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Sutcliffe v Queensland Police Service[2022] QDC 135

Sutcliffe v Queensland Police Service[2022] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Sutcliffe v Queensland Police Service [2022] QDC 135

PARTIES:

JACOB OWEN SUTCLIFFE

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

BD149/22

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

10 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2022

JUDGES:

Smith DCJA

ORDER:

  1. 1.The appeal is allowed.
  2. 2.The orders made by the Magistrate on Charges 1 and 3 are varied to the extent that the appellant is disqualified on each charge for the period of five months to be served concurrently. The orders are otherwise not disturbed.
  3. 3.The orders made by the Magistrate in respect of Charges 4, 5, 6 and 7 are varied to the extent that in lieu of the fine of $1,500 the appellant is fined the total sum of $500. The orders are otherwise not disturbed.
  4. 4.No order as to costs.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – whether penalties manifestly excessive – where Magistrate imposed the same disqualification as he would have on a dangerous operation charge – whether Magistrate fettered the sentencing discretion for the sake of consistency

Justices Act 1886 (Qld) s 222

Penalties and Sentences Act 1992 (Qld) s 15D

Transport Operations (Road Use Management- Road Rules) Regulation 2009 s 291

Bertilone v R [2009] WASCA 149; 197 A Crim R 78; 231 FLR 383, applied

Hili v R [2010] HCA 45; (2010) 242 CLR 520, applied

Johnson v QPS [2015] QDC 264, discussed

Lowe v R [1984] HCA 46; (1984) 154 CLR 606, cited

Markarian v R [2005] HCA 25; (2005) 228 CLR 357, applied

Parker v Commissioner of Police [2016] QDC 354, discussed

R v Coleman District Court of Queensland Judge Sheridan 25 May 2015, discussed

R v Lyle [2013] QCA 293, discussed

R v Osborne [2014] QCA 291; 69 MVR 45, applied

R v Pearson [2015] QCA 118, discussed

R v Plath [2003] QCA 567, discussed

Wong v R [2001] HCA 64; (2001) 207 CLR 584, applied

COUNSEL:

Mr A McDougall for the appellant

Ms K Lemass for the respondent

SOLICITORS:

Kroesen & Co Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    The appellant appeals the penalties imposed on him in the Richlands Magistrates Court on 18 January 2022. 
  2. [2]
    The appellant was charged with the following offences and received the following penalties:

Charge 1

Wilfully making unnecessary noise or smoke[1]

16 May 2021

Fined $500, disqualified from holding or obtaining a driver licence for a period of 12 months

Charge 3

Wilfully making unnecessary noise or smoke

19 May 2021

See penalty above

Charge 4

Possession of a dangerous drug

27 May 2021

Fine $1,500, no conviction recorded and referred to SPER

Charge 5

Possess of property suspected of having been used in connection with a commission of a drug offence

27 May 2021

See above

Charge 6

Possess of utensils or pipes that had been used

27 May 2021

See above

Charge 7

Producing dangerous drugs

27 May 2021

See above

Notice of appeal

  1. [3]
    The appellant alleges that the period of disqualification was excessive and the fine imposed on Counts 4 to 7 was excessive.

