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Smyl v Commissioner of Police[2019] QDC 194

Smyl v Commissioner of Police[2019] QDC 194

DISTRICT COURT OF QUEENSLAND

CITATION:

Smyl v Commissioner of Police [2019] QDC 194

PARTIES:

CHRISTOPHER SMYL

(Appellant)

v

THE COMMISSIONER OF POLICE

(Respondent)

FILE NO:

986/19

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

4 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2019

JUDGE:

Rinaudo AM DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence imposed on 25 February 2019 at Southport Magistrates Court is set aside.
  3. In lieu thereof, a conviction is recorded, and the defendant is fined the sum of $1,200 to be paid within 30 days.
  4. If not paid within that time, direct the Registrar refer the non-payment to the State Penalties Enforcement Registry.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to one charge of driving without due care and attention – where the appellant was fined and disqualified from holding or obtaining a driver’s licence for three months – where the appellant had no relevant history – where the licence disqualification had a significant effect on the appellant’s employment – whether the licence disqualification was excessive

COUNSEL:

A S McDougall for the appellant

M Andronicus (sol) for the respondent

SOLICITORS:

Sibley Lawyers for the appellant

QPS Legal Unit for the respondent

Overview

  1. [1]
    On 25 February 2019, the appellant pleaded guilty in the Southport Magistrates Court to one charge of driving without due care and attention arising from a motor vehicle accident on 12 October 2018. The appellant was convicted of the offence by the presiding magistrate, fined $1200 and disqualified from holding or obtaining a driver’s licence for a period of three months from that date.
  1. [2]
    On 21 March 2019, the appellant filed a notice of appeal against that sentence. The single ground of appeal is that the penalty imposed was excessive. The appeal is brought pursuant to s 222(2)(c) of the Justices Act 1886, which provides:

222 Appeal to a single judge

  1. If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

  1. However, the following exceptions apply—

  1. if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.

Appellant’s Submissions

  1. [3]
    Counsel for the appellant, Mr McDougall, referred to the decision of R v Morse (1979) 23 SASR 98, in which King CJ described the approach required for determining whether a sentence is excessive in the following terms:

“To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.”[1]

  1. [4]
    In his written outline, counsel also referred to the decision in Hili v The Queen (2010) 242 CLR 520 for what constitutes a “manifestly excessive” sentence. In that case, adopting House v R[2] and Wong v R,[3] the High Court held that appellate intervention on the ground that a sentence is manifestly excessive:

“…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 the circumstances, the appellate court concludes that there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons.”

  1. [5]
    Counsel submitted that the appellant is not required to identify a particular error of the sentencing magistrate to succeed on appeal;[4] however, identification of such errors may assist in the Court’s determination of whether the sentence imposed was excessive.[5] It was further noted that an appeal under s 222(2)(c) is by way of a rehearing.[6] If the appeal against sentence is successful, the court is obliged to exercise the sentencing discretion afresh in relation to the offences.[7]
  1. [6]
    Here, counsel did seek to identify particular errors and, in submitting that the learned sentencing Magistrate erroneously took into account circumstances of aggravation which would have warranted a conviction for a more serious offence, relied on the following passage from R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ:

“…the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… the combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all of the conduct of the of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.” (my emphasis)

  1. [7]
    Counsel emphasised the importance of the so-called “De Simoni principle” and referred to a passage from Nguyen v The Queen (2016) 256 CLR 656 in which Justices Keane and Bell observed, “…the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted.”[8]
  1. [8]
    In relation to section 83(c) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”), under which the appellant was sentenced for the offence of driving without due care and attention, counsel noted the insertion by way of amendment on 18 June 2018 of a provision which sets out the maximum penalties imposable if the offender causes death or grievous bodily harm to another person. Significant penalties are permitted for sentences involving such offending.
  1. [9]
    Relevantly, the police prosecutor’s summary of the facts at first instance including the following:

“SGT KHALER: ---in a disability parking space at the airport departures area. Immediately in front of that disability parking space is a designated bus zone. Now, the informant, Mr Millard, has dropped people off and has returned to the driver’s side door of his car – that’s beside the disability parking zone. At that time, the defendant’s Toro Bus, driven by the defendant, has approached the parking area, started to turn into the bus area, pulling in. But I’d say he side-swiped the car – so he’s pulled in and side-swiped – well, it’s actually the – Mr Millard’s as he’s turned in.

