Johnson v QPS[2015] QDC 264

DISTRICT COURT OF QUEENSLAND

 Charge

2. [2]
   The appellant was convicted of an offence of dangerous operation of a vehicle, in the Magistrates Court at Ayr on 17 June 2015 and fined the sum of $2,000.00, ordered to pay compensation of $2,904.45 and disqualified from holding or obtained a driver’s licence for a period of 12 months. The fine and compensation were referred to the State Penalties Enforcement Register (‘SPER’). No conviction was recorded.

The appeal

3. [3]
   I heard his appeal against sentence on 27 October 2015 and allowed the appeal, reserving these reasons. The ground of appeal was that the sentence was excessive. The real focus was the period of disqualification.

4. [4]
   The substantive orders made on 27 October 2015 were as follows:

1. Appeal allowed.

2. Disqualification of 12 months revoked and in lieu thereof a period of disqualification from holding or obtaining a driver’s licence for 7 months imposed.

3. The balance of the sentence imposed by the Magistrate remains extant.

Factual circumstances

5. [5]
   The course of driving on 06 May 2015 in the late evening involved the following:

• driving on a street in Ayr at a speed estimated to have exceeded 100 km/hr in a 50 km/hr speed limit area;
• driving through a roundabout, losing control and moving to the incorrect side of the road, leaving tyre marks on the road surface;
• veering through a right-hand turn into another street too fast causing the rear wheels to lift off the road;
• braking heavily, leaving tyre marks on the road surface and hitting a gutter; and
• continuing forward a further 200m and colliding with an open carport, causing the side of the roof to collapse.

6. [6]
   The course of driving was irresponsible and undeniably dangerous. Any one of the particulars to which I have referred would have justified the charge being made.

The appellant’s interview

7. [7]
   The appellant told police that he was travelling too fast, that the back end of the vehicle started to slide, he veered to miss a dog and hit the brakes hard, losing control of the vehicle.

Antecedents

8. [8]
   The appellant is a youthful 22 years of age. He has no criminal history. He had a minor traffic history, but notably two prior speeding offences in the 12 months prior to this offence. The Magistrate appeared to be aware of the latter, although I am uncertain as to how he acquired that knowledge. The appellant had an open licence. He has, it appears, responsible parental support. The passenger in his vehicle was a 16 year old female cousin. He was employed as a Water Officer by SunWater Limited in the Burdekin. He no longer has that employment, a direct consequence of his driver’s license disqualification.

The Magistrate’s decision

9. [9]
   The Magistrate used somewhat colourful language in his sentencing remarks. I have no issue with that because there was a safety and responsibility message that had to be unequivocally expressed to the appellant.

10. [10]
    Nevertheless, it is difficult to discern how the Magistrate determined that a 12 month disqualification was warranted, other than by inference from the factual circumstances as I have described them. However, such an inference does not sit comfortably with the non-recording of a conviction because of the matters that must be taken into account in section 12(2) of the Penalties and Sentences Act 1992, including the reference in (a) to “the nature of the offence”.

The driver’s license issue

11. [11]
    The Magistrate had some antecedent information about the appellant, but unfortunately was not assisted by the lawyer who represented him (who was not the lawyer or from the law firm who have conduct of this appeal). She had approached the hearing in the Magistrates Court with a misconceived view as to the power of the Magistrate in respect of the licence disqualification.

12. [12]
    There is a mandatory statutory minimum 6 month period of disqualification for this offence: Transport Operations (Road Use Management) Act 1995, s 86(3) (‘TORUM’). Judicial discretion only becomes relevant if a period of more than 6 months disqualification is submitted by the prosecution or is otherwise in contemplation by the Court. No ‘provisional’ or ‘work’ licence is available in respect of this offence. However, reasons should be given if a period of licence disqualification in excess of 6 months is ordered. The reasons can be very brief, provided they are explicit.

The submissions in the Magistrates Court

13. [13]
    Despite the rather confused state of affairs involving the lawyer, the plea of guilty was regular. The only relevant observation that flows from the legal representation in the Magistrates Court is that the submissions made for the appellant were not well-organised and were arguably deficient as far as the impact of any licence disqualification was concerned. Nevertheless, the Magistrate at least knew of the nature of the appellant’s employment, per se.

Fresh or new evidence

14. [14]
    Mrs Grant sought to adduce fresh or new evidence, pursuant to s 223(2) of the Justices Act 1886 (‘JA’), to expand the antecedents of the appellant, mainly with respect to the impact of the licence disqualification. However, those facts were known to the appellant and to his lawyer at the time of the hearing in the Magistrates Court: that much is clear from the submission, albeit erroneous, of the lawyer who foreshadowed an application for a ‘work’ or ‘provisional’ driver’s licence.

15. [15]
    There is no fresh or new evidence. The application to adduce such evidence is refused.

The Magistrates Court record

16. [16]
    Not for the first time in appeals such as this, I am compelled to make the observation that the practice of Magistrates to act on information that is not clearly identifiable on the record; to refer to documents, even obliquely, but not identify them explicitly nor mark them as exhibits; and to fail or omit to give reasons, even briefly, where there is a determination of a factual circumstance or a course taken in sentencing that requires per se an explanation, makes it difficult for an appeal court to understand or appreciate the course taken by the Magistrate in assessing the evidentiary material and making his or her decision.

