Oue v Commissioner of Police

[2023] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

OUE v Commissioner of Police [2023] QDC 147

PARTIES:

OUE
(appellant)

v
COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

DC 611 of 2023

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

24 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2023

JUDGE:

Wooldridge KC DCJ

ORDER:

1.   The appeal is allowed.

2.   The sentence imposed in the Magistrates Court at Richlands on 8 March 2023 is set aside, and the following sentencing orders made:

a)   The appellant is fined $800.

b)     The appellant is disqualified from holding or obtaining a Queensland driver licence for a period of 3 months.

c)   No conviction is recorded.

3.   The respondent pay the appellant’s costs on this appeal,      calculated to be in the amount of $1800.  

CATCHWORDS:

APPEAL – MAGISTRATES – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – an appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was sentenced for an offence of Driving while over the general alcohol limit but not over the middle alcohol limit pursuant to s 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the appellant was fined $1600 and disqualified from holding or obtaining a driver licence for a period of 12 months – where a conviction was recorded – where the appellant contends the sentencing discretion miscarried due to specific error – whether the sentence was excessive

Justices Act 1886 (Qld) s 222, s 223, s 225
Police Service Administration Act 1990 (Qld) s 7.34, s 7.35
Penalties and Sentences Act 1992 (Qld) s 9, s 12
Transport Operations (Road Use Management) Act 1995 (Qld) s 79, s 86

Barbaro v The Queen (2014) 253 CLR 58
CDG v Commissioner of Police [2020] QDC 183
Colley-Presnell v Commissioner of Police  [2023] QDC 63
Connor John Wilson v The Commissioner of Police [2022] QDC 15
Franich v Commissioner of Police [2022] QDC 171
House v The King (1936) 55 CLR 499
McDonald v Queensland Police Service [2018] 2 Qd R 612
Mould v Newland [2001] QCA 211

Purcell v Commissioner of Police [2016] QDC 342

R v Graham [2023] QCA 125
R v Kilic (2016) 259 CLR 256
R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196
R v Pham (2015) 256 CLR 550
R v ZB [2021] QCA 9
Scarce v Commissioner of Police [2021] QDC 246
Teelow v Commissioner of Police [2009] 2 Qd R 489

Wilson v Commissioner of Police [2022] QDC 15

COUNSEL:

DP Jones KC for the appellant

DJ Sampey for the respondent

SOLICITORS:

Gnech & Associates for the appellant
The Office of the Director of Public Prosecutions (Qld) for the respondent

Introduction

1. On 8 March 2023 the appellant pleaded guilty in the Magistrates Court at Richlands to an offence of Driving while over the general alcohol limit but not over the middle alcohol limit, pursuant to section 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”).

2. The maximum penalty for an offence against section 79(2)(a) TORUM is a fine not exceeding 14 penalty units, or imprisonment for a term not exceeding 3 months. The learned Magistrate was also required to disqualify the appellant from holding or obtaining a Queensland driver licence for a period of not less than 1 month and not more than 9 months from the date of conviction.[1]

   [1]Section 86(2)(f) TORUM.

3. The appellant was fined $1600, to be referred to the State Penalties Enforcement Registry (SPER), and disqualified from holding or obtaining a driver licence for a period of 6 months from the date of sentence. A conviction was recorded.

4. By way of a Notice of Appeal filed 13 March 2023 the appellant appeals against the sentence imposed. The stated grounds of appeal are:

   1.   The Magistrate erred by recording a conviction;

   2.   The Magistrate erred by disqualifying the defendant’s licence for six months;

   3.   The sentence is manifestly excessive.

5. In the course of the appeal hearing[2] the appellant identified that Grounds 1 and 2 are in effect encapsulated by Ground 3, that the sentence imposed was manifestly excessive.

   [2]Transcript of Proceedings of 31 July 2023 at page 10.

6. The respondent accepted that the sentencing discretion had miscarried, and that the sentence imposed was excessive. 

7. For the reasons outlined below, the appeal is allowed.

The legal framework for the appeal

1. Section 222(2)(c) of the Justices Act1886 (Qld) provides that if a defendant pleads guilty or admits the truth of a complaint, they may only appeal under section 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive.

2. Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 is by way of rehearing on the evidence below.[3] No application to adduce new evidence was made on this appeal.

   [3]Justices Act 1886 (Qld) s 223.

3. In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.[4]  A mere difference of opinion between an appellate court and the court at first instance about the way in which the sentencing discretion may or should have been exercised is insufficient to justify appellate intervention. Absent demonstration of specific error, an appellant need establish that the sentence imposed was unreasonable or unjust such that the appellate court is driven to conclude that the exercise of the sentencing discretion has miscarried in some way.[5]

   [4]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3], [4]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].

   [5]See House v The King (1936) 55 CLR 499 at 504-505; R v Pham (2015) 256 CLR 550 at [28].

4. The powers of a judge on hearing the appeal are set out in section 225 of the Justices Act1886 (Qld). Section 225 provides:

   “225   Powers of judge on hearing appeal    

   (1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order  or make any other order in the matter the judge considers just.

   …

   (3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

   …”

   Submissions made at first instance before the learned Magistrate[6]

   [6]Counsel for the appellant at first instance relied upon written submissions (“the appellant’s written submissions”) supplemented by oral submissions.

