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- Unreported Judgment
Hay v Commissioner of Police QDC 358
DISTRICT COURT OF QUEENSLAND
Hay v Commissioner of Police  QDC 358
Commissioner of Police
District Court at Maryborough
2 December 2016 (ex-tempore)
2 December 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where defendant was charged with driving a motor vehicle while a relevant drug was presented in his blood or saliva – where the defendant was fined eight hundred dollars – where the defendant was disqualified from driving for nine months – where no evidence was presented about the effect of the drug on the defendant’s driving ability – where the defendant has previous convictions for drink driving – whether the learned magistrate fell into error – whether the disqualification period was manifestly excessive – whether counsel is entitled to make submissions on penalty range
Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) s 6
Justices Act 1886 (Qld) ss 222, 226, 232 and 232A
Justices Regulation 2014 (Qld)
Penalties and Sentences Act 1992 (Qld) ss 15, 15(1)
Penalties and Sentences Regulation 2015 (Qld) r 3
Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(2AA), s 86(2)(f)
Barbaro & Zirilli v R  HCA 2
Tierney v The Commissioner of Police  QCA 327
Veen v R (No.2) (1998) 164 CLR 465
Mr A Willett (sol.) for the appellant
Ms A Baker for the respondent.
Suthers Lawyers for the appellant.
Office of the Director of Public Prosecutions for the respondent.
- The appellant, Colin Roy Hay, pleaded guilty at the Maryborough Magistrates Court on 7 September 2016 to one charge of driving a motor vehicle while a relevant drug was present in his blood or saliva.
- The appellant was fined $800 and disqualified from holding or obtaining a driver licence for a period of nine months.
Grounds of appeal
- The appellant appeals on the ground that the sentence was “manifestly excessive”. In particular, the appellant submits that the disqualification period imposed was manifestly excessive.
The law – appeals
- Margaret Wilson AJA in Tierney v Commissioner of Police, set out the relevant principles for an appeal pursuant to Justices Act 1886 (Qld) s 222 in these terms:-
“An appeal from a Magistrates Court to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.”
The law – driving a motor vehicle with a relevant drug present in blood or saliva
- The Transport Operations (Road Use Management) Act 1995 (Qld) (TO(RUM)A) s 79(2AA) relevantly provides:-
Any person who, while a relevant drug is present in the person’s blood or saliva –
- drives a motor vehicle…
is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding three months.
- The relevant disqualification period for this offence in these circumstances is from one to nine months.
- The current value of a penalty unit is $121.90. The maximum monetary penalty, therefore, is currently $1706.60.
- The transcript indicates that the police prosecutor tendered a certificate of analysis, which, although not formally marked as an exhibit, has been retained on the Magistrates Court file. That certificate relevantly indicates that a sample of saliva was taken from the appellant at 13:19 hours on 18 July 2016 (the offence date); and the 3,4-methylenedioxymethamphetamine (MDMA) and delta-9-tetrahydrocannabinol (“THC”) were detected. Relevantly, no level of either of these drugs was indicated, and the prosecution did not present any evidence as to the effect, if any, of those drugs on the appellant’s driving ability. In reality, the certificate reflects a finding that, at some uncertain time prior to the offence date, the appellant had ingested each of those drugs, which were still present at detectible levels in his saliva as at the time of the offence (and the taking of that saliva sample).
- Mr Willett, who appears on the appeal before me but who also appeared before the learned magistrate at the original sentence proceedings, made various submissions. These included:-
- (1)The appellant had “some history” (a reference, in context, to the appellant’s traffic history, to which, again, there is no reference in the transcript, but it is attached to the Magistrates Court file, and has found its way there by some unidentified process in respect of the Magistrates Court proceedings), which was “only just outside the five years… for low-range drink driving offences” (T1-2);
- (2)The appellant was educated to year 12 at Maryborough State High School (T1-2);
- (3)The appellant was 28 years of age (T1-2);
- (4)The appellant was a trade-qualified electrician, had worked in both a small and large business locally, but as of the sentence date (7 September 2016), had recently started his own truck business with a partner, they both drove the truck, and they had bought a second truck with a $40,000 chattel mortgage (T1-2);
- (5)The appellant was not driving dangerously, and had been pulled up, driving a sedan, for a registration check. The appellant didn’t feel affected by drugs (T1-2);
- (6)The appellant was looking to purchase a house “in the fairly near future” (T1-2); and
- (7)The appellant was attending Narcotics Anonymous meetings on Monday nights (T1-2).
