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Mayne v Purtill[2016] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION:

Mayne v Purtill  [2016] QDC 124

PARTIES:

CHARLES DOUGLAS COLBURN MAYNE (appellant)

And

MAURICE PURTILL (respondent)

FILE NO/S:

081/15

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

3  March 2016

DELIVERED AT:

Ipswich

HEARING DATE:

29 February 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. The sentence is to be set aside;
  2. The appellant is fined $1000;
  3. The appellant is disqualified from holding or obtaining a Queensland driver’s licence for a period of 12 months;
  4. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW- PROCEDURE- APPEAL- APPEAL AGAINST SENTENCE- where appellant convicted of driving while under the influence of liquor- where a $1500 fine an 18 month disqualification from driving were imposed- where a conviction was recorded- whether jurisdictional error—where there was an error in the exercise of jurisdiction- where sentence to be set aside- where appellant studying for real estate licence- where admission as real estate agent requires a fit and proper person test- where no submission was made or invited on the issue- where  $1000 fine imposed- where 12 month disqualification period imposed- where no conviction recorded.

COUNSEL:

Geoff Seaholme for the Appellant

Elizabeth Kelso for the Respondent

SOLICITORS:

Gallagher Legal for the Appellant

Office of Director of Public Prosecutions for the Respondent

HIS HONOUR: On 15 September 2015, the appellant, Charles Douglas Colburn Mayne, was convicted in the Ipswich Magistrates Court of one count under section 79(1) of the Transport Operations (Road Use Management) Act of driving whilst under the influence of liquor.  The facts of his offending were not in dispute.  He pleaded guilty to the charge.  The facts were recited by the learned Police Prosecutor before his Honour as follows:

About 2.20 am on Saturday, 22nd of August, police were patrolling Darling Street, Ipswich, observed a blue Hyundai sedan, registration number something, travelling along Darling Street without headlights on.  The vehicle was swerving from left to right within the lane.  The vehicle was subsequently intercepted.  One occupant was the driver, who was the defendant.  Result of a breath test – he was conveyed to Ipswich Police Station. 

Sorry:

He was given a requirement for a roadside breath test, but he stated he was too drunk to provide the sample of his breath for testing; however, he did comply eventually with the requirement to provide a sample of breath.  Taken to the Ipswich Police Station, certificate issued, .185 something concerning driving, and a copy of the certificate of analysis and a copy of his driving history was tendered.

At the time of the offending, Mr Mayne was on a P-plate licence, a provisional licence.  He was, therefore, required, as a matter of law, to have a zero concentration of alcohol in his blood any time at which he drove.  A recording of .185 is, of course, a very serious and high-level reading in any circumstance, but the fact that Mr Mayne was required at the time to have zero blood alcohol concentration is a further aggravating factor.  The circumstances of his offending, as I’ve set out above, are quite concerning – that at that hour of the morning, he would be driving without his lights on and swerving.

He was, as the learned Magistrate observed, particularly lucky not to have injured himself, someone else or worse. In sentencing the appellant, his Honour imposed a fine of $1500, disqualified him from holding or obtaining a driver’s licence for a period of 18 months and recorded a conviction. The maximum penalty which could have been imposed for an offence against section 79, subsection (1) of the Transport Operations (Road Use Management) Act at the time was $3080; therefore, the penalty imposed was about half of the maximum which could have been imposed.

In sentencing the appellant, the learned Magistrate observed that he was required under the Act, that is, the Transport Operations (Road Use Management) Act, to take into account the level of the reading and the danger the appellant or posed to himself and, as the Magistrate said, more importantly, other road users.

Those considerations, which his Honour understood to govern the exercise of his sentencing discretion, are, quite apparently, the considerations which arise under or various subsections of section 86 of the Transport Operations (Road Use Management) Act, for example, section – subsection (2A) and (2C), each of which require a period of disqualification to be decided by the Court making the decision, having regard to the concentration of alcohol in the blood or breath of the defendant and the danger, real or potential, to the public in the circumstances of the case.

