Scarce v The Commissioner of Police
[2021] QDC 246
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- Unreported Judgment
- Scarce v The Commissioner of Police[2021] QDC 246
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Scarce v The Commissioner of Police[2021] QDC 246
Scarce v The Commissioner of Police[2021] QDC 246
DISTRICT COURT OF QUEENSLAND
CITATION: | Scarce v The Commissioner of Police [2021] QDC 246 |
PARTIES: | SAMUEL DAVID SCARCE (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO: | D151/21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court, Richlands |
DELIVERED ON: | 26 October 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 September 2021 |
JUDGE: | Kent QC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – WHETHER ERRORS ESTABLISHED – where the respondent seeks to adduce new evidence – whether the evidence was reasonably available at time of sentence – where the respondent submits that the evidence was not available due to indeterminable error – whether the evidence would have had an impact on the sentence result – where the appellant appeals against the sentence pursuant to section 222 of the Justices Act 1886 – where the appellant was sentenced for an offence of driving a motor vehicle whilst over the legal alcohol limit – where the appellant’s licence was disqualified for nine months – where the appellant submits that the disqualification period was excessive |
LEGISLATION: | Justices Act 1886 (Qld) s 222, 223, 225 Transport Operations (Road Use Management) Act 1995 (Qld) ss 68, 79, 86 |
CASES: | Gallagher v The Queen (1986)160 CLR 392, cited Hammond v Ralley [2014] QDC 263, cited Holden v Queensland Police Service [2018] QDC 217, cited Manitzky v Ryan [2005] QDC 178, cited Pavlovic v The Commissioner of Police [2006] QCA 134, cited Purcell v Commissioner of Police [2016] QDC 342, discussed R v Kentwell (2014) 313 ALR 451, cited Teelow v Commissioner of Police [2009] QCA 84, cited |
COUNSEL: | Mr R Hadzalic (solicitor) for the appellant Ms A Rimovetz (solicitor)for the respondent |
SOLICITORS: | Donnelly Law Group for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant appeals, pursuant to s 222 of the Justices Act 1886 (Qld) against the sentence imposed on him in the Magistrates Court at Richlands on 14 April 2021 for an offence of driving a motor vehicle whilst over the legal alcohol limit, but not over the high alcohol limit, pursuant to s 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”). The appellant’s reading was 0.148 %. He was fined $1,200 and disqualified from holding or obtaining a driver’s licence for a period of nine months and a conviction was recorded.
- [2]The jurisdiction is created by s 222(2)(c) of the Justices Act which provides for the sole ground that the penalty was excessive. Section 225(1) empowers a judge, on hearing the appeal, to confirm, set aside, or vary the appeal order.
- [3]The exercise of this jurisdiction has been the subject of many judicial pronouncements. One such was in R v Kentwell[1] where the High Court made the following observation in relation to a statutory equivalent of s 66E, subsection (3) of the Queensland Criminal Code at paragraph [35] of the judgment:
“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 referred to 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 resentence, 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.”
- [4]Similarly, the appellant refers to the statement by Muir JA in Teelow v Commissioner of Police at [4]:[2]
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the court, the order of that is the subject of the appeal is the result of some legal, factual or discretionary error …”
- [5]In this case the appellant’s contention is that the sentence was excessive, that is, beyond the range of sentences that could have been properly imposed for the offender and the offence.
The Facts
- [6]The appellant was driving his vehicle on the evening of 13 March 2021 when he exited a BP service station to turn right on to Radius Drive, Larapinta. He was intercepted by police for a roadside breath test and licence check. Police smelled liquor on him and administered a roadside breath test. The appellant admitted to having consumed alcohol. He had driven from Alexandra Hills and was on the way home to Marsden. At the Calamvale Police Station he was determined to have a breath alcohol concentration of 0.1411 %.
Statutory Framework
- [7]The appellant was thus dealt with under s 79(1F) of TORUM of the offence of driving a motor vehicle whilst over the middle alcohol limit but not over the high alcohol limit. The applicable penalty was one not exceeding 20 penalty units or imprisonment for a term not exceeding six months. Section 116(2)(ea) provides for a minimum disqualification of not less than three months and the maximum of not more than 11 months from the date of conviction.
