DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).  The appeal is against a penalty imposed in the Emerald Magistrates Court on 21 October 2014. 

2. [2]
   Section 222(2)(c) of the JA 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 or inadequate.

3. [3]
   Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices.

4. [4]
   Section 225(1) of the JA 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. [5]
   In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:

“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 the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ...’”

6. [6]
   Further the principles contained in House v R (1936) 55 CLR 449 at 504 apply namely:

“It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.”  

Background

7. [7]
   The appellant pleaded guilty to one charge of driving a motor vehicle on Pilot Farm Road, Emerald on 17 September 2014 whilst he was over the middle alcohol limit but not over the high alcohol limit.  The reading was .123%. 

8. [8]
   The learned magistrate recorded a conviction, fined the appellant $1,200, and disqualified him from holding or obtaining a Queensland driver licence for a period of 10 months.

9. [9]
   The prosecution informed the magistrate that the appellant was intercepted by police at about 4.15 a.m. in a vehicle which was swerving. An RBT was conducted. The appellant said he had been drinking whilst driving home to Emerald from Chinchilla and consumed about seven to eight stubbies between 9.30 p.m. and 4 a.m. The appellant’s traffic history was tendered, which disclosed he had no previous offences of drink driving. Indeed, the appellant was born on 26 March 1978 and had two previous speeding offences, the first on 12 April 2006 and the second on 14 May 2014.

10. [10]
    The defence solicitor informed the learned magistrate that the appellant worked as a plant operator and had been employed in that position for 18 months. It was pointed out there was an early plea of guilty. It was further pointed out that despite the licence disqualification he would not be terminated from his employment. He did not he did not accept that the vehicle was swerving over the road. At the time of interception, he was about 100 metres from his home and there was no other traffic about. He had been subject to an immediate suspension under the provisions of s 79B of the Transport Operations (Road Use Management) Act 1995 (Q) “TORUM”.  He had been without a driver licence for 35 days, which is a matter which should be taken into account.

11. [11]
    The learned Magistrate gave very brief sentencing remarks taking into the plea of guilty and also stating that general deterrence was a most important factor in sentencing.

Submissions

12. [12]
    In essence the Appellant complains that aside from the plea of guilty the learned Magistrate did not take into account (a) any mitigating factors and (b) the 35 day suspension. It is submitted that on a re-sentence the fine should be $800-$1000 and the disqualification 5-7 months.

13. [13]
    The Respondent considers the appeal should be allowed. It agrees that the Magistrate did not have regard to a number of mitigating factors and concedes the sentence was excessive.

Determination on error  

14. [14]
    The learned Magistrate did not refer to the maximum and minimum penalties (s 9(2) (a) of the Penalties and Sentences Act) nor did he refer to the offender’s otherwise good character (s 9(2)(e) of the Penalties and Sentences Act).  In my opinion, the failure to refer to those two matters constitutes an error in the sentence, accordingly it falls to this court to resentence the appellant (see AB v R (1999) 198 CLR 111 at [20] and [130]).

15. [15]
    Further the Magistrate did not refer to s 86 (2A) of the TORUM Act as discussed below or to the 35 day suspension.

16. [16]
    In my respectful opinion the sentence was also excessive in terms of the disqualification. The Appellant was a man with no previous criminal or drink driving convictions and had his licence suspended for 35 days. The maximum penalty was 12 months disqualification and so effectively the disqualification period was only one month less than the maximum. That in my view was clearly excessive.

17. [17]
    There was an issue on whether the Appellant was swerving but no evidence was called on the matter below. No further evidence is sought to be adduced on appeal. I consider the safest approach is to not take this matter into account as an aggravating factor because of the provisions of s 132C of the Evidence Act 1977 (Q).     

Consideration

18. [18]
    Section 79(1F)(a) of the TORUM Act prescribes that the maximum penalty was a fine of $2,200 (20 penalty units) or a term of imprisonment not exceeding six months.

19. [19]
    Section 86(2) (ea) of the TORUM Act provided a minimum disqualification period of three months and a maximum of 12 months. In deciding the period of disqualification, the court is required to have regard to the concentration of alcohol on the defendant’s breath and the danger, real or potential, to the public in the circumstances of the case (s 86(2A) of the TORUM Act). 

20. [20]
    Where a person is charged with an offence against s 79(1F) of the TORUM Act (driving over the middle alcohol limit) that person becomes the subject of an immediate suspension of the driver’s licence (see s 79B(1)(ab) of the TORUM Act). 

21. [21]
    Under s 86(7) of the TORUM Act the court may when deciding the period of disqualification take into account the period already served under the suspension. 

22. [22]
    In all of the circumstances, namely, in light of the maximum and minimum penalties; the plea of guilty; the appellant’s otherwise good character; the fact he was drinking whilst driving; the fact he had driven a long way; the fact there was little traffic around; principles of deterrence; the purposes of sentencing set out in s 9(1) of the Penalties and Sentences Act 1991 (Q); the relevant other features mentioned in s 9(2) of the Penalties and Sentences Act 1991 (Q); the sections of the TORUM Act to which I have referred and the 35 day suspension, it is my determination that the following orders should be made:

1. The appeal is allowed.
2. The sentence imposed in the Magistrates Court is varied in that the fine and disqualification period are set aside and in lieu thereof the Appellant is fined the sum of $900 and is disqualified from holding or obtaining a driver licence for the period of 6 months.