Healey v Commissioner of Police
[2016] QDC 192
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- Unreported Judgment
- Healey v Commissioner of Police[2016] QDC 192
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Healey v Commissioner of Police[2016] QDC 192
Healey v Commissioner of Police[2016] QDC 192
DISTRICT COURT OF QUEENSLAND
CITATION: | Healey v Commissioner of Police [2016] QDC 192 |
PARTIES: | SEAN ANTHONY HEALEY (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | APPEAL NO: 5 of 2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Bundaberg |
DELIVERED ON: | 31 May 2016 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 22 January 2016 |
JUDGE: | Rackemann DCJ |
ORDER: | The appeal is allowed. A disqualification of three months is ordered in lieu of the six months which was imposed at first instance. The sentence is not otherwise disturbed. |
CATCHWORDS: | CRIMINAL LAW – appeal against sentence – where the appellant plead guilty to one charge of driving without due care and attention – where the learned magistrate either failed to have regard to relevant considerations or failed to give adequate reasons – whether the learned magistrate’s sentence was manifestly excessive – where discretion re-exercised |
COUNSEL: | Solicitors for the Appellant Solicitors for the Respondent |
SOLICITORS: | Messenger Legal for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]This is an appeal against sentence. It is an appeal against a sentence imposed in the Magistrates Court at Bundaberg on the 14th of January this year by Magistrate Smith. On that day, the appellant pleaded guilty to one charge of driving without due care and attention. He was fined $1200, a conviction was recorded and he was disqualified from driving for six months.
- [2]No issue was taken with respect to the fine or the recording of a conviction; rather, the appeal focused upon the disqualification from driving. It was contended that, whilst it was certainly within his Honour’s discretion to impose a period of disqualification, his Honour failed to consider or to give due weight to relevant considerations in deciding the length of the disqualification and arrived at a disqualification which, considered in the context of the sentence otherwise, resulted in a sentence which was manifestly excessive.
- [3]The discretion to impose a period of disqualification arises from section 187 of the Penalties and Sentences Act 1992, which provides relevantly as follows:
(1)If:
(a)an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and
(b)the Court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;
the Court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the Court, from holding or obtaining a Queensland driver’s licence.
- [4]Relevant principles in relation to the exercise of that discretion were discussed by Henry J, with whom Holmes JA and McMeekin J agreed, in R v Osborne [2014] QCA 291, particularly at paragraphs 56 to 59 as follows:
[56]Section 187(1) is structured so that those considerations relate expressly to the decision that an offender should be disqualified. 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 disqualification period is to be for two years but not if it is to be for five years.
[57]However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include:
-the need for protection of the public from persons who create 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;
-the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.
[58]As to the latter consideration, in R v Nhu Ly Macrossan CJ stressed the desirability of the disqualification serving some purpose other than that served by other available punishments:
“Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty, is not meant to be simply a gratuitous addition to other available punishments. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term.”
[59]Section 9(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment, rehabilitation, deterrence, denunciation and community protection. It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender. However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.
- [5]It will be seen from the above that the proper application of section 187(1) involves a two-stage process involving: firstly, a decision as to whether impose a period of disqualification; secondly, as to the period of that disqualification. Whilst the nature of the offence and the circumstances in which it is committed are of relevance to both of those decisions, the second of those decisions requires the consideration of all relevant factors, which include factors relevant to the incident case beyond those referred to in section 187(1) in relation to the decision to impose a period of disqualification.
- [6]In this case, the facts as related to the learned magistrate by the police prosecutor, were as follows:
12.41 pm, Friday 16 October 2005, Childers Road at Elliot, three vehicle head-on traffic cash. Minor injuries. It’s a straight section of sealed bitumen road, one land in each direction, limited to 100. It’s bordered by narrow bitumen, hard-shouldered, open onto grass embankments. They’re clearly marked. Broken central lines, solid edge lines. Clear and dry at the time of the crash. No other – nothing else of note there, your Honour. Two units, which – one driven by the defendant, sustained major damage to the front end of each vehicle from the head-on impact. There was incidental damage to the passenger side of the second vehicle, and the third vehicle collided with the second vehicle when they were unable to avoid the crash that had occurred, your Honour. The defendant’s motor vehicle is a purple Holden station wagon.
The defendant had been driving north on Childers Road. The other two vehicles were driving southbound. The defendant’s vehicle exited the left hand side of the marked northbound lane. The passenger side wheels left the bitumen surface onto loose gravel. It travelled along that – in that position for about 80 metres. The defendant then made corrective movements, re-entered the bitumen surface, travelling into the oncoming southbound lane and collided with the second motor vehicle. The – due to that collision, the third vehicle was unable to stop in time and that collided with the passenger side of the second motor vehicle in the middle of the road, your Honour.
