DISTRICT COURT OF QUEENSLAND

1. [1]
   On 30 September 2009 the appellant was convicted on his pleas of guilty of two offences against the Transport Operations (Road Use Management) Act 1995 (“the Act”).  The first charged him with driving a motor vehicle on a road while he was under the influence of liquor or a drug, contrary to s 79(1) of the Act, on 21 March 2009.  The second charged him with driving a motor vehicle on a road while unlicensed and while his licence was suspended under s 79B of the Act, contrary to s 78(1) and (3) of the Act.  On each charge the appellant was fined $500.  On the former charge he was disqualified from holding or obtaining a driver licence^[1] for a period of 12 months, and on the latter charge he was disqualified from holding or obtaining a driver licence for a period of two years.

2. [2]
   On 23 October 2009 he filed a notice of appeal under s 222 of the Justices’ Act 1886 against the sentence on the ground that the disqualification was excessive.  The grounds also refer to the difficulties caused to his wife, who has had a stroke, because of his inability to take her for medical care and physiotherapy, and to the fact that he was taking certain medication which was said to increase the effect of alcohol at the time, and to the fact that no ticket was issued when he was breath tested on the roadside.  Given that a plea of guilty was entered, the appeal under s 222 can only be on the ground that the sentence was excessive:  s 222(2)(c).^[2]  I will treat the appeal as one on the ground that the sentence was excessive.^[3]

3. [3]
   In an outline of argument filed on behalf of the appellant on 23 October 2009 he referred to the high cost of taxi services, the need for himself and his wife to have medical treatment, that he is on a disability pension due to a back problem which prevents him from walking long distances and carrying shopping or groceries any distance, and that with the extra cost of taxi fares he cannot meet his wife’s ongoing medical care from his pension.  He requested a reconsideration of his case on sympathetic grounds.  Later he filed another outline directed more to the question of whether he had committed the offence at all, which is not a relevant consideration.

4. [4]
   On the hearing in the Magistrates Court it was said that on 21 March 2008 the appellant was given a roadside breath test which produced a reading of 0.159.  Police said the appellant was slurring his words and was unsteady on his feet when he left the vehicle.  He was subsequently required to undertake a breathalyser test and allegedly did not provide a proper specimen of breath for analysis.  There was initially a charge before the magistrate of failing to provide a specimen of breath for analysis, on which the prosecution ultimately offered no evidence, so that that charge was dismissed.  The prosecutor referred to the appellant’s being issued with a notice to appear for driving while under the influence.  Presumably one or other charge was advanced at the time.

5. [5]
   The appellant was issued that night with a notice of suspension of his driver licence under s 79B of the Act.  That notice, unfortunately, did not identify the particular charge on the basis of which the suspension took effect, although in this case it does not matter.  The second charge arose on 22 June 2009 when police intercepted the appellant driving a motor vehicle during the period of the suspension pursuant to s 79B.  A notice to appear was issued in relation to that offence as well.

6. [6]
   A traffic history was tendered. The only relevant previous offence was an offence on 13 August 2008, of driving a vehicle while over the general alcohol limit contrary to s 79(2) of the Act.

Relevant provisions of the Act

7. [7]
   Section 79(1) of the Act makes it an offence to drive a motor vehicle while under the influence of liquor or a drug.  The penalty provided by that subsection is one not exceeding 28 penalty units or imprisonment for a term not exceeding nine months.  However, the appellant had within the previous five years been convicted of an offence under s 79(2), although no other relevant offence.  In those circumstances the penalty provided by s 79(1D) was one not exceeding 30 penalty units or imprisonment for a term not exceeding one year.

8. [8]
   Section 79 does not provide for disqualification of licences, but if a person is convicted of an offence in relation to a motor vehicle against s 79(1), there is a disqualification provided by or under s 86.  Section 86(1) did not apply because the appellant had been convicted during the previous five years of an offence under s 79(2), so that the relevant provision was s 86(1F), by which he was disqualified by such conviction and without any specific order for a period of nine months from the date of such conviction from holding or obtaining a Queensland driver licence.

9. [9]
   As well, s 86(5) provides that “in the case of any conviction referred to in this section in respect of which a person is disqualified by such conviction and without any specific order for a period of time specified from holding or obtaining a Queensland driver licence, … the justices by whom such person is so convicted may order that from the date of conviction such person be disqualified absolutely or for a longer period than the period specified in the person’s case from holding or obtaining a Queensland driver licence, and the person, on the making of the order, is disqualified under and in accordance with that order.”

