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Lee v Queensland Police Service[2021] QDC 262

Lee v Queensland Police Service[2021] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee v Queensland Police Service [2021] QDC 262

PARTIES:

MATTHEW OLIVER LEE

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

1307/2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2021

JUDGES:

Sheridan DCJ

ORDER:

1. The appeal be allowed.

2. The orders made in the Magistrates Court on 28 May 2021 be set aside.

3. The following orders will be substituted:

(a) For the charge on Summary Charge Sheet 207615/20, noting the consent of the appellant to such an order, the appellant be released under the supervision of an authorised corrective services officer for a period of 18 months, subject to the conditions set out in s 93 of the Penalties and Sentences Act 1992 (Qld), with the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed;

(b) For each of the charges on Summary Charge Sheet 21254/21:

(i) The appellant be imprisoned for three months;

(ii) The terms of imprisonment to be served concurrently; and

(iii) The periods of imprisonment are suspended immediately and the operational period of the order is 18 months; which means that the appellant must not commit another offence within the operational period to avoid being dealt with under s 146A of the Penalties and Sentences Act 1992 (Qld);

(c) For the charge on Summary Charge Sheet 207615/20, the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years;

(d) For the charges on Summary Charge Sheet 21254/21 of:

(i) Driving without a licence whilst disqualified by a court order under s 78(1) & (3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; and

(ii) Driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) pursuant to s 86 (1A) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of twelve months;

(e) The periods of driving disqualifications imposed for the offences on 13 December 2020 of driving whilst disqualified and drink driving are cumulative and the periods of disqualification for driving whilst disqualified on 15 November and 13 December 2020 are concurrent; making the total period of disqualification three years; and

(f) Convictions are to be recorded on all charges.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL –  where appellant pled guilty in the Magistrates Court to four charges under the Transport Operations (Road Use Management) Act 1995 (Qld) and the appellant was sentenced to an actual period in custody – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where Magistrate did not invite the parties to make submissions for the imposition of the fine – where ground of appeal was that the sentence was manifestly excessive in all the circumstances – whether sentence manifestly excessive – whether Magistrate was in error  –  whether to sentence afresh

Justices Act 1886 (Qld), s 222

Penalties and Sentences Act 1992 (Qld), s 9, s 48(1), s 187

Transport Operations (Road Use Management) Act 1995 (Qld), s 78, 79, 83, 90C

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited

R v Cunningham [2005] QCA 321, cited

Re Hamilton; Re Forrest [1981] AC 1038; [1981] 2 All ER 711, cited

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

L A Ygoa-McKeown for the appellant

K Thomas for the respondent

SOLICITORS:

Fisher Dore for the appellant

Office of the Director for Public Prosecution for the respondent

Introduction

  1. [1]
    On 28 May 2021, the appellant pleaded guilty and was sentenced in the Magistrates Court of Brisbane to four charges under the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM).
  2. [2]
    The offending occurred on two separate occasions. The first offending occurred on 15 November 2020 when the appellant was intercepted by police and was found to be driving whilst disqualified by a court order from holding or obtaining a driver licence.
  3. [3]
    The next offending resulting in three additional charges occurred on 13 December 2020 when the appellant lost control of his vehicle causing it to slide off the road and crash into a tree. The appellant was taken by ambulance to hospital where he was found to have a blood alcohol concentration of .223.
  4. [4]
    The appellant was sentenced as follows:
    1. (a)
      For the offending on 15 November 2020 of driving whilst disqualified by a court order under s 78(1) & (3)(a) of the TORUM a fine of $1200 with one month to pay and imprisonment in default and two years disqualification period.
    2. (b)
      For the offending on 13 December 2021:
      1. of driving whilst disqualified by a court order under s 78(1) & (3)(a) of the TORUM three months imprisonment to be suspended after serving one month with a two year disqualification period;
      2. of driving under the influence under s 79(1)(a) of the TORUM one month imprisonment and a twelve month disqualification period; and
      3. of driving without due care and attention under s 83 of the TORUM one month imprisonment and a three month disqualification period.
  5. [5]
    The periods of disqualifications were made cumulative.  In so doing, the Magistrate noted that if the appellant “toed the line and there has been no problems, application can be brought to remove a period of disqualification in excess of the two years.”[1]
  6. [6]
    A notice of appeal was filed on the day of sentence and appeal bail was granted that day. It was a condition of the appeal bail that the appellant must not consume any alcohol.

