Schwarz v Queensland Police Service
[2013] QDC 105
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Schwarz v Queensland Police Service[2013] QDC 105
- Add to List
Schwarz v Queensland Police Service[2013] QDC 105
Schwarz v Queensland Police Service[2013] QDC 105
DISTRICT COURT OF QUEENSLAND
CITATION: | Schwarz v Queensland Police Service [2013] QDC 105 |
PARTIES: | STEVEN JOHN SCHWARZ And QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | D1 of 2013 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Emerald Magistrates Court |
DELIVERED ON: | 9 May 2013 |
DELIVERED AT: | Rockhampton District Court |
HEARING DATE: | 6 May 2013 |
JUDGE: | Smith DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW- Appeal against severity of penalty for breach of s 79(1) of Transport Operations (Road Use Management) Act 1995 (Q) Justices Act 1886 (Q) ss 222, 223 and 225 Penalties and Sentences Act 1991 (Q) ss 9 and 48 Transport Operations (Road Use Management) Act 1995 (Q) AB v R (1999) 198 CLR 111 Allesch v Maunz (2000) 203 CLR 172 Burton v Commissioner of Police (Qld) (1990) 10 MVR 329 Cummins v Johnson [2009] QDC Teelow v Commissioner of Police [2009] QCA 84 Yasso v Stevenson [2006] QCA 40 |
COUNSEL: | R. Peters Solicitor for the Appellant N. Rees for the Respondent |
SOLICITORS: | Anne Murray and Associates for the Appellant Director of Public Prosecutions (Qld) for the Respondent |
Introduction
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 (Q) against the severity of penalty imposed at the Magistrates Court in Emerald on 9 April 2013.
- [2]Section 222 (2) (c) of the Act provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive.
- [3]Section 223(1) of the Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the justices. There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances.
- [4]Section 225 (1) of the Act provides that “on the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”
- [5]In Teelow v Commissioner of Police [2009] QCA 84, Muir JA held at [4] referring to Allesch v Maunz (2000) 203 CLR 172 at 180-181:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”
Background
- [6]The appellant, pleaded guilty on 9 April 2013 to one count of driving a motor vehicle on Mellish Crescent, Emerald, whilst under the influence of liquor or a drug on 24 March 2013.
- [7]This offence was contrary to s 79 (1) of the Transport Operations (Road Use Management) Act 1995 (Q).
- [8]The reading was .244%.
- [9]He was fined $2,000, a conviction was recorded and he was disqualified from holding or obtaining a drivers license for a period of 14 months.
Grounds of appeal
- [10]The grounds of appeal are:
- (a)The sentence imposed was manifestly excessive in all the circumstances;
- (b)The sentencing discretion of the learned Acting Magistrate miscarried in that too much emphasis was placed on general deterrence and insufficient weight given to personal mitigating factors;
- (c)The learned Acting Magistrate misdirected himself as to the law, by stating that the minimum disqualification period of six months for the offence, only applied with a breath alcohol concentration of .15%.
Submissions below
- [11]In the court below, the Prosecutor informed the Magistrate that the offence occurred at 4am. The defendant was observed driving a vehicle. He was breath-tested and he returned a blood alcohol concentration of .244%.
- [12]The defence solicitor submitted that Mr Schwarz was extremely embarrassed and ashamed. He pleaded guilty at the first available opportunity. He did have a drink driving conviction but that was 21 years prior. He had a clear traffic history for 11 years apart from a speeding offence in December 2008.
- [13]It was submitted that he had been at an 18th birthday party and had only a vague recollection of the incident itself. It was submitted he was a married man who was 41 years of age and worked as a mechanical supervisor co-ordinator with Mastermind Services Pty Ltd, a mining contracting company. He was based at the Kestrel mine just outside of Emerald. Having a drivers license was a requirement of his employment. His role involved attending callouts outside normal shift hours and even driving on-site was a mine requirement.
- [14]A reference from the employer was tendered.
- [15]It was submitted that the offence was out of character. It was further submitted that his contract at the Kestrel mine was due to expire in June 2013 and if there was no other employment available there, he might have to be deployed to other mine sites in central Queensland, so there was a prospect of his losing employment.
- [16]It was submitted he earned $2,500 per week but his mortgage liabilities were about $1,000 per week. He supported two children aged 13 and 11.
- [17]It was also submitted that he would need to fit an alcohol interlock device which would cost about $2,500.
- [18]It was submitted that the maximum penalty was $3,080. It was further submitted that the minimum disqualification that could be imposed was six months.
- [19]It was submitted that perhaps the more usual penalty for a reading of this kind of disqualification was in the order of 15 months.
- [20]The Magistrate agreed, stating that 15 months for .24 would be a starting point.
- [21]The defence solicitor submitted that a nine month disqualification was appropriate.
- [22]The decision of Cummins v Johnson [2009] QDC was relied upon.
Sentencing remarks
- [23]In his sentencing remarks, the Magistrate took into account the plea of guilty. He took into account the driving record.
- [24]He noted that there was a very high reading, almost five times the legal limit.
- [25]The learned Magistrate then said, “Now your license must be disqualified, as Mr Peters said, for a minimum of six months but that is for a .15 reading, you were well above that.”
- [26]The Magistrate then said that the starting point for a reading of .24 would be $2,500 and a disqualification of 18 months.
