Tschirpig v Martin[2011] QDC 111

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  On 6 January 2011 the appellant was convicted on his own plea of guilty before the Holland Park Magistrates Court to one count of driving without due care and attention contrary to section 83 of the Transport Operations (Road Use Management) Act 1995.  He was sentenced to a fine of $1,000 in default of payment 10 days imprisonment and disqualified from holding or obtaining a driver licence for a period of 12 months.  A conviction was recorded.

It was ordered that the proper officer of the Court give particulars of the fine to SPER for registration.  The maximum penalty for the offence is a fine of $4,000 or six months' imprisonment.  The relevant provision enabling the disqualification of the appellant's drivers licence is section 187(1) of the Penalties and Sentences Act 1992.

The appeal is brought against the sentence under section 222(1) and (2)(c) of the Justices Act 1886 on the ground that both the fine and the disqualification period were manifestly excessive.

The circumstances of the offence which were placed before the Court by the Police Prosecutor and were not contested in the submissions made by the appellant's legal representative before the Magistrate were as follows:  at about 6.05 a.m. on 11 December 2009 the appellant was involved in a three vehicle traffic collision on the Mt Gravatt-Capalaba Road in Burbank, Brisbane.  This is a two-lane arterial road traversing in north-south directions with a maximum speed limit of 80 kilometres an hour.  The weather conditions at the time of the offence were fine and the road was dry.

The appellant was driving his motor vehicle in a northerly direction along the road when his vehicle crossed over the centre white line and side swiped a vehicle which was travelling in a southerly direction.  As a result of the collision the other vehicle spun sideways into the path of, and subsequently colliding with, a third vehicle which was travelling in a northerly direction.

Police investigations revealed that the appellant was neither speeding, effected by alcohol, using his mobile phone or his CD player at the time his vehicle crossed on to the incorrect side of the road.  A roadside breath test was negative.  The appellant also said he was not changing radio stations and was travelling at 70 to 80 kilometres an hour.

The appellant did not not make admissions to driving on to the incorrect side of the road.  The Police Prosecutor submitted that, "At the time of this offence the defendant's inattention is the contributing factor due to his inability to properly control his vehicle by keeping it within the defined lane and inability to avoid this collision."

The Prosecutor also advised the Court that the driver of one of the vehicles involved in the collision suffered extensive injuries to his right arm resulting in the loss of his elbow joint.  According to the Prosecutor, he subsequently underwent a number of major surgeries as a result of the injury, including a number of bone grafts in an attempt to stabilise the arm.

The Prosecutor said that at the time of the sentence a period of approximately 13 months after the offence date this person was unable to work.  The prosecution did not tender any medical evidence to the Court in respect of these injuries.

Despite the appellant having no traffic or criminal history and being 18 years old the prosecution submitted that considering the injuries sustained by the other road user the appropriate penalty was a term of imprisonment in addition to a lengthy disqualification of his driver licence.  Before the Magistrate his lawyer submitted to the contrary, that despite these injuries the penalty should be towards the bottom end of the range including a "short period of disqualification".

In support of this submission he stressed the appellant's youth, employment as a plumber, lack of criminal or traffic history, the negative roadside breath test and the fact the appellant had not been using his mobile phone, CD player or radio at the time of the driving to which he pleaded guilty. He also said that the appellant was on his way to work and wasn't tired.  His instructions were "it may have been at best a split second of inattention".

In sentencing the appellant, his Honour expressly took in account a number of mitigating factors which had been referred to him.  After stating the offence and penalty the next thing that his Honour said was that the sentencing legislation provides that he was to take into account the appellant's early plea of guilty which was on the first return date.  He specifically referred to sections 9 and 11 of the Penalties and Sentences Act and said "particularly in respect of a young offender like you is that a sentence of imprisonment is the very last resort that the Court should impose."

The reference to section 11 is an indication that his Honour took into account the appellant's lack of criminal and traffic history.  In fact, his Honour mentioned this lack of any previous history later in his sentencing remarks.  His Honour is an experienced Magistrate and given the short submissions made by the parties immediately before he imposed sentence it cannot be suggested he did not take into account the other factors in mitigation such as the absence of any consumption of alcohol or reckless behaviour by the appellant.

His Honour also proceeded on the basis that the offence involved a momentary loss of concentration.  For example, his Honour said, "There is no real explanation before me except it seems that you weren't paying attention and you've allowed your vehicle to move from within its lane to collide with this other vehicle which have the consequences of another vehicle being pushed or moved over into the path of ongoing traffic."

