Riddell v The Commissioner of Police

[2021] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Riddell v The Commissioner of Police [2021] QDC 92

PARTIES:

ALEXANDER STEPHEN RIDDELL

(appellant)

v

THE COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

1275 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

31 May 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2021

JUDGE:

Loury QC DCJ

ORDER:

The appeal is allowed to the extent that the parole release date is set aside.1.   

I order that the appellant be released on parole on 31 May 2021. 2.   

The appellant’s solicitor is to inform the appellant of the requirement that he must report to the parole office within 24 hours of his release from custody and the consequences of failing to do so.  3.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Where the appellant pleaded guilty to driving whilst disqualified by court order – where the appellant was sentenced to three months imprisonment with parole after serving one month – whether the sentence imposed was manifestly excessive

SOLICITORS:

J Bruxner for the appellant, appearing pro bono

N Kljaic, legal officer, for the respondent

1. The appellant pleaded guilty on 25 May 2021 in the Brisbane Magistrates Court to driving a motor vehicle whilst disqualified from doing so by court order.[1] He was sentenced to three months imprisonment, with a parole release date fixed at 24 June 2021 (after serving one month of that sentence).  He was also disqualified from driving for a period of three years. The appellant appeals the sentence on the ground that the sentence imposed was manifestly excessive as the period of actual imprisonment required to be served was too harsh.

   [1]Transport Operations (Road Use Management) Act 1995 s 78(1) & (3)(a).

1. The appeal is pursuant to section 222 of the Justices Act 1886.  Such an appeal is to be conducted as a rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted.  I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a great deal of weight on the Magistrate’s view.[2] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[3]

   [2]Robinson Helicopter Co Inc v McDermott (2016) 90 QLJR 679, 686 at [43].

   [3]Allesch v Maunz (2000) 203 CLR 172 at [22]-[23].

1. Sentencing involves the exercise of a discretion.  Accordingly, the principles referred to in House v The King[4] are apposite.  If it appears that some error has been made in the exercise of the Magistrate’s discretion because he has allowed irrelevant matters to affect him, mistaken the facts or failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh.

   [4] (1936) 55 CLR 499.

Circumstances of the offending

1. On 13 April 2021 the police observed the appellant driving a car on Sandgate Road in Albion. The appellant’s licence had been disqualified a month earlier on 12 March 2021 until 11 June 2022. The police subsequently attended the appellant’s house and spoke to him. He told police that he knew his licence was disqualified and that he never drives the car, but that he did so on this occasion.  At the hearing his solicitor indicated to the court that one of his apprentices would ordinarily drive the vehicle however he had fallen ill and the appellant drove the car home from work. 

The appellant’s antecedents

1. The appellant was 52 years old at the time of offending and worked as a qualified electrician. He ran his own business and had two apprentices and a tradesman working for him.  

1. The appellant has a Queensland criminal history which is of limited relevance in these proceedings. More significant however is his traffic history. It commences when he was 24 years old and features entries for 22 offences.  It includes convictions for disqualified driving and drink driving. 

1. In 2007 the appellant committed offences of disqualified driving and drink driving, with a blood alcohol concentration of 0.065 percent.  He was fined $500 and disqualified from holding a drivers licence for two years.

1. In 2011 he committed an offence of driving while over the high alcohol limit, with a blood alcohol concentration of 0.27 percent. He was fined $1,400 and his licence was disqualified for 12 months.

1. In 2015 he committed an offence of driving while over the high alcohol limit, with a blood alcohol concentration of 0.24 percent. The appellant was sentenced to an 18 month probation order and 80 hours of community service. His licence was also disqualified for 18 months.

1. Whilst subject to that disqualification, in 2016 he committed an offence of driving while over the high alcohol limit, with a blood alcohol concentration of 0.236 percent. The appellant was sentenced to six months imprisonment wholly suspended for a period of two years. His licence was disqualified for a period of two years and one month, imposed cumulatively on the previous disqualification. While he was not charged with disqualified driving in this instance, he nonetheless committed the offence while disqualified which was an aggravating feature.