   The circumstances of the offending

5. The police prosecutor informed the Magistrate of the following matters[7]:

   ·     At 9:41am on 10 January 2023 the appellant drove a motor vehicle[8] into the grounds of the police academy at Wacol, proceeded through the secure boom gate entrance, and parked the vehicle. The appellant was the sole occupant of the vehicle. The appellant’s driving into the police academy was captured on CCTV, as was his signing of the attendance register upon entering the training centre.

   ·     The appellant was later observed to be presenting with indicia consistent with his having consumed alcohol; his eyes were blood shot and liquor was detected on his breath.

   ·     At 11:38am a breath test was conducted. When that test returned a positive result, police from the highway patrol were contacted and attended upon the appellant at the training centre. Upon the administering of a further test utilising approved instrumentation his BAC was identified to be 0.099 (grams of alcohol in 210 litres of breath).

   ·     The appellant disclosed having consumed approximately five neat scotches between 7:30pm and midnight the night before. The appellant made admissions to that morning having driven his vehicle from his home address at Brighton, to Annerley, and then to the police academy at Wacol.

   [7]Transcript of Proceedings of 8 March 2023 from page 2 line 17; Exhibit 2 before the Magistrates Court.

   [8]It was not alleged to be a police vehicle.

6. Those facts were accepted by the appellant to be the factual basis for sentence.[9] The appellant was said to be off-duty and driving his private motor vehicle at the time.[10] It was highlighted that the appellant had been drinking the night before, rather than immediately preceding the offending, and that whilst on most occasions he knew his limit and when to stop drinking, he had on this occasion crossed that line.[11]

   [9]Transcript of Proceedings of 8 March 2023 at page 2 line 42 and page 5 lines 31-34. See also Transcript of Proceedings of 31 July 2023 at page 12 lines 37-45.

   [10]Appellant’s written submissions at paragraph 7. The submission of the police prosecutor did not suggest to the contrary. (Contra the allegation as contained within the stand-down notice issued on the appellant: Document NTD4 within Exhibit 4 before the Magistrates Court.)

   [11]Appellant's written submissions at paragraph 40.

   The appellant’s antecedents and personal circumstances

7. The prosecutor identified that the appellant did not have any criminal history. His traffic history was tendered.[12] It disclosed that the appellant had a prior offence of Driving under the influence of liquor on his traffic history in December 2008 – a high range drink driving with a BAC of 0.225, for which he was fined $1600, was disqualified from holding or obtaining a driver licence for 13 months, and no conviction was recorded.[13] He also had two offence of Speeding by less than 13km/hr in 2017 and 2020, respectively.

   [12]Transcript of Proceedings of 8 March 2023 at page 2 lines 36-38; Exhibit 1 before the Magistrates Court.

   [13]Transcript of Proceedings of 8 March 2023 at page 5 lines 1-3 and 39-40.

8. The appellant was said to be extremely remorseful for his conduct. Further to his indication of an intention to plead guilty at an early stage, he had written a letter of apology to his Officer in Charge.[14]

   [14]Transcript of Proceedings of 8 March 2023 at page 8 line 25; Paragraph 41 of the appellant’s written submissions; Document NTD2 within Exhibit 4 before the Magistrates Court.

9. The appellant was 47 years of age. He had been driving for some 30 years, since he was 17 years old.[15]

   [15]Appellant’s written submissions at paragraph 71.

10. He grew up in a close knit indigenous family. He completed his education in Mt Isa and Charters Towers. He had been married three times. His drinking on the night prior to the offence was said to be in the context of his “going through a difficult period” in his marriage.[16] He is the father of two children, aged 18 and 20, who were undertaking studies for qualification as an electrician and a teacher respectively, and whom he was said to support financially.

    [16]Transcript of Proceedings of 8 March 2023 at page 8 line 21.

11. The appellant had worked as a police officer for 27 years, stationed in Brisbane, Yeppoon, Doomadgee, Mornington Island, and for a period in the Northern Territory on secondment to the Australian Federal Police (AFP). He had qualified as a Detective and a police prosecutor.[17] During his career as a police officer the appellant had received a number of awards – a leadership award whilst a police recruit, the Queensland Police Service Medal, the National Police Service Medal, the National Service Medal, and the AFP Operational Medal.[18]  

    [17]Transcript of Proceedings of 8 March 2023 at page 4 line 44 and page 8 line 9; Appellant’s written submissions at paragraph 29.

    [18]Transcript of Proceedings of 8 March 2023 at page 8 line 16; Appellant’s written submissions at paragraph 10.

12. The appellant did not drink as a younger man, but commenced drinking in the early years of his police career, to, as the appellant perceived, integrate with his peers.[19]

    [19]Appellant’s written submissions at paragraphs 13 and 19.

13. While stationed at Yeppoon[20], he suffered “a complete mental breakdown” following his attendance at a critical domestic incident,[21] but continued thereafter in the employ of the police force.

    [20]It would seem at some stage over the period 1998 to 2000: See the appellant’s written submissions at paragraphs 20 and 23.

    [21]Appellant’s written submissions at paragraphs 21 and 22.

14. It was said that his alcohol consumption increased in 2008 when, after returning from the Northern Territory, his relationship with his wife deteriorated and she filed for divorce. He was involved in a traffic crash where he drove into a light pole, resulting in the court appearance on his traffic history as well as an internal Queensland Police Service (“QPS”) disciplinary process. On that occasion the appellant received psychological assistance to address the underlying issues in his life.[22]

    [22]Appellant’s written submissions at paragraphs 27 and 28.

