Waldron v Dearden[2009] QDC 244

DISTRICT COURT OF QUEENSLAND

HER HONOUR: In this appeal the appellant pleaded guilty in the Magistrates Court Cairns on the 29th of May 2009 to a charge of driving a motor vehicle whilst he had a blood alcohol content of .055 per cent. The offence was committed on the 5th of April 2009 at Cairns.

The appellant was fined $500 and disqualified from holding or obtaining a driver's licence for four months. He was issued a restricted licence for the period of the disqualification authorising him to drive only for purposes directly connected with the means of earning his livelihood as a diesel fitter. The restricted licence confined his driving to between the hours of 6 a.m. and 6 p.m. Monday to Friday, and between the hours of 6 a.m. and 3 p.m. Saturday, and prohibited him from carrying a passenger in his motor vehicle.

The appellant contends that the fine and disqualification period are manifestly excessive, but he does not appeal with respect to the issuing of or the conditions attached to his restricted licence.

The facts leading to the appellant being charged are that at approximately 1.45 a.m. on the 5th of April his vehicle was intercepted for the purpose of a random breath test. There was no suggestion that the nature of the appellant's driving was of concern. The appellant was 22 years of age at the time of the offence, and although his traffic history includes a number of infringements, including three speeding offences, the history is relatively minor and does not include any previous convictions for drink driving offences.

In his very brief sentencing remarks, the sentencing Magistrate noted that there was "nothing adverse" in relation to the appellant being intercepted by police, and that his reading was "just above the limit".

The maximum penalty provided for in the Transport Operations (Road Use Management) Act 1995, which I'll refer to as TORUM, for the offence is one of a fine of 14 penalty units, that is $1,050, or a term of imprisonment not exceeding three months. A person convicted of such an offence must be disqualified for a period of not less than one month and not more than nine months.

Section 86(2)(A) of TORUM provides as follows:

"The period of disqualification must be decided by the Court which in making its decision must have regard to the concentration of alcohol in the blood or breath of the defendant or the presence of a relevant drug in the defendant's blood or saliva, and the danger real or potential to the public in the circumstances of the case."

In this case, clearly the concentration of alcohol in his blood was only just over the legal limit of .05 per cent, and there is no suggestion of any danger real or potential to the public in the circumstances of the case.

The provisions of TORUM relating to the issuing of a restricted licence provide that when an order directing the issue of a restricted licence is made "for the purpose of making the order disqualifying the applicant, the maximum period for which the Court may impose the disqualification is twice that specified in the provision".

It is argued on behalf of the appellant that had he not applied for a restricted licence the usual fine would have been not more than $200, and the disqualification period would have been one month. The appellant argues that the granting of the restricted licence should not have increased the fine, and that the disqualification period should have been between one month and six weeks.

The respondent argues that the four month period of disqualification on a restricted licence is at the lower end of the scale, having regard to the maximum period of disqualification available to the Magistrate, which would be 18 months, and also having regard to the appellant's antecedents, and the concentration of alcohol in his blood. Similarly, the respondent argues that a fine of $500, where the maximum fine available was $1,050, was within the Magistrate's discretion.

Unfortunately, neither party in this matter has been able to refer me to any authorities which would indicate what the usual range of penalty, both in terms of fine and period of disqualification would be for an offence in these circumstances. The appellant has referred me to the case of Manitzki v Ryan, which is Queensland District Court appeal decision, 2005 178. That appeal involved a refusal by the sentencing Magistrate to grant a restricted licence, and the authority has been referred to as it's submitted it offers some guidance as to the appropriate penalty given the blood alcohol reading. In that case the blood alcohol concentration was one of 0.138 per cent and the penalty imposed was a fine of $800 and a disqualification period of eight months.

At paragraph 5 of his Honour Judge Nase's decision in that case, his Honour made the following comment:

"The sentence order of $800 with a disqualification period of eight months is a standard sentence order for a blood alcohol reading between .13 per cent and .14 per cent, where the offender is a holder of an open licence, with no previous drink driving offences. The only attack on the length of the disqualification period was the assertion the period of eight months is manifestly excessive. During the appeal no attempt was made to substantiate the claim a period of eight months' disqualification is manifestly excessive."

It's argued on behalf of the appellant that such a penalty is consistent with the maximum term of disqualification, being one of nine months, with a blood alcohol reading between .05 and up to but not including .15, and argues that the minimum disqualification of one month would apply. In a sort of backward reading, a period of one month would apply when the blood alcohol reading was between .05 and .06 per cent, as it was in this case.

The appellant also referred to the Court of Appeal decision of Riordan v Grohl, number 152 of 2000. In that case the appellant had a blood alcohol reading of .095 per cent and was fined $400 and disqualified from holding or obtaining a driver's licence for three months. Again, it's argued on behalf of the appellant that those facts support the assertion that in this case a much lower fine and period of disqualification should have been imposed.

I gave the appellant's solicitor leave to file and read an affidavit which he swore himself today, in which he states that he has, whilst being in practice since February 1987, regularly appeared in the Magistrates Court and represented hundreds of defendants charged with driving with a blood alcohol concentration of between .05 and .06 per cent. Mr Mellick asserts that in his experience the disqualification period in such cases has always been of one month disqualification and that the fine has been in the range of $150 to $200. He also asserts that when a restricted licence is granted the Magistrates in Cairns do not as a general proposition increase the period of disqualification, notwithstanding that they have a discretion to double the period of disqualification.

I allowed that affidavit to be filed and pursuant to section 223(2) of the Justices Act will treat it as fresh evidence. Of course there's not a lot of weight I can give to Mr Mellick's affidavit, which is certainly not meant as any disrespect to him, and it is just unfortunate that there really are not any publicly accessible records kept of the sorts of penalties that are imposed by Magistrates in these sorts of cases.

In this case I am satisfied that the fine imposed by the sentencing Magistrate was excessive. The maximum fine he could have imposed was one of $1,050 and that is for an offence that could involve a blood alcohol reading up to but not including .15 per cent. So nearly three times the blood alcohol reading in this case. What he did impose was a fine of $500 which was half of the maximum, and given that I do accept that there is generally a sliding scale depending on the blood alcohol reading so far as the penalty both in terms of fine and period of disqualification is concerned, a fine of almost half of the maximum available is excessive in the circumstances of this case.

So far as the period of disqualification is concerned, however, I'm not satisfied that the four months' disqualification imposed is manifestly excessive. Certainly I'm prepared to accept that it's at the higher end of the range, but given that a restricted licence was granted and the facts of this case, I'm not satisfied that that was manifestly excessive.

The order that I'll make then is that the appeal is allowed, the fine imposed by the sentencing Magistrate is set aside, and a fine of $200 is substituted. That was referred to SPER. Do you want me to do the same with this one?

MR MELLICK: Thank you, your Honour.

HER HONOUR: Okay. Enforcement of the fine is to be referred by the Registrar of the District Court to the State Penalties Enforcement Register, and otherwise the order of the Magistrate is to remain in place.