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- Unreported Judgment
Sheldrick v Commissioner of Police QDC 140
DISTRICT COURT OF QUEENSLAND
Sheldrick v Commissioner of Police  QDC 140
REBEL JANE SHELDRICK
COMMISSIONER OF POLICE
Maroochydore Magistrates Court
5th June 2015
15th May 2015
Appeal dismissed. No order as to costs
APPEAL AGAINST SENTENCE: where appellant pleaded guilty to 2 breaches of the TORUM; where Magistrate imposed single fine for both offences and in relation to the most serious imposed a 6 month disqualification period; where appellant had already served 2 months of suspension after being charged with failure to supply a sample of breath for analysis on a breath analysis instrument; whether her Honour erred in construing s.86(1) TORUM as requiring her to impose a minimum 6 month disqualification period from the date of conviction which could not be reduced as an exercise of discretion
Gawrych, M. of Counsel for the Office of the Director of Public Prosecutions for the Respondent
Thomas, A. Solicitor for the Appellant
Thomas Criminal Law for the Appellant
Acts Interpretation Act 1954
Justices Act 1886
Transport Operations (Road Use Management) Act 1995
Adams v Slattery  QDC 55
Hammond v Ralley  QDC 263
House v The King (1936) 55 CLR 499
Saba v Department of Transport and Main Roads (No 2)  QDC 128
Scanlon v Queensland Police Service  QDC 236
- On 3 February 2015 the appellant pleaded guilty before her Honour Magistrate Hennessy in the Maroochydore Magistrates Court to two breaches of the Transport Operations (Road Use Management) Act 1995 (“TORUM”), which breaches both occurred on 26 November 2014. The first in time was a breach of s 80(5A)(a) of the TORUM in that she failed to provide a roadside breath specimen at Mountain Creek; and the second was a breach of s80(11), where soon after she failed to provide a specimen when requested to do so at the Maroochydore Police Station.
- Her Honour imposed one fine of $800 for both offences, which was referred to SPER, and in relation to the s80(11) charge, she imposed a disqualification period of six months.
- The appellant appeals on the sole ground by which she asserts that her Honour erred “in finding she had no discretion under section 86(7) TORUM to take into account the period of two months and eight days served under a section 79B suspension”.
- Section 222(2) (c) of the Justices Act 1886 permits an appellant who has pleaded guilty to appeal on the sole ground that the penalty was excessive. As it is an appeal against the sentence, the principles laid down in House v The King (1936) 55 CLR 499 at 505 apply. The error in principle alleged is that articulated in the notice of appeal.
The proceedings below
- The appellant’s solicitor, Ms Thomas (who also appeared for her at the appeal), entered pleas of guilty to both counts and the prosecutor set out the facts. He told her Honour:
“Around about 2 p.m. Wednesday, 26th of November, police were conducting static random breath testing, (sic) intercepted the defendant’s vehicle. The defendant was the driver. At the time of interception they smelled liquor and (sic) did show some other indicia of intoxication. On requirement made and direction given the defendant was observed (sic) not attempting to blow air through the tube or was not providing any breath at all. Police instructed the defendant how to successfully provide a specimen of breath, warned the defendant of the outcomes of failing to provide. (sic) Police gave the defendant a number of opportunities to provide a specimen of breath, however the defendant made several failed attempts and the testing device indicated insufficient breath.
When questioned the defendant stated she consumed two white wines in a wine glass between 11.15 a.m. and 12.30 p.m. that same day and she was driving back from the bottle shop to go back home. As a result of her failure she was detained, transported to Maroochydore Station, whereupon requirements made and direction given the defendant was observed not attempting (sic) to blow air through the tube or was not providing any breath at all. She was again instructed on how to successfully provide a specimen of breath, warned of the consequences, made five failed attempts.
Upon the completion a certificate was issued indicating a failure to provide. Your Honour, I will tender that, together with the defendant’s history. And there’s also some documents on my friend’s behalf.”
- Ms Thomas provided her Honour with a medical certificate from her client’s doctor which was to the effect that she had attended the surgery for treatment for anxiety and depression before the offending and twice afterwards. A mental health care plan was attached. Ms Thomas informed her Honour that her client was 37 years old, had a 12-year-old daughter; that her partner had died some five years ago, and as a result she decided to study at university and recently completed a Bachelor of Justice. She had been employed on a casual basis through Probation and Parole but also had worked in telemarketing. Ms Thomas told her Honour that her client was currently on a contract (with Probation and Parole) which would end on 15 March and she said, “I’m instructed that that is likely to be extended and as is indicated by the reference by Mr Fisher she seems to be well supported by that organisation.” Ms Thomas referred to the possibility of her anxiety contributing to her failure to supply, but that was a submission going to a moral culpability rather than criminal liability and no complaint is made about that on appeal.
- As a result of being charged with the s 80(11) offence, her client had been suspended from driving since her arrest, a period of two months and eight days, and was employing a driver for $325 per week to enable her to get to work at Woodford. Ms Thomas informed her Honour that the driver had crashed the car and this resulted in an $800 excess payment on insurance for her client. At 1-4 line 30, there is the following exchange between her Honour and Ms Thomas:
“BENCH: Well, the minimum for the second charge is six months.
