Purcell v Commissioner of Police
[2016] QDC 342
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- Purcell v Commissioner of Police[2016] QDC 342
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Purcell v Commissioner of Police[2016] QDC 342
Purcell v Commissioner of Police[2016] QDC 342
DISTRICT COURT OF QUEENSLAND
CITATION: | Purcell v Commissioner of Police [2016] QDC 342 |
PARTIES: | PURCELL, Shane Michael (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | D 104 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Caloundra |
DELIVERED ON: | 21 December 2016 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 11 November 2016 |
JUDGE: | Long SC DCJ |
ORDER: | Appeal allowed. The order of the sentencing magistrate made on 1 August 2016, disqualifying the appellant from holding or obtaining a driver’s licence for a period of 8 months, be varied to a period of 6 months. |
CATCHWORDS: | APPEAL – s 222 of the Justices Act 1886 – Where the appellant was convicted of an offence pursuant to s 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 – Where the appellant was convicted and fined $800 and disqualified from holding or obtaining a driver’s licence for a period of 8 months – Where the appellant contends that the period of disqualification imposed was manifestly excessive – Where the appellant contends that the sentencing magistrate failed to have proper regard to the statutory minimum and maximum disqualification periods applicable – Where the appellant contends that the sentencing magistrate failed to give appropriate weight to the appellant’s early plea, lack of any relevant previous traffic history and the circumstances in which the offence was committed – Whether the sentence was manifestly excessive – Whether the sentencing magistrate failed to properly take into account the relevant statutory criteria |
LEGISLATION: | Justices Act 1886, ss 222, 222(1), 223(2), 222(2)(c), 225 and 225(1) Penalties and Sentences Act 1992, ss 9(1), 9(2) and 187 Transport Operations (Road Use Management) Act 1995, ss 79(1), 79(1F), 79A(2A), 79A(3), 86, 86(1), 86(2)(ea), 86(2A), 86(5), 86(7), 90D, 127(2A), 130(1)(b)(iii), 130(2), 131(3), 131(3A), 131(3B), 131(4) and Schedule 4 |
CASES: | Hammond v Ralley [2014] QDC 263 Hili v R; Jones v R (2010) 242 CLR 520 Lowndes v R (1999) 195 CLR 665 Manitzky v Ryan [2005] QDC 178 R v Hyatt [2011] QCA 55 R v Jackson [2011] QCA 103 R v Stevenson [2016] QCA 162 Roach v Queensland Police Service [2015] QDC 150 Teelow v Commissioner of Police [2009] 2 Qd R 489 Wong v R (2001) 207 CLR 584 |
COUNSEL: | MJ McCarthy for the appellant AQ Stark for the respondent |
SOLICITORS: | Slater & Gordon Lawyers for the appellant Office of the Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]By Notice of Appeal filed on 3 August 2016, the appellant appeals in relation to the sentence imposed upon him in respect of an offence pursuant to s 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”), being that on 17 July 2016, at Caloundra and whilst he was over the middle alcohol limit but not over the high alcohol limit, he drove a car on a road.
- [2]The appellant was, upon his guilty plea to this offence, convicted and fined $800 and he was disqualified from holding or obtaining a driver’s licence for a period of 8 months.
- [3]The circumstances of the appellant’s offence were outlined to the Acting Magistrate (“sentencing magistrate”) as follows:
“On 17th day of July, police from Caloundra station were performing pro-active target-specific patrols in the Caloundra area. Subsequently intercepted a Hyundai motor vehicle being driven through the drive-through facility at the McDonalds restaurant at Bowman Road, Caloundra for the purpose of conducting a road-side breath test on the male driver, the defendant, the driver of the vehicle, in the following terms.
