Tweedie v Commissioner of Police

[2023] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

Tweedie v Commissioner of Police [2023] QDC 68

PARTIES:

NATHAN CRAIG DOUGLASS TWEEDIE
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

634 of 2023

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 Justices Act1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Holland Park – 13 March 2023

DELIVERED ON:

20 April 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2023

JUDGE:

Fantin DCJ

ORDER:

ORDERS MADE ON 20 APRIL 2023:

1.   APPEAL DISMISSED.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – applicant convicted on plea of guilty to one count of driving a motor vehicle without a driver’s licence – demerit points under sub-ss 78(1) & (3)(b) of the Transport Operations (Road Use Management) Act 1995 (Qld) – sentenced to six months disqualification from driving and a $600 fine – whether applicant was denied procedural fairness – whether period of disqualification imposed was manifestly excessive

LEGISLATION:

Criminal Code Act 1899 (Qld), s 24
Justices Act 1886 (Qld), s 42, s 48, s 222, s 225
Transport Operations (Road Use Management) Act 1995 (Qld), s 78, s 127, s 308, s 309, s 310, s 311

CASES:

WGC v The Queen (2007) 233 CLR 66

COUNSEL

Maleckas L (solicitor) for the respondent.

SOLICITORS

Appellant appeared on his own behalf.
Office of the Director of Public Prosecutions for the respondent.

FANTIN DCJ: …

On 13 March 2023, the appellant pleaded guilty in the Magistrates Court at Holland Park to an offence under s 78(1)(b) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’) of driving without a driver’s licence.  He was fined $600 and disqualified from holding or obtaining a driver’s licence for six months.  He appeals against the sentence. 

The notice of appeal sets out, as his grounds of appeal, reasons why he needs a driver’s licence.  I will not refer to them in detail; they are repeated in his outline of submissions. 

Essentially, they relate to his very difficult family circumstances, including that he has three young children who have significant health issues and disabilities who require regular appointments at hospital, and a partner who experiences a health condition, which also results in her having to go to hospital reasonably regularly.  The appellant is the only person in his immediate family who holds a driver’s licence (his partner being unable to because of her medical condition).  The children also attend childcare for special needs children, and the lack of a driver’s licence causes he and his family very significant inconvenience.  Those grounds were expanded upon in the outline of submissions prepared by the appellant. 

The appeal is against the period of the licence disqualification, not the fine.  In his outline, the appellant also submits that he did not receive a fair hearing by the Magistrate at Holland Park, and that he was unaware at the time that his licence had been suspended. 

The appellant’s submissions are really directed towards why he ought to be permitted to continue driving, albeit on a restricted basis.  I heard oral submissions from the appellant and granted leave for his mother to assist him as a Mackenzie friend. 

The appellant has a learning disability, but understood the proceedings and was able to make oral submissions.  I accept that his condition would have contributed to the hearing before the Magistrate being unfair, but there is no suggestion that he did not understand the nature of the charge, or that it affected his plea of guilty to that charge. 

The respondent Crown concedes that the Magistrate failed to afford the appellant a fair hearing.  Notwithstanding that, the respondent maintains that the appeal should be dismissed because no different result would occur on resentence in this Court as the appellant received the mandatory minimum licence disqualification for the offence. 

The circumstances of the offending are that at approximately 7.40 pm on 9 February 2023, the appellant was intercepted by police while driving a motor vehicle on Beaudesert Road at Archerfield.  The police conducted checks of his driver’s licence, which revealed that it was suspended due to an accumulation of demerit points.  He told police he was unaware that his licence was suspended.  He was issued with a notice to appear, which required him to appear in the Magistrates Court at Holland Park on 13 March 2023 at 8.30 am. 

On that day he attended the Court in the morning and was told by a staff member at the ‘front desk’ or ‘reception’ to return at 2 pm.  He went back at 2 pm for the hearing.  When asked by the Magistrate why he had not appeared at 9 am he explained the advice he had received from the Registry.  The Magistrate proceeded to hear the matter.  According to the transcript, the hearing lasted three minutes.  The Magistrate read out a bench charge sheet, which alleged that, pursuant to sub-ss 78(1) and (3)(b) of the TORUMAct the appellant, on 10 February 2023, drove a motor vehicle while not being the holder of a driver licence, and that at the time he was disqualified from holding or obtaining a driver licence because of the accumulation of demerit points. 

There was a minor error in the bench charge sheet in that the date of the offence referred to in some locations was incorrect.  The appellant was intercepted by police not on 10 February 2023 but on 9 February 2023.  The appellant pleaded guilty to the charge.  On the hearing of the appeal I raised that date error with the respondent, who sought leave to amend the bench charge sheet to refer to the correct date.  Under sub-s 42(2) of the Justices Act 1886 (Qld), particulars of the charge entered on the bench charge sheet are taken to constitute a complaint. The power to amend is contained in s 48 of that Act. Nothing turns upon the date error because the date was not material nor an element of the offence: see WGC v The Queen (2007) 233 CLR 66. The prosecution needed to prove that at the time of the offence the appellant was disqualified from holding or obtaining a driver licence because of the allocation of demerit points, which the appellant’s traffic history established. There was no suggestion that the appellant was misled by the date error.

