Hughes v Commissioner of Police
[2016] QDC 325
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- Unreported Judgment
- Hughes v Commissioner of Police[2016] QDC 325
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Hughes v Commissioner of Police[2016] QDC 325
Hughes v Commissioner of Police[2016] QDC 325
DISTRICT COURT OF QUEENSLAND
CITATION: | Hughes v Commissioner of Police [2016] QDC 325 |
PARTIES: | GRAHAM MICHAEL HUGHES (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D3263 of 2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Gympie |
DELIVERED ON: | 12 December 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 December 2016 |
JUDGE: | Kefford DCJ |
ORDER: | 1. The appeal is allowed. 2. I order that the portion of disqualification that had not expired when the appeal against conviction was lodged on 17 August 2016 shall take effect from 18 August 2016. 3. Otherwise the sentence imposed on 21 July 2016 is confirmed. |
CATCHWORDS: | CRIMINAL LAW – appeal against sentence – whether the learned magistrate misapprehended facts – whether the power to impose disqualification of driver’s licence was enlivened – whether the learned magistrate’s sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld) s 187 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied R v Jackson [2011] QCA 103, applied Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Wilson [2016] QCA 301, applied R v Osborne (2014) 69 MVR 45; [2014] QCA 291, applied R v Nhu Ly [1996] 1 QdR 543; [1995] QCA 139, applied R v Cunningham [2005] QCA 321, cited R v Whiting [2009] QCA 338, considered R v Price (2005) 43 MVR 573; [2005] QCA 52, considered R v Smith (2004) 40 MVR 312; [2004] QCA 126, considered |
COUNSEL: | K Brandon (solicitor) for the Appellant P Price for the Respondent |
SOLICITORS: | Slater and Gordon for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]This is an appeal under section 222 of the Justices Act 1886 against a sentence imposed in the Magistrates Court in Gympie on 21 July 2016.
- [2]On 12 July 2016, the appellant pleaded guilty to the offences of threatening violence (section 75(1)(b) of the Criminal Code) and wilful damage (section 469(1) of the Criminal Code). Submissions on sentence were heard from both parties and the matter was adjourned for the Magistrate to consider the appropriate sentence and conduct some research in relation to the application of section 187 of the Penalties and Sentences Act 1992.
- [3]On 21 July 2016, the appellant was sentenced with respect to the offences. In relation to the offence of threatening violence, a conviction was recorded and the appellant was sentenced to imprisonment for a period of nine months. In relation to the wilful damage offence, a conviction was recorded and the appellant was sentenced to imprisonment for a period of six months. The sentences were to be served concurrently and were suspended after serving 36 days for an operational period of two years. 36 days from 15 June 2016 to 21 July 2016 was declared as time served. The appellant’s driver’s licence was disqualified for a period of 18 months.
- [4]Only one aspect of the orders is challenged, namely the disqualification of the driver’s licence for a period of 18 months.
Nature of Appeal
- [5]The appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing (subject to the grant of leave, on special grounds, to adduce fresh, additional or substituted evidence).[1]
- [6]This court is required to conduct a real review of the evidence, which task involves weighing conflicting evidence and drawing inferences and conclusions. However, in doing so, the court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses.[2]
- [7]To succeed on an appeal against a Magistrate’s exercise of sentencing discretion, the appellant must establish an error of the type identified in House v The King[3].[4]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.[5]
- [8]Where it is alleged that a sentence is manifestly excessive or manifestly inadequate, appellate intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases.[6]
- [9]As was observed by Chesterman JA in R v Jackson [2011] QCA 103 at [25]:
The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.
- [10]Manifest error arises if the sentence is beyond the range of sentences that could have been imposed: it is revealed by a consideration of all of the matters that are relevant to fixing the sentence.[7]
Circumstances of the offending
- [11]The circumstances of the offending conduct are relevant to whether the Magistrate erred in imposing a disqualification.
- [12]The power exercised by the Magistrate was that under section 187 of the Penalties and Sentences Act 1992 (Qld), which provides:
- (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 licence.
- [13]The facts of the offence were contained in the standard prosecution QP9 form, which was tendered in lieu of a schedule of facts or oral submissions. The QP9 contained the following relevant facts of the offending:
“The defendant in this matter is Graham Michael HUGHES - DOB 05/05/1994
The complainant is Jason Michael ANDRUSZYN.