On 17 July 2016 the appellant was intercepted by police who were performing pro-active target-specific patrols in the Caloundra area. He was intercepted driving a Hyundai motor vehicle through the drive-through facility of the McDonalds restaurant at Bowman Road Caloundra for the purpose of conducting a roadside breath test. The appellant stated he had consumed some liquor and later stated that he had consumed approximately 8 stubbies of Corona beer over a 5 hour period at a private barbeque with his female friend. He further explained that his female friend had been intoxicated, that she may have been sexually by the host of the event and fearing for her safety and welfare the appellant decided to drive her home rather than sleep in the vehicle which had been the previous plan. He further explained that he had stopped at McDonalds as both of them were hungry. It was noted that police spoke with the appellant’s female friend who stated that she couldn’t recall any details of the incident as she was heavily intoxicated but recalled being at the party and seeing the host of the party with his penis exposed. As was confirmed by the Certificate of Analysis (Exhibit 1), upon providing a specimen of his breath that was analysed at a breath alcohol concentration of 0.149 grams of alcohol per 210 litres of breath. It was noted that the appellant had been fully co-operative with police.”
- [4]Also tendered and marked as exhibits before the sentencing magistrate, were the appellant’s traffic record, which disclosed only two offences of exceeding the speed limit by less than 13kmph and which had occurred, respectively, in February and July of 2014 and a character reference, which attested to the appellant’s general good character.
- [5]The solicitor who appeared for the appellant, sought to emphasise to the sentencing magistrate that:
- (a)his client was 43 years of age and had committed an offence that was out of character for him;
- (b)he had an otherwise excellent driving history, with very few entries on his traffic record;
- (c)he had not planned on driving, with the explanation lying in the concern as to the sexual assault of his female friend;
- (d)he had an excellent work history, although he was then on WorkCover due to a work-related disc prolapse and significant nerve damage in his back, with a common law claim in progress and was then on NewStart but applying for a disability pension;
- (e)he was a single parent, with a 15 year old daughter living with him and it was pointed out that it had been very difficult for him since his licence had been suspended, especially in relation transporting his daughter to and from school and other activities and that he would continue to be at a significant disadvantage without his licence; and
- (f)the matter was being dealt with as a very early guilty plea.
In the circumstances, the solicitor contended that a proper recognition of all of these factors, notwithstanding the high reading in the range, was to moderate the period of disqualification.
- [6]The reasons provided by the sentencing magistrate were brief and as follows:
“I’ve considered the facts as outlined by the prosecutor, submissions made on your behalf. I take in consideration your early plea of guilty. I note your traffic history where you only have two minor traffic offences – so other than this. This is a reading of .149. You just fall under the high range. I take in consideration that level and also I take in consideration that character reference made on your behalf. In the circumstances you’re convicted and fined $800, in default SPER. Conviction recorded. Disqualified for a period of 8 months from today.”
The Appeal
- [7]The grounds of appeal stated in the Notice of Appeal commence with the contention “the sentence is manifestly excessive” and then proceed to contend for what may be regarded as a more specific error in respect of the imposition of the disqualification period. However and at the hearing of the appeal, the appellant was granted leave to pursue the following grounds of appeal, which, as became clear, are particularly directed at the imposition of the disqualification period:[1]
“i. The sentence was manifestly excessive;
ii. The learned sentencing magistrate erred in imposing a sentence that was disproportionate to the gravity of the subject offence, thereby offending the principle of s 9(11) of the Penalties and Sentences Act 1992; and
iii. The learned sentencing magistrate erred by failing to give appropriate weight to the appellant’s early plea, his lack of any relevant previous traffic history and the circumstances in which the offence was committed; and
iv. The learned Sentencing magistrate erred by failing to have proper regard to the statutory minimum and maximum disqualification periods applicable to the appellant.”
- [8]As to the contention of manifest excessiveness of sentence, it may be noted that in Wong v R,[2]it was observed that:
“If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King and the discussion of when an appellate court may conclude that a trial judge’s exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all of the circumstances, the appellate court considers that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” (citations omitted)
- [9]Further, it may be noted that in Hili v R; Jones v R,[3]the contention that “manifest error is fundamentally intuitive” was rejected. But it was otherwise accepted that an appropriate view is that manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore must have been an error, even though it is impossible to identify it.”