15. In 2010 the appellant married his second wife. Sometime thereafter he accepted a position at Mornington Island. While in that community, being a dry community, the appellant was said to have been able to effectively “break the cycle” of his alcohol consumption.  However, while stationed there, the appellant and his second wife separated.[23]

    [23]Appellant’s written submissions at paragraphs 29 and 30.

16. In 2012 the appellant transferred to a position at Annerley police station in a general duties role. He remained in that role at the time of the offence. The appellant met his third wife in 2012. They married in 2016.[24] At the time of the offence, the appellant’s wife was in the midst of seeking a divorce from the appellant. The appellant was still residing in the same house as his wife, but living separate within the house from his wife and step-children. He was said to have felt isolated and alone both physically and mentally, and to have found himself “in a vicious cycle of heavy drinking to numb the pain of rejection and hurt”. [25]

    [24]Appellant’s written submissions at paragraphs 31 and 32.

    [25]Appellant’s written submissions at paragraph 37 and 38.

17. Medical documentation tendered on sentence[26] included a reference to the appellant having “alcohol dependency”. As at the time of sentence the appellant was submitted to be “doing something” to address his alcohol misuse and had obtained a referral for an in-house alcohol detox program at Damascus Private Hospital.[27] He was receiving medical treatment and psychological intervention, and had reported his alcohol dependency to the appropriate channels within the QPS.[28]

    [26]        See Document NTD1 within Exhibit 4 before the Magistrates Court.

    [27]Transcript of Proceedings of 8 March 2023 at page 8 lines 26-36; Appellant’s written submissions at paragraph 44.

    [28]Appellant’s written submissions at paragraphs 72 and 73.

18. A number of positive character references were also tendered on the sentence proceedings. They were provided by other serving members of the QPS who had worked with the appellant[29], and others who knew the appellant in a personal capacity and through his other contributions to the community[30].

Submissions as to the appellant’s future with the QPS, disciplinary proceedings, and the impact of recording of a conviction

[29]See Documents NTD5, NTD6, NTD7, NTD8 and NTD11, within Exhibit 4 before the Magistrates Court.

[30]See Documents NTD9 and NTD10 within Exhibit 4 before the Magistrates Court.

1. The day following the offence the appellant was stood down from duty as a police officer. Although he had been stood down with pay and allowances it was submitted that being stood down from operational work had had adverse consequences for the appellant personally and professionally.

2. The appellant’s Counsel informed the learned Magistrate that the appellant was also liable to disciplinary action under the Police Service Administration Act 1990 (Qld), the potential sanctions from the disciplinary process ranging from a reprimand to dismissal.[31] It was submitted, in effect, that the recording of a conviction by the sentencing Court would result in the conduct the subject of the offence being viewed more seriously (than if a conviction were not recorded), and would thereby likely “inflate the sanction” that would be imposed on the appellant in the disciplinary proceedings, possibly to the level whereby it would be viewed as “demotable or dismissible conduct”; that a police officer is a person who is to have high standards of integrity, above and beyond those of the regular community and as such the recording of a conviction was of particular significance.[32]

   [31]Transcript of Proceedings of 8 March 2023 at page 3, page 6 line 18; Appellant’s written submissions at paragraphs 60 to 64 and 66. See section 7.34 of the Police Service Administration Act 1990.

   [32]Transcript of Proceedings of 8 March 2023 at page 4; Appellant’s written submissions at paragraph 65 and 70.

3. The appellant has been identified as having atrial fibrillation, being an irregular heartbeat. He has been required to attend hospital on the three occasions that the condition manifested while he was at work, the first being in 2019. He is now medicated for that condition. The appellant is said to also have a high level of anxiety. A medical certificate dated 31 October 2022, tendered on the sentence hearing, stated that while at that time the appellant’s prognosis was stable, it could not be guaranteed that he would not have a new episode while on active frontline duty, and further that his condition, physically and mentally, would improve with a change of role from active frontline duty. It was acknowledged that his medical condition(s) may lead to his having to leave the employ of the QPS, but he was seeking to remain in the service in a non-operational role.[33]   

   [33]Transcript of Proceedings of 8 March 2023 at page 4 line 40, and page 8 line 36; Appellant’s written submissions at paragraphs 33 to 35; Medical certificate within Exhibit 4 before the Magistrates Court.

4. It was submitted that a cessation of work as a police officer would have a significant financial impact on the appellant and his family;[34] that the appellant had no contemporary formal qualifications outside of his policing career, and was unlikely to secure employment of akin remuneration to that which he received as a police officer. [35]

   [34]Appellant’s written submissions at paragraph 62, but see also paragraph 45; Document NTD-3 within Exhibit 4 before the Magistrates Court.

   [35]Appellant’s written submissions at paragraph 69.

5. If the appellant did leave the police service[36] it was said that he would like to work assisting members of the indigenous community, as he had previously been involved in doing in the Cape area and in South Brisbane.[37] It was submitted that the recording of a conviction may impede the appellant obtaining a security licence or a vetting clearance to work with other organisations, or otherwise affect his chances of finding employment more generally.[38] The appellant also wished to travel, when circumstances may permit.[39]

   [36]Whether, as the submission is understood, that may be result from his employment being terminated further to disciplinary proceedings, or because of other reasons such as his health issues.

