Spencer v Commissioner of Police
[2017] QDC 273
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Spencer v Commissioner of Police[2017] QDC 273
- Add to List
Spencer v Commissioner of Police[2017] QDC 273
Spencer v Commissioner of Police[2017] QDC 273
DISTRICT COURT OF QUEENSLAND
CITATION: | Spencer v Commissioner of Police [2017] QDC 273 |
PARTIES: | SCOTT ANDREW SPENCER (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2380/2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Wynnum |
DELIVERED ON: | 15 November 2017 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 18 August 2017 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – Appeal under s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to driving offences including driving while disqualified by court order – where the circumstance of aggravation was stated in the complaint – where notice was not given under s 47 of the Justices Act 1886 (Qld) – whether the sentence was manifestly excessive – whether the proceeding miscarried because notice under s 47 of the Justices Act 1886 (Qld) was not served Criminal Law Amendment Act 2014 (Qld) s 58 Justices Act 1886 (Qld) s 47 Penalties and Sentences Act 1992 (Qld) s 92 Transport Operations (Road Use Management) Act 1995 (Qld) s 78 Bartley v Macerlich [2014] QDC 114 Berner v MacGregor [2013] QDC 33 Hakas v Commissioner of Police [2014] QDC 230 Low v McMonagle [2011] QDC 109 Lythgoe v Queensland Police Service [2009] QDC 108 McIvor v Rourke [2007] QDC 095 Miers v Blewett [2014] 1 Qd R 318 Noon v Wilson [2006] QDC 168 Santillan v Queensland Police Service [2008] QDC 33 Souvlis v Commissioner of Police [2011] QDC 274 |
COUNSEL: | Mr J. P. Todman for the Appellant Ms Y. Thao for the Respondent |
SOLICITORS: | Porta Lawyers for the Appellant Director of Public Prosecutions (Qld) for the Respondent |
- [1]On 27 June 2017 the appellant pleaded guilty before the Wynnum Magistrates Court to the following five charges:
- Driving under the influence of liquor or a drug;
- Driving without a licence disqualified by court order;
- Driving an unregistered vehicle;
- Driving an uninsured vehicle;
- Using a vehicle with a cancelled number plate.
- [2]On each of charges 1 and 2 the appellant was sentenced to three months’ imprisonment with 18 months’ probation. He was disqualified from holding or obtaining a driver’s licence for 6 months and 2 years respectively. With respect to the remaining three charges, the appellant was convicted and not further punished.
- [3]The appeal to this court, under s 222 of the Justices Act 1886, is on the ground that the sentences imposed were excessive. The appellant argues that the sentence process miscarried for two reasons:
- the learned magistrate did not sufficiently consider the principle that a sentence of imprisonment should be imposed as a last resort;
- the prosecution has failed to tender a notice of an alleged prior conviction, as required by s 47(5) of the Justices Act.
- [4]When the appeal came before me on 18 August 2017 I concluded the sentence was excessive, allowed the appeal and varied the learned magistrate’s order so that the penalty was 2 months’ imprisonment instead of three. In all other respects the learned magistrate’s orders remain unvaried. These are the reasons for that conclusion.
- [5]The appellant was born on 4 December 1975, so he was aged 41 years when he committed the offences on 18 March 2017. The material before the learned magistrate included criminal records from the Australian Federal Police and Western Australia. In August 2009, the appellant was convicted and fined for resisting a Commonwealth Public Official and damaging property. His record showed an earlier, similar offence and, in 1999 being dealt with for the charge of “PCA-blood or breath” - the record shows a reading of 0.12 - for which he was fined $500 and his licence cancelled for 3 months.
- [6]In Western Australia, the appellant was convicted on 4 September 2015 at Broome of driving under the influence of alcohol, with a reading of 0.206, and driving without a licence. He was fined $900 and disqualified for 10 months. On 8 April 2016 he was again before the Magistrates Court at Broome for driving without a licence and driving with a blood alcohol content exceeding 0.08g per 100 ml. The reading was 0.137. He was again fined and his licence disqualified, this time for 18 months.