There was then an exchange between the Magistrate and the appellant, where he was asked whether he was pleading guilty of his own free will today.  He answered: ‘Yes.’  The Magistrate asked him whether he needed legal representation or support.  Despite the appellant saying: ‘Can I get that, or –’, the Magistrate said: ‘Well, you - it was here for you this morning, and it actually wouldn’t have assisted you with this.’

The Magistrate then asked whether the appellant needed to get his own private lawyer involved, and the appellant said: ‘Yes.’ The Magistrate then said: ‘You do?  Where are they?’ The appellant replied: ‘I haven’t got one.  Sorry.’ The Magistrate then said: ‘Okay then.  So you are not even organised, so okay.  I’ll accept the plea of guilty.  Have a seat.’

The police prosecutor placed a brief summary of the facts on the record.  The Magistrate asked the appellant what he would like the Magistrate to take into account for the charge.  The appellant said he did not know.  The Magistrate said: ‘Well, this is your opportunity to put some information before the Court to persuade me to impose a less serious sentence, and you can stand up to do so.’ Although the appellant then said: ‘Go to the - like, what do you mean?’ The Magistrate responded: ‘There’s nothing you wish to say?’ The appellant replied: ‘No.’  The Magistrate then announced his decision. 

He said, amongst other things: ‘In the circumstances, with no information from your part, you are disqualified from holding, obtaining a Queensland driver’s licence for six months.’ He was also fined $600.  The Magistrate noted that the appellant was ineligible for a special hardship licence. 

The appeal is pursuant to s 222 of the Justices Act 1886 (Qld), by way of rehearing on the original evidence given before the Magistrate. The Court on the hearing may confirm, set aside, or vary the appealed order or make any other order in the matter the Judge considers just: sub-s 225(1) of the Justices Act 1886 (Qld).

In order to succeed, the appellant must demonstrate that, having regard to all of the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. 

The appeal was concerned only with the six month disqualification period.  The disqualification period of six months was the mandatory minimum disqualification set by the legislation where there is a conviction of an offence of driving while disqualified from holding or obtaining a driver licence because of the allocation of demerit points: see sub-ss 78(1) and (3)(b), as well as sub-s 127(4)(b) of the TORUM Act. 

Because the disqualification period imposed by the Magistrate is the mandatory minimum, it can only be set aside if the conviction for the disqualified driving offence is set aside.  The appellant’s traffic history, which was tendered, was to the effect that, on 23 June 2022, the appellant commenced a 12 month good driving behaviour period because he had previously been on a provisional licence and had accumulated more than the relevant number of demerit points. 

During that 12 month good driving behaviour period, he accumulated three more demerit points for speeding.  That occurred on 1 August 2022 and 8 August 2022.  As a result of accumulating those demerit points during a 12 month good driving behaviour period, his licence was suspended for six months.  That suspension appears to have taken effect in September or October 2022. That is, at the time he was intercepted by police, on the 9th of February 2023, his licence had in fact been suspended for approximately four months. 

The appellant does not dispute that he was driving on a date within the six month suspension period including when he was intercepted by police.  He says that he was unaware that he was disqualified from driving because he did not receive notification.

A mistaken belief that an activity is lawful or authorised is a mistaken belief as to a matter of law rather than a matter of fact, so s 24 of the Criminal Code Act 1899 (Qld) does not apply. Even if the appellant truly held that belief, that is that he was entitled to drive, it did not amount to an excuse or defence at law.

Section 78(3) of the TORUM Act states:

(3) If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance -

Subsection (b):

(b) … if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because of the allocation of demerit points - 6 months. 

Note –

See section 127 subsection (4)(b) for the effect of a suspension because of the allocation of demerit points under the driver licensing regulation.

It is clear from the appellant’s submissions that he was under a number of different life stressors at the relevant time and may well have been unaware his licence was suspended.  As I have explained, unfortunately, that does not excuse him from the commission of the offence. 

With respect to the lack of procedural fairness, I agree with the prosecutor’s submissions that the Magistrate failed to afford procedural fairness to the appellant.  Of course, the Court takes into account that Magistrates hearing such matters are in a very busy jurisdiction under time pressure.  That does not excuse a Magistrate from providing sufficient information and an opportunity to be heard to a litigant in person who is clearly unfamiliar with the court process.  While the way in which the Magistrate conducted the hearing was unfortunate, there is no legal basis upon which it can affect the result in this appeal. That is, even if the appeal were allowed and the defendant appellant were resentenced, no different result would follow because the Court must apply the mandatory minimum qualification period prescribed by Parliament. 

While the Court can and does have sympathy for the appellant, given the hardship that this disqualification is clearly causing him and will continue to cause he and his family, for the reasons previously explained, that is simply the harsh result of the mandatory sentencing provision. 

I heard detailed submissions from the prosecutor with respect to the question of whether the appellant was ineligible for a special hardship order. Having regard to s 308 of the TORUM Act and the definitions referred to therein, as well as ss 309, 310 and 311 of that Act, I agree that the appellant is ineligible to apply for a special hardship order.

For those reasons, there is no alternative but to dismiss the appeal.