   [37]Transcript of Proceedings of 8 March 2023 at page 9 line 14; Appellant’s written submissions at paragraph 29.

   [38]Transcript of Proceedings of 8 March 2023 at page 3 line 15, and page 6 line 46 to page 7 line 9.

   [39]Appellant’s written submissions at paragraph 54.

   Submissions as to penalty

6. The prosecutor did not make any submissions as to the appropriate penalty, quantum of fine, period of licence disqualification, or the recording or non-recording of a conviction.

7. It was submitted by the appellant’s Counsel[40] that the learned Magistrate may have considered the following sentencing orders to be appropriate:

   i)A fine, to be referred to SPER;

   ii)A licence disqualification in the range of 1 to 3 months; and

   iii)No conviction be recorded.

   [40]Appellant’s written submissions at paragraph 3.

1. As related to the appellant’s capacity to pay a fine it was submitted[41] that after expenses he was left with approximately $458 a fortnight[42] for discretionary spending.   

   [41]Transcript of Proceedings of 8 March 2023 at page 8 lines 38-39; Appellant’s written submissions at paragraph 45.

   [42]This figure may increase where his income was supplemented by special duties or overtime allowances, although contra paragraph 62 of the appellant’s written submissions.

2. As concerns the period of licence disqualification that may be ordered, it was submitted that the appellant’s travel time to work by train was 1 to 1.5 hours, as opposed to, on average, 45 to 50 minutes when he had travelled by car.[43] 

   [43]Transcript of Proceedings of 8 March 2023 at page 8 line 39.

3. The submissions made on behalf of the appellant were primarily directed toward a conviction not being recorded.[44]

   [44]See appellant’s written submissions at paragraph 45.

4. The appellant’s Counsel sought to refer[45] to two decisions of this Court on appeal from sentencing orders imposed in the Magistrates Court, namely:

   ·     Connor John Wilson v The Commissioner of Police [2022] QDC 15; and

   ·     CDG v Commissioner of Police [2020] QDC 183.

   [45]Transcript of Proceedings of 8 March 2023 at page 5 line 13, Paragraphs 55 to 59 of the appellant’s written submissions.

Matters referred to by the sentencing Magistrate

1. The learned Magistrate referred to the following matters in the course of his sentencing remarks:

   ·     That the penalty his Honour would impose was reduced to take into account the appellant’s plea of guilty.

   ·     Drink driving is “absurdly prevalent” and at least 10 times a day the Richland’s Magistrates Court was dealing with drink drivers.[46]

   ·     It was “perfectly and blindingly obvious to anybody in Queensland, the number of people who are seriously injured or killed every year by drunk drivers, and driving [the distance the appellant drove], with twice the legal limit on board meant that [the appellant was] an absolute risk to somebody else’s life”. His Honour urged the appellant to consider how someone else may have suffered serious injury or died if he had lost concentration or if something had occurred in the traffic that needed an instant response from him, adding that “obviously, your responses are impaired when you are full of alcohol as well”.[47]

   ·     That the fact that the appellant was a police officer did not itself “inflate” the penalty, and the appellant was to be punished “in the same way as the average person would if they committed the same offence”.[48] However, the learned Magistrate also referred to the appellant “knowing perfectly well” how prevalent drink driving was[49], and having “an advantage over the average punter in knowing the consequences of drink driving, and that [ought to have]  factored into [the appellant’s] decision-making processes”[50].

   ·     His Honour stated that he “did not have the slightest doubt that [the appellant was] a perfectly upstanding member of the community”, observing that there “is nothing to suggest otherwise” but “what there is, is a matter that needs to be dealt with, in terms of keeping…the public safe from you when you are on the roads and you are drinking”.[51] 

   ·     That “what is important is that the community receives a deterrence message…that these laws apply to everyone, regardless of their station or level”.[52] His Honour later returned to the issue of deterrence stating that it was necessary that a deterrent message be sent not only to the appellant, but to the community generally that drink-driving is not going to be tolerated and is not acceptable.[53]  His Honour referred to the Parliament having made it “crystal-clear over and over again” that the courts ought to be taking a deterrent approach to this sort of behaviour, because other people’s lives are put at risk by it.[54]

   ·     His Honour referred to the statements of the members of the Court of Appeal in R vBriese [1977] QCA 10 as concerns the discretion in section 12 Penalties and Sentences Act 1992 (Qld).[55] His Honour also stated that the recording of a conviction in drink driving matters should not be considered to be an “anomaly”, and “in fact it should be considered to be the norm, because your motor vehicle insurer is entitled to know about your drink driving conviction and assess your risk and adjust your premiums accordingly, and there is no reason why other road users have to bear inflated premiums to make up for all the drink drivers who would be paying more otherwise if their insurers knew about their drink driving convictions. There could not be anything more material to an assessment of your risk as a driver than for an insurer to know that you have previous for drink driving”.[56]  

   ·     As concerns recording a conviction against the appellant, his Honour concluded that it was “on its own…enough” that the appellant had a previous conviction for high range drink driving, and that such conviction occurred when the appellant was a serving police officer; it did not matter whether that conviction was five, 10 or 15 years prior.[57]

   ·     Internal disciplinary matters, conducted by an agency (such as the QPS) in determining consequences where an employee may do something wrong, are matters for the relevant entity.[58] Later in his remarks his Honour continued[59] “…obviously, the recording or non-recording of a conviction, in my view - have no impact whatsoever in relation to that because they are the ones who charged you. They already know about it, you are already going through a disciplinary process, whether or not a conviction is recorded…there is no evidence before me to suggest that will have any material effect at all upon whoever the decision-maker is, in relation to your future deployment”. As concerns the potential outcome of the disciplinary proceedings for the appellant, his Honour remarked that[60] “…one could infer from the fact that you are still a serving police officer in 2023, despite that previous high-range drink driving offence, that more factors are taken into consideration than merely whether or not a conviction is recorded. Because if any sensible person looking at a reading of 0.225 back then would have had to question your fitness at that stage, and clearly… they did not consider that it made you unfit to be a police officer, in circumstances where it seems you have finally taken some step to deal with the alcohol use, I do not see any reason why they would not make similar concessions in this case, to take into account what you are doing…to address the issue now”.