It’s collided with Mr Millard and the driver’s side door of his parked car, pinning him between the bus that was trying to pull in and his car. And that’s caused the injury. Police have arrived. When asked by the police, he said he was driving – admitted to driving the bus. Said he’d misjudged the gap between the parked car and the entry to the bus parking area and has scraped the side of the parked car of Mr Millard – and, obviously, hit Mr Millard.

Said he didn’t realise that he’d hit the – Mr Millard until he’d heard a scream. Said that he’d been driving buses for the company for about three months. So Mr Millard was taken to the Royal Brisbane Hospital, where he stayed for three weeks. So that’s the nature of the accident, your Honour. I don’t have any medical reports save what’s written here – that he went to hospital and he was there with broken hips and sacrum – broken pelvis, sorry. And the defendant has no history ---

BENCH: So what was it? I thought you said legs.

SGT KHALER: Yes. I did say hips – sorry, pelvis, sacrum – I’m not sure what the sacrum is – and legs, it says. Pelvis and injuries to his sacrum and legs – injuries to his legs. So it’s broken pelvis and injury to his sacrum and legs. It might not be broken legs, but broken pelvis.”[9]

  1. [10]
    Counsel for the appellant submitted that “…there is little doubt such injuries would meet the description of grievous bodily harm under the Code,”[10] and that the sentencing magistrate was therefore required to not take those injuries into account as a circumstance of aggravation which would have warranted a conviction for a more serious offence in accordance with the De Simoni principle.
  1. [11]
    At sentence, her Honour stated:

“… the question for the court today is to impose an appropriate penalty for the driving that you did causing such terrible injuries to Derek Millard who is a 75 year old man. So not a robust young person, and yet he broke his pelvis and was in hospital for three weeks and then on crutches, a very significant matter, especially given that the bus driving that you undertook was in the vicinity of a disabled car park where one would think extra effort would be taken to be careful of people.”[11]

  1. [12]
    It was submitted that, by treating the severity of Mr Millard’s injuries as a very significant matter in the sentence imposed, her Honour erroneously considered those injuries to be an aggravating feature in sentencing the appellant.
  1. [13]
    Counsel further noted that, without contest, the appellant submitted at sentence that it was not until he had passed the victim’s vehicle, and was waiting next to it to enter the bus stop, that the victim “somewhat inexplicably” walked to his door. The appellant was not aware of the victim’s presence until he heard a scream. It was submitted that this was a relevant feature to the culpability of the appellant’s driving which the learned magistrate failed to take into account.
  1. [14]
    In respect of the authorities taken into account by the learned sentencing magistrate, counsel for the appellant submitted that, “…her Honour should have approached reliance on such authorities with great caution as they were no longer sentencing on the basis of like cases. Her Honour fell into error by approaching the cases referred to as directly comparable.”[12] Counsel submitted that these authorities were not in fact comparable because the changes to the legislation in June 2018 enlivened the De Simoni principle.
  1. [15]
    It was therefore submitted that, in all the circumstances, I would find that the sentence imposed on the appellant was excessive, vacate it and resentence the appellant taking into account the following factors:
  1. The appellant is a 60 year old man with an otherwise unblemished driving history.
  2. He is a professional driver and the impact of losing his licence would cause substantial hardship to him.
  3. The incident was isolated and occurred in relatively unique circumstances.
  4. The appellant is to be sentenced for his driving, not the injuries caused.
  1. [16]
    Taking these factors into account, counsel’s ultimate submission was that I would resentence the appellant to a fine of $1200 and take no action with respect to his licence.
  1. [17]
    With respect to the second factor mentioned above, Mr McDougall advised the court that the disqualification period had been completed, but that the concern in relation to the disqualification being imposed was that the appellant cannot now apply for another job driving buses for five years after the disqualification. In this regard, it was noted that, although the learned sentencing magistrate was not advised of this five year period, her Honour was advised:

“Your Honour, my – my client, as indicated already, will lose his employment as a result of any – any period of disqualification. And he won’t be eligible for any – any further work of this nature for some period of time.”[13]

  1. [18]
    At that point, her Honour was also made aware of the appellant’s financial situation and living expenses and that, “…obviously he will have some difficulty in meeting those expenses if he were to lose his employment.”[14]