MS THOMAS: Yes, your Honour.
BENCH: There’s no mandatory for the first charge.
MS THOMAS: Yes.
BENCH: And I’m happy with her history to keep it to six months. You don’t need to refer to any authority.
MS THOMAS:Thank you, your Honour. I’d simply ask your Honour to take into account that she’s been suspended for about two months and eight days.
BENCH: The minimum is six months irrespective of how long she’s been suspended before she gets to court for the second charge.
MS THOMAS: Thank you, your Honour. But, with respect, I understand that you can take into account the period that has been served under (section 86) (7) …
BENCH: I can. And that’s why I’ll impose a minimum of six months because six months is the minimum from the date of sentence.”
Her Honour’s decision
- Her Honour made her decision immediately. She said:
“I take your early plea of guilty into account and the circumstances of the offences, including what Ms Thomas has had to tell me and the material that’s been tendered in relation to your medical condition at the time. I also take into account the circumstances of your employment and the sensitivity of the issue of recording a conviction.
So in those circumstances, I will impose one fine in relation to both matters. You are convicted and fined $800, which is referred to SPER for payment. There’s no disqualification imposed on charge 1, and in relation to charge 2, taking into account the period of time you have already been disqualified, I’ll impose a minimum period of six months. So you’re disqualified from holding or obtaining a drivers licence for six months on and from today, and Ms Thomas will advise you what the implications are if you driving during that period.”
- In her outline of submissions Ms Thomas raised another matter in addition to the ground of appeal but for good reason she does not proceed with the other argument. From her Honour’s reasons it appears that her Honour imposed a conviction but in fact it is clear from the judgment record that her Honour has specifically recorded that no conviction is recorded.
- In her reasons her Honour did not refer to the appellant’s traffic record. That record indicated that prior to her appearance before her Honour the appellant since 2001 had seven speeding offences, one unlicensed driving and one failure to stop at a stop sign. She had also served a period of suspension as a result of action taken by the State Penalty Enforcement Registry. In those circumstances her Honour’s sentence could be regarded as merciful and it certainly could not be said to be excessive.
- The point articulated on appeal effectively amounts to a submission that s86(1) (a) should not be read as imposing a minimum period of six months from the date of conviction from holding or obtaining a Queensland driver licence which cannot be reduced by the court. The argument is that therefore her Honour erred in not reducing the period by the time served under s.79B and had therefore impermissibly fettered her sentencing discretion.
- Section 86(7) is in the following terms:
“(7) In deciding a period of disqualification for a person whose licence is suspended, or who is disqualified from obtaining or holding a licence, under section 79B, the court may take into account the period of suspension or disqualification that has already been served under that section.”
- Given her Honour’s clear words expressed in her decision and also in the hearing, it is difficult for the appellant to now contend, as she does, that her Honour did not in the exercise of her discretion take into account the time served even if the point made is valid.
- It is common ground that as a consequence of s 79B of TORUM, at the time of sentencing the appellant had already served a period of suspension of two months and eight days.
- Section 80(11) of TORUM provides (relevantly) that a person who fails to provide a specimen of breath for analysis by a breath analysis instrument is guilty of an offence against s 79(1) of TORUM and liable to the same punishment, including disqualification, from holding or obtaining a Queensland driver licence, as if the person had actually committed an offence against s 79(1). Section 79(1) provides for a maximum penalty of 28 penalty units or imprisonment up to nine months.
- Section 86(1) applies to the circumstances here. Relevantly, it is in these terms:
“(1) A person who is convicted of an offence in relation to a motor vehicle against section 79(1) is … disqualified by such conviction and without any specific order for a period of 6 months from the date of such conviction from holding or obtaining a Queensland driver licence.”
- The argument now advanced by Ms Thomas on the appellant’s behalf is that those words should not be read as imposing a statutory minimum below which a court before whom the person is convicted of a s 79(1) offence cannot go. In other words she argues that the words “without any specific order”, means that a court can make an order below the statutory minimum.
- In aid, as she did below, the appellant relies on the decision of his Honour Judge Smith in Hammond v Ralley  QDC 263. As contended by the respondent, the case is clearly distinguishable and not of assistance to the appellant. In that case, at first instance a magistrate had imposed a $1,200 fine and a 10 month disqualification period upon the appellant who had pleaded guilty to a mid-range drink driving offence (not a s 79(1) offence), and had served a period of 35 days suspension under s 79B, to which the magistrate did not refer. The respondent in that case conceded that apart from that error, the magistrate had made other errors which made the sentence excessive, and the sentence was set aside and another sentence imposed. It is an entirely different situation to the one here, where her Honour expressly took into account the period of disqualification already served and imposed what she regarded as the minimum period of six months.
- Surprisingly, neither counsel was able to refer to any decision which dealt with this point. That is perhaps because until now everyone has assumed that s86(1) does impose a minimum period of disqualification for (in this case) a person who has been convicted under s 79(1) of TORUM.