On 14th June 2016 at approximately 11:30am the complainant in this matter, Jason Michael ANDRUSZYN has called triple zero to report that a male person has stabbed his vehicle which caused his partner who was driving at the time, to have a seizure.
…
Police obtained a version from the complaint. He stated he was previously with this girlfriend Kayla BENNETT and they were down at Rainbow beach in their green four wheel drive. He stated Kayla was driving slowly up the ramp when a white four wheel drive came up behind them. He stated that the car overtook them and as he did so, the male driver wound the window down and yelled obscenities at them before overtaking and driving off.
The complainant stated he thought Kayla was just driving too slow and that’s why the driver was so aggressive towards them. He stated they continued driving and when they got to the round about they pulled up behind the same white four wheel drive.
The complaint was unclear on the exact sequence of events that occurred but could recall that the white four wheel drive went around the roundabout but stopped and was blocking the road to Inskip Point. He stated the driver got out of the car and came towards them and at that point his girlfriend Kayla said “He’s got a knife”.
The victim stated he opened the front passenger door and stood on his side step to look over the top of his car and see if the male suspect did have a knife. The complainant stated at that point the male suspect made an action where he put the knife across his own neck as if to indicate he was going to cut the victims throat with the knife.
He stated the male suspect came toward him so he jumped back into the car and yelled “go go go, lets get the fuck out of here” to his girlfriend Kayla who was driving.
The complainant stated the male suspect kept coming towards them with the knife in his hand and at that point he thought the male suspect had punched the car as he heard a loud thud noise.
The complainant stated at that point he looked and saw Kayla not responding to him yelling at her to drive off, so he put his foot across the centre console onto the accelerator and revved the car. Realising the car was in neutral, he slammed the car into gear and tried to drive away from the defendant.
…
Police have subsequently commenced an investigation into the events that have occurred which has identified a number of independent witnesses to various parts of the incident. These witness versions appear consistent in most parts with the version provided by the complainant.
Witnesses to the commencement of the incident have stated they first heard the sound of a long loud horn beeping and observed the white car pulled up extremely close to the back of the green car in an aggressive manner. Witnesses stated they thought this was a road rage incident and that the person in the white car was the aggressor. Witnesses stated they saw the white car pull over sharply and over take the green car as they both disappeared out of sight.
Further witnesses have stated they observed a male person wearing a ‘high viz’ shirt was walking in between a green four wheel drive and a white four wheel drive at the roundabout and was holding a knife walking with purpose back towards the white vehicle.
…
Police then put the conflicting versions and witness versions to the defendant where it was alleged a male person matching his description was walking between the two vehicles in possession of the knife. At that point the defendant stated he might have stood on the side step of the car or that he might have walked over towards the other car but his recollection was not accurate because he blacks out when he gets angry. …
…
Witnesses – [where known at time of commencement of proceedings]
…
John WOODLAND
Was with wife Janelle WOODLAND getting water for caravan at the dumping point. Heard sound of two long blasts of a horn. Looked and saw 2 vehicles. Green car with female driver and white Nissan Patrol with male driver. Stated white patrol was up close to the rear of the green car. Saw green car drive off slowly and white car accelerate to catch up and drive approximately one metre behind the green car. Saw white car overtake green car with excessive amount of diesel smoke come from the exhaust. Saw brake lights of the white car come on and vehicle slowing down. …
Janelle WOODLAND
Was with husband John WOODLAND at dump point near Rainbow Beach. Heard horn blasts. Saw green car pulling out slowly and white car behind. Thought it was a road rage incident. Saw green car pull out onto the road and watched the white car pull up close behind. White car followed green car and overtook sharply and and [sic] ‘hooned’ passed [sic] the green car out of sight. …
Richard WHITNEY
Driving in work car with associated Damien OBRIEN. Drove along Clarkson Drive near Rainbow Shores. Observed at roundabout a white four wheel drive parked half on the road. Saw a male person with high viz yellow and blue shirt or coat had a knife in his right hand. As they drove through the roundabout he looked and saw another vehicle with P plate. Stated he mentioned to Damien something like “I hope thats not a road rage incident’. Continued driving.