   ·     His Honour “declined” to exercise his discretion under section 12, having “taken everything into account that [he was] required to, including everything in section 9 of the Penalties and Sentences Act…because I do not think it would have been an appropriate sentence in response, in circumstances where this is a second significant drink-driving offence, and it is one where other members of the public were put at risk for a considerable period of time…”.[61]

   [46]Transcript of decision of 8 March 2023 at page 2 lines 10-15.

   [47]Transcript of decision of 8 March 2023 at page 2 lines 15-21. See also Transcript of Proceedings of 8 March 2023 at page 5 lines 36-38.

   [48]Transcript of decision of 8 March 2023 at page 2 lines 2-5.

   [49]Transcript of decision of 8 March 2023 at page 2 line 10.

   [50]Transcript of decision of 8 March 2023 at page 2 line 28.

   [51]Transcript of decision of 8 March 2023 at page 3 lines 41-45.

   [52]Transcript of decision of 8 March 2023 at page 3 line 16.

   [53]Transcript of decision of 8 March 2023 at page 4 line 6. See also Transcript of Proceedings of 8 March 2023 at page 6 lines 11-14.

   [54]Transcript of decision of 8 March 2023 at page 4 line 8. See also Transcript of Proceedings of 8 March 2023 at page 6 line 15.

   [55]Transcript of decision of 8 March 2023 at page 2 line 30 to page 3 line 9. See also Transcript of Proceedings of 8 March 2023 at page 7 line 14.

   [56]Transcript of decision of 8 March 2023 at page 3 lines 19-27.

   [57]Transcript of decision of 8 March 2023 at page 2 lines 24-27. See also the exchange with Counsel for the appellant in the course of proceedings at page 2 line 45, and page 5 lines 1-11 and lines 38-42 and page 6 line 13-15.  

   [58]Transcript of decision of 8 March 2023 at page 2 lines 5-9.

   [59]Transcript of decision of 8 March 2023 at page 3 lines 10-16.

   [60]Transcript of decision of 8 March 2023 at page 3 lines 30-39.

   [61]Transcript of decision of 8 March 2023 at page 3 line 45 to page 4 line 4.

2. The Magistrate did not within his sentencing remarks refer to the decisions that had been relied upon by Counsel for the Appellant, further to his having observed in the course of submissions that such decisions were “single judge decisions from the District Court, so…not binding”, querying why such decisions would then “have any great applicability”, and stating that Counsel would “want something with a little more weight than that”.[62]

   [62]Transcript of Proceedings of 8 March 2023 at page 5 lines 13-31.

The submissions on appeal

The contentions of the appellant

1. The appellant contends that the learned Magistrate’s remarks and in the course of the sentencing proceedings demonstrate error in a number of respects. In particular it was submitted that:

   i) The Magistrate erred in his approach to the exercise of the discretion under section 12 Penalties and Sentences Act1992, in expressing that the recording of a conviction “in drink driving matters…should be considered the norm”.

   ii)     The Magistrate erred in concluding that the recording or non-recording of a conviction would have no impact whatsoever as concerns the QPS disciplinary proceedings and the appellant’s future employment with the QPS.

   iii)   The Magistrate erred in disregarding the District Court decisions that he was referred to in the way that his Honour did, on the basis that there were decisions of the District Court.

2. The following were also raised as being matters which otherwise may have led to a sentence being imposed which was manifestly excessive:

   i)   The Magistrate mischaracterised the nature and seriousness of the appellant’s offending in describing the offence as a “significant drink-driving offence” and concluding that the appellant’s driving had posed a risk to other road users, in circumstances where the appellant was not charged with being under the influence of alcohol and there was nothing about his manner of driving that had otherwise raised concern.

   ii)     The Magistrate placed too great a weight on the appellant’s previous conviction for Driving under the influence, and had insufficient regard to how dated that conviction was.

   iii)   No reference was made by the learned Magistrate to the appellant’s personal circumstances and precipitating factors which contextualised the appellant’s offending, suggesting those matters were not given any or adequate weight.

   iv)   The Magistrate’s reference, when sentencing the appellant, to being satisfied that the appellant was “a perfectly upstanding member of the community”, there being “nothing to suggest otherwise”, suggested that the Magistrate had not had regard to or given sufficient weight to the positive evidence there was before the Court as to the appellant’s long and distinguished career with the police service, and contribution to the community more broadly.

3. Further, it was submitted that irrespective of the nature of the underlying error or errors, the ultimate sentence was excessive, or unreasonable or plainly unjust, warranting the setting aside of the sentence imposed.