There were some injuries. The defendant said immediately when the police spoke with – he’d fallen asleep at the wheel. He was later interviewed. He said that he’d driven from Bundaberg to Maryborough, stayed 10 minutes and was on his way back to Bundaberg when the crash occurred. He said he felt tired immediately prior to the crash and had then fallen asleep, awakening with his passenger side wheels off the bitumen. He said he over-corrected and crossed into the path of oncoming vehicles. He didn’t try and shy away from any of that responsibility, your Honour. Unless your Honour wishes anything further.
- [7]Apart from that, the only other information before the learned magistrate came from the then self-represented defendant/appellant, who provided a letter from himself addressed to the learned magistrate. The letter took responsibility for what had happened and proffered the following reason as to why it had occurred:
To give a reason for why, I hadn’t had anything to eat or drink that day and did not get enough sleep the night before and that made me tired and I fell asleep. In future, I will make sure I eat and drink properly and get enough sleep before operating a motor vehicle for this is my responsibility, up to that date I had kept a clean licence and even since which I need for work as without work I have no source of income as I cannot receive nor want to receive dole payments.
- [8]The defendant/appellant’s assertion as to having had a clean licence otherwise was corroborated by evidence before the learned magistrate, that the defendant/appellant has no criminal or traffic history whatsoever.
- [9]The defendant/appellant was a young man of 19 years of age who was working delivering pre-prepared meals three days a week for his father’s company. The learned magistrate also had a letter from the defendant/appellant’s father attesting to his son’s good performance at work and the extent to which he relied upon his son for his business. That letter informed the learned magistrate that, on the day, his son had gone down to Maryborough in his own car to correct a delivery that had otherwise gone wrong, so it was, in that sense, an unscheduled delivery, rather than a pre-planned journey. The letter from the defendant/appellant to the learned magistrate also expressed remorse for the incident. That was consistent with the defendant/appellant’s conduct otherwise, in which he had cooperated with the police, had readily taken responsibility for the circumstances for the offence and had pleaded guilty at the earliest possible time.
- [10]Obviously, the offence was one of some significance in terms of its nature and circumstances. Any professional driver has a responsibility to ensure that they are in an adequate condition to drive safely before entering upon a journey. A decision to drive when fatigued is, of course, a serious error of judgment, which places not only the driver but the public at large at risk. In this case, that risk materialised in a collision involving other vehicles. That caused significant property damage, it would seem; although, there was nothing before the magistrate as to any significant injury being caused to other persons.
- [11]It is those matters to which the learned magistrate principally relied in his brief sentencing remarks, which were as follows:
Mr Healey, the Court takes into account your early plea of guilty. I take into account the nature and seriousness of the offence. In determining penalty, I take into account that you’re really lucky that no one was killed in this particular matter. I take into account that you fell asleep behind the wheel and caused damage to other vehicles. The Court must take into account in determining a period of disqualification that danger that you exposed other road users to. Upon acceptance of your plea, you are convicted. The conviction is recorded. You are fined $1200; if you fail to pay that, three months’ imprisonment, and you are disqualified from holding or obtaining a driver’s licence for a period six months from today.
- [12]There was nothing untoward in the learned magistrate taking into account the danger to which members of the public were exposed by reason of the offence, or that damage was, in fact, caused to other vehicles. Those are not however, the only factors which were obviously relevant to the exercise of the discretion and, in particular, to the decision on the period of any disqualification.
- [13]As appears from the above extract from R v Osborne, the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so is obviously a relevant consideration. There was no discussion by the learned magistrate of what level of risk the appellant/defendant posed in the circumstances. The fact that the appellant/defendant was somebody with absolutely no criminal or traffic history of any kind, coupled with his demonstrated remorse and his intention to take greater precaution in the future, suggests that the need for protection of the public in the future was of a relatively low order.
- [14]The consequence of disqualification in relation to employment was obviously a relevant consideration. His job was as a professional driver. Any period of disqualification would necessarily affect his ability to carry out his employment. Given that he was employed by his father’s company, there was no reason to suspect that he would permanently lose his employment by reason of any disqualification, but clearly the disqualification would have economic consequences for him and consequences for his ability to carry out the duties of his employment. His Honour had relevant material before him in that respect, but made no mention of it at all in his brief remarks. Further, he did not articulate the apparent purpose of the disqualification beyond simply imposing further punishment over and above a fine.