His Honour also said, "While it can be suggested it was a momentary loss of concentration, I don't know what you are doing."

It is clear that it was the damage which was caused to other vehicles and, in particular, the injury suffered by the other driver which influenced his Honour to impose the penalty he did, despite the factors in the appellant's favour.  His Honour made reference to his power under section 9 of the Penalties and Sentences Act to take into account any damage or injury caused by the appellant.  This was immediately after he had said that the driver of the other vehicle had a serious injury which was ongoing and which may well cause him serious issues for the rest of his life.  Although, he recognised there was no medical evidence to support this.

There are two bases under section 9 for a Court to have regard to the physical harm caused by the offender.  These are section 9(2)(a)(i) and (e) however, his Honour most likely had in mind section 9(2)(e) which refers both to any damage and injury caused by the offender.  What his Honour said at this point was, "One of the factors that section 9 does allow me to take into account is any damage, injury or - caused by you. And this is a very clear demonstration of what can happen when people do not drive with the degree of care and skill that is expected of them; that being of a normal and prudent driver. When people go on to the highway, yes, there is some risk, but every driver expects that other drivers will exercise that care, and there's simply no explanation.  Your car just moves out of its lane."

Having said that he did not believe a period of imprisonment was appropriate his Honour then mentioned, as I have already said, "While it can be suggested that it was a momentary loss of concentration, I don't know what you were doing."  And then went on to say, "It doesn't lessen the effect of the damage that you have caused, monetarily for the damage that has been caused to the vehicles, and to this poor man's use of his arm in future.  The penalties must be significant despite your lack of any previous history.  You are still only a young man, and a period of disqualification is appropriate."

Having imposed a penalty his Honour said, "Now, I know this is a big lesson for you, but I hope that you learn from it.  The consequences of that disqualification may well be severe for you employment wise, but nonetheless, it is still appropriate. And you've got to think that in some respects you are a very lucky man that you are standing here facing this charge rather than causing the death of this man.  It is good luck, really, isn't it?"

On the appellant's behalf it is submitted that the sentence is manifestly excessive and an appropriate sentence is a fine up to $500 and either no licence disqualification or no longer licence disqualification than the appellant has experienced to date.  The basis of this submission relies on the following matters:

1. (i)
   the appellant entered a timely plea of guilty.  He was not charged until November 2010;

1. (ii)
   the appellant has no criminal history;

1. (iii)
   the appellant has no traffic history;

1. (iv)
   the appellant has not committed any offences between the date of the offence and the sentence;

1. (v)
   the appellant's youth as he was 18 at the time he committed the offence;

1. (vi)
   there are no aggravating features which attach to the appellant's driving.  There is no evidence of excessive speed. There is no evidence of using a mobile phone at the relevant time.  There is no evidence of any involvement of alcohol as a cause of the collision.  In the circumstances it would appear that this is a case of momentary inattention.

On the other hand the respondent submits that the present offence falls at the upper end of the range in terms of seriousness.  Given the serious nature of the injuries sustained by the driver of the other vehicle.  While conceding the factors in the appellant's favour, including that it was a case of momentary loss of concentration, it is submitted that the learned Magistrate was entitled to place significant weight on the factors in section 9(2)(e) of the Penalties and Sentences Act, specifically that the appellant's conduct put other road users at risk and caused serious injury to the other driver as well as damage to the vehicles involved in the collision.

In light of these factors and in spite of the mitigating factors, it is the respondent's submission that the fine of $1,000 was not excessive in the circumstances considering the maximum fine which could have been imposed was $4,000 or six months' imprisonment.

Furthermore, it was the respondent's submission in the written outline provided that the learned Magistrate's imposition of a driver licence disqualification for a period of 12 months was an appropriate exercise of the sentencing discretion. However, it was conceded in argument that I could appropriately conclude that the length of the disqualification was arguably too great.  The respondent submits that the Magistrate took into account a number of mitigating factors to which I have already referred.

In conclusion, the respondent submits with reference to the factors identified by the High Court in House v King [1936] 55 CLR 499 at 504-505 in determining whether to interfere with the exercise of a sentencing discretion there is nothing to suggest in this case that his Honour acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts or did not take into account some material consideration.