17. [17]
    The fact that the Magistrates Court is a busy court is irrelevant. It does not excuse a Judicial Officer from failing to overtly do justice in a particular case and to explain why he has made a decision that has an impact on the liberty, financial circumstance, employment or other personal or family matters of a defendant.

The sentence imposed in the Magistrates Court

18. [18]
    The quantum of the fine is not excessive. It was clearly within range for a dangerous operation of a vehicle of the nature particularised in this case. The amount of compensation was said in submissions before me to reflect the cost of rectifying the damage to the carport, although any documentary proof was not formally tendered or marked as an exhibit.

19. [19]
    Mrs Grant submitted that the appellant’s loss of employment meant that he could not pay either of those amounts. Whether or not that is a true reflection of the appellant’s capacity to pay is not relevant because the referral of those sums to SPER enables payment arrangements to be tailored to reflect the personal circumstances of a defendant.

Was there an ‘error’ by the Magistrate?

20. [20]
    The material principle to be applied in an appeal against sentence is that some error in the exercise of the sentencing discretion must be identified: House v The King (1936) 55 CLR 499.

21. [21]
    Dixon, Evatt and McTiernan JJ, at 505, wrote:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” 

22. [22]
    The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood (1950) QWN 21, at 31, Macrossan CJ stated that an appeal court is not entitled to interfere unless it “… can find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under a misapprehension of fact or on some wrong principle in awarding a sentence”. 

The meaning of ‘excessive’

23. [23]
    For a sentence to be ‘excessive’, it must be “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”: R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

The period of disqualification

24. [24]
    A statutory mandatory minimum period of 6 months disqualification does not mean that every case of dangerous operation of a vehicle necessarily would warrant, but for the statutory provision, such a period to be imposed. It simply means that judicial discretion is intentionally limited in such a case by the legislature.

25. [25]
    There may be factual or personal circumstances where such an offence might otherwise (in the absence of a statutory minimum) have been appropriately dealt with by the imposition of a shorter period of disqualification through an exercise of judicial discretion.

26. [26]
    The point about this is that it should not be assumed that a disqualification in every case must start at 6 months and increase incrementally the more serious the operation of the vehicle is regarded. A 6 month period of licence disqualification may be a very significant penalty for a particular defendant, depending on the circumstances. If that was the case, then the imposition of a period in excess of 6 months may be excessive.

27. [27]
    Mrs Grant submitted that the appellant’s personal circumstances in effect reflected that view, which I raised in the course of submissions in the hearing of the appeal.

28. [28]
    The difficulty on this appeal is that the submissions made to the Magistrate were inadequate, no doubt reflecting the fact that the appellant’s lawyer was mistaken about what the Magistrate could do with respect to the licence disqualification. It seems to me that at the end of the day, so to speak, he was not properly assisted about this issue and has been led into error.

29. [29]
    In imposing the 12 month disqualification period, which in the circumstances of another defendant may have been unimpeachable, the Magistrate failed to give reasons for so doing, made no inquiry as to the potential impact on the appellant’s employment, particularly given his relative youth and limited adverse background, but nevertheless recorded no conviction for the offence. The latter order is customarily made where the conviction may impact on a defendant’s chances of finding or continuing employment, particularly a young defendant, despite the nature of the offence, which in this case the Magistrate clearly thought was serious.

30. [30]
    The Magistrate was in error in those circumstances.

31. [31]
    Despite the particulars of the dangerous operation of the vehicle and the seriousness of the appellant’s misconduct, and taking into account what I have been informed of his antecedents including the impact on his employment, I consider that the 12 month disqualification period was excessive. A lesser period, taking into account the mandatory minimum period, was open to be ordered.

32. [32]
    I was informed by Mrs Grant that the employment lost by the appellant for which a driver’s licence was necessary, may be open to him to resume if the period of disqualification was 6 months.

33. [33]
    I have made an order, in substitution for the 12 month order made by the Magistrate, of 7 months disqualification. I have done so intentionally so that the appellant may be spared the temptations of resumption of driving over the Christmas and New Year period. He will be eligible for the issue of a provisional licence on or shortly after 17 January 2016.

34. [34]
    I believe that, in the absence of reasons for the imposition of the 12 month period of disqualification by the Magistrate, had his Honour been told of the foreshadowed loss of employment he may, given his decision not to record a conviction (which in my view was appropriate in all the circumstances), have ameliorated the impact of the license disqualification by making an order for a period less than 12 months but more than 6 months.

Powers on appeal

35. [35]
    I may confirm, set aside or vary the appealed order or make any other order in the matter that I consider just: s 225(1) JA. An order made by me has effect and may be enforced in the same way as if it had been made by the Magistrate below: s 225(4) JA.

36. [36]
    The sentence that I impose in determining the appeal may be enforced as if no appeal was made: s 231 JA.

Conclusion

The period of disqualification was, in all of the circumstances discussed above, excessive.

ORDERS

2. 1
   Appeal allowed.

2. 2
   Disqualification of 12 months revoked and in lieu thereof a period of disqualification from holding or obtaining a driver’s licence for 7 months imposed.

2. 3
   The balance of the sentence imposed by the Magistrate remains extant.