Hinge v Commissioner of Police[2018] QDC 8

DISTRICT COURT OF QUEENSLAND

Introduction

1. The appellant was, on the 27^th of April 2017, convicted on his plea of one offence of being under the influence of liquor or a drug when in charge of a motor vehicle on Wickham Street, Fortitude Valley.  He was fined $1200 and disqualified from holding or obtaining a driver’s license for 12 months.  He appealed against the severity of the sentence, alleging that it is manifestly excessive. More particularly, he alleges:

1. (i)
   he was denied procedural fairness; and
2. (ii)
   the 12 month disqualification was disproportionate to the gravity of the offence.

2. The approach to an appeal against a sentence imposed by a Magistrate on a plea of guilty is governed by section 222(2)(c) of the Justices Act.  The sole ground is against the severity of the penalty. A question which has arisen is whether this precludes an appeal based on an error of law.  In that regard, I adopt the reasons of my brother Long SC DCJ in Pullen v O'Brien [2014] QDC 92, and an earlier decision of Goodman v Commissioner of Police [2017] QDC 252.  In relation to the decision of Long QC DCJ I said at [23] of my judgment;

“[23] Pursuant to s 222(2)(c) of the Justices Act, the sole ground of appeal is said to be against the severity of the penalty, the appellant having been sentenced upon her own plea. A question has arisen in a number of recent decisions of this court as to whether in such a case this section precludes an appeal based on an error of law. Like my sister judges in JKT v QPS [2014] QDC 298 and TND v Queensland Police Service [2014] QDC 154, I adopt the reasons of my brother Long SC DCJ in Pullen v O'Brien [2014] QDC 92.

[24] His Honour concluded that the words of the section did not provide any further limitation upon the established principles that apply to appeals against an exercise of a sentencing discretion as set out in House v The King (1936) 55 CLR 499. His Honour said at [39] of his judgment:

“The different views which have been expressed in other cases can be seen to largely depend upon the adoption of a literal approach to the interpretation of s 222(2)(c), but it must also be considered that this approach, in part, depends on the application of the discussion of related concepts in cases which have been decided well after the enactment of this provision and in dealing with different statutory context and for a different purpose. In the context of the provisions of the Justices Act dealing with appeals, it would appear that the purpose of this provision was to oust the prospect of an appeal against conviction, where there had been a guilty plea or an admission as to the complaint and not anything else. In this regard, it can be noted that any other outcome would create a significant anomaly, in that the limitation would apply in such appeals (whether by a prosecutor or a defendant) and not apply in circumstances where there is an appeal against sentence, in respect of a defendant who had not pleaded guilty or admitted the truth of the complaint.” (citations omitted).

3. At [27] of Goodman, I then said:

“The approach to the appeal is thus governed by the following well known passage from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (supra) at p 504-505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (citations omitted).

Sentence

4. The maximum penalty for the offence to which the appellant pleaded guilty was 28 penalty units, or nine months imprisonment.  The minimum disqualification period was six months. 

5. He was born on the 5^th of May 1994, so was 22 at the time of his offending.  On the 4^th of May 2016, seven months prior to the subject offending of the 5^th of December 2016, he pleaded guilty to 91 offences, committed between 11^th of January 2015 and the 30^th of November 2015.  They included possession of dangerous drugs, numerous offences of stealing, entering premises with intent, burglary and fraud, eight unlawful use of a motor vehicle offences, and one attempted unlawful use. 

6. He was sentenced to 12 months imprisonment, 236 days of pre-sentence custody – from 22^nd of July to the 14^th of October 2015 (84 days), and from the 4^th of December to the 3^rd of May 2016 (152 days) – was declared as time served.  After his initial release from prison in October, 2015, he committed further offences of burglary, entering premises with intent, receiving tainted property, and a number of breach of bail offences, and was returned to custody.  It can be seen his subject offending was, thus, in breach of parole.

7. On the day of his offending, police observed him staggering towards, and then entering, a motor vehicle parked in Wickham Street.  When they approached the vehicle, they saw the defendant seated in the driver’s seat.  His head protruded out of the driver’s window.  He vomited, and then slumped back into his seat.  He repeated this a number of times.  The keys were in the ignition, and the car’s accessories were turned on. He was clearly grossly intoxicated.  Indeed, when police got him out of the vehicle, he was unable to stand up without assistance. 

8. Before the magistrate, the appellant’s solicitor submitted that his involvement in the earlier criminal conduct, resulting in his sentence of 12 months jail, was because of his involvement in drugs.  He submitted that he had since his release from parole, “turned his life around.”  He was employed full time as an estimator in a construction company and no longer used drugs.  It was also admitted on behalf of the appellant that he had gone back to his car “to sleep it off.”  His solicitor said, “there was no suggestion he was actually going to drive the vehicle away.”  He submitted it was appropriate to impose the minimum six-month disqualification, because:

(i) no blood alcohol content reading was alleged and the case was based solely on indicia; and

(ii) he had been without his license since the commission of the offence (four months and 21 days).

9. In response to that submission, the magistrate, perhaps somewhat tersely, commented, “It won’t be six.”  Before me, the appellant’s solicitor submitted that he was denied the opportunity to be further heard about that issue. Consideration of the transcript does not suggest he sought to be further heard on that point. Rather than stopping the solicitor from making further submissions, it seems to me that the magistrate’s comment had the effect of dissuading him, perhaps strongly, from doing so.  That does not, it seems to me, amount to any procedural unfairness. The solicitor could have persisted if he wished, but instead, determined to say nothing more.

