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Miller v Commissioner of Police QDC 213
DISTRICT COURT OF QUEENSLAND
Miller v Commissioner of Police  QDC 213
BLAKE JOSHUA MILLER
COMMISSIONER OF POLICE
11 of 2015
Magistrates Court at Maryborough
5 August 2015, ex tempore
5 August 2015
Bowskill QC DCJ
CRIMINAL LAW – Appeal and New Trial – Appeal Against Sentence
TRAFFIC LAW – Licensing of Drivers – Queensland – Appeals – Where the Appellant pleaded guilty to the offence of driving without due care and attention – Where the Appellant was fined $1500 and disqualified from holding or obtaining a driver licence for 6 months –Appeal on the ground that the sentence is manifestly excessive, due to imposition of period of disqualification – Consideration of factors relevant to exercise of the discretion under s 187(1) of the Penalties and Sentences Act 1992, as to whether to order disqualification from holding driver licence and, if so, for what period
Penalties and Sentences Act 1992 (Qld) s 187
Transport Operations (Road Use Management) Act 1995 (Qld) s 83
House v The King (1936) 55 CLR 499
R v Osborne  QCA 291; 69 MVR 45
R v Maher  QCA 7
C Cook for the Respondent
TW George of Suthers Lawyers for the Appellant
Office of the Director of Public Prosecutions instructed by the Queensland Commissioner of Police for the Respondent
- This is an appeal under section 222 of the Justices Act from the order made by Magistrate Smith on 18 March 2015. On that date the appellant was convicted on his own plea of guilty of the offence of driving without due care and attention under section 83 of the Transport Operations (Road Use Management) Act 1995. He was fined $1500, in default of payment, two months’ imprisonment, and he was also disqualified from holding or obtaining a driver’s licence for six months. The appeal is on the ground that the sentence was manifestly excessive, in particular on the basis of the disqualification period, with the appellant arguing that no period of disqualification should have been ordered or alternatively it should have been a shorter period.
- The appeal is by way of rehearing on the evidence given in the proceeding before the Magistrates Court and involves a rehearing in the technical sense of a review of the record of proceedings below rather than a completely fresh hearing. In order to succeed on such an appeal the appellant must establish some legal, factual, or discretionary error. Further, insofar as it is an appeal against sentence, which involved the exercise of discretion on the part of the Magistrate, this Court may not interfere unless an error of the kind identified in House v The King (1936) 55 CLR 499 at 504 to 505 has occurred. So it is not enough that this Court considers that if it had been in the position of the Magistrate it would have taken a different course. It must appear that some error has been made in exercising the discretion.
- In so far as the facts that led to this offence are concerned, they are set out at pages 2 to 3 of the transcript of proceedings on the 18th of March 2015 in the following terms. 6.30 am, 10 January 2015, Maryborough. Sergeant Alder said he attended the Farrell Bridge at Saltwater Creek, the Bruce Highway at Aldershot. It is a two-lane bridge, one in each direction for travel, 100 kilometre speed limit. It appears that on that morning the appellant was travelling southbound on the Bruce Highway from Bundaberg and fell asleep. He had told police that when he woke up he saw the truck veering to the left so he steered right and believes that the back wheel hit the bridge guardrail, and then the truck came off the bridge on the opposite side. He tested negative on his breath test. It appears that when the rear wheels struck the guardrail, as the truck began to lose control and the defendant tried to correct the truck’s path and return it to the southbound lane, as a result of that, the truck performed an uncontrolled 180 degree turn over both lanes, and the truck collided with the bridge’s guardrails on the northbound side. The guardrail collapsed and the truck dropped off the bridge and landed on its roof.
- The defendant told police that he had worked a full day on the 9th of January, the day before, and gone to bed at 7.30 then got up at 12.30 am on the 10th of January, that is, got up after five hours’ sleep and commenced driving a tow truck at 1 am from Coomera. He told police that prior to the crash he felt his eyes getting tired so he put the window down and continued driving. Police also found that the rear tyres of the truck were devoid of tread, and the defendant said he was not aware of that as he did not conduct the proper inspection of the tow truck prior to commencing his journey.
- The appellant is a 25 year old man. He was working as a tow truck driver at the time of this incident, and it appears he had been working as a truck driver for about five years before that. He had a traffic history, which was put before the Magistrate, that included an offence of driving over the general but not over the high alcohol limit back in August 2010, a few other, what one might call minor traffic offences, and then in 2012 some speeding offences and in 2013 an offence involving driving with a mobile phone. He had, as was described to the Magistrate, family responsibilities being the sole income earner for his household including his partner and her disabled father. He entered an early plea of guilty to the charges and cooperated with police and assisted them in terms of participating in interviews, etcetera.
