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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Chilcott v Commissioner of Police  QDC 142
KURTIS ROY CHILCOTT
COMMISSIONER OF POLICE
Appeal No 10 of 2020
s. 222 Appeal
Magistrates Court, Mackay
13 May 2020 (ex tempore)
13 May 2020
Farr SC DCJ
CRIMINAL LAW – APPEAL PURSUANT TO THE JUSTICES ACT 1886 s 222 – APPEAL BY WAY OF REHEARING – where the appellant pleaded guilty to a charge of driving whilst under the influence of liquor or drugs contrary to Traffic Operations (Road Use Management) Act 1995 s 79(1)(a) – where the appellant was fined $3000 and disqualified from holding a driver licence for a period of two years – appeal against disqualification on the grounds that (a) the disqualification period is manifestly excessive and (b) his Honour erred in failing to hear further submissions from the appellant’s solicitor when his Honour was against the written submissions.
Traffic Operations (Road Use Management) Act 1995 ss 79(1)(a), 80, 86.
Justices Act 1886 s 222.
Penalties and Sentences Act 1992 s 12.
Rongo v Commissioner of Police  QDC 258, cited.
McDonald v Queensland Police Service  QCA 255, cited.
R v Morse (1979) 23 SASR 98, cited.
Hili v The Queen (2010) 242 CLR 520, cited.
Mayne v Purtill  QDC 124, considered.
Roach v Queensland Police Service  QDC 150, distinguished.
R v Sprott; ex parte Attorney General  QCA 116, considered.
Elliot v Queensland Police Service  QDC 90, considered.
R v Silver  QCA 102, cited.
R v Pham (2015) 256 CLR 550, cited.
J Du Preez for the appellant
S O’Rourke for the respondent
Valiant Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent
- HIS HONOUR: I’m going to give an ex tempore decision in relation to this matter. The appellant pleaded guilty in the Mackay Magistrates Court on the 23rd of January 2020 to a charge of driving whilst under the influence of liquor or drugs. This was an offence contrary to section 79 subsection (1)(a) of the Traffic Operations (Road Use Management) Act 1995. Herein after I will refer to that as TORUM. He was fined $3000 and disqualified from holding a driver licence for a period of two years. No conviction was recorded.
- The appellant appeals against the disqualification aspect of the sentence pursuant to section 222 of the Justices Act 1886. The grounds of appeal are (a) the disqualification period imposed was manifestly excessive and (b) his Honour erred in failing to hear further submissions from the appellant’s solicitor when his Honour was against the written submissions. Given, under the legislation, that an appeal against a sentence can only be on the basis of inadequacy or excessiveness, I’m treating the second ground of appeal as a particular of the first.
- Insofar as the law in relation to appeals such as this are concerned, an appeal pursuant to section 222 is by way of rehearing. Under 222(2)(c), the appellant is not required to identify a particular error on behalf of the learned sentencing magistrate to succeed on an appeal, however identification of such an error may assist in the Court’s determination of whether the sentence imposed was excessive. This is a consideration that was identified in Rongo v Commissioner of Police  QDC 258 at paragraph 24. There is no definition of “excessive” in the Justices Act. The applicant has referred me to the case of McDonald v Queensland Police Service  QCA 255 where Justice Bowskill said:
“It is well established that on an appeal under section 222 by way of rehearing the District Court is required to conduct a real review of the trial and the magistrate’s reasons and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”
- In R v Morse (1979) 23 SASR 98, Chief Justice King said:
“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 sentence customarily observed with respect to the crime, a place which the criminal conduct occupies, the scale of seriousness of crimes of that type and the personal circumstances of the offender.”
- The concept of a sentence being manifestly excessive was considered in Hili v The Queen (2010) 242 CLR 520 where the Court stated:
“It is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.”
- And then a little later, it was said:
“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.”
- Of course, if the appellant is successful, then the appropriate approach in this matter would be to exercise the sentencing discretion afresh in relation to the charge.
- Insofar as the respondent’s position on this appeal is concerned, the respondent has submitted that the disqualification period was not excessive and that the learned magistrate did not err when determining sentence. The maximum and minimum penalties for an offence such as this are that – are of relevance, of course. The maximum penalty for the offence pursuant to section 79 subsection (1) of TORUM is a fine not exceeding 28 penalty units or imprisonment not exceeding nine months. Section 86 subsection 1(a) of that Act is the licence disqualification provision and it provides a mandatory minimum period of six months from the date of conviction if no other order is made. Further sentencing discretion is conferred on the Court under section 86 subsection (5) of TORUM which allows the Court to disqualify the offender absolutely or for a period longer than is otherwise specified.
