Sgt v Queensland Police Service

[2024] QDC 191

DISTRICT COURT OF QUEENSLAND

CITATION:

SGT v Queensland Police Service [2024] QDC 191

PARTIES:

SGT
(appellant)

v
COMMISSIONER OF POLICE

(respondent)

FILE NO:

DC 223 of 2024

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

7 November 2024 (ex tempore)

DELIVERED AT:

Southport

JUDGE:

Holliday KC DCJ

ORDER:

1.   The appeal is allowed.

2.   The sentence imposed in the Magistrates Court at Richlands on 6 August 2024 with respect to the charge of driving under the influence of liquor is set aside, and the following sentencing orders are made:

a)   The appellant is fined $1200.   

b)     The appellant is disqualified from holding or obtaining a Queensland driver licence for a period of 8 months to commence on 6 August 2024.  

c)   No conviction is recorded.

3.   The respondent pay the appellant’s costs on this appeal,     calculated to be 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 under the influence of liquor pursuant to s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the appellant was fined $2000 and disqualified from holding or obtaining a drivers licence for a period of 15 months – where a conviction was recorded – where specific error was conceded by the respondent as the learned Magistrate erroneously determined that s 86(2A) of the Transport Operations (Road Use Management) Act 1995 (Qld) operated as prescribed statutory criteria – whether the sentence was manifestly excessive

LEGISLATION: 

Justices Act 1886 (Qld) ss 222, 223, 225

Justices Regulation 2014 (Qld) sch 2

Penalties and Sentences Act 1992 (Qld) ss 9, 12

Transport Operations (Road Use Management) Act 1995 (Qld) ss 79, 86

CASES:

Chilcott v Commissioner of Police [2020] QDC 142
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063
Ferris v Commission of Police [2023] QDC 206
Mayne v Purtill [2016] QDC 124
R v Jackson [2011] QCA 103
R v Lawley [2007] QCA 243
Rongo v Commissioner of Police [2017] QDC 258
Ross v Commissioner of Police [2018] QDC 99

Schwarz v Queensland Police Service [2013] QDC 105

COUNSEL:

S French for the appellant

C Wilson for the respondent

SOLICITORS:

Donnelly Law Group for the appellant

The Office of the Director of Public Prosecutions (Qld) for the respondent

Introduction

1. On 6 August 2024 the appellant pleaded guilty in the Magistrates Court at Richlands to one charge of driving under the influence of liquor, pursuant to section 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘Act’).

2. For the drink driving offence, the appellant was fined $2000 and disqualified from holding or obtaining a driver licence for a period of 15 months from the date of sentence.[1] A conviction was recorded.

   [1]A mandatory minimum disqualification of six months was to be imposed. Parliament has also allowed for the courts to exercise a discretion to impose a disqualification period longer than six months if considered appropriate (Chilcott v Commissioner of Police [2020] QDC 142 at [11]).

3. By way of a Notice of Appeal filed on 9 August 2024, the appellant appeals against the sentence imposed on the drink driving offence on the sole ground that the sentence is manifestly excessive.

4. The respondent concedes that the sentence imposed was manifestly excessive.

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

   The legal framework for the appeal

6. 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.

7. 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.[2] No application to adduce new evidence was made on this appeal.

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

8. 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. As was stated by Muir DCJ (as she then was) in Ross v Commissioner of Police [2018] QDC 99 at [10] – [12]:

[10] Despite differing approaches by judges of this court to this task, the crucial question on an appeal under s 222(2)(c) remains, in my view, whether upon a proper review of the original record, the sentence was excessive.

[11]    Of course, that is certainly not to say that the identification of an error is not relevant to this task. As Devereaux SC DCJ observed in Rongo v Commissioner of Police, successfully demonstrating an error does not guarantee success of the appeal but it might explain why the sentence was excessive. This approach, in my view, is consistent with the observations of the High Court in Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym), that where there is a misapplication of principle or an accused has been sentenced by reference to an erroneous understanding of the principles which inform a just sentence, there is no good reason not to correct the effect of the error and determine the correct sentence according to law.

[12]    Support for the proposition that the error must have affected, guided or informed the sentence, is also found, in my view, in R v Lawley where the Court of Appeal concluded that “the sentence which was imposed was not manifestly excessive nor otherwise affected by error”. [footnotes omitted]

1. Where the appellant argues that the discretion has miscarried to produce a sentence that was excessive, as is the case here, it is necessary to show that the sentence imposed “was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed.”[3]

   [3]R v Jackson [2011] QCA 103 at [25].

2. 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

   The circumstances of the offending

3. The facts relevant to the drink driving charge are that on 6 July 2024, police were conducting patrols on Beaudesert Road in Algester. At 9:21pm, the appellant was stopped by police in relation to a speeding offence. The appellant provided a specimen of breath for testing, which returned a positive indication and the appellant was detained for further testing. The appellant made admissions to consuming approximately seven to eight glasses of wine over a period of five hours. She explained at the sentencing hearing that she had left her residence due to a disagreement with her partner and “it ended with [the appellant] feeling it was [in her] best interest to leave the situation, and in her impaired state, made the bad decision to go for a drive, possibly to her mother’s place to spend the night.”