Respondent’s Submissions

  1. [19]
    In his submissions for the respondent, having properly identified the standard to be met on appeal, Mr Andronicus argued that the injuries sustained by the complainant would not amount to grievous bodily harm as there was no evidence or submission put before the learned sentencing magistrate that the complainant suffered:
  1. (a)
    the loss of a distinct part or organ of the body;
  1. (b)
    serious disfigurement; or
  1. (c)
    injuries of such a nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health.
  1. [20]
    The respondent specifically noted that there was no evidence that surgical intervention was required and there was no submission from the prosecution that the injuries would amount to grievous bodily harm. The respondent’s solicitor argued that the injuries were referred to by the learned sentencing magistrate in the context of the seriousness of the factual circumstances of the offending, specifically that it occurred in the vicinity of a disabled zone, and that this was regarded by her Honour as a “…significant matter, especially given that the bus driving that you undertook was in the vicinity of a disabled car park where one would think that extra effort would be taken to be careful of people.”[15] It was submitted that it was entirely appropriate that the learned sentencing magistrate had regard to the injuries caused by the defendant’s conduct in this way, and that to not do so would have been contrary to the principles contained in section 9 of the Penalties and Sentences Act 1992.
  1. [21]
    It was further argued that the appellant’s argument that the learned sentencing magistrate must have had regard to, and pontificated on, the complainant’s contribution to his injuries was misconceived, and that the appellant was clearly sentenced on the basis that he committed a “terrible error of judgment.”[16]
  1. [22]
    The respondent also referred to the appellant’s argument that the learned sentencing magistrate failed to take into account changes by the bus company to its guidelines after the incident and submitted that:

It was entirely appropriate and open for the Magistrate to regard the issue of the guidelines as simply a reminder of common sense safety rules and regulations that all bus drivers with training, including the appellant, should already be aware of.[17]

  1. [23]
    Finally, it was submitted that the appellant failed to provide alternative case law to support the proposition that a disqualification period was excessive in light of the above circumstances.

Analysis of the Original Sentence

  1. [24]
    I note her Honour was informed by the appellant’s legal representative at sentence that:

“He’s currently – as I said, he’s currently employed as a bus driver working for Surfside Buslines, since November 18. He’s also, scheduled, however, an interview next week with Brisbane City Council seeking employment as a permanent bus driver. The only difficulty that – is that any period of a disqualification will automatically mean that he’s not eligible for the job.”[18]

  1. [25]
    An email from the Brisbane City Council to the appellant was tendered. Relevantly, it provided:

“If you have lost more than four demerit points in the last three years, or had your licence suspended in the last four, your application will not be progressed.”[19]

  1. [26]
    In arriving at her decision that a disqualification was appropriate in this case, her Honour took into account a number of authorities.
  1. [27]
    In sentencing, her Honour remarked:

“All of these things can be taken into account, but at the end of the day, it seems to me, especially reading the case law, that you must lose your licence to drive for a period. The question, as I said before, is for how long.”[20]

  1. [28]
    It is clear that her Honour was aware that the disqualification was discretionary, but had arrived at a decision to impose a disqualification having regard to the facts of the case presented to her and the authorities which she took into account. I will refer to those authorities shortly; however, it should also be noted that her Honour described an apparent purpose for disqualifying the appellant’s licence using the following terms:

“There is an apparent purpose in disqualifying you. It doesn’t appear on these facts, coupled with the fact that you had only been a bus driver for three months, coupled with the fact that you got immediate termination of your job, that you ought to be a bus driver until you have some time off the road to reconsider your abilities. I reject any suggestion that it was the environmental conditions surrounding your bus driving on the day of this offence that contributed to what happened. It was your bus driving or lack of skills as a bus driver, and that should be something for some serious contemplation whilst you are off the road.”[21]

  1. [29]
    Insofar as the authorities provided to and obtained by her Honour are concerned, I note in particular the decision of Judge Bowskill QC, as her Honour then was, in Miller v Commissioner of Police [2015] QDC 213. In that case, the learned magistrate had imposed a disqualification period of six months. After reviewing the authorities, her Honour reduced that to three months. I note in particular her comment at [25]:

“As against those matters, the decision of Judge Farr in Cutler,[22] to which I have been referred, and which, in itself, also refers to another decision of Judge Irwin, do support the imposition of periods of disqualification in relation to charges for driving without due care and attention, and perhaps it can be said that the combination of cases reveals the variety of situations in which offences of this kind are committed and the variety of personal circumstances that defendants or offenders present with.”