- It is clear from the transcript of proceedings before the Magistrate that the Magistrate considered the circumstances of the offence very serious having regard to the fact that the appellant is a professional truck driver, was on a major highway, the Bruce Highway, and that he had warning signs of being tired and did not heed them. The Magistrate clearly considered there was a need for community protection in the circumstances.
- That view of the Magistrate is supported by Court of Appeal authority and I refer, for example, to the cases that are cited in R v Maher  QCA 7. For example, at paragraph 37 there is reference to a decision of Ruka  QCA 113 in which Justice Wilson, with whom Justices Muir and Chesterman agreed, noted that the sentencing Judge appreciated the importance of identifying the level of seriousness of the offender’s driving, that being a case where the offender fell asleep at the wheel having just finished a 12 hour shift on the 10th consecutive day on which he had worked and it was more blameworthy than a case of momentary inattention. Justice Wilson in that case observed that:
Fatigue has been widely recognised as a major cause of traffic accidents and the Courts must be vigilant to ensure community appreciation of a driver’s responsibility not to endanger the lives of others by driving when he or she is too tired to do so safely.
- There is also reference to the decision of the Court of Appeal in R v Vance  QCA 269. That is also a matter in which the offender fell asleep and was sentenced on the basis that the only factor which contributed to the collision was fatigue and in that matter, referred to in paragraph 39 of Maher, the comment made by the then Chief Justice is referred to, namely, that:
The offender should have appreciated that he was unfit to drive through fatigue yet nevertheless chose to do so. The characterisation of the neglect as surpassing momentary inattention was said to be correct since the offender had driven over an appreciable period while grossly fatigued.
- I refer also to the comment made at page 52 of the Court of Appeal’s decision in R v Osborne  QCA 291 which is reported in 69 MVR 45, and the point is made, in paragraph 40 at the top of page 52, that a professional truck driver owes a higher than ordinary standard of care by reason of the nature of the vehicle being driven.
- All of those comments, in my view, support the view that was expressed by the Magistrate when dealing with this matter in terms of characterising the seriousness of the driving.
- In terms of the disqualification it is also apparent that the Magistrate was concerned about the need for consistency of sentencing, referring in this regard to the mandatory disqualification of six months for a person convicted of driving where their licence has been suspended by an accumulation of demerit points, and his Honour said in that regard at the hearing:
All I’m saying is there has to be some balance in sentencing across the board. Two people come before the Court, one today who’s demerit-point suspended, affects no one, was driving safely but clearly was demerit point-suspended. That person loses his or her licence for six months. Your client endangers members of the public, has a vehicle accident as a result of something that he was warned of through driving while he was tired and you’re saying he shouldn’t have a disqualification.
This Court has a duty under section 9 of the Penalties and Sentences Act to make sure there is general deterrence and personal deterrence. Your client might have learned his lesson, but the Courts need to show to any member of the public who wants to drive a truck or a car on the Bruce Highway or any other highway whilst tired after having warning they can be in expectation of losing their licence.
- That is then reflected in his Honour’s decision to impose a period of disqualification, and I set out his Honour’s reasons because they are important in the context of this appeal. After referring to section 187 of the Penalties and Sentences Act his Honour said:
This Court finds that the matter before this Court, the allegation of you driving without due care and attention on 10th of January 2015 is a serious offence. The Court is satisfied that in the interests of justice that properly you should be disqualified from holding or obtaining a driver’s licence for a period.
It’s been highlighted in this Court on many occasions people come before the court and the Transport Operations (Road Use Management) Act provides for mandatory disqualification for certain types of offences. Many of those offences don’t expose others to danger. They are in breach of orders made, suspension of licences, etcetera. They place upon the Court an obligation to impose mandatory terms. In your case it’s a discretionary provision imposed under section 187, but the Court is required to have a balance so that people who appear before the Court on numerous matters on the same day see that there is some balance in sentencing having regard to the seriousness of offences and their actions and also to the consequences of any disqualification imposed by the Court.
Now, you come before the Court as what Mr Willett describes as a professional truck driver. I challenge your professionalism when you drive a vehicle on a major highway when you’re tired. All of the promotions through the Transport Department try to encourage drivers to stop and rest when they’re tired. On this occasion you didn’t do that. When I consider all of the matters, your character testimonials, which speak highly of you, your traffic history, the events of 10th of January 2015, it appears, in my view, in the interests of justice that you should be disqualified for a period, and I propose to do that today. Upon acceptance of your plea of guilty you are convicted. The conviction is recorded. You are fined $1500 in default of payment, two months’ imprisonment, and you are disqualified from holding or obtaining a driver licence for a period of six months from today.
- There are two issues on this appeal, and in respect of each the question is whether the decision of the Magistrate reveals any error in the exercise of his discretion: firstly, to impose a disqualification at all, and secondly, to do so for six months.