10. [10]
    Thus there was power to disqualify for longer than nine months on the first charge, as the magistrate did. Section 86(7) provides that “in deciding a period of disqualification for a person whose licence is suspended … under s 79B, the court may take into account the period of suspension … that has already been served under that section.”  In this case, that was a period of just over six months.^[4]

11. [11]
    Under s 79B of the Act, if a person is charged with an offence under s 79(1), or with an offence under s 80(11) of failing to provide a specimen of the person’s breath for analysis (or some other offences which are not relevant here), and the offence was committed in relation to a motor vehicle,^[5] any Queensland driver licence held by that person is suspended:  s 79B(2).  The suspension commences from the time the person is charged (s 79B(5)), which includes when a notice to appear is issued and served on that person:  s 79C(2).  The suspension continues until the matter is dealt with by a court or the charge is withdrawn or otherwise discontinued – s 79B(5) – although there is power for a court to issue a replacement licence under s 79E.  That did not occur in this case.  Section 79D requires notice of the suspension to be given; I have seen on the court file a copy of the notice given in compliance with this section by the respondent to the appellant.

12. [12]
    Under s 78(1) of the Act, it is an offence to drive a motor vehicle on a road unless a person holds a driver licence authorising that person to drive that vehicle on the road.  The maximum penalty relevant in this case was 40 penalty units or one year’s imprisonment.  Subsection (3) provides that in various circumstances the court convicting the person of the offence must disqualify the person from holding or obtaining a Queensland driver licence for various periods which are specified.  The relevant one is in paragraph (i):  “If the person committed the offence while, under s 79B, the person’s Queensland driver licence was suspended … for a period, of at least two years but not more than five years, decided by the court.”

13. [13]
    I should also refer to s 90B of the Act.  The effect of this provision appears to be that the two periods of disqualification imposed by the magistrate were cumulative.  I say “appears to be” because the section is strangely worded, and to me produces that result only if one assumes that a person is disqualified at the time the offence is committed, rather than at the time when an order is made under the Act imposing the disqualification, or by the terms of the Act a disqualification is imposed.  That it would apply in the present case is consistent with example 1, which is part of the section,^[6] though it seems to me that otherwise it would be difficult to tease that outcome out of the words used by the legislature.  The magistrate proceeded on the basis that the periods of disqualification were cumulative,^[7] there was no particular dispute about that matter before me, and I will also proceed on that basis.

14. [14]
    Finally, I should mention a couple of subsections of s 131 of the Act.  Subsection (2) permits a person who has been disqualified by operation of law or an order from holding or obtaining a Queensland driver licence for a period of more than two years to apply at any time after the expiration of two years from the start of the disqualification period for the disqualification to be removed.  It seems to me that the effect of what occurred to the appellant in the present case was that his licence was disqualified by the order of the magistrate for a total period of three years.  Section 127(4)(b) provides that suspension of any licence under the Act shall, whilst such licence is so suspended, disqualify the person who held that licence from holding or obtaining a licence of the same kind, class or description, so it would appear that the effect of the suspension of the licence by operation of s 79B of the Act was that the appellant was during that period of suspension disqualified from holding or obtaining a licence of the same kind, class or description, and hence from holding or obtaining a Queensland driver licence for the purposes of s 131(2).

15. [15]
    Accordingly, it appears to me that it would be open to the appellant to apply for the disqualification to be removed once two years had elapsed from the time when his licence was first suspended under s 79B, but that issue is not before me and I do not decide it.  I also note that s 131(3A) of the Act does not apply in this case.  That subsection provides:

“Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver licence and has commenced an appeal against the conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that behalf, be suspended pending the determination of that appeal.”

16. [16]
    It is made clear by subsection (3B) that, subject to any decision of the court upon that appeal, that part of the period of disqualification which was not expired when the suspension began shall take effect from the date of determination of the appeal.  The effect of those provisions seems to be that if a person is disqualified as a result of a conviction, either by operation of the Act or by order of the convicting court, the disqualification is removed upon the filing of an appeal against conviction, but the period of disqualification does not run during the time which elapses until the appeal is determined.^[8]  Those provisions do not apply in the present case because they only apply if there is an appeal against conviction, and the present appeal, as I have indicated earlier, was not against conviction but only against sentence.