- Insofar as the facts of the offending conduct are concerned, they can be summarised as follows. At 2.10am on 25 December 2019, police were conducting mobile patrols during which they intercepted a vehicle being driven by the appellant to conduct a licence check and a roadside breath test. The appellant submitted to the roadside breath test and was found to be over the general alcohol limit. He was detained and transported to the Townsville Police Station. He submitted to further breath analysis testing. Results of that test indicated a reading of 0.262 grams of alcohol in 210 litres of breath. The defendant couldn’t provide an emergent reason for driving. In fact, he was unable to remember where he was driving to or from. He was subsequently arrested and transported to the watch house where he was charged, issued with a notice of suspension and released on an undertaking as to bail.
- If I then turn to the potential circumstances of mitigation and the applicant’s antecedents, the relevant mitigating features and/or the appellant’s antecedents were (a) the entry of an early plea of guilty; (b) a limited traffic history with no prior like offences; (c) the lack of any criminal history; (d) the applicant’s remorse as was evidenced by a letter of apology that he prepared for the Court and by the entry of the early plea of guilty; (e) the applicant was 28 years of age – sorry, the appellant was 28 years of age; (f) the appellant was in full-time employment and the loss of his driver licence would cause difficulty for him in travelling to and from his place of employment at a mine site; (g) he had been in stable employment in the mining industry for 11 years at that time; (h) he completed grade 12 or its equivalent; (i) he had strong support from some family members; and (j) he had difficulties in his upbringing which he had overcome.
- I need to comment on two features of the written submissions, features which, in fact, were discussed during the course of oral submissions. The first is the fact that a minimum six-month disqualification period as prescribed by legislation does not of itself mean that the parliament has considered that period of time to be an appropriate disqualification period for an offender who has a reading of 0.15. It means nothing of the sort. All that parliament has done is legislate a mandatory minimum. In the same legislation, parliament has also allowed for the courts to exercise a discretion to impose a disqualification period longer than six months if considered appropriate.
- The second point is that while section 86 subsection (2A) of TORUM requires the Court to have regard to the concentration of alcohol in the appellant’s blood and the danger, real or potential, to the public in the circumstances of the case, the discretion conferred under section 86 subsection (5) is not governed by the same statutory considerations. That’s not to say that such considerations are irrelevant to the sentencing Court, but they are not prescribed by statutory criteria. It must be noted, as was discussed, though, during the course of submissions that the nature of the driving, if at all relevant on a charge such as this, is of exceptionally minimal relevance in the overall consideration of relevant matters.
- The appellant has referred this Court to two other cases that are said to be helpful in determining that the disqualification period imposed in this matter was excessive. The first is Mayne v Purtill  QDC 124 which can be summarised as follows: (a) the appellant was convicted in the Magistrate’s Court under section 79 subsection (1) of TORUM. He was the holder of a probationary licence and aged 18 at the time of the offence; (b) he had a blood alcohol reading of 0.185; (c) his vehicle was seen to be swerving left and right within a lane when he was driving; (d) the magistrate imposed a fine of $1500 and disqualified him from driving for a period of 18 months; (e) on appeal, that sentence was set aside and he was re-resentenced and was fined $1000 and disqualified for a period of 12 months; and (f) the learned sentencing judge took into account the appellant’s blood alcohol reading, the manner of driving, although I note that was to a very minor degree, his licence status and his age. He also took into account that it was his first offence, his otherwise good standing in the community and the impact of a licence disqualification and a large fine and what that would have on future employment considerations. It should be noted that in that case, whilst the reading was 0.185 and therefore considerably less than the present, as the appellant in that matter was only 18 and a probationary driver, he was required by law to have a reading of zero.
- The other case is Roach v Queensland Police Service  QDC 150 and, again, it can be summarised as follows: (a) the appellant was convicted under section 79(1) and section 80 subsection (11) of TORUM; he was observed to be driving a vehicle which almost collided with another parked vehicle – that was (b); (c) he smelled strongly of alcohol and was slurring his speech; (d) he became aggressive towards police and refused to provide a specimen of breath. He was further warned and subsequently failed to comply with a second requirement and both offences and charges arose as a consequence. In relation to the first charge, the magistrate imposed a fine of $1200 and disqualified him from driving for a period of 12 months.
- In relation to the second charge, he was fined $1000 and disqualified for a period of six months. The next point is that the periods of disqualification were to be served concurrently. The next point is that on the appeal to the District Court the sentences were set aside and he was resentenced and fined $100 in respect of each offence and disqualified for a period of six months on each offence to be served cumulatively. I note, though, as was discussed during oral submissions, that his Honour formed the view that there was inadequate evidence before the Court to allow any inference to be drawn as to the degree of intoxication of the offender and that he was sentenced on the most favourable basis that could have existed for the person in the circumstances. As I indicated, that case is significantly different factually to the present for that very reason.