Damien O'BRIEN
Travelling in passenger seat of work car with Richard WHITNEY driving. Approached roundabout saw white four wheel drive parked on side of the road. Saw the green four wheel drive parked approximately 2 car lengths behind the white car, both stationary. Saw a male person wearing high viz waslking [sic] towards the white four wheel drive saw a knife in his right hand. Stated he was walking naturally with the knife pointing out horizontally but had a stern and focussed look on his face. Saw the green four wheel drive pull out in a safe manner and drive passed [sic] the man with the knife without incident. …
Sentencing hearing before the Magistrate
- [14]During the sentencing hearing, the respondent relied on the facts contained in the QP9. Those facts were accepted by the appellant’s representative.[8]
- [15]In the course of the appellant’s representative’s submissions, the Magistrate sought to be addressed on whether the appellant’s driver’s licence ought be disqualified. The appellant’s representative submitted that there ought not be a disqualification as:
- the appellant needed his driver’s licence to have twice weekly blood tests and to obtain medication routinely due to his suffering from pulmonary hypertension; and
- the driving was not so outrageous or so dangerous that a disqualification would be called for.
- [16]The following exchange also occurred during the submissions on behalf of the appellant:
MR ANDERSON: No, your Honour. But it’s – it probably, in my submission, doesn’t rise to the level of a pre-meditated attack. These two parties hadn’t seen each other for quite a number of years. There had been some angst when both the parties were located on the beach. Now, the – the facts seem to suggest that the complainant was probably more complicit in this – or at least he had some understanding of what might happen when the vehicles both stopped at the intersection. On the facts – on the face of the facts, my client has stopped in the middle of – the intersection of the roundabout, I should say. The complainant’s vehicle – he wasn’t driving, I should add – stopped because one path was blocked by the defendant’s vehicle. There was another path open for the complainant and his partner to traverse. Alternatively, my client’s instructions were that there was sufficient room on the roundabout for – for the complainant to – to proceed.
BENCH: Was it a double lane or single lane?
MR ANDERSON: Single lane, but it is a wide – particularly wide roundabout.
BENCH: So – so why – why’d he stop?
…
MR ANDERSON: Yes, your Honour. I understand that there was a continuation of some angst that occurred on the beach. So my client initially was – was yelling backwards and forwards with the complainant. My client stopped and continued on that – in that same vein. I understand that the complainant got out and tensions escalated, no doubt. …
Approach of the Magistrate on sentence
- [17]The sentencing remarks indicate that the Magistrate took into account the following matters:
- the nature of the offending as revealed in the schedule of facts;
- the timely plea of guilty, reflecting remorse and cooperation with the administration of justice;
- the appellant’s antecedents, which include that he was a young man of 22, educated to year 10 and then commenced an apprenticeship that he did not finish because he became unwell, suffering from pulmonary hypertension which requires fairly intensive treatment including blood tests twice a week;
- the appellant has no real prospects of employment;
- the criminal history includes an identical offence for which the appellant received 12 months probation;
- the appellant’s traffic history is ‘not good’ and includes a disqualified driving offence, which only ended about seven weeks prior to the commission of the offence in question, and an unlicensed driving offence; and
- whilst the appellant completed his two years of disqualified licence, he was able to get his blood tests done.
- [18]The sentencing remarks included the following:
Mr Anderson told me that there was bad blood between you and that incident – that stemmed from the incident some five years before. Although a complaint was made, charges wer e never laid. And you have not seen each other for quite a number of years. You say that – Mr Anderson tells me that you stopped in the middle of the roundabout. But you say there was sufficient room for the complainant to get around. I don’t accept that for one moment why anyone would be stopping in the middle of the roundabout the way – in the manner which you did. You say, as I said, there’s some yelling between the parties and that seems to have been conceded – or at least not resisted by Sergeant Mann. It seems to me – and I find that the only reason you stopped your vehicle in the roundabout was to make sure that other vehicle stopped. There seems to be no other reason.
- [19]The sentence was pronounced for each offence and then the Magistrate said the following, which is relevant to this appeal:[9]
During the submissions, I called upon you to show cause why your driver’s licence should not be disqualified. The power to disqualify you rests in section … 187(1)(a) of the Penalties and Sentences Act. … I have referred to the matters of R v Whiting, R v Newly, Queen versus Cunningham. This is not a case as set out in Newly in which there were two vehicles pulled up at lights. It was not – their Honour’s found that there was not – the offence was not in connection to the driving of a motor vehicle, with no more than a fortuitous or happenstance use of the vehicle with no criminal purpose in mind. In that case they ruled that section 187(1)(a) was not applicable. I find that in your instance it is. You used the vehicle as a weapon to stop that other vehicle from coming around in the middle of the roundabout. It was not a fortuitous or happenstance use of the vehicle but it was a deliberate act by you to ensure that that other vehicle stopped and, as such, I’m going to disqualify you from holding or obtaining a driver’s licence.