Mode of Appeal s 222

  1. [7]
    The appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld).  The grounds of appeal were stated to be:
    1. (a)
      The Magistrate erred failing to take into account s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld);
    2. (b)
      The Magistrate erred by placing undue weight on the appellant’s traffic history and little weight on the appellant’s mitigating circumstances, in particular his attempts at rehabilitation;
    3. (c)
      The Magistrate erred by failing to take into account the appellant’s mental health conditions at the time of the offences;
    4. (d)
      The appellant was denied procedural fairness;
    5. (e)
      The Magistrate erred by failing to consider s 48(1) of the Penalties and Sentences Act 1992 (Qld); and
    6. (f)
      The sentence was manifestly excessive in all the circumstances.
  2. [8]
    An appeal under s 222 is by way of rehearing on the original evidence. The hearing requires the court to conduct a real review of the evidence. Given the grounds of appeal, the ultimate question will be whether the sentence imposed was excessive.
  3. [9]
    The concept of a sentence being manifestly excessive was considered in Hili v The Queen[2] where the Court in referring to the plurality in Wong v The Queen stated:

“[A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.’”[3]

  1. [10]
    Rather, it was said, again referring to the plurality in Wong:

“[I]ntervention 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.”[4]

  1. [11]
    In order to succeed, the appellant must establish some legal, factual or discretionary error.

Appeal against sentence

  1. [12]
    The ultimate submission on behalf of the appellant was that the errors identified in the grounds of appeal led the Magistrate to sentence the appellant to an actual period of custody.  It was submitted that a sentence imposing an actual period of custody was manifestly excessive in the circumstances. 
  2. [13]
    At the oral hearing, on behalf of the appellant it was submitted that, in re-sentencing, the appellant should be sentenced to three months’ imprisonment wholly suspended for an operational period of between 15 and 18 months for the offences committed in December 2020 and a period of 15 to 18 months probation for the November 2020 offence.  It was submitted the requirements of probation should include the additional requirement that the appellant submit to such medical, psychiatric or psychological treatment as directed.[5]
  3. [14]
    In the written submissions and at the oral hearing, the appellant made no submissions in relation to the disqualification periods imposed.
  4. [15]
    In making submissions on behalf of the respondent, it was conceded that the learned Magistrate breached the rules of natural justice by failing to invite the parties to make submissions on the imposition of the fine for the offending on 15 November 2020.  On the basis of that concession, the respondent accepted that the error vitiated the whole of the sentence and that the court was required to sentence afresh.  The respondent submitted that in sentencing afresh, the original sentence should be imposed, subject it was said to submissions in relation to the appellant’s capacity to pay a fine.  The respondent remained of the view that a period of actual custody was appropriate.
  5. [16]
    Counsel for the appellant responded that the appellant was currently employed and able to pay a fine but if imprisoned he would then not have the capacity to pay.
  6. [17]
    A review of the transcript makes it clear that the imposition of a fine was not raised by the Magistrate and the appellant and the prosecutor were not afforded the opportunity to make submissions on that subject.  There was no discussion in relation to the imposition of a fine, including the ability of the appellant to pay the fine. 
  7. [18]
    In R v Cunningham,[6] Keane JA, as he then was, referring to a statement by Lord Fraser of Tullybelton in In Re Hamilton; Re Forrest,[7] stated:

“To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.”[8]

  1. [19]
    Keane JA observed that the entitlement to adequate notice and opportunity to be heard before any judicial order is pronounced against a person is as applicable to sentencing as it is to any other judicial proceeding had been recognised in previous decisions of the court.[9]
  2. [20]
    Given the failure by the Magistrate to afford that opportunity, the sentencing discretion miscarried and the court must sentence the appellant afresh in respect of all the offences.
  3. [21]
    On that basis, it is unnecessary to otherwise determine whether the sentence imposed was manifestly excessive.

