limit is more
than 50 milligrams of alcohol in 100 mL of blood, and the high	30
alcohol limit is more than 150 mg of alcohol in 100 mL of
blood. Pursuant to section 86 of the Act, a person who is
convicted of an offence pursuant to section 79(2) who has not
similarly offended during a period of five years before the
conviction is liable to a period of disqualification from	40
holding or obtaining a driver's licence of not less than one month and not more than nine months from the date of the conviction.
Magistrate Pinder imposed the maximum period of	50

disqualification having regard to a number of factors,
including the prevalence of drink driving in the matters
coming before him and the fact that the appellant had
previously been convicted and disqualified from driving on 2 JUDGMENT 60

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three occasions.

July 2003 he was convicted of drink driving. On the first	10
occasion the blood alcohol reading was .086 and he was fined $300 and disqualified from driving for one month. On 6 July 2003 the blood alcohol reading was .057 and he received a $400
fine and was disqualified from driving for four months, and in
between that period, on 20 December 2002 the blood alcohol	20
reading was .053 and he was fined $200 and disqualified from driving for three months.
On the occasion giving rise to this appeal, the penalty was
imposed in respect of a blood alcohol reading 0.105. Pursuant	30
to section 225 of the Justices Act, on the hearing of an appeal, I may confirm, set aside or vary the appealed order, or make any other order I consider just.
Considering the period between the last relevant offence and	40
the offence giving rise to this appeal, and taking into
account that the blood alcohol reading was two-thirds of the range giving rise to this offence, I'm of the view that even taking into account the need for deterrence in sentencing, the
period of disqualification imposed by Magistrate Pinder was	50
sentence giving rise to this appeal by substituting a period of disqualification of six months.

The appellant's traffic history is Exhibit 1 before me, and it
records that on three occasions between 23 March 2002 and 6

manifestly excessive. I therefore propose to vary the holding or obtaining a driver's licence for a period of six months from 5 March 2010. I otherwise confirm the penalty imposed at first instance.	3	JUDGMENT	60
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Anything arising out of that, Mr Crane?
MR CRANE: No, your Honour.
HIS HONOUR: Anything arising out of that, Mr Schubert?
APPELLANT: your Honour, what date does it commence from; I missed that?

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HIS HONOUR: Commences from the 5th of March 2010 when - you're basically disqualified for six months instead of nine months-----
APPELLANT: Yes.
HIS HONOUR: -----from the date Mr Pinder imposed the disqualification. Right?

APPELLANT: Is that the 5th of March?	30
HIS HONOUR: Well, it's what it says on the transcript here, 5th of March 2010.
APPELLANT: Very good, your Honour. I don't-----
HIS HONOUR: All right. Do you understand that?
APPELLANT: -----have it right in front-----
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HIS HONOUR: So six months after that, you'll be able to hold a driver's licence again. All right. Thank you. Adjourn the Court.
MR CRANE: Thank you, your Honour.
APPELLANT: Thank you, your Honour.
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4 JUDGMENT 60