Background

  1. [4]
    The appellant appeared before the Magistrates Court on 18 January 2022 and pleaded guilty to the charges. Charge 2, a charge of dangerous operation of a motor vehicle was withdrawn.
  2. [5]
    Schedule 1 was the agreed statement of facts.  As to Charge 1 at 9:40am on 16 May 2021, the defendant’s vehicle conducted a manoeuvre on Research Street, Acacia Ridge which caused a large amount of smoke to billow from the vehicle.  The vehicle then drove down Research Street and the appellant could be seen using a mobile phone.[2]  At 9:41am the vehicle then spun its tyres causing a loss of traction and smoke to billow.  It also spun around onto the wrong side of the road. 
  3. [6]
    As to Charge 3, on Wednesday 19 May 2021 at 5.37pm, the defendant returned in his vehicle to Research Street, Acacia Ridge.  It was dusk.  The vehicle turned right into Research Street cutting a corner.[3]  The vehicle spun its tyres causing a loss of traction with smoke billowing from the rear of the vehicle and it conducted the 360 degree turn and crossed on to the wrong side of the roadway.
  4. [7]
    As to the balance of the charges, on 27 May 2021, police executed a search warrant at the appellant’s address.  They smelt burnt cannabis and the appellant declared he had a small amount of cannabis in his drawer.  A small clip seal bag with cannabis weighing 12 grams was located (Charge 4).
  5. [8]
    In the appellant’s draw was a set of electronic scales, an electric grinder and scissors (Charge 5).  On top of the drawers was a glass water pipe with a cone and hose piece (Charge 6).
  6. [9]
    The appellant made admissions with respect to these charges. With respect to Charge 7, police located a plastic pot with a small number of plants growing in the soil.  The appellant made admissions to watering these plants.  There were 45 in total.  The total weight was two grams. 
  7. [10]
    The appellant had no criminal history and was polite and respectful with police throughout the investigation.  His traffic history was tendered which showed a number of traffic infringements including four from the day in question.  The prosecutor pointed out that $2,334 worth of tickets were issued on the particular day.  The appellant’s vehicle was impounded and the cost of this came to $2,683.76. 
  8. [11]
    The prosecution submitted that the matter should be dealt with by way of fine.  With respect to the drug offences, it might be appropriate to order drug diversion.[4]  The prosecutor pointed out that the Magistrate could disqualify the appellant and the Magistrate said “well why shouldn’t he be treated the same as any other hoon doing the exactly the same thing.”
  9. [12]
    I also note the Magistrate asked when the dangerous operation charge was dismissed “Why is this defendant being treated differently to every other defendant?”
  10. [13]
    Defence counsel pointed out that the total amount already paid by the appellant was $5,017.76, so the offending had already been quite costly to him.  A letter under the hand of his employer was tendered which indicated the appellant was a valuable employee and had been working in that job since May, so a disqualification would impact his ability to get to and from work.  He had a limited traffic history and the biggest impact on his traffic history was from these offences.  In light of the fact, the appellant had no criminal history, counsel requested the Magistrate to consider a drug diversion order.  The Magistrate indicated that once one got to the stage of growing 45 plants, drug diversion was not appropriate.
  11. [14]
    Defence counsel also submitted that the appellant had done the QTOP course. 
  12. [15]
    As to the disqualification, the Magistrate asked why he shouldn’t disqualify the appellant in the same way as any other hoon who came to this jurisdiction and “does precisely the same thing.”  Defence counsel submitted the appellant had a limited traffic history, a three-year old son and had already been penalised significantly.  The Magistrate said:

“Anyone else who is doing burnouts and donuts on public roads here gets as a starting point a twelve-month disqualification. That’s our consistent sentencing approach between both me and Magistrate Simpson because this jurisdiction is hoon central …”

  1. [16]
    Defence counsel asked the Magistrate to take into account that the offending occurred outside business hours and there was not a whole crowd of people watching and there was no other traffic seen.
  2. [17]
    The Magistrate in his decision took into account the pleas of guilty.  He said he took into account the ticketed amounts received.  He said he sentenced people every day of the week for hooning in this jurisdiction where hundreds of people turned up.  He said the appellant was lucky it was not a case with hundreds of people there in the middle of the night.  He said that his behaviour was identical to every other hoon.  He did not see why he should be dealt with any differently.  He found that because he grew 45 plants it went beyond the point of mere drug diversion.  A significant fine was appropriate and he would not record a conviction.  He imposed the penalties referred to earlier.

Appellant’s submissions

  1. [18]
    The appellant in his submissions submits that the Magistrate erred in that he, in effect, considered the period of disqualification as applicable to the offence of dangerous operation of a motor vehicle, even though this charge had been discontinued.  It is pointed out that the Magistrate said that even if the charges were different the behaviour was precisely the same.  It is submitted the Magistrate imposed a term of disqualification in line with dangerous operation cases in those circumstances.  It is also submitted the Magistrate erred in finding (without notice/evidence) that there was a prevalence of such offending in the Inala jurisdiction. 
  2. [19]
    With respect to the drug offences, it is submitted in reliance on authority that the penalty was excessive.
  3. [20]
    It is ultimately submitted that the periods of disqualification be reduced to not more than six months and the appellant be given the benefit of drug diversion or alternatively a lesser fine.

