Quinn v Petterson[2015] QDC 44

[2015] QDC 44

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE DEVEREAUX SC

Appeal No 3182 of 2014

GERARD QUINN      Appellant

and

S.E. PETTERSON      Respondent

BRISBANE 

10.20 AM, FRIDAY, 6 FEBRUARY 2015

JUDGMENT

HIS HONOUR: This proceeding commenced and was heard as an appeal against conviction and sentence. The Appellant was charged with driving under the influence of liquor or a drug (TORUM section 79(1)) and failing to stop (TORUM section 92(1)(a)). The driving occurred on 27 June 2014. The charges came before the Magistrates Court at Holland Park on 18 July 2014.

The Appellant was represented by a solicitor. In the Appellant’s presence, the solicitor said:

I’m instructed, your Honour, to enter – that Mr Quinn wishes to enter pleas of guilty to the two charges.

The learned magistrate then said:

All right. Driving under the influence and failing to stop. Yes. Thank you.

The solicitor replied:

Thank you.

The sentencing hearing then proceeded. The magistrate imposed a single fine of $500 and disqualified the appellant from holding a licence for 15 months. The appellant has now abandoned the appeal against conviction and no longer seeks to argue that the proceeding before the learned magistrate miscarried on the ground that a certain blood alcohol reading ought not to have been adopted. It is simply said the sentence was excessive^[1]. That ground of appeal has been expressed in the written outline as follows:

That the sentence imposed was manifestly excessive in all the circumstances when regard is had to the Appellant’s cooperation, early plea, antecedents, medical history and traffic history.

The appeal is brought under section 222 of the Justices Act. At the hearing, I gave leave to the appellant to produce further evidence (Justices Act, section 223). The affidavits are of less relevance to the sentence appeal, but I will refer to that material later.

The police prosecutor told the learned magistrate that 8 pm on 27 June 2014, police went to the appellant’s house investigating a traffic incident from earlier in the evening. They noticed damage to his car. He spoke with a slur in his speech, was unsteady on his feet and of dishevelled appearance. A breath test produced a positive reading. Later at a police station he produced a reading of 0.209. The appellant told police he had drunk an unknown number of full-strength beers.

The next day, the appellant was interviewed by police. The prosecutor told the learned magistrate the appellant said he remembered taking anti-anxiety medication at an address at Ellen Grove before drinking beer during the afternoon before the traffic incident. He also slept before the relevant driving. He left that address to drive home to Carindale. He recalled “hearing a loud bang and impacting something but was unable to recall any further details”.

The prosecutor did not plainly tell the learned magistrate that the traffic incident occurred at about 6.20 pm. That fact is contained in the QP9 form, which is before the Court as an attachment to the appellant’s affidavit and is common between the parties. The prosecutor tendered the report of Dr Griffin, director of the Clinical Forensic Medicine Unit. It is not clear what should be drawn from the report, but the result was the appellant was sentenced on the basis that the reading produced at 9.26 pm, namely, 0.209, would count back to a minimum of 0.18 at 8 pm. The prosecution relied on the “count back reading of .18 per cent”.

The appellant was aged 56 years, having been born in Ireland. He had some traffic history, most relevantly, a previous conviction for driving under the influence. The appellant’s solicitor, apart from joining in the submission that the learned magistrate was to sentence on the basis of a reading of 0.18, tendered two letters and made further submissions. The letters informed the court that the appellant had suffered from depression for about four years and had enrolled in a short residential rehabilitation course. The solicitor told the learned magistrate the appellant was aged 56 years;  born in Ireland;  had worked hard and built up a business, which at one stage employed more than 400 people;  that the business declined in recent years and the appellant was out of work. The appellant was on medication for depression. The solicitor told the learned magistrate the appellant did not have a clear recollection of the accident. As well as the alcohol taken, the appellant might have been affected by the medication. The appellant was supported in Court by his wife of 33 years and the couple had two adult aged children. The solicitor reminded the learned magistrate that the appellant had cooperated with police to the point where his cooperation and remorse were noted by police in the QP9. Finally, the solicitor told the learned magistrate the appellant was about to enter rehabilitation, intended to return to work as soon as possible, and that would require him to be able to drive as soon as possible.

The learned magistrate expressly took into account the pleas of guilty but noted the high reading, describing .18 as “the lower of the two readings” but “an extremely high reading in itself”, and the aggravating feature that the appellant did not stop at the accident. The learned magistrate commented on the appellant’s lack of awareness of the accident “such was the degree to which you were affected by alcohol and maybe other substances at the time”.