- As to the first issue, the recent decision of the Court of Appeal in Osborne, which I have already referred to, has helpful guidance as to the principles to be applied under section 187 of the Penalties and Sentences Act. I refer in particular to paragraphs 56, 57, 58 and 59 of that decision without setting them out in full here.
- Relevantly those passages appear in the reasons of Justice Henry in that matter with whom both Justice of Appeal Holmes and Justice McMeekin agreed. His Honour makes the point at paragraph 56 that section 187(1) is structured so that the two express considerations, that is, the nature of the offence and circumstances in which it was committed, relate expressly to the decision that an offender should be disqualified.
- And his Honour said:
They may by implication also inform the decision as to the duration of the disqualification because of the obvious interrelationship between the two decisions. It may, for instance, be in the interests of justice to disqualify an offender if the period is for two years but not if it is for five years.
- His Honour went on to note at paragraph 57 that:
…the discretion arising under section 187(1) as to the period of disqualification is broad and not expressed as being confined solely to the nature of the offence or the circumstances in which it was committed.
- His Honour identified other considerations which have been regarded as relevant to that discretion including the need for protection of the public from persons who created danger on the road particularly those with a pattern of doing so; the consequences of the disqualification upon the offender’s future employment prospects; the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; and the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.
- At paragraph 58, his Honour made reference to another decision of Nhu Ly reported in  1 Qd R 543, in which then Chief Justice Macrossan had stressed the desirability of the disqualification serving some purpose other than that served by other available punishments.
- In my view, the Magistrate could not be said to have made any error of principle insofar as his Honour considered that it was appropriate to impose a period of disqualification. He considered the nature of the offence and the circumstances in which it was committed, in particular by pointing to the factors that I have already referred to, that this was a person engaged as a professional tow truck driver driving on a major highway in circumstances where he had already had warning signs of being tired and continued driving nonetheless.
- In those circumstances I cannot see any error in the Magistrate forming the view that it was in the interests of justice that the appellant, in addition to being fined, be disqualified from driving for a period in order to not only deter him from acting in that way in future but also to generally deter others from such dangerous and indeed careless behaviour which causes such a significant risk to other people on the road, and as his Honour also indicated, to indicate the community’s denunciation of that conduct. It was entirely fair for the Magistrate to comment that it was sheer luck that this incident did not have real, tragic consequences having regard to the circumstances of the accident and the location of it.
- In relation to the comparative decisions that I have been referred to by the appellant in support of the argument that no period of disqualification ought to have been imposed, one of those decisions is the decision of his Honour Judge Dorney QC in the matter of Sutton. That does not actually support there being no period of disqualification because even on the appeal, Judge Dorney did maintain a three-month disqualification. It is difficult to compare the situation in that case to this, however, because the circumstances of driving are not clear. It is apparent there was a fatality but, of course, Sutton was not charged with dangerous driving causing death, and he did, in addition, receive a four-month period of imprisonment wholly suspended for two years.
- The decision of Harmer that has been relied on is one in which Judge Robertson, on appeal, removed the six-month disqualification period, but I note that in that case his Honour described the offence as not a particularly serious example of careless driving, that it was not alleged the defendant put anyone at risk, and described his driving as stupid and irresponsible. I do not think I could describe this matter as not a particularly serious example of careless driving, and I do not consider the Magistrate made any error in the way that he described the driving. The Court of Appeal’s comments that I have already referred to regarding professional drivers and the seriousness of them driving while fatigued support putting this case into a different category from Harmer.
- Hockey is a matter in which his Honour Judge Botting also removed a six-month disqualification period on appeal. His Honour articulated as relevant principles, that a disqualification would be warranted where it was necessary for the protection of the public, where there is flagrant disregard time and time again for traffic rules. That would undoubtedly be a relevant consideration in any particular case, but in my view, it ought not to be interpreted such that where there is one situation there is no call for a period of disqualification. His Honour, of course, did not have the benefit of R v Osborne when deciding Hockey, but the statement of principles that is set out in Osborne in paragraphs 56 to 59, in my view, is what ought to be applied now.
- As against those matters, the decision of Judge Farr in Cutler, to which I have been referred, and which, in itself, also refers to another decision of Judge Irwin, do support the imposition of periods of disqualification in relation to charges for driving without due care and attention, and perhaps it can be said that the combination of cases reveals the variety of situations in which offences of this kind are committed and the variety of personal circumstances that defendants or offenders present with. In any event, for all those reasons, in my view there is no error in the Magistrate’s decision to impose a period of disqualification.