  1. [30]
    Although her Honour was satisfied on the facts of that case that there was no error in the magistrate’s decision to impose a period of disqualification, her Honour did find that an error was made in the magistrate’s exercise of his discretion to set the length of that period at six months. In making that finding, her Honour was guided by the principles to be applied in the exercise of the discretion to impose a period of disqualification as enunciated in the decision of R v Osborne [2014] QCA 291 by Henry J, with whom Holmes JA and McMeekin J agreed, from [56] to [59]:

“[56]Section 187(1) is structured so those considerations relate expressly to the decision that an offender should be disqualified. They may by implication also inform the decision as to the duration of the disqualification because of the obvious interrelationship between the two decisions. It may for instance be in the interests of justice to disqualify an offender if the disqualification period is to be for two years but not if it is to be for five years.

[57]However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include:

the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so;[23]

the consequences of the disqualification upon the offender’s future employment prospects;[24]

the risk that the disqualification period may create a disincentive to rehabilitation on release from custody;[25]

the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.[26]

[58]As to the latter consideration, in R v Nhu Ly[27] Macrossan CJ stressed the desirability of the disqualification serving some purpose other than that served by other available punishments:

“Although the discretion which arises is a broad one, it can be accepted that a disqualification, whilst it will operate as an additional penalty, is not meant to be simply a gratuitous addition to other available punishments. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term.”

[59]Section 91(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment rehabilitation, deterrence, denunciation and community protection. It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender. However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.

Findings and Decision

  1. [31]
    In this case, the learned magistrate erred in imposing the disqualification in several respects. Firstly, given the offence charged, I am satisfied that her Honour placed undue weight on the injuries sustained by the complainant, as is clear from the following passage:

“… the question for the court today is to impose an appropriate penalty for the driving that you did causing such terrible injuries to Derek Millard who is a 75 year old man. So not a robust young person, and yet he broke his pelvis and was in hospital for three weeks and then on crutches, a very significant matter, especially given that the bus driving that you undertook was in the vicinity of a disabled car park where one would think extra effort would be taken to be careful of people.”[28]

  1. [32]
    Further, her Honour overstated the appellant’s relative culpability in sentencing him on the basis that his conduct constituted a terrible error of judgment rather than momentary inattention.[29]
  1. [33]
    Her Honour also erred in taking the view that it was her responsibility or purpose to sentence the defendant in such a way as to cause him not to be a bus driver. In this respect, I note that, in addition to the passages extracted above, her Honour remarked:

“I’m not quite sure why you chose to be a bus driver. That is of no – not much concern to this court except that you are clearly a very intelligent person. I do not accept that you are too old to be working in a biochemistry position.”[30]

  1. [34]
    In addition, I find that her Honour failed to take into account relevant mitigating factors. In particular, although acknowledging the appellant’s early plea, her Honour appears to have given little weight to the defendant’s complete lack of any history, either criminal or traffic-related, and that there would be significant consequences for him if he was to have his licence disqualified for a period of time. Although the learned magistrate was not made aware that the period during which the appellant would be unable to seek further employment as a bus driver might be as long as five years, her Honour was advised that the appellant’s application for permanent employment as a bus driver with the Brisbane City Council would not be progressed having regard to his disqualification.
  1. [35]
    Her Honour also failed to take into account the appellant’s financial situation, and did not place sufficient weight on the submissions with respect to that financial situation and what effect a disqualification period would have on that.
  1. [36]
    In my view, the learned magistrate erred in sentencing the appellant on the basis that the accident occurred solely as a result of his lack of skills as a bus driver. In that respect, I note her Honour’s remarks that:

“It was your bus driving or lack of skills as a bus driver, and that should be something for some serious contemplation whilst you are off the road.”[31]