- [8]For the more serious offence of driving while under the influence of liquor pursuant to s 79(1) (which has effect if the reading is over 0.15 %) the penalty provided is not exceeding 211 penalty units or imprisonment for a term not exceeding nine months. S 116(1) provides in such a case for a minimum disqualification of six months. It can be seen that Parliament understandably regarded the higher alcohol readings as more serious, as reflected in the penalties and minimum disqualification periods.
The Magistrate’s Reasons
- [9]The Magistrate’s brief reasons took into account the appellant’s plea of guilty, the level of reading and the danger he posed to himself and other road users in getting behind the wheel “basically three times the legal limit.” He referred to the appellant putting himself and others at risk. As noted, the appellant had been drinking Jack Daniels all afternoon and it must have been pretty obvious that he was over the limit, “half a sip” from a high range drink driving conviction. He had a “shocking” traffic history, although no previous drink driving convictions. The length of the disqualification reflects how much alcohol he had “on board”.
The Appellant’s History
- [10]The appellant, as the Magistrate said, has a very bad traffic history. There are multiple offences of speeding, demerit point suspensions, driving with an expired licence, seat belt offences and numerous others going back to 20011. What was advanced on the sentence was that he did not have a history of drink driving.
- [11]The traffic history was the subject of an application by the prosecution at the hearing of this appeal, to introduce further evidence pursuant to s 223(2) of the Justices Act. The relevant entry sought to be introduced relates to an appearance on 3 October 2013 for driving with a blood alcohol content over the general but not over the mid-alcohol limit, being 0.63 %. The introduction of this evidence was resisted by the appellant, who takes the stance that it could not satisfy the first factor in the exercise of discretion under s 223(2) in that the evidence now sought to be relied upon could, with reasonable diligence, have been produced by the respondent at the sentence proceeding. There is simply no explanation for the relevant entry’s absence from the history which was tendered in the Magistrates Court. The inference is that possibly it is a bureaucratic error by those tasked with keeping the relevant records.
- [12]The evidence is apparently credible; it was not, as I understand the submissions, disputed. Thus the further question in terms of determining its admission, is whether the evidence, if accepted, might reasonably have given rise to a different result.[3] Generally, there must be good reasons identified to justify a departure from the principle in s 223(1) that an appeal under s 222 is by way of re-hearing on the evidence given in the proceedings before the Magistrate.[4]
- [13]At the hearing of the appeal I noted that the first element of the test was against the respondent, in that the evidence relied on could, apparently, with reasonable diligence, have been produced at the trial. Conversely there was little doubt that it was apparently credible. Thus the possibly determinative consideration is whether it would have led to a different result. Thus I indicated that I would reserve judgment on this issue as well as the appeal generally.
The Appellant’s Submissions
- [14]The appellant points to the fact that he was subject to an immediate licence suspension since 13 March 2021 such that the effective period of licence deprivation was 10 months; importantly, compared to a maximum period of disqualification of 11 months. Thus the disqualification was very near to the maximum period allowable, which for the offence committed is excessive.
- [15]Reliance is also placed on Purcell v Commissioner of Police [2016] QDC 342. In that case, a reading of 0.149 % attracted initially a fine of $1100 and a disqualification period of eight months. This was reduced on appeal to a disqualification period of six months, the appellant already having been disqualified, as at the date of sentence, for some 15 days. Long SC DCJ observed, at [411]:
“In the circumstances of this appellant’s offending, the minimum disqualification period provided by s 116(1), is not just a relevant consideration but effectively provides some considerable guidance as to an appropriate period of disqualification. This is particularly so, as should also be taken into account, such a period of disqualification will operate in addition to the 15 days of suspension of the appellant’s drivers’ license…”
- [16]It was also said in that case that the minimum period of disqualification for the more serious offence of driving under the influence of liquor (generally for a reading exceeding 0.15 %) being six months provides context. The appellant argues that the Magistrate failed to give sufficient weight to the plea of guilty, the impact on the appellant’s employment, the lack of any similar relevant history, the period of suspension already having been served and the context of the minimum penalty for more serious offences being less than that imposed on the appellant. Thus, it is said that the sentence was manifestly excessive and should be reduced to a fine of $1100 and a disqualification period of five months (i.e. an effective six months).