Those provisions relate to circumstances whereby other operative provisions of section 86 prescribe statutory minima and maxima for periods of disqualification, between which the sentencing Court must formulate and impose a period of disqualification.  An offence against section 79, subsection (1) operates in a different way. Section 86, subsection (1) prescribes that where a person is convicted of an offence in relation to a motor vehicle against section 79(1), there is to be, by operation of law, a disqualification, by virtue of that conviction and without any specific order, for a period of six months.

A further discretion is conferred upon the sentencing Court to impose some other specific order by section 86, subsection (5). Section 86, subsection (5), however, is an exercise of power under section 86, subsection (5), however, is not governed by the same statutory considerations prescribed in, for example, section – subsection (2A). That is not to say that those criteria, that is, the concentration of alcohol in the blood or the presence of a drug in saliva and the real or potential danger posed, are not irrelevant considerations to the exercise of the discretion under section 86(5);  however, they are not the prescribed statutory criteria.

It is quite evident from his Honour’s reasons that the sentencing exercise proceeded on a mistaken understanding on his Honour’s part that he was required to exercise his discretion by reference to the matters, for example, contained in section – subsection (2A). That was an error in the exercise of his Honour’s jurisdiction; therefore, the sentence imposed by his Honour must be set aside.  In those circumstances, it falls to this Court to resentence the appellant on the basis of submissions now made on his behalf – on the confines of the record of the proceedings below.

As I have already observed, the recording in this case of .185 was a very high recording, indeed, and the seriousness of the offence needs to be reflected in the penalty imposed by the Court.  The appellant did, however, plead guilty to the offence, which must be taken into account in his favour, and expressed what I would consider to be genuine remorse for his actions.  He was at the time 18 years of age, which is, on the one hand, to be taken into account by virtue of his youthfulness.  It is, of course, however, a factor which reflects in the seriousness of the offence also, that is, it’s committed by somebody who was only on a provisional licence, that is to say, within 12 months of having obtained a licence by virtue of their youth.

There were, before the learned Magistrate, a number of references which had been provided on the appellant’s behalf.  Those references went towards his participation as a ball kid, as it’s expressed, at the Brisbane International Tennis Tournament.  The significance of that is that the reference reflects that certain qualities and attributes are considered in selecting people to carry out that role.  The reference speaks highly of the appellant in relation to the possession of those qualities and attributes.  The reference also spoke of the appellant, over a six-year period in such a role, having developed into a leader and a mentor for young colleagues.

A further reference spoke of his employment from March 2011 in a supermarket in the district in which he lived.  Again, the reference spoke well of the Appellant’s character.  A further personal reference provided on his behalf by a family friend spoke of his involvement in assisting during, and in the subsequent clean-up after, the 2011 floods in his local area.  Again, the reference spoke highly of his personal qualities.

Those matters would suggest, together with extreme remorse which it is submitted is expressed by the Appellant, that his offending on this occasion was out of character and that he was otherwise a person of good character. 

At the time of the offending and when he came to be sentenced, he was a university student.  He was boarding in Ipswich and commuting by way of train, it seems, to university in Brisbane.  Subsequent to losing his licence by its initial suspension, he obtained a pushbike, which was subsequently stolen.  However, as the magistrate observed in sentencing on the first occasion, those particular matters, that is, the theft of the bike, do not really go towards mitigating the seriousness of his offence.  They do, however, have some bearing on the effect which a fine and disqualification will have upon him.  It is apparent from the material that he continued to work part time and therefore had limited income which could be applied to pay a fine imposed upon him, but, as Mr Seaholme, who appears for him on the appeal, points out, that is somewhat ameliorated by the penalty being referred to SPER, who will administer that penalty. 