- [27]The Magistrate reduced the penalty that he would otherwise have imposed in view of defence submissions but in view of the very high reading he believed a heavy penalty had to be imposed to discourage other persons from committing these offences.
- [28]In the end, he determined upon a penalty of $2,000 by way of a fine and a 14 month disqualification period.
Transport Operations (Road use Management) Act (“TORUM”)
- [29]Section 79 of the Transport Operations (Road Use Management) Act 1995 provides:
“(1) Offence of driving etc. while under the influence
Any person who, while under the influence of liquor or a drug –
(a) drives a motor vehicle, tram, train or vessel …
…
is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.”
- [30]By reason of s 5 the Penalties and Sentences Act 1991 (Q) a penalty unit at the relevant time was $110, the maximum fine being $3,080.
- [31]Section 86 (1) of TORUM provides that the minimum disqualification period for a s 79(1) offence is six months.
- [32]Absolute disqualification is the maximum (see s 86(5) of TORUM).
- [33]Importantly s 86(2A) of TORUM provides
“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.”
The error
- [34]The Appellant submits that the learned Magistrate erred by incorrectly stating that the minimum disqualification period of six months was for a .15 reading.
- [35]The Respondent concedes this error in its outline.
- [36]In my opinion the concession by the Respondent is correct.
- [37]The legislation does not say that the minimum is for a .15% offence. In my opinion, the learned Acting Magistrate was in error when making that statement.
- [38]In those circumstances, it falls to this court to resentence the appellant (see AB v R (1999) 198 CLR 111 at [130]) based on the original evidence before the Magistrates Court.
Discussion
- [39]As the argument developed in this court, the Appellant did not seek to say that the fine was outside of the range for this kind of offending. It was submitted that a disqualification period of nine months was appropriate.
- [40]He sought to argue that the cost associated with installing the interlock device was a mitigating factor related to both the fine and the disqualification period.
- [41]It is common ground that the Appellant will spend between $2,200 to $2,500 on the cost of such a device.
- [42]Section 91K of TORUM provides that a person who has his licence returned after having been convicted of a s 79(1) offence must have an interlock device fitted to his or her car.
- [43]Section 48 (1) of the Penalties and Sentences Act provides that if a court decides to fine an offender “the court must, as far as practicable, take into account
- (a)the financial circumstances of the offender; and
- (b)the nature of the burden that payment of the fine will be on the offender.”
- [44]It may be seen that at least in that way the cost of the interlock device was relevant to the quantum of the fine.
- [45]I consider the cost of the interlocking device to be relevant to both the fine and the disqualification period. Both penalties are intertwined. Often times the amount of the fine is increased to enable the court to reduce the disqualification period.
- [46]Neither counsel before me was able to provide much assistance on the range of penalty in such a case.
- [47]In Cummins v Johnson [2009] QDC the Appellant had a previous conviction for driving under the influence. The reading on that occasion was .22%. The appellant was fined $2100 and disqualified for 9 months. A penalty unit at that point in time was $100. The interlock provision did not exist at that time.
- [48]One case of course does not establish a range.
- [49]I note that the Magistrate in argument stated that the starting point for a disqualification would be normally a bit over 15 months for a .24 offence. As noted earlier however during sentencing remarks the Magistrate indicated the starting point was 18 months.
- [50]Bearing in mind the decision of Cummins v Johnson, bearing in mind the minimum disqualification period was 6 months and bearing in mind the level of reading here it is my view the range of penalty was somewhere between 12 and 18 months. Of course each case must depend on its own facts.
- [51]In those circumstances a disqualification period of 14 months cannot be said to be outside of the range or excessive.
- [52]Such a penalty would take into account the plea of guilty in that the period is 4 months less than the top of the range.
- [53]A lengthy period of disqualification was required in this case. This reflects the high reading involved in this case and the potential danger to other road users.
- [54]The reading was significantly higher than a .15% offence.
- [55]I am cognisant of the fact that a disqualification from holding or obtaining a driver licence for such a time is a significant punishment on a person who needs his or her licence for work purposes.
- [56]As was said in Burton v Commissioner of Police (Qld) (1990) 10 MVR 329 the loss of a licence may impact on employment, recreation and personal life.
- [57]With respect to the fine I note that $2,100 was imposed in Cummins v Johnson in 2006 when a penalty unit was worth only $100.
- [58]In this case the maximum fine was $3080. The fine was $1080 less than the maximum.
- [59]The Magistrate indicated during argument that the starting point for a fine in such a matter is in the order of $2500. Neither party dissented from that proposition below.
- [60]It seems to me that the range of fine in this case may have been somewhere between $1500 and $2500.
- [61]If that is correct (and it may well be bearing in mind the decision of Cummins) then a fine of $2000 took into account the mitigating factors and the plea of guilty.
- [62]In my view the combined penalty gave sufficient reduction for the plea of guilty (a very early plea of guilty), the mitigating factors and reflected issues of deterrence, denunciation and rehabilitation (see s 9 of the Penalties and Sentences Act 1992 (Q)).
Alternative approach
- [63]Aside the error referred to at [34] et seq if this appeal requires the court to reach its own view on the evidence and giving due weight to the learned Magistrate’s decision (see Yasso v Stevenson [2006] QCA 40) I would have reached the same conclusion.
- [64]In conclusion, I order:
- The decision below is confirmed
- The appeal be dismissed.