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WEB v Director of Public Prosecutions Queensland[2022] QCHC 7

WEB v Director of Public Prosecutions Queensland[2022] QCHC 7

CHILDRENS COURT OF QUEENSLAND

CITATION:

WEB v Director of Public Prosecutions Queensland [2022] QChC 7

PARTIES:

WEB

(applicant)

v

Director of Public Prosecutions Queensland

(respondent)

FILE NO/S:

56/22

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

5 May 2022

DELIVERED AT:

Childrens Court of Queensland at Brisbane

HEARING DATE:

29 March 2022

JUDGES:

Richards P

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the defendant was 17 years of age at the time of offending with no criminal or traffic history – where the defendant was reprimanded and sentenced to a 3-month disqualification from holding or obtaining a driver’s license – whether the sentence is manifestly excessive – whether the failure to order a restorative justice process amounts to an error.

LEGISLATION:

Youth Justice Act 1992 (QLD) ss 11, 22, 24A, 123

Transport Operations Road Use Management Act 1995 (QLD)

CASES:

NOR v Director of Public Prosecutions [2021] QChC 23

NIGHT v Director of Public Prosecutions [2022] QChC 6

COUNSEL:

N Douglas for the applicant

B Crook for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions (QLD) for the respondent

Introduction

  1. [1]
    The applicant appeared in the Maroochydore Magistrates Court on 9 February 2022, charged with driving a motor vehicle whilst a relevant drug was present in her saliva on 25 November 2021. She was sentenced to a reprimand and a mandatory three-month disqualification from holding or obtaining a driver’s license. She has sought a review on the basis that the sentence was manifestly excessive. The applicant submits that the Magistrate should have dismissed the charge and referred the matter back under section 24A of the Youth Justice Act to the chief executive for a restorative justice process under section 22 of the Act.

Facts

  1. [2]
    At 10:35am on 25 November 2021, police intercepted a blue Toyota Hilux at Teewah Beach, Cooloola. The applicant was driving the motor vehicle and at the time she held a P1 provisional license. She was 17 years of age. She submitted to a roadside drug test and ultimately tested positive for 3-4 Methylenedioxymethamphetamine (MDMA) and delta-9-tetrahydrocannabinol. She admitted to police that she had smoked a joint the night before. She had forgotten her antidepressant medication and was not feeling well. She was also fined $183 for exceeding the speed limit in a speed zone by less than 13km on the same day. It was submitted on behalf of the police that there had been poor driving behaviour in the Teewah Beach area, and the area had been subject to a number of police operations to try and limit the amount of incidents occurring. Therefore, it was submitted, personal and general deterrence were very important.
  2. [3]
    On behalf of the applicant, it was submitted that she had been suffering from anxiety and depression for some time and had been receiving treatment since March 2021. A letter was tendered from her mother indicating that they had also had to deal with some serious family issues in the last 6 months, which had escalated her mental health problems. She had forgotten to take her medications when she went to schoolies and unfortunately used drugs to try and calm herself down.
  3. [4]
    It was submitted that she was currently working between 30 and 35 hours per week at Caboolture and was enrolled to study to be an EN, having completed the first part of that course while she was finishing year 12. She had aspirations of becoming a registered nurse eventually.
  4. [5]
    She had fortnightly appointments with a counsellor. It was submitted on her behalf that she would lose her employment and be unable to attend university if she had lost her license. She had no previous traffic or criminal history before this date.

Discussion

  1. [6]
    In sentencing the applicant, the Magistrate distinguished the decision of NOR v The Director of Public Prosecutions [2021] QChC 23 on the basis that there were no alcohol or drugs involved in that case. He indicated that, because there was specific legislation requiring people in her position, young and inexperienced, to be subject to mandatory periods of disqualification, he would not refer the matter under section 24A of the Youth Justice Act. He concluded that:

“It is unfortunate, but in my view, to ignore the road safety message, to ignore the death toll on the road, to ignore that your cohort, at your age, makes up a significant part of those numbers because of the inexperience, and to not follow the specific legislation in respect of subjecting you to mandatory periods of disqualification as if you were an adult – to ignore that means that if I make any other order, there is no deterrence. This is deterrence. It is for you to think about.”[1][AR1]

  1. [7]
    At the hearing of this matter, it was submitted by the Crown that there was no power to consider a section 24A order on an appeal because it is not a sentence order. Therefore, under section 123 of the Act, the court has no power to consider whether the matter should have been dismissed pursuant to that section. For the reasons outlined in my previous decision of NIGHT v DPP,[2] I do not accept that proposition. The provisions of section 123(1)(c) of the Youth Justice Act empower this court to discharge the order and make any other order a Magistrate is able to make. That, in my view, includes consideration of section 24A of the Act.
  2. [8]
    In the QP9 that was attached to the affidavit of Siobhan Markwell[3] submitted[AR2] by the DPP the police did not consider it appropriate to use diversionary options under section 11 of the Youth Justice Act because of the provisions of Transport Operations Road Use Management Act 1995 (QLD) and the mandatory period of disqualification that follows a finding of guilt. The police noted the juvenile could only be dealt with by notice to appear. In that regard, the police unnecessarily fettered their discretion under the Youth Justice Act and did not properly consider their obligations under section 11 of the Act to divert the child from the system where appropriate. 
  3. [9]
    In this particular case, the child was a person of good character. She had mental health issues that were relevant to the sentencing considerations and provided a reason for her using the drugs that were in her system. Nonetheless, there was no emergent reason for her driving. It is not clear from the brief or the facts whether she was pulled over because she was speeding or whether she was speeding on another occasion on that day, but she did admit to having marijuana the night before. She did not admit to taking the MDMA. She was driving the next morning having ingested marijuana the night before and MDMA at some time prior to driving. She, in a letter tendered to the court, stated that she took the marijuana and one MDMA tablet 48 hours before driving, however, that is not what she told police.  She indicated that things would be very difficult if she lost her license completely and that proposition is easily accepted.
  4. [10]
    However, given the presence of two different drugs in her system, the fact that she drove the next morning (according to her interview with the police) and the fact that she was speeding either at the time or on the same day, this was not an appropriate manner for a section 24A dismissal of charges and the order imposed by the sentencing Magistrate was appropriate.
  5. [11]
    The application is dismissed.

Footnotes

[1] Transcript of decision p 3 line 5.

[2] NIGHT v Director of Public Prosecutions [2022] QChC 6.

[3] Exhibit SM1.

[AR1]LIZ: once transcript is scanned through, check this

[AR2]Liz: find this!!!!

Close

Editorial Notes

  • Published Case Name:

    WEB v Director of Public Prosecutions Queensland

  • Shortened Case Name:

    WEB v Director of Public Prosecutions Queensland

  • MNC:

    [2022] QCHC 7

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    05 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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