Analysis

17. [17]
    During the hearing of the appeal, when I was not aware of the particular terms of s 86 which are applicable, it seemed to me that the magistrate may well have been mistaken in concluding that the minimum period of disqualification applicable for the second charge was two years.  The minimum and maximum periods of disqualification provided by s 78(3)(i) are the same as the minimum and maximum periods provided by subsection (3)(a) for unlicensed driving while disqualified by a court order from holding or obtaining a driver licence.  It is somewhat surprising that the legislature has equated what was from the point of view of the offender disobedience to a notice given by a police officer with disobedience to an order of a court imposing a penalty, but evidently the legislature has done so.

18. [18]
    Accordingly the magistrate was correct in concluding that the period of disqualification of two years was the minimum that could be imposed. As I have indicated, I proceed on the basis that the magistrate was also correct in concluding that the two periods of disqualification were to be made cumulative. In relation to the period of disqualification imposed by the magistrate, therefore, it seems that the only scope for argument that the period was excessive is in relation to the period of 12 months imposed in respect of the offence against s 79(1), because this was longer than the period of nine months which operated automatically under the Act.

19. [19]
    It does not appear that the magistrate was intending to impose the minimum period of disqualification. He referred to “a previous for drink driving” without identifying the applicable provision under s 79 in respect of the earlier offence, so it is not clear whether he thought that the period of 12 months was that imposed automatically by s 86(1A) if the previous offence was one under s 79(1), or if he was exercising the power under s 86(5) to disqualify for a longer period than that which applied automatically under s 86(1F).  It would have been helpful if he had made this clear.

20. [20]
    Apart from that, it is not clear that the magistrate, in deciding whether to exercise the power to disqualify for longer than the automatic period of nine months, has taken into account either the fact that the period of disqualification for that offence and the period of disqualification of two years for the other offence which was required were to be cumulative, or that the appellant had already been subject to a period of suspension of just over six months. The latter was a relevant consideration, and ought to have been taken into account, though I accept that to some extent the impact of this consideration was diminished by the fact that there was one charge of driving during that period of suspension. But the real issue is whether in the circumstances, and even allowing for the fact that the magistrate had relatively little freedom of movement, overall the period of disqualification of one year for the charge of driving whilst under the influence of liquor was excessive.

21. [21]
    In my opinion, bearing in mind the personal difficulties referred to by the appellant, it was. The appellant had significant difficulties because of his own medical condition, and because of his wife’s medical condition, and that included a need for transportation which could, in a practical sense, only be met by road transport, so that the effect of a lengthy period of disqualification was to impose a substantial financial burden on him for taxi fares which, given his very limited income, he could ill afford. There was only one previous for an offence under s 79 alleged against him, and no previous for unlicensed driving, so that this was really not a particularly bad case.  In these circumstances, the cumulative mandatory disqualification periods to which I have referred provided more than enough in the way of a period of disqualification to meet the circumstances of the particular case.  In my view, any longer period than the minimum was in these circumstances manifestly excessive.  I regret that the only relief that I can give the appellant in relation to the period of disqualification is to reduce it by a mere three months.

22. [22]
    Mandatory sentencing provisions are frequently the subject of judicial and academic condemnation wherever they appear. Generally, Queensland is mercifully free from some of the worst excesses in this area which may be found in other states, but ss 78, 79 and 86 of the Act contain detailed and complex mandatory sentencing provisions which deserve all the principled criticism directed at mandatory sentencing.  The sections have been much amended over the years, in what appears to be a process of applied populism.

The fines imposed

23. [23]
    The other matter which concerns me is that, although the magistrate said that he had reduced the fine significantly to take into account the appellant’s financial circumstances, fines totally $1000 were imposed. This was on a man who had an income of $210 a week, from which he had to pay $107.50 rent, and he and his wife had to live on the balance. He would no doubt have had a significant additional financial burden because of the health problems that he and his wife were experiencing, and the financial burden was to be made greater as a result of the lengthy disqualification of his driver licence which he faced. He was said to have between $0 and $20 a week left over after paying bills, so that the fine (at $10 per week) represented almost two years’ available funds.

24. [24]
    Section 48 of the Penalties and Sentences Act 1992 provides in subsection (1):

“If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account—

1. (a)
   the financial circumstances of the offender; and

2. (b)
   the nature of the burden that payment of a fine will be on the offender.”

25. [25]
    This section was considered by the Court of Appeal in R v Prentice [2003] QCA 34, which concerned fines imposed on a car dealer under the Fair Trading Act 1989 for 34 charges of winding back odometers on cars.  Following his conviction for the offence, his business had to close, and he lost his licence as a motor dealer and was unlikely to obtain another, he and his wife had sold their house and purchased a more modest one, and he was working as a salesman earning about $480 net per week.  He was fined a total of $40,000, which in view of the number of charges was per charge well below the maximum fine, and allowed five years to pay, something which the court said would require a payment of approximately $154 every week from his earnings during that period.

