Matthew Alexander George Hutton v Commissioner of Police

[2023] QDC 187

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE LYNCH KC

Appeal No 847 of 2023

MATTHEW ALEXANDER GEORGE HUTTON       Appellant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

9.48 AM, THURSDAY, 20 JULY 2023

DAY 1

JUDGMENT

Any rulings in this transcript may be extracted and revised by the presiding Judge.

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HIS HONOUR:   This is an appeal against sentence in respect of proceedings that took place in the Richlands Magistrates Court on the 13^th of March 2023 before Magistrate Shearer.  The sentence imposed by Magistrate Shearer was a fine of $1800, a licence disqualification for 11 months – effectively 12 months, taking account of the period of suspension that preceded the hearing of the case before the Richlands Magistrates Court – and the recording of a conviction. 

The appeal is conceded, in my view, quite properly so, and I will, in due course, make the formal orders that are sought by the appellant and which the respondent concedes are just.  I need, however, to explain the basis upon which the appeal should be allowed.  This is an appeal against sentence, and the only ground permitted under the legislation is that the sentence is excessive. 

The appellant identifies a number of errors in the proceedings below, and the overall position is that in relying upon some further material in the form of an affidavit from the appellant, the orders sought are appropriate.  A number of errors are apparent from the record of the proceedings before Magistrate Shearer.  The most fundamental of those concerned the charge and the basis upon which Magistrate Shearer proceeded to sentence the appellant. 

The bench charge sheet that is before me and which was before the magistrate shows that the charge was one pursuant to section 79, subsection (1)(c) of the Transport Operations Road Use Management Act, of being in charge of a motor vehicle whilst under the influence of liquor. The charge according to the bench charge sheet reads:

That on the 9^th day of February 2023 at Calamvale in the Richlands division of the Brisbane Magistrates Court district in the State of Queensland, one Matthew Alexander George Hutton, whilst he was under the influence of liquor or a drug, was in charge of a motor vehicle – namely, motorcar – on a road – namely, Gowan Road, Calamvale. 

There are further averments concerning the vehicle being a motor vehicle as defined, and the road being a road as defined, which are not presently relevant.  The learned magistrate purported to arraign the appellant at the commencement of the proceedings.  The arraignment was in the following terms:

Matthew Hutton, you are charged that on the 9^th of February 2023 at Calamvale, you, whilst you were under the influence of liquor or a drug, drove a car on Gowan Road.  How do you plead:  guilty or not guilty?

To that question, the appellant answered guilty, presumably unaware that the charge read to him, or purported to be read to him by the magistrate was inconsistent with the charge that he, in fact, faced.  I proceed on the basis that the solicitor then acting for the appellant also was taken unaware by the significant change in the wording of the charge as related by the magistrate compared to what, in fact, existed.  It is difficult to understand how such an error could take place.  I can only assume

that Magistrate Shearer did not have the charge in front of him when he read it, and that he proceeded on a basis of the case which was not legally correct. 

There is, of course, a significant difference between someone who is in charge of a vehicle and someone who is driving a vehicle whilst under the influence of liquor or a drug.  The facts placed before the magistrate by the Prosecutor included that the appellant was found by police lying adjacent to the vehicle, apparently asleep but clearly intoxicated, was woken by the police, appeared to be under the influence of liquor and told the police the keys would be in the centre console, which is where they were found. 

In the course of hearing submissions, Magistrate Shearer was highly critical of the conduct of the appellant in driving a vehicle, and the tenor of his remarks indicate that he regarded the danger created for other road users as being the most serious aspect of the conduct.  In sentencing the appellant, the magistrate’s remarks were short, but I should identify them in full, because it demonstrates the effect of the error regarding the charge, and also highlights other problems.  Magistrate Shearer directed the appellant to stand up.  The magistrate said:

I do not agree that six months is an appropriate sentencing response to a high-range drink driving charge at all.  As I said before, the TORUM, in three different places, says that the Court must take into account the level of the reading, the risk the person imposed to themselves and other users, quite clearly at .151, you or someone else’s serious injury or death were to happen if you had not been pulled up by the road, vomiting. 

I have taken into account your plea of guilty; I have taken into account that you have done the traffic offenders program – although, that is like closing the stable door after the horse has bolted.  The only point to it is, firstly, you get some sort of mitigation for your sentence, inevitably, but also, make sure you do not do it again.  It is the fact that you cannot drink and drive is no one’s – it is no secret.  Everybody knows that.  It has been endlessly reinforced to the public for decades, and yet, people still do it.  Still stupid enough – still go out and injure and kill others. 