- [10]
“… A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion…. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”
- [11]The exercise of sentencing discretion, in this instance, was informed by the relevant provisions of both the TORUM and the Penalties and Sentences Act 1992 (“PSA”). And because the punishment imposed involved both the aspects of a fine and driver’s licence disqualification, it is the overall effect of that sentence which must be considered. However and as the appellant makes no complaint as to the fine that was imposed,[5]it may be assumed that there is no issue as to the extent of it or the appellant’s capacity to meet the order, as it was imposed by referral to SPER. Effectively, the contention must be that the additional imposition of 8 months disqualification has rendered the sentence manifestly excessive.
- [12]Whist it may be noted that on the hearing of this appeal, the appellant had the benefit of a concession from the respondent that the period of disqualification was manifestly excessive, the appropriateness of any such concession remains a matter for the Court and in any event and as will be seen, that concession must be examined in conjunction with the contention as to the specific error in respect of the statutory provisions as to the minimum and maximum disqualification periods. And in any event, that concession was ultimately withdrawn. It is first necessary to discern whether any other specific error on the part of the sentencing magistrate, has been identified.
Discussion
- [13]At the outset and whilst it may be accepted that an error may be disclosed in a sentence that is disproportionate to the gravity of an offence, the reference to s 9(11) of the PSA, is misconceived, as that provision is expressly directed to the considerations dealt with in s 9(10) and as to the previous convictions of an offender being taken into account as an aggravating factor. Rather, any issue as to disproportion or inappropriateness of sentence is to be generally determined by reference to the purposes of imposing sentences, as set out in s 9(1) of the PSA, which includes the purpose of punishing an offender “to an extent or in a way that is just in all of the circumstances” and the relevant factors and principles to be considered and principles to be applied, including those set out in s 9(2) of the PSA. In Lowe v R,[6]it was observed by Mason J:
“As the ascertainment and imposition of an appropriate sentence involved the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.”
- [14]Secondly and in this context, there is obvious difficulty in the contentions in the third ground of appeal and made in respect of the attribution of weight to particular circumstances or factors. As noted by Chesterman J in R v Jackson:[7]
“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.”
- [15]Although the reasons given by the sentencing magistrate, in this instance, were terse and provided little direct explanation as to why the period of 8 months disqualification was imposed and save in respect of the statutory prescriptions, which are the subject of a separate ground, it is not possible to discern that any error has been made in taking or not taking into account any particular consideration. And it may be noted that the sentencing magistrate expressly acknowledged each of the considerations which are the subject of this ground. In respect of the circumstances in which the offence was committed, that must necessarily be the conclusion in respect of the sentencing magistrate’s reference to his consideration of the facts, as outlined by the prosecutor and the submissions made on behalf of the appellant. It could hardly be concluded that he failed to have regard to the explanation for the offending which had been first provided by the prosecutor. In any event and in this case, those circumstances primarily went to an explanation as to why a person of the appellant’s otherwise good character and responsible behaviour in the community, committed this offence and the sentencing magistrate also expressly acknowledged taking into account the reference which supported those considerations.
- [16]It is then necessary to move to the fourth ground, which contends error by failure “to have proper regard to the statutory minimum and maximum disqualification periods applicable to the appellant”.
- [17]In this regard, it can be first noted that whilst there may, in appropriate cases, be reflection of the sentencing purpose of community protection in the imposition of a driver’s licence disqualification period, it may be concluded, having regard to the evidence before the sentencing magistrate, as to the appellant’s general character and traffic record and the explanation for this offending, that, in this instance, no such purpose was required to be or was reflected in the disqualification period imposed.
- [18]Ultimately and particularly where the period of disqualification falls within the range specifically provided by legislation for an offence of this type, it may be seen that the appellant’s contentions turn upon the correct interpretation and application of the statutory criteria and devolve to a contention as to misapplication of, or failure to properly take into account, relevant statutory criteria and therefore, the fixing of a period of disqualification that is at an excessive point in the applicable range, rather than there being excessiveness of sentence in any broader sense.
