Thrush v The Commissioner of the Queensland Police Service

[2015] QDC 272

DISTRICT COURT OF QUEENSLAND

CITATION:

Thrush v The Commissioner of the Queensland Police Service [2015] QDC 272

PARTIES:

HARVEY JAMES THRUSH

(appellant)

v

THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

36/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

26 October 2015 ex tempore

DELIVERED AT:

Toowoomba

HEARING DATE:

26 October 2015

JUDGE:

Samios DCJ

ORDER:

1.          The appeal is allowed.

2.          His Honour orders the recording of a conviction by the learned Magistrate on 20 July 2015 be set aside.

3.          No order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – CRIMINAL LAW – DUTY OF COURT BELOW TO GIVE REASONS – ERROR OF LAW – where the appellant was convicted after a plea of guilty of one charge of driving without due care and attention – where the learned Magistrate fined the appellant and recorded a conviction – where the learned Magistrate did not give reasons as to why a conviction was recorded – whether the sentence imposed by the learned Magistrate was manifestly excessive

Cases

R v Dodd [2010] QCA 31

COUNSEL:

Mr S Trewavas (solicitor) for the appellant

Ms S Petrie (legal officer) for the respondent

SOLICITORS:

Creevey Russell Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

1. HIS HONOUR:   On the 25^th of July 2015, the appellant was convicted after a plea of guilty in the Toowoomba Magistrates Court of one charge of driving without due care and attention.  The learned Magistrate fined him $750 and recorded a conviction.  The appellant, by his notice of appeal, says the Magistrate erred, in particular now, as it has been conceded by the respondent, that there has been an error by not providing reasons as to why a conviction was recorded.  In that sense, the appellant says the resulting sentence was manifestly excessive.

1. As I said, the respondent concedes an error was made by the learned Magistrate, that is, he failed to provide any reasons for why he exercised his discretion to record a conviction.  As no reasons were provided, it can be presumed that the learned Magistrate did not turn his mind to the exercise of the discretion in an informed way.  It follows that I am required to re-exercise the discretion when there is a failure to give reasons as to why a conviction is to be recorded.  For these propositions, the authority is The Queen v Dodd [2010] QCA 31, that is, in these circumstances, a failure to give reasons as an error of law and the third ground of appeal I find is made out.

1. In looking at the circumstances, the appellant was 22 years of age at the time of the offence.  He was in full-time employment and he virtually had no traffic history.  Although the respondent submits the offence was a traffic offence, albeit a serious traffic offence, I’m inclined to take a more generous view of what occurred.  Accidents do happen.  It doesn’t follow that it shows a propensity in this case on the part of the appellant to drive without due care and attention.  There was ‑ ‑ ‑

1. MR PETRIE:   Sorry to interrupt, your Honour.  I’ve just got the security guard here.  The panic button’s has just been pressed.  If it’s not deactivated, the police will arrive shortly.

1. HIS HONOUR:   Yes.  Sorry.  Deactivate it, please.  No.  No.  Thank you.  For the record, what occurred is that the appellant, while driving, clipped a kerb and veered towards the left side of the road and drove over a gutter towards a power pole.  He over-corrected to miss the power pole and then crossed the road and crashed into a stationary vehicle situated on a driveway.  When I say that I would take a more generous view of this, I do so because there was no allegation of excessive speed, alcohol or drugs on the part of the appellant.  I do note the driver of the stationary vehicle suffered minor injuries and shock, which is not surprising.

1. As I said earlier, and this is what is submitted in Mr Trewavas’ submissions, this can be described as an accident.  The appellant cooperated with the police, he entered an early plea of guilty, he has no criminal history, and he did not have legal representation when he was sentenced.  In all the circumstances, then, the appeal is allowed.  What other orders should be made, Mr Trewavas?  How do I deal with the – getting rid of the conviction?  I order that the recording of a conviction be deleted or ‑ ‑ ‑

1. MR TREWAVAS:  Appeal allowed, fine of $750, no conviction recorded.

2. HIS HONOUR:   Yes.  Well, I think I have to make an order. The appeal is allowed.  I order the recording of a conviction by the learned Magistrate on 20 July 2015 be – the word deleted is a bit clumsy – be deleted – be ‑ ‑ ‑

1. UNIDENTIFIED SPEAKER:   Perhaps set aside, your Honour.

1. HIS HONOUR:   Yes.  Thank you.  Thank you.  Be set aside and then no order as to costs.  All right.  Does that dispose of that matter, then, Mr Trewavas?

1. MR TREWAVAS:  It does.  Thank you, your Honour.

1. HIS HONOUR:   Yes.  No.  Thank you.

1. MR TREWAVAS:  Thank you for dealing with that matter.

1. HIS HONOUR:   Yes.  No.  Thank you.  That’s – we like doing this, if they come as quickly and easy as that.  I will just give all that back to my Associate.  I’ve got copies of your material here, you might want back.  I don’t know.

1. MR TREWAVAS:   That’s fine, your Honour.  I’m quite happy to leave them with your Associate if ‑ ‑ ‑

1. HIS HONOUR:   All right.  Well, thank you.

1. MR TREWAVAS:    Thank you, your Honour.

2. HIS HONOUR:   He can separate your copies.   Just give them back to you so you’ve got them.  They’re there.  Did Mr Bailiff – Mr Bailiff?  If you could just give those to Mr Trewavas.  Just give those to Mr Trewavas.  Thank you.   Thank you.