4. It was submitted that in exercising its discretion afresh the Court may determine the appropriate sentence to be a fine in the order of $800, and a licence disqualification period of 2 months, and that no conviction be recorded.

   The position of the respondent on the appeal

5. The respondent concedes that the learned Magistrate fell into error in the way contended by the appellant in finding that the recording of a conviction would have no impact on the QPS disciplinary proceedings for the appellant or his future career with the QPS[63], and in disregarding that District Court decisions to which he was referred[64].  

   [63]Respondent’s outline of submissions on appeal, paragraph 5; Transcript of appeal proceedings at page 13 line 47 to page 14 line 9.

   [64]Transcript of appeal proceedings at page 16 lines 18-42.

6. The respondent also concedes that the sentence imposed was excessive, in all the circumstances, having regard to other decisions of the District Court in appeals brought pursuant to section 222 Justices Act1886 (Qld).[65]

   [65]Respondent’s outline of submissions on appeal, paragraph 6; Transcript of appeal proceedings of 31 July 2023 at page 46.

7. Ultimately, the respondent submitted that the Court would exercise its sentencing discretion afresh and impose a fine of $800, and a licence disqualification period of between three to five months, and that it would be “open” to the Court to record a conviction.

   Consideration

   The characterisation of the appellant’s offending and the recording of a conviction as a “norm”

8. As the learned Magistrate acknowledged matters of general deterrence are of significance when sentencing for offences involving the driving or operation of a motor vehicle when having consumed alcohol, because of the clear potential for such conduct to present a danger to other road users and the community more broadly.

9. While the appellant’s BAC was very near the middle alcohol limit, he fell to be sentenced as driving while over the general alcohol limit. It was a serious aspect of the appellant’s offending that the appellant had driven a significant distance in an urban area, on his own admission, but as the appellant highlights, he was not charged with driving under the influence of alcohol and there was no evidence of his manner of driving otherwise.

10. The range of offending that may give rise to an offence of “drink driving” is broad, and the circumstances in which such offending may arise, and of the offender concerned, immeasurably broader. A sentencing judge must consider the potential benefits and detriments to the community in adopting the course of recording or not recording a conviction in any particular case.[66] While the recording of a conviction serves to make the fact of the conviction known to those who have a legitimate interest in knowing of it[67], the learned Magistrate was in my view incorrect to proceed on the basis that the recording of a conviction for any offence of “drink driving” should be considered “the norm”, because of the relationship such as may exist between the prevalence of drink driving and insurance premiums for road-users, or otherwise. Such an approach is to circumvent the nature of the discretion under section 12 of the Penalties and Sentences Act 1992 (Qld).[68]

    [66]See R v ZB [2021] QCA 9 at [9] to [10].

    [67]Ibid [6]. See also R v Graham [2023] QCA 125.

    [68]See Mould v Newland [2001] QCA 211.

    The QPS disciplinary proceedings

11. The appellant was determined[69] to be liable for disciplinary action under Part 7 of the Police Service Administration Act1990 (Qld). The potential available disciplinary sanctions as set out in section 7.35 include dismissal, suspension from duty without pay for up to 12 months, probation of up to 12 months duration, demotion, transfer, community service, a fine, or reprimand.[70]

    [69]See Document NTD4 within Exhibit 4 before the Magistrates Court.

    [70]See also appellant’s written submissions at paragraph 64.

12. The disciplinary process was commenced prior to and independent of the appellant’s conviction for the offence of Driving while over the general alcohol limit but not over the middle alcohol limit. It is not in issue, as the learned Magistrate referred to, that the police service would be aware of the conduct, (and the outcome of the court proceedings), whether or not a conviction were recorded. However, I accept the submissions of the parties to the effect that that did not mean that the existence of the disciplinary proceedings and matters related thereto were wholly irrelevant to the exercise of the sentencing discretion. 

13. On the hearing of the appeal, Counsel for the appellant frankly acknowledged that it was not possible to know what the result of the disciplinary proceedings would be, or to articulate with clarity to what extent the recording of a conviction or otherwise for this offence would impact the determination made in those proceedings,[71] but that the sentence imposed for the conduct – such sentence including whether or not a conviction were recorded – would be accepted as being a consideration of some relevance to the ultimate outcome of the disciplinary process.

    [71]Contra the submissions made by the appellant’s Counsel at first instance as outlined above in paragraph [27].

14. Counsel for the respondent Commissioner of Police on the appeal, accepted that the finding by the learned Magistrate that the recording of a conviction would have no impact on the QPS disciplinary proceedings or the future career of the appellant with the police was incorrect.

15. It was a matter for the learned Magistrate how much weight may in the circumstances be given to the matters advanced by the submissions relating to the pending disciplinary proceedings. While at times the remarks of the learned Magistrate referred to the recording of a conviction not being of “material effect” and “more factors being taken into consideration than merely whether or not a conviction is recorded”, I accept that the overall tenor of the remarks is to suggest that the Magistrate, as he otherwise stated within his remarks, proceeded on the basis that the recording or non-recording of a conviction was of “no impact whatsoever”, and that his Honour erred in that positive finding.[72] I also accept that the reasoning of the learned Magistrate that because the appellant had been permitted to continue to work as a police officer following his previous offence of Driving under the influence of liquor some 14 years earlier, there was no reason why “similar  concessions would not be made in this case”, was flawed.[73]

    [72]See CDG v Commissioner of Police [2020] QDC 183 at [15].

