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Harper v Queensland Police Service[2017] QDC 68

Harper v Queensland Police Service[2017] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

Harper v Queensland Police Service [2017] QDC 68

PARTIES:

STEVEN ROSS HARPER

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

284/16

DIVISION:

Appellant

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

20 March 2017, ex tempore

DELIVERED AT:

Southport

HEARING DATE:

20 March 2017

JUDGE:

Kent QC DCJ

ORDER:

  1. The sentence of the Magistrate is set aside.
  2. The new sentence is as follows:
  1. The appellant is re-sentenced to a fine of $1200, to be paid within one month. In default of payment thereof, the fine is to be referred to the State Penalties Enforcement Registry. 
  1. The appellant is disqualified from holding or obtaining a driver’s licence for a period of nine months; such a period of disqualification to take effect from the date of the original sentence, which was the 13th of October 2016. 
  1. A conviction is recorded.
  1. The appellant is to have his costs paid by the respondent in the sum of $1800.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the Magistrate erred in law, by imposing a disqualification period greater than that allowed under the relevant statute – whether the sentence should be set aside

Justices Act 1886 (Qld), s 222

Criminal Code Act 1899, s 688E

Eastwood v Commissioner of Police [2015] QDC 182, cited

R v Kentwell (2014) 252 CLR 601; [2014] HCA 37, cited

COUNSEL:

S Elliott (sol) for the appellant

K Heath (sol) for the respondent

SOLICITORS:

Fisher Dore for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    This is my decision in relation to the appeal of Stephen Ross Harper v Queensland Police Service, pursuant to section 222, subsection 2(c) of the Justices Act 1886.  The appellant was sentenced in the Magistrates Court on 13 October 2016 in respect of one count of driving over the middle alcohol limit, but under the high alcohol limit, in breach of the Transport Operations (Road Use Management) Act.  The circumstances were that he had been arrested on 3 October 2016 at about 9.25 in the morning, having been detected by a random breath testing unit and giving a reading of blood alcohol concentration of .147 per cent.  When he appeared in court unrepresented, his explanation was that he had been drinking heavily the night before, and, the next day, being naïve and a little ignorant, he thought he was right to drive but admitted his liability.
  1. [2]
    He was sentenced to a fine of $2000 and disqualified from holding or obtaining a driver’s licence for a period of 18 months. A conviction was recorded. The relevant circumstances included his criminal history, which was minor and irrelevant; but also his traffic history, which was relevant. The traffic history included an entry from nearly five years previously for driving under the influence of liquor in a New South Wales Court. He was then fined $2500 and disqualified from driving for two years.
  1. [3]
    It is the period of disqualification imposed by the learned Magistrate which is central to this appeal. The appellant appealed on the only available statutory basis of the sentence being manifestly excessive. However, it was very fairly pointed out by the learned Crown Prosecutor that the sentence imposed was not according to law in that the maximum disqualification period available for the offence for which the appellant was dealt with was 12 months; therefore, the disqualification of 18 months was beyond the statutory power available. That being the case, an error of law is demonstrated in the original sentence proceeding.
  1. [4]
    Although I am dealing with the matter pursuant to section 222 of the Justices Act, it seems to me that similar principles apply to those guiding the Court of Appeal in section 668E of the Criminal Code. Relevantly, in R v Kentwell (2014) 252 CLR 601, the High Court made the following observations in relation to a statutory equivalent of section 668E, subsection 3, at paragraph 35:

“Notwithstanding the breadth of its language, it was settled at an early stage that the appellate Court’s authority to intervene is dependent upon demonstration of error.  The significance to the function of the appellate Court of the distinction between a specific error of any of the kinds identified in R v House and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v R.  In the case of specific error, the appellate Court’s power to intervene is enlivened, and it becomes its duty to re-sentence, unless, in a separate and independent exercise of its discretion, it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

  1. [5]
    In my view, these principles govern the present situation, that is, a specific error is identified, and thus this Court’s sentencing discretion is enlivened unless it were concluded that no different sentence should be passed. A different sentence must be passed because, at least, the period of disqualification must be reduced.
  1. [6]
    Unfortunately, the assistance that can be given to this Court in the form of, for example, other comparable sentences is limited. This is because this is the kind of offence which is dealt with with extreme frequency by the Magistrates Court, but rarely does it go on appeal; thus, guidance from the higher Courts is limited in relation to quantum of sentence. One example has been identified, which is Eastwood v Commissioner of Police [2015] QDC 182, where her Honour Judge Bowskill QC reduced a combined monetary penalty for two offences to $1000. 
  1. [7]
    What is submitted on behalf of the appellant on this occasion is that given the amount, and value, of penalty units, the maximum monetary penalty for this offence is $2438. As I have already noted, the maximum period of disqualification is 12 months. At the end of the day, in my view, the offence committed by the appellant is not at the worst end of the scale of such offences. Therefore, it is my view that the appropriate penalty would be a fine of $1200 and a period of disqualification of nine months. Therefore, the sentence below is set aside, and the appellant is re-sentenced to a fine of $1200, to be paid within one month. In default of payment thereof, the fine is to be referred to the State Penalties Enforcement Registry. The appellant is disqualified from holding or obtaining a driver’s licence for a period of nine months; such a period of disqualification to take effect from the date of the original sentence, which was the 13th of October 2016. A conviction is recorded.
  1. [8]
    I order that the appellant have his costs paid by the respondent in the sum of $1800.
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Editorial Notes

  • Published Case Name:

    Harper v Queensland Police Service

  • Shortened Case Name:

    Harper v Queensland Police Service

  • MNC:

    [2017] QDC 68

  • Court:

    QDC

  • Judge(s):

    Kent DCJ

  • Date:

    20 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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