Smith –v– Scott
[2006] QDC 203
•9 June 2006
DISTRICT COURT OF QUEENSLAND
CITATION: | Smith –v– Scott [2006] QDC 203 |
PARTIES: | SMITH, Jason Patrick Appellant Against SCOTT, DR Respondent |
FILE NO: | 119/06 |
PROCEEDINGS: | Appeal against sentence from Magistrates court. |
DELIVERED ON: | 9 June 2006 |
DELIVERED AT: | Townsville |
HEARING DATE: | 8 June 2006 |
JUDGE: | C.F Wall Q.C |
ORDERS: | Appeal allowed to the extent only of setting aside the order that the appellant be disqualified from holding or obtaining a driver’s licence for 10 months from 29 March 2006 and substituting an order that the appellant be disqualified from holding or obtaining a driver’s licence for 6 months from 9 June 2006. |
CATCHWORDS: | APPEAL – SENTENCING – DRIVING OFFENCES – applt convicted of driving a motor vehicle with a BAC of 0.130 – applt received maximum fine of $1,500 and was disqualified from holding or obtaining a driver’s licence for 10 months – wh the disqualification period was manifestly excessive and should be reduced – wh the Magistrate placed disproportionate weight on the applt’s traffic history – wh the Magistrate properly considered the applt’s early plea of guilty – identification of relevant sentencing considerations Case referred to: |
COUNSEL: | Mr M. Donnelly for the Appellant |
SOLICITORS: | Alex Nelson & Associates Solicitors for the Appellant |
HIS HONOUR: This is an appeal against sentence. On the 29th of March 2006 in the Magistrates Court at Townsville the appellant was convicted of driving a motor vehicle on the 13th of March 2006 at Townsville whilst his blood alcohol content (BAC) was 0.130. He was fined $1,500 and disqualified from holding or obtaining a driver's licence for 10 months.
He contends that the driver's licence disqualification for 10 months is manifestly excessive in all the circumstances and should be reduced. $1,500 was the maximum fine that could be imposed. The Magistrate was required to disqualify the appellant from holding or obtaining a driver's licence for a period of not less than three months and not more than 18 months.
The facts upon which the appellant was sentenced were these taken from the police Court brief.
"At about 4.59 a.m. on the 13th March 2006 Police from Townsville Station were conducting patrols along Flinders St East when they observed a black Mercedes bearing Queensland Registration 01JPS depart from a car park on Flinders St East. Police then proceeded to follow the vehicle through the lights at intersection with Denham St. Police intercepted the vehicle once on a safe stretch of road on Eyre St North Ward at about 5.04 a.m.
On approaching the vehicle Police observed 4 (2 male and 2 female) persons seated in the back seat and 2 male persons in the front of the vehicle. Police spoke with the male driver who is the defendant in this matter. The defendant had glazed eyes and Police could smell liquor on his breath. The defendant stated 'I am just trying to do the right thing and drive these people home, I just live around the corner, come on I am doing the right thing.'"
The appellant has a serious traffic history commencing in July 1993. It includes the following offences:
Speeding - 22 (various speeds);
Driving whilst using a mobile phone - 2;
Disobeying a no right turn sign - 1;
Failing to stop at a stop sign - 1
Of particular significance to this appeal is that on the 7th of December 2005 in the Magistrates Court at Townsville, the appellant was convicted of driving with a BAC of .086 on the 30th of September 2005. He was fined $600 and was disqualified from holding or obtaining a driver's licence for one month. The maximum penalty for that offence (being a first offence of that type) was a fine of $1,500 and a licence disqualification of not less than one month or more than nine months. That conviction rendered him liable to the increased period of licence disqualification for the present offence.
In the present case he pleaded guilty at the earliest opportunity, being the first return date. The Magistrate said only "I accept the early plea", but it is not apparent that he
in fact gave the appellant any credit for it. On the contrary, I doubt that he did. The appellant is a real estate agent and needs his driver's licence for his livelihood. This was emphasised to the Magistrate and it was submitted that he should impose the maximum fine and balance that by reducing the period of licence disqualification. The Magistrate did this saying:
"A maximum penalty of up to $1,500. Now, the penalty I would normally impose would be probably a bit less than this. I am prepared to increase the penalty and I am prepared to reduce the suspension to some extent to provide some benefit to you by virtue of your situation as indicated by counsel but I am afraid, you know, it is not going to be anywhere near the minimum period of disqualification but it will provide some benefit to you. Ten months, it is a reduction of four or five months. It is the best I can do for you."
It is not apparent that any additional credit was given, as it should have been, for the appellant's timely plea of guilty.
Mr Donnelly for the appellant, who was also counsel before the Magistrate, submitted that the Magistrate placed disproportionate weight on the appellant's traffic history and primarily sentenced the appellant on the basis of his propensity to commit traffic offences and not having regard to the circumstances of the offence, bearing also in mind his early plea of guilty. I think there is substance in this submission.
The Magistrate used quite emotive language when referring to the appellant's traffic history. He said:
"It is true what Mr Donnelly has pointed out that you have not got a high speed offence for a number of years and I forget when it was, back maybe to '97.
You have certainly got plenty of speeding offences in the last few years of what I call mid to high range in terms of at least 13 kilometres, at least 13 kilometres, 13 kilometres, at least 13, hand-held mobile phone, not wearing a seat belt. You have an atrocious record that is deplorable. You do not do your profession one bit of good in terms of driving with a mobile phone, the famous Townsville offence; not stopping at stop signs. Everyone around here seems to do it. That is a shocker.