I accept that as was said by Keane JA in R v Lawley [2007] QCA 243 with whom the other members of the Court of Appeal agreed at paragraph 18, the sentence of the learned sentencing Magistrate involved the exercise of a discretion which this Court may not interfere with unless it involves and error of the kind identified in House v The King.  As his Honour went on to say in that case, "It is not a sufficient basis for this Court to intervene that it might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion."

However, his Honour went on to say that in some cases the sentence imposed is so "unreasonable or unjust" in the circumstances that it can be inferred that an error has occurred as was emphasised in Dinsdale v The Queen, but he recognised that the Court may only intervene when the error is apparent.  Therefore, in some cases it can be inferred that an error has occurred on the basis that the sentence imposed is unreasonable or unjust provided that error is apparent.  If so, this was a sufficient basis for this Court to intervene. In my view this is such a case.  Whatever may be said about the application of the factors identified in House v The King, I consider that notwithstanding the nature of the injuries suffered by the other driver, the unspecified damage to the other vehicles and the risk to other motorists as a result of the appellant's driving, the total sentence which involved recording a conviction, imposing a $1,000 fine and a significant period of licence disqualification of 12 months is unreasonable and unjust in the circumstances which have been identified and relied upon by the appellant.

Although the learned Magistrate was entitled to take the circumstances relied on by the respondent into account and in particular the injury suffered by the other driver, it is essential to remember that the appellant was convicted of driving without due care and attention and not of causing the injury which was a consequence of this driving.  In my view it is apparent in this case that his Honour placed too great a weight on this and not enough weight on the other factors that I have mentioned and which are relied upon by the appellant. In particular, his Honour did not place sufficient weight on the fact that the appellant was not charged with dangerous driving or with any circumstance of aggravation relating to the injury to the other driver.

In fact, the danger of placing excessive weight on this factor is illustrated by the respondent's own submission where it is said in support of its submission that the appellant fell to be sentenced in the upper end of the range and that it might perhaps be thought that the appellant was fortunate to have not been charged with a more serious offence of dangerous operation of a motor vehicle causing grievous bodily harm in light of the injuries caused as a result of this conduct. This is irrelevant where the appellant is not charged with this offence or any offence of which the injury is an element. The fact that the Magistrate may, in error, have proceeded on this basis is suggested by that part of his sentencing remarks which as previously stated were as follows, "And you've got to think that in some respects you are a very lucky man that you are standing here facing this charge rather than causing the death of this man.  It is good luck, really, isn't it?" I note that his Honour did not follow these remarks by immediately making clear that he was not sentencing him on the basis of such potential consequences.

To summarise, it is my view that the sentence imposed demonstrates that the learned Magistrate placed too much emphasis on the injury suffered by the other driver and did not place sufficient weight on the nature of the driving with which the appellant had been charged, namely, of momentary inattention and also did not place sufficient weight on the substantial mitigating factors in his favour.  The fact that a conviction was recorded against an 18 year old in a case of momentary inattention and where he had no traffic or criminal record, and it is appropriately conceded that the licence disqualification was arguably too lengthy having regard to the nature and the circumstances in which the offence was committed, reflects on the overall exercise of the sentencing discretion.  It demonstrates that the error involved in this aspect of the sentence also affected the quantum of the fine imposed.

In these circumstances it is appropriate that I set aside the orders of the learned Magistrate and resentence the appellant. Having regard to the factors relied upon on his behalf, including the fact that he has not driven from the date of the sentence on 6 January 2011 to and including today, 6 June 2011, a period of approximately five months, I consider that the appropriate exercise of the sentencing discretion is not to record a conviction, to impose a fine of $700 and a drivers licence disqualification for the period commencing 6 January 2011 to and including 6 June 2011.

Accordingly, having concluded that the sentence imposed by the learned Magistrate was manifestly excessive, the order of the Court is:

1. (1)
   appeal against sentence allowed;

1. (2)
   the sentence imposed at first instance is set aside;

1. (3)
   the appellant is sentenced to pay a fine of $700 in default seven days imprisonment with the proper officer of the Court to give particulars to SPER for registration.  A conviction is not recorded;

1. (4)
   the appellant is disqualified from holding or obtaining a driver licence for a period commencing 6 January 2011 to and including 6 June 2011.

I make it clear that if it was not for the passage of this period of approximately five months from the date that the disqualification commenced I would have imposed lesser disqualification period of between one and three months.  I also make it clear in case it be necessary, that the intention of the order is that the appellant has completed his drivers licence disqualification as of today and it is not to be interpreted that he is subject to a disqualification for the equivalent period of time commencing from this date.