In the Queen versus Cunningham where his Honour – their Honours, they’re justices in the Court of Appeal, they did this. Finally, it was submitted that previous decision in this Court implied that the disqualification of three years was excessive given the nature of the offences committed by the applicant. Those cases in which the applicant referred are all cases which might be described as cases of culpable negligence in the operation of a motor vehicle. Whilst the consequences for the victims in these cases was more serious than in the consequences to the complainant in the first charge, deliberate use of a motor vehicle by the applicant as a means of expressing personal aggression is a counterbalancing concern.
That having been said, in the cases of R v Price and R v Smith, a period of disqualification in the order of two years was regarded as appropriate means of protecting communities from those who dispose – who are disposed to endanger the community by reckless use of a motor vehicle. And with regard to your youth and the likely impact of a long period of disqualification on the prospects of employment, which you don’t have, but you do need it for your medical condition, you are disqualified from holding or obtaining a driver’s licence for a period of 18 months from this time. …
Grounds of appeal
- [20]There are effectively two issues in this appeal, namely whether the decision of the Magistrate reveals an error:
- to impose a disqualification at all under section 187 of the Penalties and Sentences Act 1992 on the basis that there was a misapprehension of facts; and
- to do so for 18 months on the basis that the period is manifestly excessive and disproportionate to the gravity of the offence and offends section 9(11) of the Penalties and Sentences Act 1992.
- [21]With respect to the question of whether the Magistrate ought to have imposed a disqualification at all, it is submitted by the appellant that the Magistrate erred in finding that the offence of threatening violence was committed in connection with the operation of a motor vehicle under section 187(1)(a) of the Penalties and Sentences Act 1992, and that the Magistrate erred in finding, under section 187(1)(b) of the Penalties and Sentences Act 1992, that it was in the interests of justice to disqualify the appellant.
- [22]The recent Court of Appeal decision in R v Wilson [2016] QCA 301 provides helpful guidance as to the principles to be applied in determining whether section 187(1)(a) of the Penalties and Sentences Act 1992 is satisfied, particularly at paragraphs 33 to 38 as follows (footnotes omitted):
[33] The requirement of s 187 of the Penalties and Sentences Act is that the offence be “in connection with or arising out of the operation … of a motor vehicle”. The phrase “in connection with” does not denote a causal link between the subject and object, but is of wide import and, subject to the context in which it is used, is capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote.
[34] Whether there is a connection between the operation of the vehicle and the offence is a question of fact and degree. It has been said to involve consideration of the degree to which the connection is direct or immediate or remote or tenuous. The court in Chalmers postulated, in the context of a statute dealing with the use of property in connection with the commission of a crime, two ends of the spectrum; one where the use of the property was “instrumental” in the commission of the offence, and the other where the property was merely “the passive location at which the offence is committed”. Chalmers then said:
“[91] There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.”
[35] In Hart the following was said by P Lyons J:
“[897] As Riley CJ noted in Dickfoss, McLure P in White CA had observed that the expression “in connection with” was “of wide import”, and capable of describing “a spectrum of relationships ranging from direct and immediate to tenuous or remote”. In both cases, it was nevertheless accepted that the expression should not be taken at its widest sense. In my respectful opinion, McClure P has identified good reason for taking this approach, and, like Doyle CJ in George, has attempted to provide useful guidance for the application of the test.”
[36] Though the authorities referred to above dealt with statutory provisions for the recovery of proceeds of crime, the provision referred to property “used in, or in connection with, the commission of the offence”. The similarity with s 187 is obvious, and suggests that the authorities are of assistance here.
[37] The phrase “arising out of” connotes a causal link between the subject and object. In other words there must be a causal link between the offence and the operation of the motor vehicle. That is easy to see where the offence is caused directly by the operation of a vehicle. It is less easy to see where the use of the vehicle is incidental to the offence.