26. [26]
    Williams JA, with whom the other members of the court agreed, held that the fine in fact imposed was a crushing one and if the appellant realistically sees that he has no hope of satisfying it, the fine loses its effectiveness and the default provision becomes the sentence in fact:  [21].^[9]  His Honour acknowledged that fines of the magnitude imposed were appropriate when offences were committed in the context of a substantial business operation:  [22].  He referred to a number of other matters and acknowledged that significant penalties were called for for the offence, but the fines were said to be manifestly excessive given the personal circumstances of the applicant.  The court reduced the total by almost half, to $23,800.

27. [27]
    More recently in R v Stephens [2006] QCA 123 a fine of $20,000 imposed on the appellant when he pleaded guilty to a count of attempting to obtain dishonestly a sum of $23,000 from an insurance company was reduced to $10,000.  When sentenced, the appellant was 68 and was in receipt of an aged person’s pension.  He had, however, apparently $200,000 in a bank account.  He was also sentenced to a term of imprisonment which was wholly suspended, and it was submitted that he had to live on his capital and the pension for the rest of his life.  There was also evidence that the appellant’s wife had substantial assets in the form of an unencumbered house and a taxi licence worth a good deal of money in her own name.  For practical purposes, he did not have to pay for accommodation.  The majority held that the fact that the fine diminished his capital resources, that he lived on a pension, and was not in employment, along with the fact that he obtained no benefit from the attempted fraud, indicated that the fine imposed substantially exceeded what was necessary to achieve a significant deterrent effect:  [11], [16].  Reference to s 48 in terms appeared only in the judgment of Fryberg J, who dissented.  Nevertheless it is apparent that the majority were influenced by the provisions of that section.

28. [28]
    As a matter of general sentencing principles the penalty imposed must be appropriate to the offender as well as appropriate to the offence.^[10]  A fine should not be imposed which is beyond the reasonable capacity of the offender to pay.^[11]  That applies even if there is no period of default imprisonment, as was the case here where the matter was referred to SPER for collection.^[12]  It is also necessary to scale the fine to the capacity of the offender to pay in order to comply with the requirements of s 48(1)(b), because imposing the same fine on people with different capacities to pay will mean that some of them are punished much more severely than others for the same offence.  This was the point made by McMurdo DCJ (as the President then was) in Allan v Coca^[13] where a fine imposed on a defendant receiving Austudy of $75 per week was halved.  Her Honour held that the fine “would have been a greater penalty than a substantially larger fine imposed upon an older person with a greater capacity to pay.”

29. [29]
    One way to look at the matter is by comparing the amount of the fine with the weekly income of the offender, though it is still necessary to have regard to differences in the financial obligations of different offenders: one offender who has no or minimal housing costs and no one to support will be in a much better financial position than someone on the same income who is paying rent and has dependents. There is also the consideration that the financial position of the offender is not to be assessed in the abstract, but as part of the whole sentencing process. In the present case, there was good reason to believe that the appellant’s financial position, which was quite modest anyway, would suffer a significant additional burden as a result of the lengthy period of disqualification which he had to suffer as a result of the offences. The magistrate appears to have recognised that it was appropriate to take into account the relationship between the different parts of the penalty imposed in connection with the overall sentencing process, but it is difficult to see how due regard was paid to that, given the amount of the fines imposed.

30. [30]
    I expect fines of the order imposed by the magistrate are common enough for offences of this nature for ordinary offenders, but the point is that the appellant was not an ordinary offender: his financial position was substantially worse than the average to be expected in the community. In my opinion there was a failure to have sufficient regard to that consideration and as a result the discretion as to the amount of the fine miscarried.

31. [31]
    Accordingly, the appeal is allowed, the fines imposed by the magistrate set aside, and in lieu thereof I impose a fine of $100 in respect of each offence. Those amounts are fixed taking into account both the very modest financial position of the appellant, and the additional financial burden the substantial period of disqualification that he inevitably faces will impose upon him. The only other variation to the order made by the magistrate is that, in respect of the charge of the offence under s 79(1), the order of the magistrate disqualifying him from holding or obtaining a driver licence for a period of 12 months is set aside.  It is, as I read s 86(1F), unnecessary for me to substitute an order for disqualification for a period of nine months, since the fact of the conviction will produce that disqualification automatically anyway.  I would nevertheless emphasise to the appellant that the only change I have made to the total period of disqualification is to reduce it by three months.