- [7]On 18 March 2017, patrolling police saw the appellant walk from the Manly Hotel towards a vehicle. He opened it and sat in the driver’s seat. As police passed, he reopened the front driver’s seat. The police later saw the vehicle at an intersection and they intercepted the appellant at 1.08am. He told them that he did not have his Queensland driver licence on him but he did hold one. He produced a blood alcohol reading of 0.216.
- [8]A police check for his licence confirmed it had been suspended in Broome on 8 April 2016, the suspension in place until 27 August 2017. The vehicle had been unregistered for more than 3 months and so it was uninsured and the registration plate was expired.
- [9]
- [10]The appellant’s legal representative told the learned magistrate that the appellant had been living in Western Australia, working as a painter. A friend drove the vehicle back to Queensland. Notifications about the registration had been sent to a previous partner’s address, so the appellant did not receive them. The primary submission for the appellant was that he had struggled with alcoholism but was taking steps to deal with it. A letter from his doctor and two character references were tendered. One of his referees, a retired RAN marine engineer, while expressing “extreme disappointment” with the appellant, stated that the appellant had gone to great lengths not to offend and was using taxis when drinking. The referee attested to the appellant’s good character and wrote of the appellant’s recent financial hardship, relationship problems and medical issues. The medical certificate confirmed the appellant had been referred to ATODS at Bayside Community Health where he was awaiting a review. The learned magistrate was told the appellant was aged 41, born in Brisbane, grew up with his grandparents and older sister. At about the age of 11 he re-joined his mother and moved to Melbourne. He finished school in year 10 and gained a painting apprenticeship. He was employed as a subcontractor in Brisbane and south-east Queensland. It was conceded the appellant had drunk an excessive amount of alcohol. His intended drive home from the hotel was a short one.
- [11]The learned sentencing magistrate’s detailed reasons were interrupted by the appellant, who explained the circumstances of the two prior convictions for driving without a licence. The earlier offence involved his driving on the beach at Broome, the appellant explaining that because of a king tide he had no choice but to get the car off the beach or it would have been submerged. The learned magistrate noted that despite that reason the appellant had been fined $900 and disqualified for 10 months. As to the second occasion of driving, the appellant explained he was driving himself to hospital because he was “throwing up blood and because of the pancreatitis. I got pulled up about 100 metres away from the hospital at about 1 o’clock in the morning”. Again the learned magistrate countered that nonetheless the appellant had been disqualified for 18 months.
- [12]The learned magistrate properly took into account the need for personal and general deterrence. Because it was the third offence of a disqualified drink-driving, and because of the high reading, he sentenced the appellant to 3 months’ imprisonment. The learned magistrate added to the probation orders the condition that the appellant undertake the “Under the Limit Drink-Driving Program”. The learned magistrate recognised the appellant’s need for rehabilitation and that he had recently started the process of dealing with his alcoholism but considered the appellant was placing members of the public at extreme risk by driving unregistered, uninsured, with a licence and with a reading of 0.216.
- [13]Leaving aside the question of whether it was correct to take into account the previous convictions, it was my view that although a short term of imprisonment was warranted the term of 3 months was excessive, particularly taking into account the circumstances of the offending, the appellant’s employment and commitment recently demonstrated to overcoming his alcohol problem. I have had the benefit of being referred by counsel for the appellant and respondent to a number of decisions of the District Court on appeal from sentences imposed by Magistrates Courts. They include Santillan v Queensland Police Service [2008] QDC 33; Lythgoe v Queensland Police Service [2009] QDC 108; Low v McMonagle [2011] QDC 109; Souvlis v Commissioner of Police [2011] QDC 274; Berner v MacGregor [2013] QDC 33; Bartley v Macerlich [2014] QDC 114; Hakas v Commissioner of Police [2014] QDC 230; Noon v Wilson [2006] QDC 168 and McIvor v Rourke [2007] QDC 095. These decisions show a range which includes longer sentences than the 3 months imposed by the learned magistrate but with shorter pre-release periods. The prison probation order made under s 92(1)(b) of the Penalties and Sentences Act 1992 (Qld) requires that the appellant serve 3 months before being released upon probation. In the circumstances I am satisfied the appellant has demonstrated the sentence imposed was excessive and so I made the orders.