So public safety is the overwhelming sentencing consideration in these sorts of matters, not someone’s personal convenience or what might or might not happen to them at work as a consequence.  As I have said, I have taken into account your plea of guilty.  I have taken into account the fact that it is your first drink driving offence; although, you started with a bang. 

You are convicted and fined $1800.  It will be referred to SPER.  A conviction is recorded.  I take into account the month you had been suspended.  Your licence is disqualified for 11 months; give it to the Prosecutor, please.  Take one of those red sheets that is in front of you, and make sure you read it. 

What is clear from those remarks is that the magistrate sentenced the appellant on the basis that he was guilty of the offence of driving a vehicle whilst under the influence of liquor.  That was not the basis of the charge before the Court. Although there is clear error on the part of the magistrate, the submissions of the appellant are to the effect that I should deal with the case on the basis of there being a material error and deal with the appellant for the offence that he was actually charged with – not the one recited by the magistrate.  I should do so, and no contrary position is taken by the respondent. 

It is clear from the sentencing remarks of Magistrate Shearer that he regarded the most significant aspect of the offence, being a reading at .151, as being the concern for other road users by reason of the appellant driving in that condition.  That, of course, is contrary to the very charge.  In the course of submissions before the magistrate, it was contended on behalf of the appellant that a disqualification towards the lower end of the range – the minimum being six months – was appropriate, given that the appellant’s blood alcohol level was 0.151 per cent, and that was for offences of a reading of .150 per cent or higher.  In the course of those submissions, the magistrate remarked:

If you blew a reading of around .09 to .1, that might get you six months – .151 does not. 

As is obvious from that remark, the learned magistrate was incorrect in his assessment of the legislation, and inevitably, applying that rationale fettered the discretion that is allowed under the legislation.  There was a level of prejudgement exhibited in the remark of Magistrate Shearer.  That, too, is an error in the way that he approached the sentence.

The submissions made on behalf of the appellant below were to the effect that he was at risk of losing his employment, and as it eventuates, that is precisely what occurred.  The fine of $1800 that was imposed by Magistrate Shearer is properly to be regarded as excessive, having regard to the various comparable cases referred to in the submissions before me.  No effort was made by magistrate Shearer to inquire as to the appellant’s ability to pay such a fine.  That was something that was an obvious inquiry, given that he was informed of the real possibility that the appellant would lose his employment.  Again, I would regard that as an error. 

The learned magistrate referred in brief terms, as I have quoted, to the seriousness of the offence before imposing the penalty that he did. He did not give any explanation as to why he recorded a conviction. The Penalties and Sentences Act does not state any default position in respect of the recording of a conviction, but requires instead the application by the sentencing Court of weighing the various matters identified in the legislation. It is impossible to know what the basis was upon which Magistrate Shearer decided to record a conviction. He made no reference to any of those features.

As I have noted already, submissions of the respondent are to the effect that there was error in the proceedings before Magistrate Shearer.  I have identified those errors.  They were significant and resulted in a penalty which was out of proportion to the seriousness of the offence.  The respondent properly concedes that the penalty should be in accordance with that contended for by the appellant – that is, a fine of $800, a disqualification period of six months, and there be no conviction recorded, having regard to the appellant’s personal circumstances, including his loss of employment and his now tenuous or casual terms of employment. 

In addition, the appellant seeks an order that the respondent pay the appellant’s costs of the appeal in the amount of $1800.  The respondent opposes the making of the costs order.  I am satisfied it is appropriate to make such an order.  In the end, the appellant has been put to the cost of correcting error through no fault of his own, and although the conduct of the case by the respondent has been commendable, nevertheless, in circumstances where we are here through no fault of the appellant and he has been put to that cost, it is appropriate that he be compensated to an extent that is appropriate.

In the circumstances, I will make the order in terms of the draft.  I have amended the draft by deleting paragraph 5.  The sentence imposed on the 13^th of March of 2023 by Magistrate Shearer in the Magistrates Court of Queensland at Richlands is set aside.  Instead, the appellant is fined the sum of $800; his is disqualified from holding or obtaining a drivers licence for a period of six months.  I order that no conviction be recorded for this offence.  I further order that the respondent pay the appellant’s costs of the appeal in the amount of $1800.  Those are the terms within the draft.  I make the order in terms of the draft. 

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