4. The concentration of alcohol in the appellant’s breath was 0.172g/210L. The appellant was issued with a notice of immediate suspension and a notice to appear before the Magistrates Court at Richlands on 6 August 2024.

   Antecedents of the appellant

5. The appellant was 44 years of age at the time of the offending and sentence. She had no criminal history. Her traffic history consisted of ten entries which are summarised by the respondent as follows “one parking offence from 1999, one failure to stop at a stop sign in 2008, four entries for speeding less than 13km/h, two entries for speeding in excess of 13km/h but not more than 20km/h and one entry of speeding less than 15km/h.”  She had never been subject to a licence suspension or disqualification and never had a conviction recorded.

6. References were tendered on her behalf from the appellant’s sister and her parents which spoke to her personal circumstances at the time of the offending, her otherwise good character and remorse. She had completed the QTOP program. Submissions were made as to her employment namely that she worked as a lab analyst and that “she will have to rely on public transport throughout her period of disqualification to retain that position and get to and from work, which will add approximately four hours per day to her daily commute.”

   Submissions as to penalty

7. The police prosecutor did not make any submissions as to the appropriate penalty. The submissions on behalf of the appellant were that the appellant be fined, and the disqualification period should be six months. The appellant’s legal representatives made no submissions regarding the recording of a conviction.  

   Matters referred to by the sentencing Magistrate in his sentencing remarks

8. The learned Magistrate referred to the following matters in his sentencing remarks:

   (a)he took into account the appellant’s plea of guilty, that she has no previous drink driving convictions and has completed the QTOP program;

   (b)“I’m specifically required to take into account the level of the reading, the risk you pose to yourself and, more importantly, other road users…”;

   (c)“At 0.172, you were clearly grossly intoxicated, and you had a bunch of other options you could have picked if you wanted to leave the house for a little while”;

   (d)“Six months [disqualification] would be about what you’d expect at .1 not at .172. And further to that, a significant fine is necessary to reflect the nature and seriousness of the offending, and provide both a personal deterrent for you and a general deterrent for the community”.

   Ground of appeal

9. The appellant appeals on the sole ground that the sentence imposed was manifestly excessive.

   Position of the appellant on the appeal

10. The appellant took the court to statements of principle at paragraph 6 of the outline of submissions including at 6(g):

    Under s 222(2)(c) the appellant is not required to identify a particular error on behalf of the learned sentencing magistrate to succeed on appeal. However, identification of such error may assist in the Court’s determination of whether the sentence imposed was manifestly excessive. “The first and last question is whether the sentence imposed was excessive.” [footnotes omitted]

11. The appellant submitted that there was specific error in this case namely that the Magistrate expressly placed reliance on section 86(2A) of the Act which was an error of the precise kind addressed in Mayne v Purtill [2016] QDC 124.

12. It was submitted that in exercising its discretion afresh the Court may determine the appropriate sentence to be a fine of $1200, a licence disqualification period of seven months, and no conviction be recorded.

    The position of the respondent on the appeal

13. The respondent concedes that specific error is established. It is accepted that the Magistrate erred in applying section 86(2A) of the Act. The respondent submitted that it is clear that the learned Magistrate proceeded on the basis that his sentencing discretion was governed by section 86(2A) of the Act which is an error as the factors are not the prescribed statutory criteria for an offence under section 79(1) of the Act.

14. The respondent concedes that the sentence imposed was manifestly excessive, in all the circumstances[4] and accepts this court ought to sentence the appellant afresh with the appropriate sentence being a fine in the range of $1200-$1500, disqualification for 8-9 months and no conviction recorded.

    [4]And referred to the sentences imposed in Schwarz v Queensland Police Service [2013] QDC 105 and Ferris v Commissioner of Police [2023] QDC 206.

    Consideration

15. I agree with the joint submission of the parties that specific error is established. The learned Magistrate proceeded on the erroneous basis that section 86(2A) of the Act operated as prescribed statutory criteria. The learned Magistrate stated in his remarks that:

    the period of disqualification must be decided by the court, which, in making its decision, must have regard to the concentration of alcohol in the blood or breath of the defendant, or the presence of a relevant drug in the defendant’s blood or saliva, and the danger, real or potential, to the public in the circumstances of the case. [emphasis added]

    The learned Magistrate also commenced his sentencing remarks with:

    Taking into account your plea of guilty, but I’m also specifically required to take into account the level of the reading, the risk you posed to yourself, and, more importantly, other road users by getting into a car and driving it with three and a-half times the legal limit of alcohol in your system. [emphasis added]

16. The respondent’s concession of specific error is an appropriate one. I agree with the view taken by Horneman-Wren SC DCJ in Mayne v Purtill [2016] QDC 124 and Farr SC DCJ in Chilcott v Commissioner of Police [2020] QDC 142. In Mayne v Purtill, which is apposite to the present case, the learned Magistrate observed that he was “required under the Act to take into account the level of the reading and the danger the appellant posed to himself, and, more importantly, other road users.”[5] 

    [5]Mayne v Purtill [2016] QDC 124 at page 3 lines 40–45.