10. In imposing sentence, the learned magistrate referred to the fact that having spent five months in jail, the appellant ought to have “woken up to himself” and not behaved as he had.  He described the appellant as “grossly intoxicated.”  That seems to me an appropriate description of the appellant’s condition.  The magistrate then said: 

“I do not accept the proposition that you would never have driven the car off.  That is not why people get into their cars in the first place.  They sleep it off;  they wake up;  they drive away.  Whatever was going to happen, if you had been behind the wheel, you would have been intoxicated, with the apparent level of alcohol that you had consumed, even after sleeping it off.”

11. That comment was clearly a response to the solicitor’s submission that the appellant had got into the car “to sleep it off” and that there was no suggestion he was actually going to drive.

12. The appellant’s solicitor also submits that to have concluded as the magistrate did without indicating he did not accept the submission to the contrary, denied procedural fairness to the appellant.  It was said the magistrate did not allow an opportunity to address him about the appellant’s intentions when getting into the vehicle.

13. I accept that a judicial officer, if he or she is not going to accept a factual submission made on behalf of a party, should usually indicate that so that further submissions can be made, or consideration can be given to calling evidence about the issue. Questions of fact on a sentence should be determined, if necessary, having regard to section 132C of the Evidence Act.

14. The difficulty with the appellant’s submission in this case, is that there was, in my view, nothing which could have been said which could have persuaded a judicial officer that he was necessarily just going to “sleep it off”.  His presence in the driver’s seat, the keys in the ignition and the accessories being on do not assist the appellant.  More importantly, however, his gross intoxication means, in my assessment, that anything he asserted to the contrary could not be accepted. 

15. Given the state of his intoxication he was probably not able to then form a clear intention as to whether he would or would not drive.  Certainly, any intention not to immediately drive could not be assumed to apply later, after he’d perhaps had a short sleep and before his level of intoxication had reduced to safe levels. 

16. In my view, there was no unfairness to the appellant and no error in the learned Magistrate’s conduct of the proceedings, though it might have been better if he had indicated his unwillingness to accept the solicitor’s submission about that issue. 

17. One further issue, which arose on the appeal concerned the question of whether the Magistrate properly took into account the appellant’s plea of guilty, as required by section 13 of the Penalties and Sentences Act.  In his remarks, the Magistrate said:

“You are convicted and fined $1200.  I have taken into account your plea of guilty.  It will be referred to SPER.  Convictions are recorded.  You are disqualified for 12 months.” 

18. Section 13 provides: 

1. “(1)
   In imposing a sentence on an offender who has pleaded guilty to an offence, a court—

1. (a)
   must take the guilty plea into account; and
2. (b)
   may reduce the sentence that it would have imposed had the offender not pleaded guilty.

2. (2)
   A reduction under subsection (1)(b) may be made having regard to the time at which the offender—

1. (a)
   pleaded guilty; or
2. (b)
   informed the relevant law enforcement agency of his or her intention to plead guilty.

3. (3)
   When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.
4. (4)
   A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—

1. (a)
   that fact; and
2. (b)
   its reasons for not reducing the sentence.

5. (5)
   A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”

19. In Walker v Maroney [2015] QDC 87, Clare SC DCJ said at paragraphs 33 to 34: 

“[33] The Magistrate acknowledged the plea of guilty. She identified it as an early plea. She expressly said “I do take into account” the guilty plea and its timing. Mr Frigo submitted this did not comply with subsection (3) because Her Honour failed to specify the plea was taken into account “when determining the sentence”. However, it was implicit in Her Honour’s statement. There was nothing else it could mean. The only matter under consideration was the sentence. Her Honour materially complied with subsection (3).

[34] Mr Frigo contended it was an error not to specify whether or not the sentence was reduced by the plea. Generally a plea of guilty will mitigate the sentence. The positive obligation for specificity arises only when the sentence is not discounted for it. Section 13(4) requires that reasons be given in such circumstances. There is no equivalent statutory obligation when a sentence is moderated by the plea. In the present case, Mr Sinclair argued it was “clear” the sentence had been reduced. Certainly there was no suggestion that the Magistrate had decided not to reduce the sentence. She complied with the requirements of section 13. What she did not do was articulate what fine would have been imposed but for the plea of guilty. This would appear to be consistent with the High Court’s preference for sentences of intuitive synthesis, rather than mathematical equations. The attribution of specific component values has been denounced for a tendency to distort the sentencing exercise.” (citations omitted)

20. I accept her Honour’s reasons and consider they effectively dispose of the matter.  In stating that he took the plea of guilty into account, His Honour was clearly indicating he did that in mitigation of the sentences as required by section 13(3) of the Act.  The reference to it immediately when imposing the penalty he did means the reference can have no other purpose.  He is not obliged to specifically indicate what the penalty might have been if he had not pleaded guilty. 

21. The question remains whether the imposition of a 12-month disqualification, double the minimum period of six months, in circumstances where the appellant had already had his license suspended from December 2016 until the 27^th of April 2017 was manifestly excessive. 

22. In my view, it was not. Despite the appellant’s relative youth, the plea, and despite the fact that a vehicle was not being driven at the time, there are a number of disquieting features of his offending.  Most obvious is that he was on parole at the time for serious criminal offending.  He was obviously grossly intoxicated.  The fact the prosecution case depended on his obvious indicia of intoxication, and not on a BAC reading is, in my view, of no consequence.  He was drunk. 

23. The fact of his occupying the driver’s seat when the keys were in the ignition and the accessories on, is a further feature of some significance.  One cannot, in my view, dismiss the fact that he had the means to drive and was very intoxicated. His actions do not speak strongly of his having formed an intention not to drive, at a time he was very intoxicated, as the Magistrate effectively said.

24. In my view, there is nothing to indicate the period of disqualification was beyond the sound exercise of the broad discretionary powers of the sentencing Magistrate.

25. The appeal is dismissed.