- Mr Willett then submitted to the learned magistrate that the appellant “could be fined and disqualified for one to two months” (T1-2).
- The learned magistrate then responded, rather curiously, by saying: “Mr Willett, I appreciate you always appear before me… and I appreciate that you recommend a fine and disqualification. Don’t ever recommend an amount to me” (T1-3).
- The learned magistrate then went on to say:
These types of matters… I never give much less than nine months. The last thing I want to be is out on the highway, someone coming towards me in a truck, who’s all juiced up on drugs… I don’t want that; innocent road users don’t want that (T1-3).
- The learned magistrate’s sentencing remarks are brief, and it is convenient to reproduce them verbatim:
Stand up, please, defendant. I take into account your plea of guilty – you are entitled to some leniency by entering a plea of guilty. I take into account you do not have any history of a like nature before the Court. As I’ve just mentioned, Mr Willett, I do take these matters seriously. There are innocent road users out there; people driving down with their system full of drugs, I don’t appreciate that. The road toll is too high. You’ll be convicted and fined the sum of $800, which is referred to SPER. You’re disqualified from holding or obtaining a driver’s licence for a period of nine months from today. Thank you, now.
- To the extent that the learned magistrate was indicating that the appellant’s solicitor should not make submissions on penalty, whether in relation to either the quantum of a fine, the period of licence disqualification, or any other aspect of the penalty, he (in my view) fell into appellable error.
- Penalties and Sentences Act 1992 (Qld) (PSA) s 15, as amended by the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) s 6, overturned the effect of the High Court’s decision in Barbaro & Zirilli v R, which precluded prosecutors, at least, and arguably defence lawyers, from making submissions on penalty in respect of criminal matters.
- PSA s 15(1) now provides, relevantly:
- In imposing a sentence on an offender, a court may receive any information… or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.
- In this section –
sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the Court to impose.
- It is clear, in my view, that the appellant’s solicitor was entitled to make such a submission on penalty. The weight given to any such submission was, of course, a matter for the learned magistrate.
- No complaint is made in the appellant’s outline of argument as to the quantum of the fine ($800). Although a substantial penalty, the appellant does have previous convictions for drink driving (over the general but not over the high amount) and was fined $250 and disqualified for four months on 18 May 2011, with a BAC of 0.054 per cent. The appellant also had a drink drive conviction from 5 March 2008, for which he was fined $200 and disqualified for three months, with a BAC of 0.024 per cent (presumably because he was a P plate driver at the time). The appellant otherwise only has two speeding fines and a “fail to stop” infringement, all of which occurred between 2005 and 2007. In this context, the quantum of the fine is entirely appropriate and does not require further consideration.
- The gist of this appeal, however, is the disqualification imposed of nine months, which, in context, was the maximum disqualification able to be imposed by TO(RUM)A s 86(2)(f), which the appellant argues was “manifestly excessive”.
- The learned magistrate expressed a clear, and perfectly understandable concern, about the risks imposed to other road users by truck drivers “juiced up on drugs” (T1-3). However, where, in my view, the learned magistrate fell into error, on the basis of the evidence before him, was to conclude that the appellant was such a person. The extent of the certificate tendered by the police prosecutor was that MDMA and THC had been “detected” in the appellant’s saliva. There was no evidence whatsoever, observational, expert or otherwise, as to the appellant’s impairment. There was no evidence of or submissions in respect to any erratic or otherwise unacceptable driving conduct by the appellant.
