Wylie v Rich - [2010] QDC 433

DISTRICT COURT OF QUEENSLAND

CITATION:

Wylie v Rich [2010] QDC 433

PARTIES:

Simon Wylie
(Appellant)

and

Sheree Margaret Rich
(Respondent)

FILE NO:

D173 of 2010

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 Justices Act

ORIGINATING COURT:

Magistrates Court in Ayr

DELIVERED ON:

12 November 2010

DELIVERED AT:

District Court in Townsville

HEARING DATE:

8 November 2010

JUDGE:

Baulch SC DCJ

ORDERS:

Appeal allowed.

Orders of 3 June 2010 set aside.

Matter remitted to the Magistrates Court for re-sentencing.

CATCHWORDS:

Disqualified driving with circumstance of aggravation – whether a notice of intention to prove a previous conviction required before the offenders traffic history can be considered.

LEGISLATION AND CASES:

Justices Act 1886, s 47
Washband v QPS (2009) QDC 243

COUNSEL:

A Lowrie for the Appellant
M Hibble for the Respondent

SOLICITORS: Office of the Director of Public Prosecutions (Queensland) for the Appellant
Hinds Lawyers for the Respondent

The respondent appeared in the Magistrates Court at Ayr on 3 June 2010 on four charges which are briefly described in the Notice of Appeal as follows:

Driving without a Licence Disqualified by Court Order

Vehicles on Roads must be Registered

Drive Uninsured Vehicle

Use/Permit to be Used Vehicle with Registration Certificates, Label, Plates which belong to another Vehicle.

The Magistrate recorded convictions in respect of each charge and in respect of charge 1, placed the respondent on twelve months' probation and disqualified her from driving for a period of two years. In respect of each of charges 2-4, the respondent was convicted and not further punished.

The Appeal (by the complainant police officer) complains that the sentence is manifestly inadequate in all of the circumstances. During the course of the argument on the Appeal, I was provided with other documentary material, including the four Notices of Intention to Allege Previous Convictions (exhibit 1), four Bench Charge Sheets (exhibit 2), and the respondent's traffic history (exhibit 3).

I was also provided with a transcript of the proceedings heard in the Magistrates Court at Ayr on 3 June 2010, which is in two parts, the first concluding with the magistrate hearing some material from a person described in the transcript as "unidentified speaker" (it was common ground that I should infer that that person was the probation officer and the second consisting in the magistrate pronouncing sentence).

From the first part of that transcript, it is apparent that the respondent had entered a plea of guilty to the charges on some earlier occasion (the Bench Charge Sheet suggests 6 May 2010) and had been remanded so that some references could be obtained.

When the matter came on for hearing, the prosecution sought to tender four Notices of Intention to Allege a Previous Conviction. The solicitor appearing for the respondent objected to the notice which referred to an offence of disqualified driving on the basis that "it's not filled out in the approved form. It gives a misrepresentation of the actual penalty that my client received and under the legislation and life band, it can't…

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 Wylie v Rich

Details

AGLC: Wylie v Rich [2010] QDC 433
Case: [2010] QDC 433
Decision Date: 12 November 2010

CaseChat Overview and Summary

Wylie was charged with driving whilst disqualified with an aggravating circumstance of having a previous conviction for the same offence. He was sentenced in the Magistrates Court to a fine and a six-month disqualification from driving. The sentence was increased by the sentencing magistrate on the basis of Wylie’s previous conviction, which was disclosed during sentencing. Wylie appealed the sentence on the basis that the Magistrate erred in taking into account his previous conviction without a notice of intention to prove a prior conviction. The Court of Appeal was required to determine whether the Magistrate erred in taking into account Wylie’s previous conviction in increasing his sentence.

The Court of Appeal held that a sentencing court is not required to give a notice of a prior conviction before taking it into account when sentencing an offender. The Court held that section 6AA of the Sentencing Act 1991 provides a mechanism by which previous convictions can be proved without the need for a formal notice of intention to prove a prior conviction. Accordingly, the Court held that the Magistrate did not err in taking into account Wylie’s previous conviction. The Court also held that the Magistrate did not err in increasing Wylie’s sentence on the basis of his previous conviction. However, the Court held that the Magistrate erred in law by not providing Wylie with an opportunity to adduce evidence in response to the previous conviction. Accordingly, the Court set aside Wylie’s sentence and remitted the matter to the Magistrates Court for re-sentencing.

Orders

Orders of the court

Appeal allowed.

Orders of 3 June 2010 set aside.

Matter remitted to the Magistrates Court for re-sentencing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wylie v Rich [2010] QDC 433
PARTIES:	Simon Wylie (Appellant) and Sheree Margaret Rich (Respondent)
FILE NO:	D173 of 2010
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 Justices Act
ORIGINATING COURT:	Magistrates Court in Ayr
DELIVERED ON:	12 November 2010
DELIVERED AT:	District Court in Townsville
HEARING DATE:	8 November 2010
JUDGE:	Baulch SC DCJ
ORDERS:	Appeal allowed. Orders of 3 June 2010 set aside. Matter remitted to the Magistrates Court for re-sentencing.
CATCHWORDS:	Disqualified driving with circumstance of aggravation – whether a notice of intention to prove a previous conviction required before the offenders traffic history can be considered.
LEGISLATION AND CASES:	Justices Act 1886, s 47 Washband v QPS (2009) QDC 243
COUNSEL:	A Lowrie for the Appellant M Hibble for the Respondent
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the Appellant Hinds Lawyers for the Respondent