    [73]See CDG v Commissioner of Police [2020] QDC 183 at [14], although in that decision the previous conviction for drink driving had been in 1984 and prior to the introduction of the Police Service Administration Act 1990 (Qld). Here there has nonetheless been substantial reform to the legislative framework in the intervening period, further to this being a subsequent disciplinary proceeding.

The reference to decisions of the District Court at first instance

1. In the appellant’s written submissions on this appeal it was submitted that[74] the two decisions of the District Court to which reference was made by the appellant’s Counsel at first instance “should not have been dismissed in the way they were”.

   [74]At paragraph [20].

2. This submission was further developed in oral submissions at the hearing, with reference to the recent decision of his Honour Judge Smith in Colley-Presnell v Commissioner of Police [2023] QDC 63. That appeal had related to an offence of Dangerous operation of a vehicle, characterised as “hooning”. In that case the learned Magistrate at first instance was said to have indicated that he was not bound to follow a decision of the District Court to which he was referred, because a single District Court Judge was at a disadvantage as compared to him, further to his observations of the prevalence of hooning conduct.[75] On appeal, his Honour Judge Smith stated that the principle of stare decisis applied[76] and the learned Magistrate was not at liberty to refuse to apply the ratio decidendi of a District Court authority directly relevant to a matter for his determination[77].

   [75]At paragraph [6].

   [76]At paragraph [15].

   [77]At paragraph [19].

1. In the present case the two District Court decisions which the appellant’s Counsel sought to refer the Magistrate to, were relied upon as comparable sentences. As was observed by the Court in R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196 at [68]:

   “Like cases should be treated in like manner because the administration of equal justice according to law means that there must be reasonable consistency in sentencing. The discernment of patterns of sentencing in similar cases are useful tools to achieve consistency. For this reason, consistency with previous comparable sentences is important. However, previous sentences are not precedents. They are not common law authorities to which the principle of stare decisis and the doctrine of precedent apply. Nor do the rules apply according to which intermediate courts of appeal do not depart from decisions of co-ordinate courts unless convinced that the decision is plainly wrong.” (footnotes omitted)

2. Irrespective, it may be thought that the decisions referred to would nonetheless have some persuasive value and weight, given the legislatively imposed hierarchy whereby appeals from sentences imposed in the Magistrates Court are heard by the District Court, and the desirability of consistency in sentencing. Here the result has been an appeal to the District Court, where each of the parties submitted that the sentence imposed at first instance was manifestly excessive – such submissions having been made with reference to the decisions to which the Magistrate declined to have regard at first instance.

   Comparable decisions

3. The following cases[78] were referred to in the course of submissions:

   Purcell v Commissioner of Police [2016] QDC 342

   [78]Not all of the cases involved consideration of each part of the sentencing orders made – be it the  quantum of fine, the period of disqualification and/or the recording of a conviction.

4. The appellant pleaded guilty to an offence of Driving whilst over the middle alcohol limit but not over the high alcohol limit. His BAC was 0.149. He had been drinking on the night with friends, and had not planned to drive, but had decided to drive in order to transport an intoxicated colleague home. He was fined $800 and disqualified from holding a driver licence for a period of 8 months. A conviction was recorded. The appellant had two previous convictions for low level speeding in recent years. On appeal the licence disqualification period was reduced to a period of 6 months.  

   CDG v Commissioner of Police [2020] QDC 183

5. The appellant CDG also pleaded guilty to one offence of Driving a motor vehicle over the general alcohol limit. His BAC was lower than that of this appellant, being 0.065. His consumption of alcohol had immediately precipitated his driving. He had consumed beers at a hotel over a period of three to four hours, while waiting for his son. He was 57 years of age and had been a serving police officer for 32 years. He had a previous for drink-driving, which was from 1984, and more dated, and six previous convictions for speeding. He had been fined $800 and disqualified from holding a licence for two months. A conviction was recorded. The appellant in that case was also subject to police disciplinary proceedings.

6. The appeal related only to a conviction having been recorded. The sentencing discretion of the learned Magistrate at first instance was found to have miscarried – the learned Magistrate at first instance having failed to have regard to the appellant’s good character and having found that a recording of a conviction would have no further impact on the appellant’s career. In the exercise of the sentencing discretion afresh, her Honour Judge Loury QC exercised her discretion to not record a conviction, referring to[79], among other matters, the appellant CDG’s maturity, his minor traffic record despite having held a licence for 35 years, and that his employment as a police officer meant that the recording of a conviction had a real potential consequence of materially adversely impacting upon his social and economic wellbeing.

   Scarce v Commissioner of Police [2021] QDC 246

   [79]At [20].

7. The appellant drove a motor vehicle with a blood alcohol concentration of 0.148%. He had been intercepted by police. It was observed that the danger that the appellant’s driving presented to the public was more of the nature of a “potential [danger] than real”. The appellant Scarce was sentenced on the basis that he had “a very bad” traffic history constituting six pages, but did not have a history of drink driving.[80] He also had a three page criminal history consisting primarily of property related offending. The appellant was liable to a higher penalty, of a fine not exceeding 20 penalty units or imprisonment for a term not exceeding six months and a mandatory disqualification of not less than three months and not more than 12 months from the date of conviction. At first instance he was sentenced to a fine of $1200, was disqualified from holding a licence for a period of nine months, and a conviction was recorded. The appeal was allowed to the extent of reducing the period that the appellant was disqualified from holding a driver licence to 6 months, whereby the total period the appellant was disqualified since being charged was 7 months.