The Respondent’s Submissions
- [17]The respondent points out the appellant’s significant six-page traffic history from 20011 to 2021. He has been subject to licence suspensions, restrictions and good behaviour periods. He also has a three-page criminal history consisting of nine entries between 2010 and 2014, largely for property related offending.
- [18]The respondent submits that the Magistrate did not err in arriving at the penalty imposed and that he did take into account the plea of guilty, lack of previous drink driving convictions and the month he had already been off the road prior to the date of sentence.[5] Thus, it is said that no identifiable error arises. It is submitted that Purcell is not really comparable, having had a far lesser traffic history, compared to the appellant’s substantial and concerning traffic history over 13 years. Thus, it is argued that the sentence imposed was not excessive and no error has been identified.
Consideration
- [19]At the sentence proceeding, a reference was tendered from the appellant’s sister-in-law, Charleen Scarce. It outlined that the appellant had been under a lot of pressure and stress prior to the offence. He and his partner had recently lost a baby due to miscarriage and this contributed to excessive drinking. He is employed as an apprentice plumber which will make the licence loss of greater impact.
- [20]In Purcell at [25] Judge Long SC observed:
“Here, it was clearly a highly relevant feature that the appellant’s breath alcohol concentration was at the very top of that range.[6] That is not to say that on that account alone, the appellant’s disqualification should have been at or near the top of the range provided in s 116(2)(ea). The available range is also applicable to cases where an element of real or potential danger to the public is to be reflected and also because of the application of general sentencing principles, including s 9 of the PSA, to cases where the personal circumstances of an offender, including the criminal history and general traffic record (apart from the specific types of prior conviction and the timing of them, that would place an offender in a different situation under s 116), may be less favourable than that of the appellant and more demanding of a higher period of disqualification, within the permissible range. Also, it may be expected that the degree of culpability may vary according to the circumstances of individual cases.”
Concentration of alcohol in the breath
- [21]In the present case, as in Purcell, the appellant’s concentration of alcohol in his breath was at the upper end of the range provided for the offence he committed.
Danger, real or potential, to the public
- [22]The danger the appellant presented to the public seems to have been more potential than real. According to the facts relied on by the prosecution, he had driven that afternoon from Alexandra Hills to Larapinta. He had visited the BP Service Station, presumably for fuel. It was immediately on turning out of the service station into Radius Drive that the vehicle was intercepted. In that presumably short period, there is no suggestion of actual danger to the public. This is not to minimise the potential danger, of course; and he had previously driven the considerable distance from Alexandra Hills to Larapinta, albeit apparently safely. The length of that journey obviously increased the potential danger, simply because there is more opportunity for an alcohol affected driver to make a mistake.
- [23]As was observed in Purcell, the statute provides in this case for a range of disqualification between three months and 11 months which is to be applied to the full gamut of cases that may fall within it. Clearly there could be cases, despite the appellant’s relevantly high reading, which display a greater degree of real danger to the public.
- [24]It does appear that the appellant’s claim that he has received, in effect, a disqualification of 10 months compared to the possible maximum of 11 months may have some substance.
Comparable Cases
- [25]There may be some guidance from other decided cases as to the appropriate range. In Purcell the end result was that the disqualification, for a similar reading, was reduced to six months, taking into account a further 15 days. That offender had a minimal traffic history, compared with the present appellant, a character reference and apparently no criminal history.
- [26]
“The sentence order of $1100 with a disqualification period of eight months is a standard sentence order for a blood alcohol reading between .13 percent and .14 percent where the offender is a holder of an open licence with no previous drink driving offences.”
In that case the reading was 0.1311 % and the danger was real in that he had crashed into a parked car. His disqualification was lengthened from 11 months to 10 months, however that was in the context of a work licence being issued. He had no criminal history and no previous traffic convictions involving alcohol.