I have got to point this out to you; 15 points in the last three years. You have committed five offences in the last two. You have committed 14 offences in five years. You have committed 28 in about 14 years.
But look, it is awful. Mobile phone. And I do not care. Not wearing a seat belt, mobile phone, disobeying right-hand turn, warning letters; a couple of warning letters have been sent out, certainly in December '01 and in April '02 and since the April '02 letter this is your fifth offence. A couple of mobile phone offences, you have not learnt from the first one.
You may be a wonderful driver and all that sort of thing but you are bound by the rules of law the same as every other person in this courtroom and yet you have not adjusted to that. Maybe it is a work ethic, you want to get from A to B it is imperative but I am sure there are other good sales persons, people in this town, they do not always have these offences. You have really got to take stock. If the penny has not dropped now it never will.
I accept that you are a law abiding person in other ways but it is just as far as the traffic rules go you have thrown caution to the wind."
The appellant's traffic history was of course generally relevant as a basis for inhibiting mitigation. See Baumer v. R (1988) 166 C.L.R. 51 at 58 referred to by Mr Donnelly.
I think the Magistrate has over emphasised the appellant's traffic history in deciding upon the appropriate sentence to impose on him.
A traffic history, like a criminal history, assumes in the exercise of the sentencing discretion more or less importance, depending on its nature. Here the most relevant prior conviction for sentencing purposes was that for driving with a BAC of .086 on the 30th of September 2005, as opposed to the others. This is not to say though, that the others were not important, but the irrelevance should not have been, as I consider it was, over emphasised. The risk associated with doing that is that the Magistrate may have increased, as I think he in fact did, the sentence because of those other offences, without first considering their particular relevance on a second conviction for a drink driving offence.
The Magistrate took into account, as he should have, the fact that the present offence was the second such offence within a short period of time. Except for one matter the Magistrate did not at all consider, as he should have, the circumstances of the present offence when sentencing the appellant. And the failure to do so highlights the fact that the appellant was in all probability primarily sentenced on his traffic history and not on what he had done.
The circumstances of the offence were relatively benign so far as drink driving is concerned. The appellant drove, and was always only going to, a relatively short distance before he was stopped and there was no evidence that his driving was other than apparently normal.
The one matter which the Magistrate did mention was the fact that the appellant had driven for only a short distance, but in relation to that matter he said, "It does not matter", which I consider to be erroneous. It does matter because it was relevant to the risk the appellant placed his passengers and other road users including pedestrians at and the likelihood of there being an accident. The Magistrate did say that "accidents can occur" but this was said in a relatively non-specific context.
What the Magistrate appears to have done was to simply sentence the appellant for an offence and a traffic history without considering or properly considering the other matters I have referred to. In this respect, he fell into error. For these reasons, the sentencing discretion miscarried and the sentence, so far as the period of licence disqualification is concerned, should be set aside and the appellant resentenced.
Sentencing is a balancing exercise where various different and often conflicting circumstances are taken into account, some outweighing others and some cancelling or equalling others. In my view, an appropriate period of licence disqualification in this case would be seven months. That is six months more than the period of disqualification for his first offence and three months less than the period imposed by the Magistrate.
I have decided upon a period of seven months, taking into account the circumstances of the offence, including the manner and duration of driving; the absence of any obvious risk to other road users, both motorists and pedestrians; the blood alcohol content; the early plea of guilty; the prior drink driving offence; the imposition of the maximum fine; the appellant's personal and employment circumstances; the fact that the legislature has contemplated a disqualification period of only three months for a second drink driving offence and his traffic history in general.
In the circumstances, I allow the appeal to the extent only of setting aside the order that the appellant be disqualified from holding or obtaining a driver's licence for 10 months from the 29th of March 2006 and substituting therefore, an order that the appellant be disqualified from holding or obtaining a driver's licence for seven months from the 29th of March 2006.
The parties are agreed that there be no order for costs and none is made.
POSTSCRIPT:
..DATE 22/06/2006
HIS HONOUR: Counsel have informed me that according to the Department of Transport the institution of the appeal in this case operated as a stay of the appellant's driver's licence disqualification pending the determination of the appeal.
The statutory provision relied on is apparently section 131(3A) of the Transport Operations (Road Use Management) Act 1995 which is in the following terms:
"131(3A) Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver licence and has commenced an appeal against that conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that behalf, be suspended pending the determination of that appeal."
That seems only to apply in the case of an appeal against conviction which the present was not. See though the definition of "convicting a person" in schedule 4.
Counsel are agreed that save for a period amounting to approximately one month the appellant has not driven since the 29th of March 2006. Counsel are also agreed that the appellant should now be formally disqualified from holding or obtaining a driver's licence for six months from the date I gave judgment, namely the 9th of June 2006. That period, coupled with the period of approximately one month that the appellant did not drive for, amounts to an effective disqualification period of seven months which was my original intention.
In the circumstances I vary the order made on the 9th of June 2006 so that it reads as follows:
I allow the appeal to the extent only of setting aside the order that the appellant be disqualified from holding or obtaining a driver's licence for 10 months from the 29th of March 2006 and substituting therefore an order that the appellant be disqualified from holding or obtaining a driver's licence for six months from the 9th of June 2006.
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