Wilson v Commissioner of Police [2022] QDC 15

[80]An application by the respondent to adduce further evidence of the appellant’s traffic history on the appeal was refused.

1. The appellant pleaded guilty to an offence of Driving under the influence of liquor and an offence of Possess dangerous drugs. His offending was discovered as part of a routine random breath test. His BAC was 0.151. He was found in possession of 455 grams of cannabis. The appellant was a young man of 23 years of age. He had some minor drug and driving offences, but no previous convictions for driving under the influence. He had positively engaged in rehabilitation ahead of the sentence proceedings. For the offence of Driving under the influence he was fined $800, disqualified from holding a licence for 8 months. For the offence of Possessing dangerous drugs he was sentenced to 18 months’ probation. Convictions were recorded. In exercising the sentencing discretion afresh, the period of licence disqualification was reduced to the mandatory minimum applicable in that case of 6 months disqualification, and no conviction was recorded for the offence of Driving under the influence. The period of probation imposed for the offence of Possess dangerous drugs was also reduced to 12 months.

Franich v Commissioner of Police [2022] QDC 171

1. The appellant Franich also pleaded guilty to an offence of Driving over the general alcohol limit but not the middle alcohol limit. The appellant was spoken to by police on the side of the road near a parked vehicle. He made admissions to having driven the vehicle. The appellant’s BAC was 0.086. His “only like previous conviction was 17 years previous”. He was fined $500 and disqualified from holding a driver licence for a period of 4 months. The appellant was also granted a restricted work licence. The appeal related solely to the period of licence disqualification. While it was observed that a lesser period of disqualification may be imposed, the period of 4 months disqualification was found to be with the permissible range of the sentencing discretion. Accordingly, the appeal was dismissed.

1. With the exception of CDG v Commissioner of Police [2020] QDC 183 and Franich v Commissioner of Police [2022] QDC 171 each of the above cases involved the driving of a vehicle with a higher BAC, and involved charges for which the appellant was liable to a higher potential maximum penalty and a higher range of mandatory disqualification period.

1. While the range of sentences imposed in past decisions is not determinative of the range of sentences that may be within the permissible exercise of the sentencing discretion in the instant case[81], I accept the submission of both parties on the appeal that a review of decisions of this Court supports the conclusion that the overall sentence imposed on the appellant was excessive, so as to be unreasonable and plainly unjust, and ought to be set aside.

   [81]R v Kilic (2016) 259 CLR 256 at [22]; Barbaro v The Queen (2014) 253 CLR 58 at 74.

The sentence to be imposed

1. For the reasons outlined above it is necessary that the sentencing discretion be considered afresh. Matters relevant to that exercise are outlined above.

2. I am mindful of the purposes for which sentence may be imposed on an offender, as set out in section 9(1) Penalties and Sentences Act 1992 (Qld), and the matters to which a court must have regard to in sentencing an offender outlined in section 9(2) Penalties and Sentences Act 1992 (Qld). It may be accepted that matters of deterrence, community protection and community denunciation are of significance to the exercise of the sentencing discretion for offences against section 79 TORUM.

3. Section 86(2A) TORUM  provides that in determining the relevant period of licence disqualification to impose, a court must have regard to “the concentration of alcohol in the blood or breath of the defendant…and the danger, real or potential, to the public in the circumstances of the case.” It is relevant that the appellant’s BAC was at the very top of the “general alcohol limit”.[82]

   [82]See also the discussion in Purcell v Commissioner of Police [2016] QDC 342.

4. Section 12 of the Penalties and Sentences Act 1992 (Qld) provides:

   “12     Court to consider whether or not to record conviction

   (1) A court may exercise a discretion to record or not record a conviction as provided by this Act.

   (2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

   (a)      the nature of the offence; and

   (b)     the offender’s character and age; and

   (c)      the impact that recording a conviction will have on the offender’s—

   (i) economic or social wellbeing; or

   (ii) chances of finding employment.

   …”

5. These identified considerations are not exhaustive of matters that may be relevant to the exercise of the discretion in any particular case. 

6. The question of whether to record a conviction in this case is in my view finely balanced.

7. The appellant has no prior criminal history. While the appellant did have relevant prior conviction for Driving under the influence, that need also be considered in the context of the intervening period of some 14 years since that earlier conduct, and the circumstances of his offending on this occasion. The appellant is otherwise a person of good character. The appellant is a mature man, but for reason of the appellant’s personal circumstances, there is here reason to conclude that the recording of a conviction may well have some impact on his economic or social wellbeing, whether related to his future employment with the QPS, or otherwise.

8. Consistent with the submissions of both parties, I have determined that a fine in the order of $800 is here appropriate. The appellant ought to be disqualified from holding or obtaining a Queensland driver licence for a period of three months. In all of the circumstances I have determined to exercise my discretion in favour of not recording a conviction.

Costs

1. The appellant seeks an order for costs to be calculated in accordance with Justices Regulation2014, schedule 2, being an amount of $1800. The respondent does not oppose an order for costs in favour of the appellant, but submitted that the amount to be ordered may be reduced on the basis that the appeal was not ultimately opposed. That does not here in the circumstances, however, in my view, alter the appellant’s entitlement to the costs sought. 

2. I order that the respondent pay the appellant’s costs on this appeal, calculated to be in the amount of $1800.