- [19]Accordingly and despite the breadth of the contention in the fourth ground of appeal, the appellant’s most critical contention is as to the failure of the sentencing magistrate to have had appropriate regard to the statutory prescriptions set out in s 86 of TORUM, including the context provided by s 86(1).[8]And it is this consideration that may be seen as particularly underpinning the concession made by the respondent, albeit expressed in terms of the manifest excessiveness of the period of disqualification imposed. In the written submissions, that concession was expressed as follows:
“5.8 It is conceded that the disqualification period of 8 months imposed at first instance fell outside the permissible range as to be manifestly excessive in the circumstances.
5.9 It is submitted that the appropriate range applicable in this instance would fall above the minimum period (three months) to take into account the high alcohol reading and be up to, and including, the minimum period relevant to the higher offence (six months).”[9]
- [20]For the reasons already given and, as will be discussed later, also having regard to the comparable cases to which reference has been made and where the disqualification period is within the mandated range, there is obvious difficulty in any contention of manifest excessiveness, in the absence of identification of some specific error in the exercise of the sentencing discretion. It is therefore necessary to consider a point made as to the relevance and significance of the context in which s 86(2)(ea) operates and particularly s 86(1), as this is clearly a consideration that underlay the respondent’s concession, even if it be inappropriately expressed in terms of providing some limit to the appropriate period to be imposed.[10]
- [21]First, it is necessary to note that for an offence of the kind committed by the appellant, pursuant to s 79(1F) of TORUM, s 86(2)(ea) provides that:
“(2) A person who is convicted of an offence in relation to a motor vehicle against section 79(1F) , (2), (2AA), (2A), (2B), (2D),(2J), (2K) or (2L) must, if during the period of 5 years before conviction the person has not been previously convicted—
- (a)under section 79(1F), (2), (2AA), (2A), (2B), (2D), (2J),(2K) or (2L); or
- (b)under section 79(1); or
- (c)on indictment, of any offence in connection with or arising out of the driving of a motor vehicle by the person; or
- (d)summarily of an offence against any provision of the Criminal Code, section 328A;
be disqualified by such conviction—
……….
(ea) if the person is convicted of an offence in relation to a motor vehicle against section 79(1F)—for a period of not less than 3 months and not more than 12 months from the date of the conviction from holding or obtaining a Queensland driver licence.”
- [22]However, it is necessary to note that the offence created by s 79(1F) is concerned with offending, including by driving a motor vehicle “while the person is over the middle alcohol limit but is not over the high alcohol limit.” And by s 79A(2A) and (3), the following definitions are provided:
“(2A) For this Act, a person is over the middle alcohol limit if—
- (a)the concentration of alcohol in the person’s blood is, or is more than, 100mg of alcohol in 100mL of blood; or
- (b)the concentration of alcohol in the person’s breath is, or is more than, 0.100g of alcohol in 210L of breath.
- (3)For this Act, a person is over the high alcohol limit if—
- (a)the concentration of alcohol in the person’s blood is, or is more than, 150mg of alcohol in 100mL of blood; or
- (b)the concentration of alcohol in the person’s breath is, or is more than, 0.150g of alcohol in 210L of breath.”
- [23]Accordingly, it may be noted that the range of offences to which s 79(1F) and therefore the range of period of disqualification in s 86(2)(ea) also applies, will be from 0.100g/210L to 0.149g/210L, as far as breath alcohol concentration is concerned.[11]
- [24]Further, the only statutory guidance for the decision as to the period of disqualification, is provided by s 86(2A), in the following, non-exclusive, terms:
“(2A) The period of disqualification must be decided by the court which, in making its decision, must have regard to the concentration of alcohol in the blood or breath of the defendant, or the presence of a relevant drug in the defendant’s blood or saliva, and the danger, real or potential, to the public in the circumstances of the case.”
- [25]Here, it was clearly a highly relevant feature that the appellant’s breath alcohol concentration was at the very top of that range. That is not to say that on that account alone, the appellant’s disqualification should have been at or near the top of the range provided in s 86(2)(ea). The available range is also applicable to cases where an element of real or potential danger to the public is to be reflected and also because of the application of general sentencing principles, including s 9 of the PSA, to cases where the personal circumstances of an offender, including the criminal history and general traffic record (apart from the specific types of prior conviction and the timing of them, that would place an offender in a different situation under s 86), may be less favourable than that of the appellant and more demanding of a higher period of disqualification, within the permissible range.[12]Also, it may be expected that the degree of culpability may vary according to the circumstances of individual cases.