1. On 29 November 2020 the appellant committed an offence of driving while over the high alcohol limit, with a blood alcohol concentration of 0.169 percent. On 12 March 2021 he was fined $1,600 and his licence was disqualified for 15 months. It was one month and one day after this sentence in the Caboolture Magistrates Court that the appellant committed the current offences.

1. The concerning features of the appellant’s traffic history are that he has:  

(a)        three convictions for disqualified driving, albeit the most recent was over 10 years ago;

(b)        One conviction for unlicensed driving;

(c)        Six convictions for drink driving; and

(d)        been disqualified from holding or obtaining a drivers licence on 7 occasions.

1. The appellant’s son was hit by a car whilst riding a motorbike two weeks prior to the appellant pleading guilty to disqualified driving. His intention, it was said, was to be a carer for his son upon his release from hospital.

The sentencing remarks

1. The learned Magistrate in his reasons placed great weight on the appellant’s traffic history, dating back to 1993, and described it as “totally unacceptable”.  He said the appellant had a propensity to disregard orders of the Court and laws of the State. He considered the gravamen of the conduct was continually driving while unlicensed or disqualified by a court order.

The appellant’s contentions

1. The appellant appeals the sentence on the ground that the sentence imposed was manifestly excessive. It is submitted by the appellant that the portion of the sentence that requires the appellant to serve a period of actual custody rendered the sentence manifestly excessive.

1. It is not being contended by the appellant that the Magistrate made any specific error, rather that the penalty imposed was “unreasonable or plainly unjust”.[5] 

   [5]House v The King (1936) 55 CLR 499 at 504-505.

Consideration

1. A number of cases have been put before me by way of comparison.  It is necessary only to refer to Johnstone v The Commissioner of Police in which I undertook the exercise of reviewing 17 Queensland District Court decisions involving appeals against disqualified driving sentences.[6] 

   [6] [2019] QDC 109.

1. In Johnstone, an appeal was allowed against a sentence of 9 months imprisonment with parole after serving three months. Ms Johnstone pleaded guilty to two counts of disqualified driving, as well as two counts each of driving an unregistered and uninsured vehicle for which she was convicted and not further punished. Ms Johnstone had a significant traffic record and committed the offences of disqualified driving while subject to a probation order. After a consideration of the case law, Ms Johnstone was resentenced to 6 months imprisonment, suspended after serving 28 days.

1. In light of the comparable decisions referred to in Johnstone and in particular the fact that, unlike all of those decisions, the offence in the present case was not committed in association with any other offence, it does appear that the component of the sentence requiring actual imprisonment was “unreasonable or plainly unjust”.[7] 

   [7]House v The King (1936) 55 CLR 499 at 504-505.

1. Having regard to the factors set out in section 78(2) of the Transport Operations (Road Use Management) Act 1995 (Qld), which include all the circumstances of the case including any circumstances of aggravation or mitigation; the public interest; and the appellant’s extensive traffic history; a term of imprisonment was the appropriate penalty. General and personal deterrence were of paramount importance to the exercise of the sentencing discretion. There is no suggestion that the three month term imposed by the learned Magistrate was excessive.

1. An aggravating feature of the offending was the fact that it occurred so soon after the imposition of the licence disqualification.  The appellant drove a mere one month and one day after being disqualified by court order.  That demonstrated his disregard for the orders of the court.  The appellant has a significant traffic history for driving whilst under the influence of liquor which suggests that the public interest in seeing him off the roads is significant.   Whilst the appellant has previously been convicted of driving while disqualified by a court order, the most recent of those convictions was more than 10 years ago. Further the appellant’s offending did not involve his committing any other offences in association with the disqualified driving offence.  He is a productive member of the community running a business which employs three persons and will need to care for his son as he recuperates.  The appellant has now spent one week in custody.  In those circumstances I would order that he be released on parole today, 31 May 2021. 

1. My orders are:

1    the appeal is allowed to the extent that the parole release date is set aside.

2    I order that the appellant be released on parole on 31 May 2021.

3    The appellant’s solicitor is to inform the appellant of the requirement that he must report to the parole office within 24 hours of his release from custody and the consequences of failing to do so.