[38] Where the vehicle is simply a means of personal conveyance, during the course of which the driver commits an offence not related to the operation of the vehicle, I consider that there is reason to think that the requisite relationship or causal link for s 187 is absent. The use of the vehicle is passive or incidental to the way the offence is committed.
- [23]Relevant principles in relation to the exercise of discretion under section 187(1) were discussed by Henry J, with whom Holmes JA and McMeekin J agreed, in R v Osborne (2014) 69 MVR 45; [2014] QCA 291, particularly at paragraphs 56 to 59 as follows (footnotes omitted):
[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.
Was there a misapprehension of the facts?
- [24]The appellant submits that the Magistrate erred by misapprehending important facts.
- [25]The appellant submits that there was no evidence before the court to prove beyond reasonable doubt that the appellant’s car stopped in the middle of the roundabout to block the complainant’s vehicle. It is submitted that the complainant’s vehicle could not have been effectively stopped by the appellant’s vehicle given the complainant was able to simply drive away when he no longer wished to remain where he had stopped. The appellant also submits that there was no evidence to allow the court to conclude that the appellant’s car was used so as to block the complainant.
- [26]On the basis of those submissions, the appellant submits there was no basis for the court to find that it was an offence that arose out of the driving.
- [27]In my view, there is no relevant error. It was open to the Magistrate to find that the offending behaviour was in connection with the operation of a vehicle. The Magistrate was entitled to act on the facts in the QP9, which were not disputed.[10]Those facts included that the complainant ‘could recall that the white four wheel drive went around the roundabout but stopped and was blocking the road to Inskip Point’.
- [28]It is apparent from the sentencing remarks that the Magistrate also considered the submission on behalf of the appellant that ‘on the face of the facts, my client has stopped in the middle of – the intersection of the roundabout, I should say. The complainant’s vehicle – he wasn’t driving, I should add – stopped because one path was blocked by the defendant’s vehicle’.
- [29]Even if there was sufficient room on the roundabout to proceed along another path, as was stated during sentencing submissions on behalf of the appellant, it was open to the Magistrate to conclude that the only reason one would stop in the roundabout was to make sure the other vehicle stopped[11] and that there was not ‘a fortuitous or happenstance use of the vehicle but it was a deliberate act by you to ensure that that other vehicle stopped’[12].
- [30]In any event, regardless of whether the appellant’s vehicle blocked the roundabout entirely or whether there was another path that could be taken, in my view, while it is at the more remote end of the spectrum, the requisite connection exists between the use of the vehicle and the commission of the offence.
- [31]The Magistrate could also not be said to have made any error of principle in the exercise of discretion to impose a period of disqualification. The Magistrate considered the nature of the offence and the circumstances in which it was committed. Whilst it was accepted by the Magistrate that there had been a history of ‘bad blood’ between the complainant and the appellant, they had not seen each other for a number of years.The Magistrate considered the fact that witnesses to the incident gave evidence of the appellant’s driving in an ‘aggressive manner’ and their belief that it might be a ‘road rage incident’.
- [32]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 the sentence of imprisonment, be disqualified from driving for a period as a means of protecting the community from those who are disposed to endanger the community by reckless use of a motor vehicle. There was a detectable abuse of the privilege of driving.[13]
Was the sentence manifestly excessive?
- [33]The appellant submits that the behaviour and offending in R v Cunningham [2005] QCA 321 was far more serious than that of the appellant and that the reasons of the Magistrate do not readily reveal how or if the court took the relevant sentencing principles into account in determining the sentence. It is submitted that given the failure to give clear and adequate reasons for imposing a lengthy disqualification period, this court can readily infer that the Magistrate erred in exercising the discretion by imposing a sentence disproportionate to the gravity of the offence and failing to have regard to the case law demonstrating applicable disqualification periods.
- [34]The sentencing remarks reveal that the Magistrate took into account comparable cases including R v Whiting [2009] QCA 338, R v Newly, R v Cunningham, R v Price (2005) 43 MVR 573; [2005] QCA 52 and R v Smith (2004) 40 MVR 312; [2004] QCA 126.
- [35]While no reference was made to R v Osborne, it is clear that the Magistrate had regard to considerations regarded as relevant to the exercise of the discretion. The Magistrate took into account the appellant’s age, likely impact upon employment and the mitigating factor of his medical condition.
- [36]It was entirely fair for the Magistrate to also have regard to the deliberate use of a motor vehicle by the appellant as a means of expressing personal aggression as a matter of concern and, as such, to the need to protect a community from the reckless use of a motor vehicle.