- Section 86 deals with disqualification of drivers of motor vehicles for certain offences. The same wording as used in s86(1) (i.e. “is … disqualified by such conviction and without any specific order for a period of …. from the date of such conviction from holding or obtaining a Queensland driver licence”) is repeated in subsections (1A), (1B), (1C), (1D), (1E), (1F) and (1G), which relate to persons convicted who have been previously convicted within a period of five years of various offences therein stated. The intention is clearly to impose greater statutory minimums where the offender has previously offended in a prescribed manner within 5 years.
- Ms Thomas notes that the wording changes in relation to s 86(2) of TORUM, which is to do with different circumstances. Relevantly, s 86(2) is in these terms:
“(2) A person who is convicted of an offence in relation to a motor vehicle against section … must, if during the period of 5 years before conviction the person has not been previously convicted—
be disqualified by such conviction—
- (e)… for a period of not less than 3 months and not more than 9 months from the date of such conviction from holding or obtaining a Queensland driver licence; …”
- Her argument is that specifically the legislature has, in relation to s 86(2) offending, chosen to use the word “must”, which by reference to principles of statutory construction and s 32CA of the Acts Interpretation Act 1954 when “used in relation to a power indicates that the power is required to be exercised”. She argues that this is clear language that requires what are often referred to as “minimum mandatory” penalties.
- At the time of the hearing and given the absence of authority in relation to the proposition advanced by Ms Thomas, I invited the parties to search for any extrinsic material that may aid in interpretation and particular explanatory notes or Hansard speeches at the time when the relevant legislative provision was introduced. Ms Thomas has done some commendable research and provided me with information but, as she notes, it is very difficult to trace back through the multiple amendments to this particular legislation the genesis of the wording. The material she provided seems to assist the respondent’s argument but it is not clear
- After carefully considering the matter, in my view the terminology is not ambiguous or obscure, and does not, by construing the ordinary meaning of the words, lead to a result that is manifestly absurd or unreasonable. I commend Ms Thomas however for her efforts. The prosecutor did not respond to my request at all.
- There is a decision of his Honour Judge Long SC DCJ in this court: Adams v Slattery  QDC 55, which was an appeal by police against inadequacy of a penalty in which his Honour referred, by way of observation, to the argument that is being presently advanced. His Honour said at paragraph 15 of his judgment:
“ That has a further particular consequence relating to punishment, in that s86 of TORUM provides for periods of disqualification for conviction ‘of an offence in relation to a motor vehicle against section 79(1)http://www.austlii.edu.au/au/legis/qld/consol_act/pasa1992224/s 79.html’, by way of statutory effect and irrespective of any specific order of a court. Whilst it is correct to observe that this does not in fact provide for a minimum penalty that must be imposed by a court dealing with an offender, the effect is to provide for a statutory minimum disqualification period, subject to any longer period that may be ordered by a court.”
- It would be a most unusual result, as occasionally occurs when offenders are being sentenced for multiple offences including offences against provisions such as s 79(1) of TORUM, that by not referring to a disqualification period (in other words, without making any specific order) such an offender would nevertheless be disqualified for six months by virtue of s 86(1), whereas in other circumstances where an offender was being dealt with in the same manner the judge or magistrate could make a specific order reducing the period of six months. That would, I think, be an absurd result. The words “without any specific order” must as a matter of proper construction mean that a court is not constrained from imposing a greater period of disqualification depending on the circumstances. When one looks at the whole structure of this section, the contention of Ms Thomas would lead to possibly absurd ( or at least irreconcilable) results in different cases.
- It is the clear intention of the legislature to impose a statutory minimum of six months irrespective of any specific order made by the court upon conviction. The period of suspension that the appellant had already served was because of the operation of another provision of TORUM, namely s 79B. In my respectful opinion, her Honour was clearly correct in construing the clear words in s 86(1) as requiring her to impose a minimum period of six months upon conviction irrespective of the period of suspension already served. She was also correct in construing s.86(7) as applying to the case and enabling her to reduce the period of disqualification to the statutory minimum taking into account the time served. In argument she referred to the appellant’s traffic history as being a relevant factor to the exercise of this part of the sentencing discretion as it clearly was.
- In any event, if I was held to be wrong in that interpretation I would have held that given the appellant’s previous history and bearing in mind her Honour’s clear words, the penalty imposed was not in any event excessive.
- In the event of me dismissing the appeal, the prosecutor applied for costs fixed at $1,800 and in this regard referred to two decisions of this court, namely Scanlon v Queensland Police Service  QDC 236 and Saba v Department of Transport and Main Roads (No 2)  QDC 128. Section 26 of the Justices Act provides me with a discretion to order costs (as the judge may think just). Costs are not to be awarded by way of punishment for an unsuccessful defendant.
- In my view, the argument made here by Ms Thomas on behalf of her client was at the very least arguable, and in those circumstances I exercise the discretion in favour of her client and make no order as to costs.
- Published Case Name:
Sheldrick v Commissioner of Police
- Shortened Case Name:
Sheldrick v Commissioner of Police
 QDC 140
05 Jun 2015