  1. [37]
    It is clear that the incident occurred on this occasion due to the appellant’s momentary lapse of attention. It appears he had been driving buses for three months and otherwise had an unblemished driving history. There was no evidence to suggest that the appellant was not otherwise a careful and skilful bus driver. In addition, there was evidence before her Honour that the complainant’s vehicle was not parked completely within the disabled zone, and that the complainant himself may have moved in such a way as to have contributed to his being struck by the bus in circumstances where the driving of the bus by the appellant was not the sole cause of those injuries. In those circumstances, for the learned Magistrate to draw the conclusion that the accident occurred solely due to the appellant’s bus driving or lack of skills as a bus driver and that the appellant should “contemplate” his decision to be a bus driver was an error.
  1. [38]
    In the circumstances, the appellant’s lack of any history, age, early plea, and the prospect of his suffering severe financial loss for a lengthy period of time following a disqualification are all factors which her Honour should have taken into account in in determining that the imposition of a disqualification period would be an excessive penalty in the circumstances. These were all matters which the learned magistrate should have taken into account in exercising her discretion not to disqualify the appellant from driving, which she knew was his livelihood.
  1. [39]
    The learned magistrate was not aware of the circumstances in which the defendant had stopped being a biochemist and taken up bus driving and was not aware whether he had the capacity or desire, for whatever reason, to return to his previous occupation as a biochemist, and her Honour therefore erred in taking that into account as a factor relevant to the exercise of her discretion to disqualify the defendant. Finally, this was not a case in which the authorities referred to her Honour were such that she could draw the conclusion that:

“All of these things can be taken into account, but at the end of the day, it seems to me, especially reading the case law, that you must lose your licence to drive for a period. The question, as I said before, is for how long.”[32] (my emphasis)

  1. [40]
    For those reasons, I allow the appeal and set aside the sentence imposed at Southport Magistrates Court on 25 February 2019. The defendant will be convicted and fined $1200. I make no order disqualifying the appellant from holding or obtaining a driver’s licence.

Footnotes

[1] R v Morse (1979) 23 SASR 98, 99 per King CJ (White & Mohr JJ agreeing).

[2] House v R (1936) 55 CLR 499.

[3] Wong v R (2001) 207 CLR 584.

[4] Berner v MacGregor [2013] QDC 33 at [15] per Dorney QC DCJ.

[5] Rongo v Commissioner of Police [2017] QDC 258 at [24] per Devereaux SC DCJ.

[6] Pursuant to Justices Act 1886 (Qld) s 223.

[7] AB v The Queen (1999) 198 CLR 111, 160 per Hayne J.

[8] Nguyen v The Queen (2016) 256 CLR 656, 667 per Bell and Keane JJ.

[9] Transcript 1-3 lines 8-35.

[10] Outline of Submissions for the Appellant at 18.

[11] Sentencing remarks p 2, lines 22-27.

[12] Outline of Submissions for the Appellant at 26.

[13] Transcript 1-14 lines 29-32.

[14] Transcript 1-14 lines 38-39.

[15] Sentencing remarks p 2, lines 22-27.

[16] Outline of Submissions on Behalf of the Respondent at 6.6.

[17] Outline of Submissions on Behalf of the Respondent at 6.10.

[18] Transcript 1-13 lines 21-25.

[19] Transcript 1-13 lines 31-32.

[20] Sentencing remarks p 3, lines 8-10.

[21] Sentencing remarks p 3, lines 29-36.

[22] Cutler v Zollar [2015] QDC 10.

[23] Citing R v Cunningham [2005] QCA 321; and R v Dean (2006) 45 MVR 542, 544.

[24] Citing R v Plath [2003] QCA 567, [18-19]; R v Cunningham [2005] QCA 321; and R v Dean (2006) 45 MVR 542, 544.

[25] Citing R v Plath [2003] QCA 567, [18-19].

[26] Citing R v Nhu Ly [1996] 1 Qd R 543, 547.

[27] [1996] 1 Qd R 543, 547.

[28] Sentencing remarks p 2, lines 22-27.

[29] Sentencing remarks p 2, lines 15-16.

[30] Sentencing remarks p 2, lines 17-20.

[31] Sentencing remarks p 3, lines 34-36.

[32] Sentencing remarks p 3 lines 8-10.

Close

Editorial Notes

  • Published Case Name:

    Smyl v Commissioner of Police

  • Shortened Case Name:

    Smyl v Commissioner of Police

  • MNC:

    [2019] QDC 194

  • Court:

    QDC

  • Judge(s):

    Rinaudo DCJ

  • Date:

    04 Oct 2019

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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