- [26]In other words, the statutory prescription here, unlike the situation pertaining pursuant to s 86(5) and s 187 of the PSAand where the applicable range is from no disqualification to an absolute disqualification, as the applicable maximum, is that the stipulated range is to be applied to the full gamut of cases that may fall within the application of s 86(2)(ea).
- [27]However, the operation of s 86(2)(ea) is to be viewed within the context provided by the other provisions in s 86. And the fact that the appellant’s reading was so close to the reading which would have constituted the high alcohol limit, has attracted attention in the submissions of each party, to s 86(1). This subsection provides, comparably, that had the appellant’s reading been 0.150/g/210L, the statutory consequence would have been disqualification for a period of 6 months from the date of conviction.
- [28]Section 86(1) provides as follows:
“(1) A person who is convicted of an offence in relation to a motor vehicle against section 79(1) is, if during the period of 5 years before conviction the person has not been previously convicted—
- (a)under section 79(1); or
- (b)under section 79(1F), (2), (2AA), (2A), (2B), (2D), (2J), (2K) or (2L); or
- (c)on indictment, of any offence in connection with or arising out of the driving of a motor vehicle by the person; or
- (d)summarily of an offence against any provision of the Criminal Code, section 328A;
disqualified by such conviction and without any specific order for a period of 6 months from the date of such conviction from holding or obtaining a Queensland driver licence.”
- [29]It may therefore be noted to have a different effect to s 86(2)(ea) of TORUM. Unlike the latter provision, which mandates a judicial order for a period of disqualification within the stated range, s 86(1) operates by legislative force to provide for a period of disqualification, quite apart from any order that may be made by a court. However and by reference to s 86(5), it may be seen that the statutory prescription in s 86(1) (and other similar provisions in s 86) are intended to and only can practically take effect as the stipulation of a minimum period of disqualification. That is because s 86(5) provides as follows:
“(5) In the case of any conviction referred to in this section in respect of which a person is disqualified by such conviction and without any specific order for a period of time specified from holding or obtaining a Queensland driver licence, the judge before whom such person is so convicted on indictment or the justices by whom such person is so convicted may order that from the date of conviction such person be disqualified absolutely or for a longer period than the period specified in the person’s case from holding or obtaining a Queensland driver licence, and the person, on the making of the order, is disqualified under and in accordance with that order.”
- [30]However, s 86(1) does not operate to place any limitation upon the range which is otherwise provided by s 86(2)(ea). And although the concession made by the respondent appears to comprehend such a limitation, it was clarified at the hearing, that it was not intended to convey any such view. Irrespective of that, it was not the appellant’s submission that s 86(1) had any such limiting effect. Rather, the contention is that the provision of such a minimum, in respect of such a closely related factual situation, was a relevant consideration and should have been taken into account.
- [31]The appellant’s submission should be accepted. Where, as has been noted, there is clear scope for cases deserving of longer periods of disqualification, than that applicable to the appellant, to fall within the ambit of s 86(2)(ea), the provision as to the minimum period applicable to the next most comparable situation dealt with by s 86, is a clearly relevant consideration. It may be seen as having an analogous effect as a yardstick, as to that provided by relevantly comparable decisions.[13]
- [32]That is not, of course, to conclude that having regard to that consideration, an appropriate period of disqualification may not then exceed 6 months. However, it would be expected that the expressed reasons for imposing the period of disqualification would provide an indication of the basis upon which the period was warranted, including notation of the consideration of s 86(1).