- I turn then to the second part of the question which is the period. I have referred already to paragraph 57 of Osborne where Justice Henry set out some other considerations in addition to the nature of the offence and the circumstances in which it was committed to be factored into the exercise of the discretion as to the period of disqualification. I have referred also to the proposition that it is important that the disqualification serve some purpose other than that served by other punishments, that is, a disqualification is not meant to be simply a gratuitous addition to other punishments. There should be an apparent purpose to it other than would be served by a heavier fine or a longer prison term where that is relevant.
- In this case I have already referred to the Magistrate’s reasons for decision, and what that reveals is that the six-month period was driven, it seems, by the minimum mandatory disqualification period for other types of offences to which his Honour referred, relevantly the demerit point suspension, driving on a suspended licence due to accumulation of demerit points.
- The Magistrate made the point that he was concerned about consistency. It is correct to say that it is the aim of sentencing to achieve fairness and consistency, and the principle that is frequently cited in that regard is from the High Court’s decision in Wong v R (2001) 207 CLR 584 at 591 where it is said:
The outcome of discretionary decision making can never be uniform but it ought to depend as little as possible upon the identity of the Judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system, not merely as a multiplicity of unconnected single instances. It should be systematically fair and that involves, amongst other things, reasonable consistency.
- Now, while the Magistrate cannot be criticised for referring, as a matter of principle, to the need for consistency, in my view, that is not relevantly achieved by comparison of this particular circumstance with the circumstance that applies where there is a mandatory period of disqualification or indeed any other form of mandatory sentence provided for in legislation for another type of offence. There are all sorts of reasons why Parliament might decide to impose or incorporate mandatory provisions in legislation, and the Courts are bound to apply those, but it seems to me that there is an error made as a matter of principle in exercising a discretion if that discretion is exercised solely by reference to a mandatory provision for another offence.
- The Magistrate, in my view, in properly exercising the discretion as to the period of disqualification ought to have taken into account the types of circumstances that are highlighted by Justice Henry in the matter of R v Osborne as opposed to fixing upon that particular period of six months by reference to that mandatory term. It would also have been of assistance to him, I accept, to be referred to comparable decisions were they available. He was referred to some, and perhaps it was the case that there weren’t others available at the time, but of course that is of great assistance in terms of achieving the type of consistency that Wong v R refers to.
- In all the circumstances, in my view, an error has been made in the exercise of the discretion by the Magistrate in setting the period of the disqualification. That being the case it is appropriate that this Court re-exercise that discretion.
- I take into account the nature of the offence, the circumstances in which it was committed, the personal circumstances of the appellant that were put before the Magistrate which included that he drives a truck for a living and he has responsibilities as the sole income earner for his family. Balancing that with the fine that was imposed, I am of the view, as I have indicated already, that a period of disqualification was appropriately imposed in this matter. I do not think it can be described as a gratuitous addition to the fine. I think the disqualification served the purpose of both specific and general deterrence in circumstances of a very serious offence which only by sheer luck did not result in injury or, even more serious, death to somebody else. I think, in terms of how long that should be, it is relevant to take into account, as I have said, not only the nature of the offence, the circumstances in which it was committed, but also the fact that this is a relatively young person who did not come before the Court with no traffic history, but nonetheless did not present with a serious traffic history, the fact that there would undoubtedly be consequences to him of that disqualification, but I do not think that can overwhelm the need for there to be a disqualification.
- The risk of there being a disincentive to rehabilitation I do not think is relevant here because this is not a matter where there is any custody involved, and I have already said I do not regard it is a gratuitous addition to the other penalty. But when I consider the comparable decisions that I have been able to have regard to which include Cutler and the decision of Judge Irwin that is referred to in Cutler, which is Tschirpig v Martin  QDC 111, as well as Judge Dorney’s decision in Sutton, although there are similarities and differences to be identified, in my view, an appropriate balance of all of those factors and the exercise of the discretion under section 187 indicates that a period of three months’ disqualification is appropriate.
- For that reason, I propose to allow the appeal. I propose to vary the order of the Magistrate insofar as he imposed a six-month period of disqualification, and in lieu of that, order a three-month period of disqualification.
- [In relation to costs] bearing in mind the breadth of the discretion, what I am going to order is that the respondent pay the applicant the amount of $412.50 in respect of the cost of obtaining the transcript but beyond that, that each side bear their costs of the appeal, and I am making that order on the basis that as I have alluded to, although the appellant has been, to some extent, successful, in terms of the period of the disqualification, but not successful in respect of the overall issues that were raised on the appeal, and I am conscious that the success of the appeal has been based on matters of law by reference to authorities which were not available or not referred to the Magistrate and on that basis the order I have proposed is appropriate.
- Published Case Name:
Miller v Commissioner of Police
- Shortened Case Name:
Miller v Commissioner of Police
 QDC 213
05 Aug 2015