Queensland Police Service v McGowan
[2008] QDC 49
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- Queensland Police Service v McGowan[2008] QDC 49
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Queensland Police Service v McGowan[2008] QDC 49
Queensland Police Service v McGowan[2008] QDC 49
[2008] QDC 49
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBERTSON
No D294 of 2007
QUEENSLAND POLICE SERVICE | Appellant |
and |
|
LORRAINE MAREE McGOWAN | Respondent |
MAROOCHYDORE
DATE 14/03/2008
ORDER
Catchwords: | Appeal against sentence, 63-year old first offender pleaded guilty to s 80(11) of TORUM offence and s 79(1) offence dismissed; whether it was permissible as a matter of law to take into account the driving in imposing sentence for failure to supply. |
HIS HONOUR: Ms McGowan pleaded guilty to one charge of breaching section 80(11) of the Transport Operations (Road Use Management) Act 1995 before his Honour Magistrate Killeen on the 26th of November 2007. A charge of driving under the influence of liquor pursuant to section 79(1) of the Act was not proceeded with by the prosecution and was struck out by Mr Killeen. Ms McGowan was fined $1,000 and disqualified from holding or obtaining a driver's licence for a period of nine months.
She appeals only against the period of disqualification, submitting that, in all the circumstances of this case, this aspect of the penalty was manifestly excessive and/or that his Honour was in error in taking into account irrelevant matters on sentence.
Background Facts
The Prosecutor told Mr Killeen that police had attended the Caltex Bli Bli service station on the night in question and had noticed Ms McGowan's vehicle. She was observed to have slurred speech, be dishevelled, unsteady on her feet and smelling strongly of liquor.
She provided a roadside specimen of breath and was transported to the Maroochydore Police Station where she failed to provide a sufficient specimen as required by section 80(11). A certificate to that effect was issued.
Mr Hall informed Mr Killeen that his client was a 63-year old lady who had no previous traffic or criminal history. Her plea was clearly timely and she was extremely remorseful. Mr Hall explained to his Honour the circumstances under which she came to be at the service station that evening, which were quite unusual.
Mr Hall tendered a number of character references and a letter from her doctor, Dr Kenny. That letter explained to some extent why this woman of obvious good character had failed to supply at the police station. The letter advised his Honour that Ms McGowan suffered from depression and anxiety and panic attacks, and because of the circumstances she found herself in, she ran out of breath.
Mr Hall also gave his Honour some background information that might explain her psychological difficulties, and he also told his Honour that she was a real estate agent and had a pending job offer.
Mr Killeen's sentencing remarks were brief:
"In determining the appropriate sentence, I do take into account the facts stated by the Prosecutor, the submissions made by Mr Hall on your behalf. You have entered an early plea of guilty to the charge. Of note, you have got no previous history. Note also from the indicia that you were substantially affected by alcohol at the time of driving.
In the circumstances, a conviction is recorded. You are fined $1,000, in default of payment, SPER registration and enforcement, and you are disqualified from holding or obtaining a driver's licence for nine months from today."
Mr Hall, in his submission, and Mr Courtney, on Ms McGowan's behalf today, make a number of complaints about these very brief reasons. Mr Courtney and Mr Hall submit that, in taking into account that she was "substantially affected by alcohol at the time of driving", "in determining the appropriate sentence", his Honour has impermissibly taken into account other conduct of a criminal nature for which she was not convicted.
As I have noted, the driving under the influence charge was dismissed because the prosecution said it would offer no evidence, and the police did not allege that she was actually driving when they observed her in the service station. Mr Hall did tell his Honour that she indeed had driven to the service station that night after consuming liquor at her friend's house, in the context of explaining the rather unusual circumstances as to why she decided to drive after drinking.
As Ms Cupina points out on behalf of the respondent, an offence against section 80(11) is deemed to be an offence against section 79(1), "and the offender is liable to the same punishment in all respects ... as the person would be in the case of the offence being actually one committed by the person against the provision". However, in my view, that provision relates primarily to punishment, and in this case, the actual 79(1) charge was dismissed.
As recently as the 8th of February 2008, in R v. Forrester [2008] QCA 12, the Court of Appeal reaffirmed that the law in relation to this issue in Queensland is still in accordance with the judgment of that Court in R v. D [1996] 1 Qd.R. 363 at 404:
“1. Subject to the qualifications which follow:
- (a)a sentencing Judge should take account of all the circumstances of the offence for which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
- (b)commonsense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes;
- (c)an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.
- An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would establish:
- (a)a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
..."
(My emphasis)
Here, the gravamen of the offence for which this lady was sentenced was the failure to supply. Driving the vehicle was not an element of that offence, nor could it be said to be simply an act coming within 1(c) of these principles, even though, as a matter of law, the punishment was the same. The driving clearly falls within 2(a) of the above principles, and his Honour fell into error into taking it into account.
In those circumstances, the Court is obliged to exercise the sentencing discretion afresh in relation to the offence: AB v. The Queen (1999) 198 CLR 111 at 160; R v. Johnson [2000] QCA 433 at [6][7], and R v. Forrester at [30].
It is unnecessary for me to deal with the other grounds in the outline. Given his Honour's extensive experience in dealing with these matters, I would not presume to have a better understanding than him of the appropriate penalties, and therefore I would not have held that the penalty was manifestly excessive.
This was an exceptional case involving a 63-year old first offender who had committed the out-of-character act of failure to supply in quite extenuating and exceptional circumstances; who was deeply remorseful and who had pleaded guilty at an early stage. It is difficult to imagine a more deserving example of a case in which the mandatory minimum disqualification period should be applied.
In those circumstances, the appeal is allowed. The order made by his Honour is set aside only to the extent of substituting for the nine-month disqualification period a six-month disqualification period.
MR COURTNEY: I make application for costs, your Honour.
...
HIS HONOUR: I order the respondent to pay the appellant's costs of the appeal fixed at $1,800, and I will grant the respondent an indemnity certificate under the Appeal Costs Fund Act 1973, section 15, subsection 3.