- [33]Here and as the appellant contends, there is nothing in the sentencing remarks that gives any such indication. That was not conceded by the respondent, having regard to the sentencing magistrate’s observation, “You just fall under the high range.” However, that observation immediately followed the sentencing magistrate’s notation of “a reading of .149” and may be seen to be entirely apposite to the requirement in s 86(2A) to have regard to the alcohol concentration, in the context of the range of such concentration to which s 86(2)(ae) applies. That is, in noting that the concentration was at the top of the applicable range. It provides no indication that the parameters provided in s 86(2)(ae) were considered and applied having regard to any yardstick provided by s 86(1) and if so, how.
- [34]Obviously the weight that may be attached to such a yardstick will vary according to the circumstances of individual cases but here and had the appellant returned the marginally higher concentration of .150mg/210L, a contention that he receive a disqualification at or close to the statutory consequence or minimum, would be expected to be of some considerable force. In those circumstances, consideration of the yardstick provided by expression of legislative intention, was not just a relevant consideration but of some importance.
- [35]
“The principle underlying the obligation to give reasons has been said, variously, to be necessary:
“… to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; [as necessary] to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.”” (citations omitted)
Further and as noted for the appellant, in R v Hyatt,[15] it observed:
“It is desirable that sentencing remarks be succinct, sharply focused and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks, and a sentencing court may more readily infer error when reasons are not expressed.” (citation omitted)
- [36]In the circumstances and particularly having regard to the need for appropriate consideration of the contextual considerations arising under s 86 of TORUM and in the absence of any reasons for the selection of an 8 month disqualification period, it should be concluded that there has not been any appropriate regard to those contextual considerations.
- [37]Accordingly and on that basis, the appellant has established error in the exercise of the sentencing discretion, such as to warrant an exercise of the powers of this Court under s 225 of the Justices Act 1886 (“Justices Act”).
An additional contention
- [38]When this appeal first came on for hearing, on 9 December 2016, an adjournment was sought and granted, for the appellant to provide further material in respect of what was explained to be the realisation that s 131(3A) of TORUM had been engaged by the commencement of this appeal and in order to seek an order of the Court, to avoid the apparent harshness of the operation of s 131(3B) of TORUM. It is convenient to first set out the provisions of s 131(3)-(4), inclusive, of TORUM:
“(3) A person who by virtue of an order of a judge of the Supreme Court or District Court or justices made under this or any other Act is disqualified from holding or obtaining a licence may appeal against the order in the same manner as against a conviction recorded against the person by that judge or the justices and the Supreme Court or District Court in determining the appeal may, as is thought proper, having regard to the circumstances of the case, either by order remove the disqualification as from such date as may be specified in that order or dismiss the appeal.
(3AA) A memorandum of the determination of the appeal shall be transmitted by the registrar of the Supreme Court or, as the case may be, District Court to the commissioner.
(3A) Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver licence and has commenced an appeal against that conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that behalf, be suspended pending the determination of that appeal.
(3B) However, 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.
- (4)Where on an appeal a conviction against any person for an offence against this or any other Act is quashed, any disqualification of that person from the holding or obtaining of a licence by that conviction without any specific order of disqualification having been made by a judge of the Supreme Court or District Court or justices shall thereupon be removed without any specific order being required for that purpose and without further or other authority than this Act.”
And to note that the following provision is included in the Dictionary, in Schedule 4 to TORUM:
“convicting a person includes—
- (a)a court finding the person guilty, or accepting the person’s plea of guilty, whether or not a conviction is recorded; and
- (b)the person paying a penalty under the State Penalties Enforcement Act 1999.”