Respondent’s submissions

  1. [21]
    As to the disqualification point, the respondent acknowledges that the Magistrate considered the appellant should be treated the same say as any other hoon should be doing the exactly the same thing. 
  2. [22]
    It is ultimately accepted by the respondent that the Magistrate erred in treating the appellant the same as other “hoons” even though he was not charged with dangerous operation of a motor vehicle.  The respondent refers to other cases and submits that the Magistrate’s decision to disqualify the appellant for 12 months may be considered excessive.
  3. [23]
    With respect to the fine for the drug offences, it is conceded that the penalty is excessive.  In the circumstances the respondent concedes that the appellant should be disqualified from holding or obtaining a driver licence for the period of up to six months and the appellant be fined the amount of $750 or sentenced to a community- based order for the drug offences.

Disposition

  1. [24]
    With respect to the disqualification period, I agree with the parties that the Magistrate erred in his approach to this matter.  He imposed the same penalty with respect to this appellant as he would have done on a person charged with dangerous operation of motor vehicle.  The offences to which the appellant pleaded guilty were less serious charges and in those circumstances if a disqualification order was to be made, a more lenient disqualification period ought to have been imposed. 
  2. [25]
    Additionally I consider the Magistrate erred in blindly applying a rule of consistency without having regard to the individual circumstances of the case.
  3. [26]
    There is no doubt that it is desirable there be some consistency in the imposition of punishment[5] but in Wong v R[6] the majority observed that to attempt a statistical analysis of sentences for an offence which encompasses a wide range of conduct and criminality is fraught with problems. The fact is that a sentencing court not only considers the seriousness of the offence but also the individual circumstances of the offender.[7] Neither principle nor any grounds of appellate review dictate the particular path that a sentence must follow, as the judgment is a discretionary one and there is no single correct sentence[8]
  4. [27]
    Also while reasonable consistency (certainly as to Commonwealth offences) might be important, such an object cannot fetter the sentencing judge’s discretion.[9] There should be no “norm” or starting point.[10] However there is nothing wrong with a court looking at comparable cases and to take them into account in determining the appropriate penalty.
  5. [28]
    In this case I consider the Magistrate erred in failing to take into account the individual circumstances of the offender in reaching his conclusion as to the length of the period of disqualification.
  6. [29]
    The power to disqualify in such a case is contained in s 187 of the Penalties and Sentences Act 1991 (Q). This section provides:
  1. “(1)
    If—
  1. (a)
    an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and
  2. (b)
    the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence.

  1. (2)
    Subsection (1) applies whether or not a conviction is recorded.”
  1. [30]
    In R v Osborne[11] the Court of Appeal at [57] stated:

[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; - the consequences of the disqualification upon the offender’s future employment prospects; - the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; - the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.” (Footnotes omitted)