In addition to his university studies, it was drawn to the magistrate’s attention below that the Appellant was also studying for a real estate licence. That was described as the more minor of his studies.  Ms Gallagher, a solicitor who appeared for him on that occasion, made the observation to the learned magistrate that this offence would now hang over his head as to whether or not he would be regarded as a fit and proper person to be given a real estate licence when he completed that course and came to apply for one.  Ms Gallagher did not, however, develop that into a submission directed towards the discretion to be exercised under section 12 of the Penalties and Sentences Act as to whether the magistrate ought in the circumstances exercise the discretion conferred by that provision in favour of the Appellant such as not to record a conviction. It must also be observed, however, that the magistrate did not invite any submissions on that issue and does not seem to have given any consideration to it in his decision.

I’ve been referred to a number of cases by both Ms Kelso, the learned Crown Prosecutor who appears on the appeal, and Mr Seaholme in relation to similar offending.  Not unusually, the facts relevant to each particular case mean that no particularly discernible range can be taken from the cases. However, in all the circumstances to which I have referred, I consider that a fine of $1000 would be an appropriate fine to impose upon this first offender in relation to this offence.

In relation to the period of disqualification, which was originally imposed at 18 months, I consider that a period of disqualification of 12 months is an appropriate period to impose.  It is two times the statutory minimum imposed by section 79, subsection (1) of the TORUM Act, and it takes into account the difficulties which he will experience in attending to his university studies and part-time employment in the meantime.  However, of course, it goes without saying that periods of disqualification are intended as part of their operation to cause such inconvenience. 

In relation to section 12 of the Penalties and Sentences Act, it provides that in considering whether or not to record a conviction, a Court must have regard to all circumstances of the case, including the nature of the offence, which, as I’ve said, is very serious, the offender’s character and age, which, as I have noted, is otherwise of good character and he is youthful, and the impact that recording a conviction will have on the offender’s economic or social wellbeing or his chances of finding employment.  In my view, the recording of a conviction in these circumstances is likely to have an adverse impact upon those matters, particularly his potential to obtain a real estate agent’s licence in the future.  In the circumstances of this case, I exercise my discretion in favour of the Appellant and I will not record a conviction.  Is there anything further? 

So for the offence against section 79(1) of the TORUM Act, the Appellant is to pay a fine of $1000, and I refer the fine to SPER. He’s disqualified from holding or obtaining a Queensland driver’s licence for a period of 12 months, and I do not record a conviction. Is there anything?

MR SEAHOLME: It’s not something that seems to have been covered in the outline or even – I’m not even sure if it’s in the application or the appeal documents because I don’t have a copy of those, even – the issue of costs, your Honour.

HIS HONOUR: What do you want to say about it?

MR SEAHOLME: Well, the Applicant has been successful on his appeal, and under the provisions of the Justice Act, your Honour is entitled to avoid costs.

HIS HONOUR: What is it, about section 100 or something, isn’t it?

MR SEAHOLME: Two two six.

HIS HONOUR: Two two six, is it?

MR SEAHOLME: Yes.  Here it is.  I’ve got it here. 

HIS HONOUR: Yes.  Thanks.  Section 226 of the Justices Act provides that, on an appeal such as this, the judge may make such order as to costs as the judge may think fit.  The Appellant here has had a degree of success.  It must be observed, however, the Appellant has had that success on a case which didn’t feature in either his notice of appeal or on the submissions filed in support of it.  It is a case, in my submission, where there ought be no order as to costs. 

MR SEAHOLME: Thank you, your Honour.

MS KELSO: Thank you, your Honour.

HIS HONOUR: Anything further?

MR SEAHOLME: No. Thank you.

HIS HONOUR: And I’m grateful for the submissions that you’re able to make in the somewhat odd circumstances that they arose.  Thank you.

MR SEAHOLME: Yes. Thank you, your Honour.  I apologise for my impreparedness, if that’s a word.

HIS HONOUR: No, no.

Close

Editorial Notes

  • Published Case Name:

    Mayne v Purtill

  • Shortened Case Name:

    Mayne v Purtill

  • MNC:

    [2016] QDC 124

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    03 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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