- [39]Accordingly and for the purpose of dealing with this additional contention, the appellant was granted leave pursuant to s 223(2) of the Justices Act,[16]to adduce new evidence to establish that:
- (a)since his licence was disqualified on 1 August 2016, he has acted upon that basis and in accordance with correspondence he received from the Department of Main Roads and Transport and consistently with the obligation created by s 127(2A) and s 130(1)(b)(iii) of TORUM and in order to avoid the offence created by s 130(2), he delivered his driver’s licence to the Chief Executive, at Caloundra; and
- (b)despite instructing his solicitor, on 1 August 2016, to “appeal against the severity of the licence disqualification imposed on [him]”, he was not advised as to any effect of s 131(3) of TORUM or as to any suspension of the disqualification and therefore any effect in respect of the cancellation of his licence[17]and had not driven since then, and had believed and acted upon the basis that the disqualification period was running.[18]
- [40]Accordingly and in the further written submissions for the appellant, it was contended that an order of the type made in R v Stevenson[19] should be made in order to avoid a similar harshness of result, in that if s 131(3B) of TORUM is allowed to take effect, the appellant’s disqualification may effectively be in the order of as much as 12.5 months.[20]Those submissions proceeded to also draw attention to the fact that the appellant has not driven since he was issued with an immediate suspension on 17 July 2016[21]and it may be noted that although no reference to this appears in the proceedings below or in the initial submissions for the appellant, s 86(7) of TORUM allows that:
“(7) In deciding a period of disqualification for a person whose licence is suspended, or who is disqualified from obtaining or holding a licence, under section 79B, the court may take into account the period of suspension or disqualification that has already been served under that section.”
- [41]For the respondent, the authority of R v Stevensonwas appropriately recognised but it was otherwise contended that it remained a matter for the Court as to whether the different circumstances here and in the nature of the mixture of legal and factual error made in this case, warranted such an order. It can be concluded that this Court has power to make an order of the kind postulated, or some other order to ameliorate any harshness or injustice, in the effective requirement of a period of disqualification that is, to some significant extent, longer than that imposed as the period appropriate to sentencing the appellant.[22]
- [42]However it is unnecessary to consider the matter further. That is because what has been overlooked in all of this, is that (as was, by contrast, the situation in R v Stevenson) s 131(3A) is only engaged:
“Where a person has, following upon a conviction, been disqualified… and has commenced an appeal against that conviction.”
Here, the appeal has only been made in respect of the sentence imposed and more particularly, the sentencing order in respect of the disqualification. In fact, having pleaded guilty to the charge, the appellant was, pursuant to s 222(2)(c) of the Justices Act, only entitled to appeal against sentence.
- [43]Otherwise, it may be noted that an effect s 222(2) is to expressly distinguish between appeals against conviction and sentence and other orders made in the exercise of summary jurisdiction and which may be amenable to appeal pursuant to s 222(1). And further, s 131(3) of TORUM, in separately providing for an appeal against an order of disqualification and which may separately provide a source of power to deal with the problem identified in R v Stevenson, does not operate upon the basis of suspension of the effect of the disqualification pending outcome of such an appeal. Rather, that subsection provides a power to be exercised “as is thought proper, having regard to the circumstances of the case” and to “either by order remove the disqualification as from such date as may be specified in that order or dismiss the appeal.”
Conclusion
- [44]Therefore, it is appropriate to proceed upon the basis that s 131(3A) of TORUM is not engaged in this instance and, in any event, necessary to proceed to make appropriate orders pursuant to s 225(1) of the Justices Act, in consequence of the finding as to error in the exercise of sentencing discretion below.
- [45]As all of the relevant materials are now before this Court, it is most appropriate for this Court to re-exercise that discretion.
- [46]Quite apart from the difficulty in discerning any real guidance as to any manifest excessiveness of the 8 month disqualification period, from the cases to which reference was made by the parties, neither is there only limited guidance by way of yardstick, for the fresh exercise of discretion:
- (a)In Roach v Queensland Police Service,[23]the Court was dealing with the different situation of an impecunious offender and the effect of the accumulation of disqualification periods pursuant to s 90B, s 90C and s 90D of TORUM, in circumstances where that would occur in respect of the same interception of the offender and in respect of an offence under s 79(1) of TORUM, as well as the additional offence under s 80(11), consequent upon a failure to provide a sample of breath for analysis upon requisition to do that.
