HARVEY and QUEENSLAND POLICE SERVICE

[2022] QDC 11

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE SMITH

Appeal No 81 of 2021

BENJAMIN THOMAS HARVEY  Appellant

and

QUEENSLAND POLICE SERVICE  Respondent

SOUTHPORT

10.08 AM, FRIDAY, 25 FEBRUARY 2022

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

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HIS HONOUR:   This is an appeal against the sentenced imposed in the Southport Magistrates Court on 23 February 2021.  The appellant pleaded guilty to one charge of driving under the influence, one charge of failing to provide a specimen of blood, and one charge of failing to comply with his duties as a driver involved in a crash.  He was fined a total of $1700 with convictions recorded.  The appeal alleges the recording of the convictions was manifestly excessive.  The appeal is by way of rehearing and the Court must make its own determination giving due weight to the magistrate’s decision. It is usually necessary for an appellant to establish legal discretionary or factual error.

The prosecutor informed the Court that at about 10.40 am on 18 October 2020 the appellant was driving a Ford Territory four-wheel drive.  He turned very wide on a green arrow and his vehicle collided with a bridge guardrail.  His car bounced off and then collided with another car.  He did not stop and drove off.  He was later apprehended by police and admitted to driving the car.  He blew zero.  He admitted though taking Xanax and paracetamol prescribed by a doctor.  He displayed indicia he was under the influence of something.  He was taken to hospital and admitted taking 50 Xanax tablets.  He refused to provide a sample of blood.

His traffic history was tendered.  There were no previous drink driving offences.  The Court had possession of a mental health report with indicated the appellant had an adjustment disorder with depressed mood at the relevant time.  He ingested the medication as a suicide attempt.  He did not recall driving the vehicle.  The report noted he was born in New Zealand;  he had been diagnosed with Tourette’s syndrome.  He had been the subject of bullying at school.  His parents divorced when he was 16.  He finished high school and worked in a supermarket.

He engaged in illegal drug use as a young man but was no longer using drugs, illegal drugs.  His relationship had broken down, there was one child.  He moved to the Gold Coast in 2006 and worked for a bank but after the GFC had suffered panic attacks.  He married his wife in 2011. There was one son aged seven but they were divorced in 2018 and there was no contact.  His present partner, Sarah, had PTSD.  In November 2009, he was attacked by two men known to Sarah.  This had a devastating effect on his mental health.  He had previously had two mental health admissions and a number of suicide attempts.  He had limited recollection of the offences and was under a lot of emotional stress.

The report noted he was not deprived of the relevant capacities but it was clear his intellectual functioning was impaired.  The defence lawyer submitted he had fairly tragic circumstances, he was deeply remorseful and intoxication explained his conduct.  He was employed as a placements officer at Griffith University and had worked there for 10 years.  He had a degree in psychology.  He had booked himself into the Gold Coast Hospital to address his issues.  It was submitted that fines without conviction should be imposed, he had bearing in mind no relevant previous convictions.

The magistrate took into account the pleas of guilty and the other matters raised.  He imposed the fines I have previously mentioned and said there was no reason why he should not record a conviction.  The defence lawyer tried to argue against the penalty insofar as the convictions were concerned, pointing out the appellant was the primary breadwinner and his partner did not work.  He had four children to a previous relationship and supported them financially.  But he acknowledged he was not in a position to provide material as to the effects of a conviction.

The magistrate found, after this further argument, there was nothing placed before him as to the detrimental effect of the recording of a conviction and he affirmed the recording of the convictions. 

In written submissions the appellant submits the magistrate erred in failing to have proper regard to section 12 of the Penalties and Sentences Act. It is further submitted the magistrate failed to have regard to the mental health report and the connection between the appellant’s mental state and the offending, relying on R v Bowley [2016] QCA 254. Is it submitted the magistrate had failed to have regard to the impact of the recording of a conviction?

It is submitted that the discretion should be re-exercised by this Court and given all of the circumstances no conviction should be recorded. But Mr Jacob, in oral submissions stressed these matters. He said there were a number of errors. Firstly, it is submitted the magistrate in error though the starting point was the recording of a conviction and section 12 should have been considered. It submitted he did not take into account the report and the mental health issues contained therein. It is submitted there was too much weight placed on the offences as compared to other matters.

It is submitted there was a failure to consider the impact on social wellbeing. The Crown in written submissions, though, submits the appeal should be dismissed. It is submitted the magistrate did consider section 12. The respondent points out there was no material outlining the effect of the recording of convictions. It is submitted that the magistrate did have regard to the mental health report. It is submitted the appellant deliberately drove with the car and put himself and others in danger. He was a mature man; the offending was reckless and the recording of a conviction was within the sound exercise of the sentencing discretion.

In oral submissions, and Ms Simpson repeated the written submissions that the magistrate did take into account the submissions made by the defence lawyer and the report.  It is pointed out there was no deprivation of any capacity.  He was 38 at the time, and he was mature, there was no material as to any economic impact.  There is no new supporting material here and, indeed, Mr Jacob has advised me that there is no requirement to inform the university of the convictions unless he has to apply or reapply for a job although submits there may be future impact one does not know about.

The Crown distinguishes the cases relied on by the defence and submits the acting magistrate did take into account all the submissions and repeats the submissions, it was a reckless offence, and members of the public were put in danger by this behaviour.  The maximum penalties for each of the offences were charge 1, 28

penalty units or nine months imprisonment.  A penalty unit was $137 so the total was $3836.  Charge 2, the same.  And charge 3, 20 penalty units, a total of $2740.  In my view, the magistrate whilst he gave very short reasons did take into account the submission made by the defence lawyer and did take into account the Court Liaison Service report.

He did not mention section 12 specifically but said later that he had taken it into account. If that is thought to be an error, in my view, the penalty imposed was a modest one, $1200 on counts 1 and 2 and $500 in charge 3. The magistrate ultimately did take into account the pleas and the matters submitted upon by the defendant. No doubt, this was why the fines were modest ones. As to the recording of convictions, it was a balancing exercise. One has to consider the seriousness of the offence as compared to the impacts which might occur to the appellant. The offences here were serious. It was a deliberate act, admittedly with some impairment, but deliberate, nonetheless. There were significant risks to other road users.

There was limited evidence about any economic or social wellbeing impact.  I think the seriousness of the offences outweighs the effect on economic and social wellbeing bearing in mind the absence of evidence on this point.  In the circumstances, I consider that the recording of convictions despite the appellant’s otherwise good history was within the sound exercise of the sentencing discretion.   Having regard to the relevant provisions of the penalties and sentences Act the provisions of the TORUM Act, the appellant’s submissions and the respondent’s submissions and taking into account the pleas of guilty.

I am not persuaded  that the penalty was wrong or that error was established but even if error is established, I am not persuaded though to impose a different penalty to that which was imposed below.  In those circumstances I am not persuaded though to impose a different penalty to that which was imposed below.  In those circumstances, I dismiss the appeal. 

Any further reasons needed?

MR JACOB:   No, thank you, your Honour.

MS SIMPSON:   Thank you, your Honour.

HIS HONOUR:   Ms Simpson.

MR JACOB:   Thank you, your Honour.

HIS HONOUR:   Thank you both for your assistance. 

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