- In practical terms, the offence in this context is analogous to the provisions prohibiting P plate drivers from driving with any level of alcohol at all in their bloodstream, even though for all other drivers the relevant limit is 0.05 per cent, and in the risk assessment process, the legislature has considered that, for those drivers, detectable levels of alcohol below that level do not result in offences. The converse of that, of course, is that, given the particular vulnerability of P plate drivers, the legislature has chosen to impose a 0.00 per cent limit.
- Given that the maximum penalty is intended for the worst category of cases, there is nothing in respect of either the facts of the offence, or the appellant’s antecedents (including his traffic history, which I have outlined above), which would place him either in or anywhere near “the worst category”.
- It follows, in my view, that the learned magistrate has fallen into appellable error in respect of the period of the licence disqualification, both by choosing the maximum disqualification period to impose, and apparently doing so by impermissibly constraining his discretion in respect of the disqualification period, when he stated during the course of an exchange with the appellant’s solicitor, “I never give much less than nine months” in respect of “these type of matters” (T1-3).
- However, given the appellant’s two previous drink driving convictions (albeit both outside the previous five year period); that two separate illegal drugs were detected in the appellant’s saliva; but then balanced against his personal and business circumstances, and in the light of his commitment to rehabilitation through Narcotics Anonymous, the appropriate penalty, in all of the circumstances, would, in my view, have been a disqualification in the order of three months.
- I note for the record my concern that neither the certificate of analysis, nor the traffic history, were formally tendered and marked as exhibits by the learned magistrate. Appeals under Justices Act 1886 (Qld) s 222 proceed on the record, which should accurately reflect both the exhibits tendered and marked as exhibits, as well as any items marked for identification, with the registry then retaining those exhibits on the court file, at least until the expiry of any relevant appeal period. In this particular matter, those items were retained, but given that they were not marked in the transcript as being formally tendered, nor were any exhibit markings made on the documents, that’s more a matter of luck than good judgment.
- It follows that the appeal should be granted. At this stage, though, I’ll ask for some short further submissions, given that I’ve been advised in oral submissions that the appellant has served a period of disqualification prior to an appeal process effectively staying that disqualification, and that may require some adjustment of the formal order that I make in this context.
- I note for the record that, after an exchange with counsel, it’s been identified that the appellant was disqualified for a period of some 28 days before filing a notice with the Transport Department and resuming driving on a licence, by which the disqualification was effectively stayed. Consequently, on the view that I take that the appropriate disqualification period was three months, I intend to make an order which will see him disqualified for a further two months from today, taking into account the 28 days that he’s already served by way of disqualification.
- Accordingly, I make the following orders:-
- (1)appeal granted; and
- (2)set aside the licence disqualification period imposed of nine months, substitute a licence disqualification period of two months, effective from 2 December 2016.
- I’ll hear the parties on costs.
- Given that the appellant has been wholly successful in his appeal, I consider it appropriate that costs should follow the event, constrained as they are by the provisions of section 226, 232 and 232A of the Justices Act 1886 (Qld) and, of course, of the Justices Regulation 2014 (Qld). In all of the circumstances, the order is that the Commissioner of Police pay the appellant the sum of $1800 in costs and $299.44 in outlays, a total of $2099.44.
- I order that the costs be paid by way of a payment to the appellant, care of the Suthers Lawyers Law Practice trust account.
 Transport Operations (Road Use Management) Act 1995 (Qld) s 79(2AA)(a).
  QCA 327.
 Tierney v Commissioner of Police  QCA 327, para .
 Transport Operations (Road Use Management) Act 1995 (Qld) s 86(2)(f).
 Penalties and Sentences Regulation 2015 (Qld) r 3.
  HCA 2.
 Veen v R (No.2) (1998) 164 CLR 465, 478.
- Published Case Name:
Hay v Commissioner of Police
- Shortened Case Name:
Hay v Commissioner of Police
 QDC 358
02 Dec 2016