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MK v Director of Public Prosecutions QLD[2022] QCHC 9

MK v Director of Public Prosecutions QLD[2022] QCHC 9

CHILDREN’S COURT OF QUEENSLAND

CITATION:

MK v Director of Public Prosecutions QLD [2022] QChC 9

PARTIES:

MK

(applicant)

v

Director of Public Prosecutions Queensland

(respondent)

FILE NO/S:

91/22

DIVISION:

Appellate

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Maroochydore Childrens court

DELIVERED ON:

6 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2022

JUDGES:

Richards

ORDER:

Application granted.

That the order to reprimand the child on 9 March 2022 is discharged and substituted by the following orders:

  1. The charge be dismissed
  2. The child be referred to the Chief Executive for a restorative justice process pursuant to s 22 Youth Justice Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the defendant was 17 years of age at the time of the offending – where the defendant had no criminal or traffic history – where the defendant was reprimanded and sentenced to 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 24A, Div 13

CASES:

NIGHT v Director of Public Prosecutions [2022] QChC 6

NOR v Director of Public Prosecutions [2021] QChC 23

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

COUNSEL:

C Lumme for the applicant

R Dunmall for the respondent

SOLICITORS:

Lumme Rynderman Legal for the applicant

Director of Public Prosecutions (QLD) for the respondent

Introduction

  1. [1]
    The applicant was charged with a single offence of driving a motor vehicle whilst over the zero-alcohol limit, but under the general alcohol limit, while being the holder of a provisional license (P1). He pleaded guilty to that offence on 9 March 2022 and was sentenced to a reprimand with a mandatory three-month disqualification. He appeals against that sentence on the basis that it was manifestly excessive and that the court should have dismissed the charge under section 24A of the Youth Justice Act 1992.

Facts

  1. [2]
    At 5:08pm on 27 December 2021, police intercepted a black Ford Ranger at Teewah Beach at Teewah. The applicant was the driver. He was not wearing a seatbelt and was charged and fined $413 in relation to that offence. He also was required to submit to a roadside breath test, and his breath analysis resulted in a reading of 0.049 grams of alcohol in 210 litres of breath. At the time of sentence, the prosecutor submitted that, because the child was 17 years of age, it was the express intention of parliament that there be a license disqualification for drink driving. He submitted that was because 17-year-old drivers are involved in a high proportion of traffic accidents. It was submitted that, because of the general concerns about youth driving, particularly on Teewah Beach, he should be disqualified from driving and that he should not be dealt with under section 24A of the Act.
  2. [3]
    The applicant child had no criminal or traffic history. The applicant was in full-time employment as an apprentice concreter and part of his employment involved travel to various job sites around south east Queensland, including down to Byron Bay in New South Wales. He also plays representative rugby league and oz tag and does not drink alcohol regularly.
  3. [4]
    On the day in question, he and his friends were camping at Rainbow Beach. They travelled up to Noosa and set up camp. They had cooked a meal, a brisket on the barbecue, and he had consumed one vodka cruiser can. At around 5pm they ate the brisket, which had been marinated in overproof rum. He didn’t realise before he started eating it that this was the case, and he didn’t realise that it would affect his ability to drive the vehicle. He was pulled over by police approximately 45 minutes after eating the brisket. When he was pulled over by police, he indicated that he hadn’t been drinking until his friend reminded him about the brisket.
  1. [5]
    In relation to the driving itself, there was nothing dangerous about the driving that aggravated the sentence. He was extremely remorseful for the offending and, in fact, had of his own accord completed the Queensland Traffic Offender’s Program.

Submissions

  1. [6]
    The applicant submits that the Magistrate placed too much weight on the necessity for the child to have his licence taken from him rather than whether the necessary factors were present for an order under section 24A of the Youth Justice Act. His Honour distinguished the case of NOR v DPP[1] on the basis that NOR was not under the influence of alcohol or drugs. As noted previously in NIGHT v DPP[2], that is a consideration which did not affect the principle decided in that case because NOR also involved the issue of mandatory disqualification of a licence. In addition, the driving in NOR was dangerous and posed a serious risk to the public.
  2. [7]
    In deciding whether a section 24A dismissal was appropriate, the Magistrate referred to a parliamentary report into the issue of licence disqualification and 17-year-old drivers, to ascertain the intention of parliament and whether it was appropriate to apply section 24A of the Act in matters involving young drivers who test positive for alcohol and/or drugs whilst driving. The Magistrate decided that the provisions contained in division 13 of the Act meant that the child should be treated like an adult in relation to offences of driving whilst a relevant drug or alcohol was present in his system.
  3. [8]
    It is not apparent why the Magistrate thought that these provisions override all the other provisions of the Youth Justice Act including the Youth Justice principles. There is no apparent intention from an analysis of the Act that supports that position and there is no reason why that should be the case. It is apparent from this case and the cases of NIGHT[3] and WEB,[4] all of which were heard before the same Magistrate, that this is, however, the interpretation the Magistrate has made in relation to division 13 of the Act.
  4. [9]
    The sentencing regime in relation to children is very different from that which an adult may face. The scheme of the Act acknowledges that children do not have the same maturity as adults and that they are more likely to benefit from sentences that assist them to properly understand the wider effects on the community of their actions, develop alternative ways to act and to empathise with the possible victims of their crimes. The addition of division 13 in the Youth Justice Act is simply a mechanism that will be applied in cases where diversion is not appropriate. That does not mean it applies to every case or that diversion or dismissal is never appropriate.
  5. [10]
    As it was submitted by the applicant’s solicitor at first instance, the police officer had fettered his discretion to divert the child by deciding that it was not appropriate to do so given the mandatory disqualification applicable at sentence. That was an error given the antecedents of the child and the supports he had in the community. At the initial hearing of this matter there was the additional factor of the proactive efforts he had made to address the behaviour that led him to being charged in the first place.
  6. [11]
    This was a child who was of good character. He had never been before the court prior to this matter. He was hard working and remorseful, having entered a plea of guilty at the first mention of the matter. He made full admissions to the offence. In those circumstances, and given the hardship that the loss of licence would cause him, it would have been appropriate to dismiss the charge under section 24A of the Act. The submission by Mr Lumme was that there was no utility in ordering a restorative justice conference given that the child had completed the QTOP program. I do not accept that submission. In my view, the restorative justice process would still be useful to this young man given that this was driving in circumstances where there was no necessity to drive and he had a lack of understanding of the ways in which his alcohol consumption was affected by his consumption of marinated food.
  7. [12]
    In relation to this matter, the application is granted. The sentence is discharged. The order of the court is that pursuant to section 24A of the Youth Justice Act the charge is dismissed and the matter is referred to restorative justice process pursuant to section 22 of the Youth Justice Act.

Footnotes

[1] NOR v Director of Public Prosecutions [2021] QChC 23.

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

[3] Ibid.

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

Close

Editorial Notes

  • Published Case Name:

    MK v Director of Public Prosecutions QLD

  • Shortened Case Name:

    MK v Director of Public Prosecutions QLD

  • MNC:

    [2022] QCHC 9

  • Court:

    QChC

  • Judge(s):

    Richards

  • Date:

    06 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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