A Brisbane judge has quashed a disqualified driving conviction imposed against a homeless man found asleep in a car.
Brisbane District Court Judge Paul Smith, in a decision published on Friday 6 August, quashed the conviction handed to Ankit Sisodia in the Richlands Magistrates Court, on Brisbane’s western outskirts, on 21 May.
Sisodia had pleaded guilty to a charge of being in control of a vehicle while under the influence of liquor (UIL in charge) on 3 March 2021, but an additional charge of disqualified driving was added during his court appearance.
The charge, according to Judge Smith, was only proffered after the presiding magistrate “interrupted” defence submission during a sentencing hearing to quiz police prosecutors as to why Sisodia was only appearing before the court for the single traffic offence.
The details were revealed during Sisodia’s appeal under Section 222 of the Justices Act 1886 (Qld) “against the severity” of a nine-month jail term he received for being in charge of a motor vehicle while having a blood alcohol level more than five times the legal limit (0.267).
Sisodia also appealed his conviction for disqualified driving on the grounds his plea before the magistrate was “not a proper plea and attributable to a genuine consciousness of guilt” and the prison term he received for that offence was “manifestly excessive”.
In a seven page written decision, Judge Smith said: “The defence solicitor informed the Magistrate that (Sisodia) suffered serious medical conditions.
“The night before his arrest (Sisodia) was in severe pain. He was homeless living in his car and was not able to go to his usual medical centre. The Magistrate then interrupted the defence submissions and asked (the following).
Magistrate: “Senior (police prosecutor) has anyone bothered to even notice the fact that he was disqualified (from driving) as well?
Police prosecutor: “It doesn’t appear so you Honour. I was just looking at this this morning.
Magistrate: “Unbelievable.
Police prosecutor: “There’s not much I can say.
Magistrate: “Were you intending to proffer an additional charge?
Police prosecutor: “I would your honour.”
Judge Smith said the presiding magistrate then stood the matter down, informing Sisodia’s solicitor he was doing so to allow police to organise “another bench charge sheet”.
“The court adjourned for about two-and-a-half hours and then resumed,” he said.
“The defence lawyer informed the Magistrate … his instructions were that (Sisodia) did not drive and was sleeping in the car and he was not guilty of the disqualified driving charge.”
The solicitor also revealed he had only been granted legal aid to defend Sisodia on the UIL charge and not the fresh offence.
“At that point, the Magistrate told (Sisodia) to stand, he read the (disqualified driving) charge to him and (Sisodia) pleaded guilty,” Judge Smith said.
“The defence solicitor (then) repeated his instructions that (Sisodia) was homeless and used his car as his home and slept in (it). Police were familiar with this and this is why they never charged him with the disqualified driving (at the time of initial arrest).”
Despite the submissions, the magistrate sentenced Sisodia to nine-months’ jail for the two offences and in his sentencing remarks noted this was the fourth time in two years Sisodia had appeared before the court with blood alcohol readings in excess of 0.2, or four times the legal limit.
In quashing the disqualified driving conviction and resentencing Sisodai for the UIL, Judge Smith said pleas of guilty could be set aside on appeal by the court where it would be a miscarriage of justice to allow the plea to stand.
“Firstly, a judicial officer should be careful not to advise a prosecuting authority to lay a charge which is not before the court,” he said.
“Next, the entry of a plea of guilty was equivocal. Indeed, the defence lawyer raised a defence to the charge. In those circumstances, the appropriate course for the Magistrate was to direct that a plea of not guilty be entered despite the plea of guilty and the matter should have been listed for trial.
“In this case, it was clear that the Magistrate ought not to have continued with acceptance of the plea of guilty.”
Judge Smith ordered the appeal be allowed, quashed the disqualified driving convictions and resentenced to serve 70-days for the UIL offence.
He further ordered the term be served concurrently with an activated 12-month prison term Sisodia received for a previous offence in 2019.
Read the decision.
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