- (b)
“The sentence order of $800 with a disqualification period of eight months is a standard sentence order for a blood alcohol reading between .13 percent and .14 percent where the offender is a holder of an open licence with no previous drink driving offences.”;
the circumstances of the offending there were more egregious.[25]It is also noted that an assertion that the period of 8 months disqualification was excessive, was not pursued[26]and that matter proceeded in respect of the refusal to grant the appellant a restricted licence. In the end result, the period of disqualification was extended by 2 months, in conjunction with an order granting a restricted licence for work purposes as a taxi driver.[27]
- [47]However and notwithstanding that it stands as only a single instance of resentencing upon successful appeal to this Court, it may be noted that in Hammond v Ralley[28]and where the “reading was .123%”, specific regard was had to the period of suspension, prior to sentence, of 35 days, pursuant to s 79B, and an initial sentence of $1,200 fine and 10 months disqualification, was reduced to $900 fine and 6 months disqualification. There were similar antecedents, in that the offender there was a mature man also with two prior speeding offences. However and as may be expected, the circumstances of the driving differed and if anything, involved a sense of greater culpability, in that the offender:
“…had been drinking whilst driving home to Emerald from Chinchilla
and consumed about seven to eight stubbies between 9.30 p.m. and 4 a.m.”
- [48]In the circumstances of this appellant’s offending, the minimum disqualification period provided by s 86(1), is not just a relevant consideration but effectively provides some considerable guidance as to an appropriate period of disqualification. This is particularly so, as should also be taken into account, such a period of disqualification will operate in addition to the 15 days of suspension of the appellant’s driver’s licence, from 17 July to 31 July 2016.
- [49]Accordingly, the appropriate conclusion is to allow the appeal and make the following order:
The order of the sentencing magistrate made on 1 August 2016, disqualifying the appellant from holding or obtaining a driver’s licence for a period of 8 months, be varied to a period of 6 months.
Footnotes
[1] Appellant’s outline of submissions, filed 30/8/16, at [5].
[2] (2001) 207 CLR 584, at [58].
[3] (2010) 242 CLR 520, at [60].
[4] (1999) 195 CLR 665, at 671-2.
[5] The maximum applicable fine was $2,200 (20 penalty units).
[6] (1984) 154 CLR 606, at 612.
[7] [2011] QCA 103, at [25].
[8] Appellant’s written submissions filed, 30/8/16, at [17].
[9] Respondent’s written submissions, filed 27/9/16, at [5.8]-[5.9].
[10] This remains so, even though the concession was ultimately withdrawn in the course of argument.
[11] And similarly, and in respect of blood alcohol concentration: 0.100% to 0.150%, see s 79A(4).
[12] That is leaving aside prior offending against s 79 of TORUM or on an indictment of any offence in connection with or arising out of the driving of a motor vehicle or summarily of an offence against s 328A of the Criminal Code within the prior period of 5 years before conviction, as such prior conviction(s) will exclude the operation of s 79(2) and bring into effect a different statutory prescription under s 86.
[13] As recognised in Barbaro v R (2014) 253 CLR 58.
[14] [2009] 2 Qd R 489, at [13].
[15] [2011] QCA 55, at [11].
[16] Without objection by the respondent.
[17] This is confirmed in the affidavit of his solicitor; K Brandon, filed 16/12/16.
[18] See affidavit of S Purcell, filed 16/12/16.
[19] [2016] QCA 162; see particularly at [41]-[47].
[20] That is having regard to approximately 4.5 months of effective disqualification since the appeal was filed (depending upon whether that occurred on 3 or 8 August 2016) and the unexpired balance of the 8 months, which might otherwise commence upon the determination of this appeal, unless otherwise reduced by order of this Court.
[21] That is in accordance with the requirements of s 79B.
[22] Section 225(1) of the Justices Act and particularly the power to “make any other order in the matter the judge considers just”, would appear to provide a sufficient basis for an appropriate order (as will become clear below, might s 131(3) of TORUM) and it is therefore unnecessary to decide whether s 131 (3B) or TORUM, separately provides such a power or whether that is the basis upon which the Court of Appeal acted in R v Stevenson.
[23] [2015] QDC 150.
[24] [2005] QDC 178, at [5].
[25] Ibid, at [3].
[26] Ibid, at [5].
[27] Ibid, at [20]-[21]. Noting that in those circumstances, such an enlargement of the period of disqualification is justified by and consistent with s 87(6) and (6a) of TORUM
[28] [2014] QDC 263.