Re-sentence

  1. [22]
    In proceeding to sentence afresh, in accordance with the obligation in s 9 of the Penalties and Sentences Act 1992 (Qld), the sentence to be imposed for the offending must be one that is just in all the circumstances.  In proceeding to re-sentence, the court must look at the whole of the sentence including the periods of disqualification imposed.
  2. [23]
    As such, while the focus of the appellant’s submissions on appeal had been the imposition of a period of actual custody, the appellant and the prosecutor were asked to address the court on the disqualifications period imposed. 
  3. [24]
    In further submissions, on behalf of the appellant, it was submitted that a total disqualification period of three years cumulative on the 8 month disqualification period imposed on 29 October 2020 would be appropriate.  The respondent submitted that the periods of disqualification imposed by the Magistrate were appropriate.
  4. [25]
    The appellant was born on 14 February 1991. He was 29 at the time of the offending and is now 30.  He has a limited criminal history, with just two entries, both of which are very dated.  He does have a troubling traffic history, with entries from 2009 when he was just 18.  The concerning entries are the entries in 2020.  Those entries include an entry for offending in August 2020 of exceeding the speed limit by more than 40km/hr and an entry for offending in September 2020 of driving under the influence of liquor for which he was fined $1,500, convicted and disqualified for 8 months.  On that occasion he also failed to provide a breath specimen for which he was convicted and fined $200. 
  5. [26]
    Less than two months later, during the period of disqualification, the vehicle he was driving was intercepted by police and it is that offending which gives rise to the first of the charges the subject of this appeal.  Within one month of that offending, he is caught driving again; this time under the influence and in a manner which resulted in his losing control of his vehicle and sliding off the road and crashing. 
  6. [27]
    That offending gives rise to the three additional charges.  That offending showed a concerning persistence by the appellant in relation to breaching previous court orders.  It involved a high blood alcohol reading and showed engagement by the appellant in an activity posing a greater danger to the public which could have resulted in a far worse outcome; all aggravating factors in sentencing for that offending.
  7. [28]
    It was accepted the appellant had at the time a substance abuse problem which led the police prosecutor submitting that a lengthy probation order of about 18 months would be appropriate so as to have mechanisms in place to address the appellant’s issues.
  8. [29]
    The report of Dr Ian Curtis dated 25 May 2021 details the appellant’s circumstances around the time of the offending.  Sadly, his younger sister had suicided in late 2019 which resulted in the appellant leaving his life in New Zealand and returning to Brisbane to be with his mother to support her.  This offending occurred around the one year anniversary of his sister’s death, and at a time, where there had been conflict within the family in relation to the gravestone to remember the sister.  Dr Curtis considers that the appellant has a vulnerable personality, suffers from high functioning autism spectrum disorder and has a predisposition to anxiety and depression.
  9. [30]
    The appellant had been referred to Dr Curtis for assessment and treatment by his general practitioner in January 2021.  As part of the treatment, the appellant began participating in psychotherapeutic counselling.  Dr Curtis considers that this therapy needs to continue. The appellant had also commenced attendance at Alcoholic Anonymous.
  10. [31]
    In his report, Dr Curtis commented that there was a growing clinical psychiatric awareness that people who are on the autism spectrum, like the appellant, may not do well in total institutions such as jails, though stated that it is not accepted as a clinical contraindication to imprisonment.  He considered that the appellant will suffer more than the average man in experiencing incarceration.
  11. [32]
    On his behalf, in submissions below and on appeal, it was maintained that the appropriate sentence was one that saw the appellant remain in the community to address his issues, recognising the real steps towards rehabilitation which the appellant had already achieved by the time of sentence.  It was submitted, in agreeance with the prosecutor’s submissions below, that a period of 15 to 18 months probation would be appropriate. Counsel submitted that the imposition of a period of imprisonment wholly suspended with an operational period that coincided with the period of probation for the subsequent offending would satisfy the need for general deterrence for this type of offending and in the circumstances of this offending.
  12. [33]
    Counsel for the appellant emphasised in submissions the relevance of the appellant’s mental health issues and submitted that the Magistrate in imposing a period of actual custody had failed to give sufficient weight to his mental health issues. Counsel did not suggest that the appellant’s condition was such as to lessen his moral culpability but rather that it reduced the relevance of general deterrence in the sentencing.
  13. [34]
    The appellant’s plea, his letter to the court and his engagement in rehabilitation is all evidence of his remorse and insight.  Unfortunately, it would seem that it was not until the offending in December 2020 that the appellant was able to recognise the extent of his alcohol abuse problem and take steps to deal with it. 
  14. [35]
    It was that further offending in December which became the focus of the Magistrate’s decision that a period of actual custody was warranted. 
  15. [36]
    However, against that are the significant mitigating factors of his plea and his significant steps taken in rehabilitating, both of which are evidence of his remorse and insight.  It is his rehabilitation which will reduce the likelihood of his reoffending.
  16. [37]
    In all the circumstances, I consider that a sentence which required the appellant to spend a lengthy period on probation with the additional requirement to submit to such medical, psychiatric or psychological treatment as directed will achieve that objective, and that to recognise the seriousness of the further offending on 13 December 2020, some three weeks later, a three month period of imprisonment wholly suspended would be appropriate with convictions to be recorded.
  17. [38]
    In terms of the periods of disqualification, for the offences of driving without a licence, s 78(3)(a) of the TORUM requires that the person must be disqualified for a period of at least 2 years, but not more than 5 years.  For the offence of driving under the influence, s 86(1A) requires, given the appellant’s previous offending in the last 5 years, a period of one year’s disqualification.
  18. [39]
    Under s 83 of that Act, there is no automatic period of disqualification for the offence of driving without due care and attention in the circumstances of this offending; though s 187 of the Penalties and Sentences Act 1992 (Qld) gives a discretion to impose a period of disqualification for that offending.
  19. [40]
    Under s 90C of the TORUM, any period of disqualification imposed for the drink driving offence and the unlicensed driving offence for the offending on 13 December 2020 must take effect cumulatively, making the automatic period of disqualification for those offences three years.  That period is cumulative with the existing period of disqualification of 8 months imposed on 29 October 2020.
  20. [41]
    There is no statutory requirement for the disqualification period imposed for the unlicensed driving offence on 13 December 2020 to be cumulative with any period imposed for the unlicensed driving offence on 15 November 2020.  Absent such a requirement, in my view, it is appropriate for that period to be concurrent with the disqualification period for the unlicensed driving on 15 November 2020.
  21. [42]
    In the circumstances, it is appropriate for each period of disqualification for the unlicensed driving to be the statutory minimum period of two years.  That would make the total period of disqualification for the unlicensed driving offences and the drink driving offence three years.
  22. [43]
    In those circumstances, I do not intend to impose any period in addition to the statutory minimum periods and, as observed by the Magistrate, at the expiration of 2 years from the commencement of this disqualification period, assuming there has been no further offending, an application can be made for the disqualification to be removed.