17. As was stated by Horneman-Wren SC DCJ commencing at page 4 line 8:

    Those provisions [s86 (2A) and (2C) of the Act] relate to circumstances whereby other operative provisions of section 86 prescribe statutory minima and maxima for periods of disqualification, between which the sentencing Court must formulate and impose a period of disqualification. An offence against section 79, subsection (1) operates in a different way. Section 86, subsection (1) prescribes that where a person is convicted of an offence in relation to a motor vehicle against section 79(1), there is to be, by operation of law, a disqualification, by virtue of that conviction and without any specific order, for a period of six months.

    A further discretion is conferred upon the sentencing Court to impose some other specific order by section 86, subsection (5). Section 86, subsection (5), is an exercise of power under section 86, subsection (5), however, is not governed by the same statutory considerations prescribed in, for example, … subsection (2A). That is not to say that those criteria, that is, the concentration of alcohol in the blood or the presence of a drug in salvia and the real or potential danger posed, are not irrelevant considerations to the exercise of the discretion under section 86(5); however, they are not the prescribed statutory criteria.

    It is quite evident from his Honour’s reasons that the sentencing exercise proceeded on a mistaken understanding on his Honour’s part that he was required to exercise his discretion by reference to the matters, for example, contained in … subsection (2A). That was an error in the exercise of his Honour’s jurisdiction; therefore, the sentence imposed by his Honour must be set aside.

18. It is jointly submitted that the specific error may have otherwise led to a sentence being imposed which was manifestly excessive. I accept the joint submission of the parties on appeal that a review of decisions of this Court (Schwarz v Queensland Police Service [2013] QDC 105 and Ferris v Commissioner of Police [2023] QDC 206) 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.

    The sentence to be imposed

19. For the reasons outlined above it is necessary that the sentencing discretion be considered afresh.

20. I take into account the factors as detailed in section 9(1) Penalties and Sentences Act 1992 (Qld), and the matters to which a court must have regard in sentencing an offender outlined in section 9(2) Penalties and Sentences Act 1992 (Qld). Matters of deterrence, community protection and community denunciation are of significance to the exercise of the sentencing discretion for the present offence. To my mind, specific deterrence, whilst still a factor, is less important than in other cases given the appellant’s lack of relevant history and her completion of a rehabilitation program.

21. The respondent fairly summarises the relevant factors in mitigation in this case at paragraphs 9.1 and 9.2 of their submissions:

    At the time of offending and sentence, the Appellant was a mature woman at 44 years of age. She was in gainful employment as a lab analyst. She had no criminal history and minor traffic history that is irrelevant for the purposes of sentencing in relation to this offence.

    …

    The appellant entered an early plea of guilty, indicative of remorse, and two character references were tendered that spoke to the Appellant’s good character and the personal difficulties she was facing at the time of the offending. At the time of sentence, the Appellant had been suspended from driving for a period of 1 month. The Appellant’s legal representative submitted that commuting to work would burden the Appellant. She completed the Queensland Traffic Offender’s program, demonstrating genuine insight into the seriousness of her offending and a proactive approach to rehabilitation. The Appellant’s legal representative submitted that, at the time of choosing to drive whilst under the influence, she got into a disagreement with her partner and felt that, for her safety, it would be best for her to leave.

22. 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.

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

24. The appellant submits that the appropriate sentence is a fine of $1200, disqualification of 7 months and no conviction recorded. The respondent submits that the sentence should be a fine in the range of $1200-$1500, disqualification of  8-9 months from the date of conviction and accepts that no conviction ought be recorded.

25. In addition to the decisions referred to by the respondent, Mayne v Purtill is also of assistance. In Mayne v Purtill, the appellant was the holder of a probationary licence and aged 18 at the time of the offence. He had a blood alcohol reading of 0.185. On appeal, the sentence was set aside and he was re-sentenced and was fined $1000 and disqualified from driving for a period of 12 months. It was his first offence although it should be noted that in that case, the appellant was a probationary driver and was required by law to have a reading of zero.  

26. I have determined that a fine of $1200 is appropriate. The appellant ought to be disqualified from holding or obtaining a Queensland driver licence for a period of 8 months.

27. In all of the circumstances, and consistent with the joint submission of the parties, I exercise my discretion in favour of not recording a conviction. There were no submissions made below by either party as to the recording of a conviction and no reasons provided by the Magistrate as to why he exercised his discretion to record a conviction. In my view, the nature and circumstances of this offending do not demand for a conviction to be recorded and all other factors militate against a conviction being recorded, as is conceded by the respondent. As the respondent states at paragraph 9.6 of their written submissions, “whilst the appellant is a mature age woman and the offending is serious, she is a first-time offender and should have the benefit of a conviction not being recorded.”

    Costs

1. The appellant seeks an order for costs to be calculated in accordance with the Justices Regulation2014 (Qld), schedule 2, being an amount of $1800. The respondent submits that the police prosecutor did not lead the Magistrate into error but made no submissions as to penalty. The respondent concedes it is open for the Court to award costs in the amount of $1800.

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