- [15]That his Honour did not deal with such relevant considerations leads to the conclusion that he either erred in failing to have regard to them or erred in failing to give sufficient reasons for his decision. In either event, there has been an error which warrants the re-exercise of the discretion. In those circumstances, it is not necessary for me to reach a conclusion about whether the length of the disqualification was beyond an acceptable range, such as to be said to make the sentence, considered as a whole, manifestly excessive; although, had I been required to, I would have reached that conclusion.
- [16]The imposition of this sentence followed five months after another Judge of this Court had overturned a period of disqualification imposed by the same magistrate in Miller v Commissioner of Police [2015] QDC 213. In that decision, Judge Bowskill QC DCJ had referred to the passages from Osborne’s case to which I have referred and had drawn attention to the need for the two stage decision-making process and to the range of relevant matters to consider in relation to the second of those, namely, the determination of the duration of the disqualification. In that case, her Honour found an error in Magistrate Smith’s primary decision because, in settling on a disqualification period of six months for a professional driver who had fallen asleep at the wheel, Magistrate Smith had sought guidance from the mandatory minimum disqualification periods for other types of offences. That was, as her Honour found, an erroneous approach which called upon her Honour to re-exercise the sentencing discretion.
- [17]The case, in terms of setting aside the original decision, therefore, turned on a different error, but the facts of that case and the sentence imposed by her Honour provide a useful comparative. In that case, the professional driver was a 25 year old man who had been working as a truck driver for about five years. He was, therefore, a mature and experienced operator who should have been well-aware of the risks. He had a traffic history, although, not one which showed a pattern of falling asleep at the wheel. He had warning signs of being tired, but did not heed them and continued to operate his vehicle.
- [18]He had told police that he had worked a full day the day before and had gone to bed at 7.30 pm and then got up 12.30 am on the 10th of January and had commenced to drive his tow truck at 1 am from Coomera, which is near the Gold Coast, to Bundaberg. That is, of course, a lengthy journey. He told police that prior to the crash, he felt his eyes getting tired, so he put the window down and continued driving. This ultimately led to him losing control of his vehicle which came into collision with a bridge. No other vehicles were involved in the accident.
- [19]It was suggested for the respondent on the hearing of this appeal that the subject defendant/appellant finds himself in a worse position than Miller did. It is difficult to accept that. The subject defendant/appellant was only 19 years of age and whilst a professional driver, obviously did not have the same level of experience as was the case in Miller. Further, the defendant/appellant here has no history whatsoever. The facts, as they were related to the learned magistrate, had the defendant/appellant conducting a trip of a considerably less distance than was the case in Miller and feeling tired immediately prior to the crash. There was no suggestion in the facts as related to the magistrate that he had driven whilst being aware of being tired for some time, far less that he had decided to take steps, such as winding the window down, to fight off the tiredness rather than stop, as was the case in Miller.
- [20]In support of its submission, the respondent pointed to the defendant/appellant’s own letter which he had handed to the magistrate in which he attempts to give an explanation for his having fallen asleep at the wheel by reference to having not had anything to eat or drink and not having got enough sleep the night before and that “that made me tired, and I fell asleep.” That statement, however, whilst revealing a commendable attempt by the appellant/defendant to work out why he had fallen asleep and to take steps to ensure that it does not happen again, does not go so far as to admit that he was tired at all times up until he fell asleep. It does not support a conclusion of knowing persistence over a lengthy period of time in driving whilst tired, at least not to the point of being at risk of falling asleep.
- [21]I accept that in this case, unlike in Miller, there was a consequential collision which involved other vehicle and property damage. There was reference before the learned magistrate to some injury, although, as has already been noted, there was no evidence before the magistrate of any significant injury to any other person beyond the appellant/defendant himself who, in his letter to the magistrate, had referred to time he spent in hospital as a result of the accident.
- [22]When one considers the various similarities in differences between this case and Miller, in which her Honour ultimately imposed a disqualification of three months, it is difficult to see how the imposition of a six-month disqualification, being twice that which was ultimately given in Miller, is not beyond an appropriate sentencing range.
- [23]It was pointed out on behalf of the respondent that in considering the sentence overall, I should be mindful that the fine in the subject case was a little less than in Miller, namely, $1200 instead of $1500, but I do not consider that balances up the sentences overall having regard to the six-month disqualification that was imposed.
- [24]In the circumstances for the reasons which I have given, I am satisfied that the learned magistrate erred, and I am also satisfied that he reached a sentence which was manifestly excessive. I allow the appeal. I set aside the sentence insofar as it relates to the period of disqualification. In my view, having regard to the factors which I have already mentioned, the level of disqualification here should be at or a little less than the disqualification in Miller, and in the circumstances I exercise my discretion to order a disqualification of three months in lieu of the six months which was imposed at first instance. The sentence is not otherwise disturbed.