- [37]While the offending is less serious than in R v Price and R v Smith, in my view, the sentence is not beyond the acceptable scope of judicial discretion.
- [38]The Court of Appeal decision in R v Whiting [2009] QCA 338, referred to by the Magistrate, provides a comparable factual situation. In that case the applicant was driving his truck closely behind the complainant’s car. The complainant was annoyed so slowed down and made a rude gesture. The applicant overtook and then pulled back into the lane in front of him. The applicant stopped at a set of lights shortly thereafter and alighted from the truck and punched the complainant in the face several times before walking back to his truck and driving off. The applicant had a traffic history that included a three-month suspension from traffic infringements and two further traffic offences since. Keane JA, with whom Holmes JA and McMeekin J agreed, found that the absolute disqualification of the applicant’s licence was not excessive given the holding of a driver’s licence is a privilege that the applicant had, in the past, abused. Considerations of general and personal deterrence were said to warrant a stern rebuke from the court.
- [39]Further, in contrast to R v Cunningham, where a disqualification of 14 months was imposed, the appellant had no employment prospects and, as such, there was no disruption to his employment. He is also currently under a night-time suspension.
- [40]In all of the circumstances, the disqualification period is not, in my view, manifestly excessive.
Suspended period of disqualification
- [41]The consequence of lodging the appeal against conviction was the period of disqualification was suspended pursuant to section 131(3A) of the Transport Operations (Road Use Management) Act 1995 (Qld). Once the appeal is determined, section 131(3B) provides that ‘subject to any decision of a court upon that appeal, that portion of the period of disqualification which had not expired when such suspension began to operate shall take effect from the date of determination of that appeal.’
- [42]The application of section 131(3B) would mean that the appellant’s disqualification would be extended by the (nearly) 4 months between 17 August 2016, being the date of lodgement of the appeal, and now, unless another order is made.
- [43]It is submitted on behalf of the appellant that the period of any disqualification ought be reduced by at least this period as the appellant’s legal representative had failed to appreciate the effect of operation of section 131 of the Transport Operations (Road Use Management) Act 1995. The appellant certainly had not been advised about such matters by his legal representatives.
- [44]Consequently, the appellant assumed that his disqualification remained operational until the matter was finally determined on appeal. He has not driven his vehicle since the conviction.
- [45]Given the appellant has not driven his vehicle since the conviction, due to a failure to fully advise on the part of his legal representatives, it seems just that this be taken into account.
Conclusion and order
- [46]For the reasons expressed above, it was open to the Magistrate to find that the offence was in connection with the operation of a motor vehicle by the offender and, therefore, that the discretion to order disqualification under section 187 of the Penalties and Sentences Act 1992 was enlivened. Further, the sentence which was imposed was not manifestly excessive. However, I would order that the portion of the disqualification that had not expired when the appeal was lodged on 17 August 2016 shall take effect from 18 August 2016.
- [47]I propose the following orders:
- The appeal is allowed.
- I order that the portion of disqualification that had not expired when the appeal against conviction was lodged on 17 August 2016 shall take effect from 18 August 2016.
- Otherwise, the sentence imposed on 21 July 2016 is confirmed.
Footnotes
[1] Section 223 of the Justices Act 1886.
[2] Fox v Percy (2003) 214 CLR 118, 126-7 [25]; [2003] HCA 22.
[3] (1936) 55 CLR 499, 504-5; [1936] HCA 40.
[4] Lacey v The Attorney-General (Qld) (2011) 242 CLR 573, 597 [58]; [2011] HCA 10.
[5] House v The King (1936) 55 CLR 499, 504-5; [1936] HCA 40.
[6] Wong v The Queen (2001) 207 CLR 584, 605-6 [58]; [2001] HCA 64.
[7] Hili v The Queen (2010) 242 CLR 520, 539 [60]; [2010] HCA 45.
[8] Transcript of sentence submissions T1-8/L42-47.
[9] Sentencing remarks p 4 line 40 – p 5 line 25.
[10] Section 15 of the Penalties and Sentences Act 1992.
[11] Sentencing remarks p 3 lines 25 to 35.
[12] Sentencing remarks p 5 lines 3 to 6.
[13] R v Nhu Ly [1996] 1 QdR 543, 547; [1995] QCA 139.