- [14]The appellant’s second argument concerns only the charge brought under s 78(1) of the Transport Operations (Road Use Management) Act 1995 (Qld), which provides:
- (1)A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.
Maximum penalty—
- (a)if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence—60 penalty units or 18 months imprisonment; or
- (b)otherwise—40 penalty units or 1 year’s imprisonment.
- [15]Obviously, the circumstance described in paragraph (a) renders the person liable to a greater penalty than would otherwise have applied. The circumstance of aggravation was charged and read to the appellant and he pleaded guilty.
- [16]The appellant submits, with reference to Miers v Blewett [2014] 1 Qd R 318, that the magistrate erred by taking into account the appellant’s previous convictions for which he was disqualified because the appellant was not served with a notice under s 47(5).
- [17]There, the respondent was convicted of two charges under s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld). Section 80(1) provided for a maximum sentence of 2 years’ imprisonment if the offender had twice been convicted of the same offence within the last three years. Otherwise, the maximum was 1 year imprisonment or 40 penalty units. The respondent had two such previous convictions but, it would seem, the previous convictions were not stated as circumstances of aggravation in the complaint.
- [18]At the time, the Justices Act s 47(4) required a circumstance of aggravation (“a circumstance which renders the defendant liable, upon conviction, to a greater penalty…”) to be stated in the complaint. Section 47(5) provided that “if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice served with the complaint.”
- [19]As no such notice had been given, the greater maximum penalty was not available and the sentencing court was precluded from taking the circumstances into account at all.[3]
- [20]The present respondent submits that, the circumstance of aggravation having been stated in the complaint and the appellant having pleaded guilty to it, the learned magistrate was bound to sentence accordingly and the appellant was not liable to any greater penalty than that applicable to the charge he had pleaded guilty to.
- [21]The respondent’s argument, though it does not produce a wholly satisfactory result, is persuasive in the circumstances of the present case. It is not wholly satisfactory because stating the circumstance of aggravation in the complaint, while it gives the defendant notice of the allegation, does not give notice of the particulars of the conviction. The s 47(5) notice is designed to give the particulars. At the time Miers v Blewett was decided, s 47 did not prescribe a consequence for the failure to give notice under subsection (5).
- [22]Section 47 was substantially amended by s 58 of the Criminal Law Amendment Act 2014 (Qld), significantly changing subsection (5), deleting the former subsections (6) and adding subsections (7)- (8). Section 47(4)-(8) now reads:
- (4)Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.
- (5)However, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice—
- (a)served with the complaint; or
- (b)served before the day appointed for the defendant’s appearance; or
- (c)given to the defendant on the day appointed for the defendant’s appearance.
- (6)For subsection(5)(c), if the notice of an alleged previous conviction is given to the defendant on the day appointed for the defendant’s appearance, the court may, if the court is satisfied it is in the interests of justice to do so, adjourn the hearing of the proceeding to allow the defendant to consider the notice.
- (7)Subject to subsection (2), the circumstance that the defendant has been previously convicted of an offence may be relied on for the assessment of penalty for a simple offence whether or not a notice has been served or given under subsection(5).
- (8)If a notice has not been served or given under subsection(5), reliance on the circumstance that the defendant has been previously convicted of an offence does not render the defendant liable to a greater penalty than that to which the defendant would otherwise have been liable.
- [23]It is not clear whether notice under s 47 was given to the appellant at the Magistrates Court. No point was taken. Had it been, perhaps a notice might have been served under s 47(5)(c) and the path set by s 47(6) might have been followed. All that can be said is that the appellant pleaded guilty and was sentenced accordingly. In those circumstances, I am not satisfied the appellant has shown the sentencing process miscarried.