- Nevertheless, the applicant has submitted that when compared to these two cases, the disqualification period imposed in this case was vastly different and, although no distinct error on the part of the learned magistrate can be identified, it is submitted that there must nevertheless have been some misapplication of principle. It is submitted that the magistrate has placed too much weight on the alcohol reading and insufficient weight on the circumstances of mitigation.
- The respondent has submitted that it is of relevance to note that the appellant does not submit that the magistrate failed to consider any relevant matters when imposing sentence, rather, the argument is that he failed to give sufficient weight to mitigating circumstances. The respondent has referred the Court to R v Sprott; ex parte Attorney General  QCA 116 where the Court of Appeal held that a sentence gave rise to no binding precedent except to the extent that it involved the application of a principle. When considering the matter of weight, the Court stated:
“When an appeal Court is invited to consider questions of weight involved in the exercise of the sentencing discretion it should not regard itself as being in the same position as the sentencing judge. The appeal Court should not set aside a sentence on such a ground unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise at all the discretion entrusted to the Court.”
- In that matter, the Court of Appeal held that the learned judge had accorded the weight he thought appropriate to the various matters put in front of him and had judged the mitigating factors as being, in that case, very weighty and for that reason imposed a lenient sentence. The Court of Appeal ultimately determined it was not a case in which that Court was permitted to substitute its own opinions about such matters in the absence of error and the appeal was dismissed.
- The respondent in this matter also submits that the sentence imposed by the learned magistrate was not outside the appropriate range and has referred the Court to the case of Elliot v Queensland Police Service  QDC 90 in support of that submission. In that matter, the appellant was convicted of driving under the influence of liquor. He was fined $2500 and his licence was disqualified for two years. He had a blood alcohol concentration of 0.265. He appealed on the basis that the sentence was excessive, having regard to his personal circumstances and traffic history. I note that in that matter he did have a relevant, though what was described as a dated, New South Wales traffic history which consisted of two prior convictions for driving under the influence. On appeal, though, in that matter the sentence was considered appropriate and the appeal was dismissed.
- The respondent in this matter submits that the learned magistrate took into account the submissions made by the appellant’s solicitor as well as the reference letters which were tendered – or letter that was tendered and the letter of remorse, as well as taking into account the appellant’s blood alcohol concentration and the risk that he posed to the community and to himself by driving a motor vehicle in that state. The respondent submits that the magistrate did not appear to be overwhelmed by any one circumstance but appeared to accord the weight he thought appropriate to the relevant factors when imposing sentence and exercised his discretion pursuant to section 12 of the Penalties and Sentences Act 1992 by electing not to record a conviction. It is submitted that that was an indication of the magistrate taking all relevant matters into account including his plea of guilty.
- Now, the ground of appeal that a sentence was manifestly excessive or excessive, under – using the terms of the Justices Act, will only succeed if the sentence imposed is so unreasonable or plainly unjust as to give rise to an inference that there had been a failure to properly exercise the sentencing discretion or where the appellate Court, having regard to all the relevant factors, is satisfied that “the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases” gives rise to the conclusion that there must have been some misapplication of principle. That statement was recently repeated in the case of R v Silver  QCA 102 at paragraph 37 by Justice Boddice when referring to R v Pham (2015) 256 CLR 550 at 559.
- Upon consideration of all the matters in this case, it is clear that such an inference does not exist in this matter. Whilst it may be said that the disqualification period is at the upper end of that which is appropriate in circumstances such as exist here, it is not demonstrably excessive. That another magistrate may have imposed a lesser disqualification period is not to the point. I am not satisfied that the learned sentencing magistrate has erred in determining the sentence for this matter.
- There was that second ground of appeal which was the subject of written submissions but no oral submissions, and that is that the magistrate erred by failing to inform the appellant’s solicitor that he intended to disqualify the appellant beyond the mandatory minimum period and thus denied the appellant’s solicitor the opportunity to be heard on the issue. The appellant’s solicitor had handed up written submissions in that regard. The responded has argued that that argument has little traction because (a) the legislation requires there be a minimum period of disqualification and confers further discretion upon the sentencing judicial officer to disqualify the person absolutely or for some other period, and that this is not a case, therefore, where the magistrate imposed a type of penalty that would never have been contemplated by the parties; and (b) the appellant’s solicitor was alive to the existence of the discretion and made written submissions accordingly regarding the impact a disqualification period may have on the appellant. And finally, the respondent submits that the learned magistrate offered the appellant’s solicitor the opportunity to make further submissions prior to handing down sentence and if the appellant had further submissions to make then, they should have been made at that stage. I accept the submissions of the respondent in that regard. There is no merit to that particular ground of appeal. It follows from all of that that the appeal is dismissed.
- Published Case Name:
Kurtis Roy Chilcott v Commissioner of Police
- Shortened Case Name:
Chilcott v Commissioner of Police
 QDC 142
13 May 2020