The magistrate took into account the appellant’s circumstances and his imminent treatment but considered the danger to the public the appellant constituted, the need to show the community’s concern at such behaviour and the need for personal and general deterrence called for the 15-month disqualification. The learned magistrate referred directly to the high reading when fixing the disqualification period.

The appellant’s evidence, contained in the affidavit filed in support of the now abandoned appeal against conviction, while not entirely consistent with the information relayed by the solicitor to the learned magistrate, confirmed the role of the driving in the appellant’s business. The appellant suffered a panic attack during the day and took in all three Xanax tablets before drinking beer. After the driving, he deposes, he drank a substantial quantity of beer before the police arrived. In any case, the reading is not, as I said, in contest.

The offence carries no maximum disqualification period. The minimum period is six months. I notice the offence of driving with a blood alcohol level higher than the medium (0.10) but lower than the high alcohol limit (0.15) carries a maximum disqualification of 12 months: TORUM section 79(1F) and section 86(2)(ea). In Hammond v Ralley (2014) QDC 263, Smith DCJ reduced from 10 to six months the disqualification period – the disqualification imposed on a driver who produced a reading of 0.123, although that driver did not have a previous conviction for drink driving.

Because the appellant’s earlier conviction was not less than five years ago, he was not caught by section 86(1A), which provides a minimum disqualification of 12 months.

The period of disqualification imposed was long, but the appellant has not demonstrated it to render the sentence excessive. No comparable decisions have been placed before the court in support of the appeal. It was necessary to weigh against the appellant’s unfortunate recent circumstances and independent actions towards rehabilitation the need for general and specific deterrence. Section 86(2A) of the TORUM required consideration of the blood alcohol reading and the danger to the public in setting the disqualification.

The appellant, on his own material, was barely aware of being in a road accident which caused damage to his car. In view of all the relevant matters, which I’m satisfied the learned magistrate took into account, I cannot be satisfied the sentence is excessive. The order will be that the appeal’s dismissed.

...

HIS HONOUR: I, in an exercise of discretion, decided not to award costs.

MS BALL: Thank you, your Honour.

HIS HONOUR: All right.

MS BALL: Your Honour, just in relation to your judgment, your Honour referred to the original hearing being heard at the Caboolture Magistrates Court. It was Holland Park.

HIS HONOUR: I beg your pardon. Wonder how I did that.

MS BALL: It may have just been confused with another matter.

HIS HONOUR: Okay. By the way, I meant to say, if during – if you noticed any mis-references to legislation, sing out. Were there any?

MS BALL: Your Honour, I didn’t pick up on any.

MR PEDDER: Yeah. I didn’t.

HIS HONOUR: I went quickly. Yes.

MS BALL: That was the only ‑ ‑ ‑

HIS HONOUR: All right. I just want to look at something.

MR PEDDER: There was a reference to Caboolture, your Honour [indistinct]

HIS HONOUR: That’s where I’ve got it from. It’s from the Respondent’s outline.

MS BALL: Oh, I apologise, your Honour.

HIS HONOUR: Yes. That’s all right. Just for interests – for counsel’s interest, among the cases that concern section 145 of the Justices Act is one that I wrote a couple of years ago and was referred to in the Respondent’s outline. A little later than that, Mr Morris QC wrote an article in the Bar’s newsletter called ‑ ‑ ‑

MR PEDDER: Hearsay.

HIS HONOUR: ‑ ‑ ‑ Hearsay. It’s – I don’t know the exact date, but I think it’s – I found it during the week, and I was – had a reference to it prepared from reasons if I needed to publish them in the other – in the conviction appeal. But I think it’s issue number 54, if you want to look. It’s a very – it’s just on that topic about the way people appear in Magistrates Court and solicitors sometimes enter the plea. This Court has given, as Mr Morris points out, not altogether consistent decisions about that, but it still astounds me that the practice goes on, and it just creates problems. I’m not sure that it created the problem in this case, but it didn’t help. It didn’t help.

MR PEDDER: I do recall, your Honour, perhaps some 12 months ago the – you know, there was some sort of – I’m not sure if it was a direction, but certainly an instruction to ensure that the magistrate read out the long form of the charge and asked the defendant specifically whether they wish to enter a plea rather than accept a plea from the defendant’s solicitor on their behalf. But it seems as though the ‑ ‑ ‑

HIS HONOUR: It’s just not been followed.

MR PEDDER: No.

HIS HONOUR: Yes. As I say, I don’t think it would have cured Mr Quinn’s problem in this case. His problem was a bit more complex than that. But anyway.

MR PEDDER: Thank you, your Honour.

HIS HONOUR: And I’ll adjourn.

MS BALL: Thank you, your Honour.

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