  1. [31]
    In R v Plath[12] the applicant was found guilty after a trial of dangerous operation of a vehicle causing grievous bodily harm. The applicant struck the complainant by failing to keep a proper lookout, overtaking another vehicle when it was unsafe to do so, driving on the incorrect side of the roadway and driving too close to the vehicle in front. The applicant had a not insignificant traffic history including a conviction for careless driving and a minor traffic history. He was sentenced to 18 months imprisonment suspended after six months and disqualified for five years. The court reduced the disqualification period to 12 months. At [18] it was noted the applicant was in regular employment and his inability to hold a licence would cause significant hardship. His rehabilitation would be dependent on his finding gainful employment. Clearly that case was more serious than the present one.  
  2. [32]
    In Johnson v QPS[13], the appellant was convicted of an offence of dangerous operation of a vehicle was fined $2,000 and ordered to pay compensation and disqualified for 12 months.  On appeal, the disqualification period was reduced to seven months.  In that case, the appellant drove a vehicle with a 16-year-old female passenger at least 100 kilometres per hour in a 50 kilometre per zone, driving through a roundabout and losing control.  The appellant was 22 years of age with no criminal history and a limited traffic history.  I consider that case to be more serious than the present one.
  3. [33]
    In Parker v Commissioner of Police[14], the appellant was convicted of the offence of dangerous operation of a vehicle in the Magistrates Court at Caloundra and was fined $1,800, disqualified from holding or obtaining a driver licence for six months and a conviction was recorded.  On appeal, the recording of a conviction was set aside.  In that matter, the Toyota van was travelling on the Bruce Highway when it left the road and crashed into a culvert.  There were three occupants in the vehicle which seated only two people.  The appellant told police the crash occurred when the appellant and the front passenger attempted to swap seats whilst the vehicle was still in motion.  A passenger was thrown about the cabin and suffered injury.  The appellant was 34 years old with a criminal history with no convictions recorded and a dated traffic history.  Again, I consider that case to be more serious than the present one.
  4. [34]
    In R v Coleman[15], the defendant was convicted of the offence of dangerous operation of a vehicle, ordered to perform 100 hours of community service and disqualified from holding or obtaining a driver licence for the period of six months.  This offending occurred when the complainant attended the defendant’s property to collect her horses and an argument ensued.  The defendant did a U-turn, drove back down the driveway towards a gate and slowly used his car to push the gate shut.  This hit the complainant.  The complainant suffered minor bruising and a torn toenail.  The defendant was 41 years of age with no criminal history but an unimpressive traffic history.  Again, I consider that case to be more serious than the present one.
  5. [35]
    I agree with the Magistrate that deterrence was relevant although this must be balanced again in the individual circumstances of the offender.  In my opinion, it would wrong to simply adopt a single sentencing rule for everybody.  This would be fettering the exercise of the court’s discretion. 
  6. [36]
    Bearing in mind the facts of the case; the limited traffic history; the absence of criminal history; the effect that a disqualification would have on the appellant, I consider a disqualification period of five months on each charge (concurrent) to be appropriate.
  7. [37]
    With respect to the penalties imposed regarding the drug charges, in R v Pearson[16] the applicant pleaded guilty to one count of producing a dangerous drug in excess of 500 grams; two counts of possessing a dangerous drug; one count of possessing a thing for use in connection with producing a dangerous drug and one count of possessing things used in connection with producing a dangerous drug.  He also pleaded guilty to the summary offence of possessing utensils.  The Court of Appeal dismissed the appeal against sentence where a fine $1,500 was imposed.  There was a total of 12 cannabis plants which weighed 2.2 kilograms.  The dried cannabis by itself weighed 408 grams so a total of 2.6 kilograms.  No commercial purpose was alleged.  The applicant was 47 years of age with no prior convictions.  That was a more serious case than the instant one.
  8. [38]
    In R v Lyle[17], the Court of Appeal upheld an appeal against a sentence of six months imprisonment with immediate parole in respect of eight plants weighing 10.47 kilos and a further 3.3kg of cannabis.  The applicant made admissions but limited to ownership.  The plants were grown on a hydroponic system with large fans and a watering system in a shed.  No commercial purpose was alleged.  He was 34 years of age at the time of the offending and had a good work history.  He had an addiction to cannabis.  A fine $3,000 with a conviction recorded was imposed.
  9. [39]
    In those circumstances, I consider that the fine $1,500 was excessive.  In my respectful opinion, an amount of $500 should be imposed bearing in mind the quantities involved in this case.

Conclusion

  1. [40]
    In the circumstances, I make the following orders:
  1. The appeal is allowed.
  2. The orders made by the Magistrate on Charges 1 and 3 are varied to the extent that the appellant is disqualified on each charge for the period of five months to be served concurrently. The orders are not otherwise disturbed.
  3. The orders made by the Magistrate in respect of Charges 4, 5, 6 and 7 are varied to the extent that in lieu of the fine of $1,500 the appellant is fined the total sum of $500. The orders are otherwise not disturbed.
  4. No order as to costs.

Footnotes

[1]  Section 291(1)(b) of the Transport Operations (Road Use Management- Road Rules) Regulation 2009 (Q)- maximum penalty 20 penalty units.

[2]  He was later issued a TIN for $1,000.

[3]  The appellant was issued with a TIN in the amount of $240.

[4]  Section 15D of the Penalties and Sentences Act 1992 (Q) prevents the offence of producing a dangerous drug being referred to drug diversion. 

[5] Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at p 610.

[6]  [2001] HCA 64; (2001) 207 CLR 584 at [66].

[7] Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [10].

[8] Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27].

[9] Bertilone v R [2009] WASCA 149; 197 A Crim R 78; 231 FLR 383 at [38].

[10] Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [38].

[11]  [2014] QCA 291; 69 MVR 45.

[12]  [2003] QCA 567.

[13]  [2015] QDC 264.

[14]  [2016] QDC 354.

[15]  Judge Sheridan 25 May 2015.

[16]  [2015] QCA 118.

[17]  [2013] QCA 293.

Close

Editorial Notes

  • Published Case Name:

    Sutcliffe v Queensland Police Service

  • Shortened Case Name:

    Sutcliffe v Queensland Police Service

  • MNC:

    [2022] QDC 135

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    10 Jun 2022

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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