In Hammond v Ralley,[8] the reading was 0.113 %, there had been 35 days suspension prior to sentence and an initial sentence of a $1100 fine and 10 months disqualification was reduced to $900 and six months disqualification. The offender had more attractive antecedents than the appellant; he was a mature man with two prior speeding offences. However the driving may have been of greater culpability. The offender had been drinking whilst driving home to Emerald from Chinchilla (a journey of 6 hours or so) and consumed about seven to eight stubbies between 9.30pm and 4am.
- [27]In summary:
- (a)The statutory range of disqualification is 3 to 11 months;
- (b)The appellant caused no actual danger but has a lengthy traffic history, albeit not for drink driving to the Magistrate’s knowledge;
- (c)Purcell had a slightly higher reading but better antecedents and was disqualified for 6.5 months;
- (d)Manitzky had a slightly lower reading and better antecedents, but caused an accident. He was suspended for 10 months in the context of a work licence being issued;
- (e)Hammond received an effective seven months disqualification for a slightly lower reading. He had better antecedents but the driving was much worse.
- (a)
- [28]Overall, I am inclined to the view that the appellant had succeeded in demonstrating that the penalty in his case is manifestly excessive. The limited recourse to comparable decisions seems to indicate that the period of disqualification to which he was subjected is normally reserved for cases where there is a higher reading. Moreover the one month already served prior to the court appearance is relevant, in my view. Section 611(7) of the Act specifically permits such a period to be taken into account. The disqualification imposed, taking this into account, represents about 115 percent of the maximum period available. Thus it is at the very upper limit of the range provided for by statute.
- [29]True it is that the appellant’s traffic history is very unattractive, however he was not presented as someone who had any history of drink driving. The driving itself was not identified as dangerous to the public. He had pleaded guilty and had the other features in his favour, including that disqualification would be a burden for him in his employment. In my view, absent the fresh evidence as to the further traffic history, the appellant would succeed in demonstrating that the period of disqualification was manifestly excessive, particularly in combination with the relatively high fine.
- [30]The question which then arises is whether admission of the further traffic history would have a decisive impact on the result. The further evidence is of a number of offences which were committed on 3 October 2013, however the only one said to have been of possibly decisive relevance was the offence of driving a motor vehicle over the general but not over the mid alcohol limit, the blood alcohol concentration having been 0.063 %. Thus it is a significantly less serious offence than the one presently under examination. Moreover, it occurred some seven and half years prior to the present offence. This is relevant generally, but particularly so in the context of TORUM which provides for the increase of certain penalties where relevant offences are committed within five years of the subsequent court appearance. The previous offence in this case is clearly outside that statutory regime.
- [31]While I do not doubt that the previous offence, if known about, would have had an impact on the reasoning of the Magistrate at the time, I cannot conclude that it has decisive relevance on the determination of this appeal. Thus I refuse its introduction, as it was available to the prosecution, with reasonable diligence (no explanation for its omission having been provided) at the sentence.
- [32]In the result, taking into account the appellant’s history, both traffic and criminal; his plea of guilty; his personal circumstances; the fine imposed; the pre-sentence period of disqualification; and his employment which would be made more difficult by the disqualification, in my conclusion the disqualification is beyond the appropriate range for the offence and the offender. The disqualification should be reduced to six months, equating to an overall period of seven months. In the context of all of the circumstances, in my view the fine should not be reduced. The appellant is awarded costs on the standard basis.
Footnotes
[1] (2014) 313 ALR 451.
[2] [2009] QCA 84.
[3] See Holden v Queensland Police Service [2018] QDC 217 at [24], referring to Gallagher v The Queen (1986) 160 CLR 392.
[4] See Pavlovic v The Commissioner of Police [2006] QCA 134 at [30].
[5] Sentence transcript p 2, ll 1-111.
[6] The concentration of alcohol in the breath and the danger, real or potential, to the public in the circumstances of the case are relevant to the period of disqualification pursuant to s 116(2A) of TORUM.
[7] [2005] QDC 178.
[8] [2014] QDC 263.