Steinberg v Lundgaard - [2001] QCA 332

[2001] QCA 332

COURT OF APPEAL

DAVIES JA
THOMAS JA
BYRNE J

CA No 150 of 2001

HEATHER JOY STEINBERG

JENS BJERG LUNDGAARD (Applicant)

BRISBANE

..DATE 14/08/2001

JUDGMENT

DAVIES JA: The applicant before this Court pleaded guilty in the Magistrates Court at Noosa Heads on 22 May 2000 of driving under the influence of liquor on 4 April 2000. He was found to have a blood alcohol reading of 0.20 per cent.
He was sentenced to seven days' imprisonment and two years' probation. He was also disqualified from holding or obtaining a driver's licence for a period of two years.

He appealed against that sentence in the District Court, but his appeal was struck out by a District Court Judge on
26 March this year. The circumstances in which it was struck out, which are not in dispute, were as follows.

The respondent applied to the learned District Court Judge to strike out the appeal, without having complied with
s 229(1) of the Justices Act, purporting to rely on a practice direction of the District Court authorising notification of such an application by a letter. This Court in Gamble v Davidson, CA No 111 of 1998, 19 June 1998, held that such a practice direction cannot operate to affect the obligation under s 229. It is plain, therefore, that the appeal should not have been struck out and the respondent has conceded that.

The applicant seeks an extension of time and leave to appeal to this Court. For the reasons I have just given, and because the delay is not great, both the extension and leave should be granted. However, the respondent contends that, in any event, the decision of the learned Magistrate was plainly right and consequently the appeal to this Court should be dismissed.

There is no doubt that the learned Magistrate was influenced in imposing the sentence of seven days' imprisonment by his view that that was mandatory. However, the respondent concedes that in the circumstances of this case, that was not correct.

The applicant had twice previously been convicted of driving under the influence of liquor. The first of those occasions was on 30 November 1995 when he had a blood alcohol reading of 0.193 per cent. The second was on 9 January 1998 when he had a blood alcohol reading of 0.164 per cent. On each of those occasions he was substantially fined and disqualified from holding or obtaining a driver's licence for 16 months. The learned Magistrate appears to have acted in accordance with s 79(1C) of the Transport Operations (Road Use Management) Act, which provides that in circumstances where an offender has within five years been twice convicted under that subsection, the Court shall in respect of the offence impose, as a whole or part of the punishment, imprisonment. However, the circumstance requiring that aggravated penalty was not properly alleged. See Justices Act s 47(4) and (5). It was accepted by the respondent in this case that no notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Steinberg v Lundgaard

Details

AGLC: Steinberg v Lundgaard [2001] QCA 332
Case: [2001] QCA 332
Decision Date: 14/08/2001

CaseChat Overview and Summary

Steinberg v Lundgaard involved the applicant, Jens Bjerg Lundgaard, appealing against his sentence for driving under the influence of alcohol. Lundgaard was found to have a blood alcohol reading of 0.20 percent and was sentenced to seven days' imprisonment and two years' probation by a Magistrate at Noosa Heads. He was also disqualified from holding or obtaining a driver's license for two years. The sentence was imposed under the belief that it was mandatory due to previous convictions, but this was later found to be incorrect as the necessary notice was not served. The District Court struck out Lundgaard's appeal due to procedural errors, but he sought an extension of time and leave to appeal to the Court of Appeal.

The legal issues revolved around whether the appeal should be struck out due to procedural errors, and if the sentence imposed by the Magistrate was appropriate given the circumstances. The Court of Appeal found that the District Court erred in striking out the appeal without proper notification under the Justices Act. Additionally, the Magistrate's belief that the sentence was mandatory was incorrect, as the necessary notice under the Justices Act was not served. Consequently, the sentence should be set aside.

The Court of Appeal concluded that the appeal should be allowed, and the sentence set aside. They granted an extension of time and leave to appeal, finding that the Magistrate's error in imposing the sentence was critical to the decision. The Court deemed it appropriate to remit the matter back to the Magistrates Court for re-sentencing, rather than re-sentencing themselves. The Court ordered the sentence and the order dismissing the appeal to the District Court to be set aside, and directed the Magistrates Court to proceed according to law with all necessary adjournments.

The final orders of the Court of Appeal were to extend the time for the application to 20 June 2001, grant leave to appeal, allow the appeal with costs, set aside the sentence and the order of the District Court Judge, and remit the matter to the Magistrates Court for re-sentencing.

Orders