Order

  1. [44]
    The orders to be made are that the appeal be allowed and the orders of the Magistrates Court made on 28 May 2021 be set aside and the following orders will be substituted:
    1. (a)
      For the charge on Summary Charge Sheet 207615/20, noting the consent of the appellant to such an order, the appellant be released under the supervision of an authorised corrective services officer for a period of 18 months, subject to the conditions set out in s 93 of the Penalties and Sentences Act 1992 (Qld), with the additional requirement that the appellant submit to medical, psychiatric or psychological treatment as directed;
    2. (b)
      For each of the charges on Summary Charge Sheet 21254/21:
      1. The appellant be imprisoned for three months;
      2. The terms of imprisonment to be served concurrently; and
      3. The periods of imprisonment are suspended immediately and the operational period of the order is 18 months; which means that the appellant must not commit another offence within the operational period to avoid being dealt with under s 146A of the Penalties and Sentences Act 1992 (Qld);
    3. (c)
      In addition:
      1. For the charge on Summary Charge Sheet 207615/20, the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years;
      2. For the charges on Summary Charge Sheet 21254/21 of:
        1. (A)
          Driving without a licence whilst disqualified by a court order under s 78(1) & (3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years; and
        1. (B)
          Driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) pursuant to s 86 (1A) of the Transport Operations (Road Use Management) Act 1995 (Qld) the appellant be disqualified from holding or obtaining a driver’s licence for a period of twelve months;
      3. The periods of driving disqualifications imposed for the offences on 13 December 2020 of driving whilst disqualified and drink driving are cumulative and the periods of disqualification for driving whilst disqualified on 15 November and 13 December 2020 are concurrent; making the total period of disqualification three years; and
    4. (d)
      Convictions are to be recorded on all charges.

Footnotes

[1]TORUM s 131(1).

[2](2010) 242 CLR 520.

[3](2010) 242 CLR 520 at [59] quoting Wong v The Queen (2001) 207 CLR 584 at [58] (Wong).

[4]Hili v The Queen (2010) 242 CLR 520 at [59] quoting Wong at [58].

[5]Subsequent to the hearing of the appeal, the appellant’s solicitors confirmed that they had explained to the appellant the conditions of an order of probation and that, having done so, the appellant consented to the making of such an order, including an order containing the additional requirement to submit to such medical, psychiatric or psychological treatment as directed.

[6][2005] QCA 321.

[7][1981] AC 1038, 1045.

[8][2005] QCA 321, 5.

[9][2005] QCA 321, 5-6.

Close

Editorial Notes

  • Published Case Name:

    Lee v Queensland Police Service

  • Shortened Case Name:

    Lee v Queensland Police Service

  • MNC:

    [2021] QDC 262

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    28 Oct 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Hili v The Queen [2010] HCA 45
1 citation
Jump To
Cite 1 - [2010] HCA 45
Hili v The Queen (2010) 242 CLR 520
5 citations
Jump To
Cite 1 - (2010) 242 CLR 520
Cite 2 - (2010) 242 CLR 520
Cite 3 - (2010) 242 CLR 520
Cite 4 - (2010) 242 CLR 520
Cite 5 - (2010) 242 CLR 520
In re Hamilton; In re Forrest [1981] AC 1038
2 citations
Jump To
Cite 1 - [1981] AC 1038
Cite 2 - [1981] AC 1038
R v Cunningham [2005] QCA 321
4 citations
Jump To
Cite 1 - [2005] QCA 321
Cite 2 - [2005] QCA 321
Cite 3 - [2005] QCA 321
Cite 4 - [2005] QCA 321
R v Dodd [1981] 2 All ER 711
1 citation
Jump To
Cite 1 - [1981] 2 All ER 711
Wong v The Queen (2001) 207 CLR 584
2 citations
Jump To
Cite 1 - (2001) 207 CLR 584
Cite 2 - (2001) 207 CLR 584
Wong v The Queen [2001] HCA 64
1 citation
Jump To
Cite 1 - [2001] HCA 64

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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