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- Unreported Judgment
Franich v Commissioner of Police QDC 171
DISTRICT COURT OF QUEENSLAND
Franich v Commissioner of Police  QDC 171
GREGORY MICHAEL FRANICH
COMMISSIONER OF POLICE
Magistrates Court at Noosa
19 July 2022 (ex tempore)
19 July 2022
Allen QC DCJ
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appeal against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to driving over the general alcohol limit but not over the middle alcohol limit – where the appellant was fined $500 and disqualified from holding or obtaining a driver’s licence for a period of four months – where the appellant was issued a restricted licence – whether the learned Magistrate failed to take into account the plea of guilty – whether the sentence imposed is manifestly excessive by reason of the length of the licence disqualification period
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 13
Transport Operations (Road Use Management) Act 1995 (Qld), s 79
AB v The Queen (1999) 198 CLR 111
House v The King (1936) 55 CLR 499
R v Burrows  QCA 378
Rongo v Commissioner of Police  QDC 258
Wilson v Commissioner of Police  QDC 15
A J Owens, Owens & Associates, for the appellant
R Dunmall, Office of The Director of Public Prosecutions (Qld), for the respondent
- On the 13th of April 2022, in the Magistrates Court at Noosa, the appellant pleaded guilty to a charge that on 17 March 2022 he drove a motor vehicle whilst over the general alcohol limit but not over the middle alcohol limit, contrary to section 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld). The plea of guilty was entered on behalf of the appellant by his solicitor.
- The learned Acting Magistrate then heard from the prosecutor as follows:
The facts in relation to this matter. On 10 am, 17th of March 2022, police were conducting patrols on Beckmans Road in Noosaville. They observed a silver coloured Subaru Outback parked on the shoulder of the road. There was a person lying on the ground and another person standing up. Police spoke to them. The male on the ground appeared to have injuries consistent with being assaulted or highly intoxicated. The male standing up identified himself as the defendant. When questioned the defendant said he had driven his vehicle from McDonald’s to the location, and police rendered assistance to that male on the ground. The defendant was then subject to a roadside breath test. He was conveyed then for a further test. Certificate was returned indicating breath alcohol concentration of .086. I’ll tender that breath analysis certificate and the defendant’s traffic history. I have read the application for a restricted licence and can indicate that it’s not opposed.
- The appellant’s solicitor read an application for a restricted licence, an affidavit of the appellant, and tendered documentation evidencing successful completion of a Queensland Traffic Offenders Program by the appellant. The appellant’s solicitor noted the appellant was aged 38 years of age and further submitted as follows:
It’s an early plea of guilty. Your Honour will see he made full and frank admissions to police at the time of the incident. In my submission, they’re actually very important admissions. He wasn’t seen or any evidence of him driving. It was when they approached him outside the vehicle that he made full and frank admissions, so in my submission, it’s approach AB v R type cooperation. Without him talking to the police they might not have been able to prove the offence, but he was cooperative in that respect, your Honour.
- The appellant’s solicitor noted the absence of any evidence of “adverse driving” and that the only like previous conviction was 17 years previously. The learned Acting Magistrate stated that he would not take any notice of it. The appellant’s solicitor noted the appellant’s antecedents, including his good employment record. The appellant’s solicitor referred to his completion of the Queensland Traffic Offenders Program, and made further submissions in relation to the grant of a restricted work licence, before concluding submissions as follows:
And in relation to the disqualification itself, your Honour, the minimum is one month, but I would asking your Honour to impose a disqualification of not more than two months in the circumstances of the lack of any other indicia about his driving, his lack of history, and the fact he has completed the QTOP program, your Honour.
- The learned Acting Magistrate commenced his sentencing remarks as follows:
Now, you’ve pleaded guilty to this charge. We’ve heard the facts.
…You’ve accepted those facts as true and correct. I note the reading and I note that the only previous you had for a similar type of matter was 2005. So that’s a number of years ago. I really disregard that.
…Taking into account all the matters, including your application for a restricted licence, I will proceed now as follows: your plea of guilty is accepted. A conviction is recorded. And for the offence, you are convicted and fined $500. I will order payment of that fine be referred to SPER.
- The learned Acting Magistrate then went on to deal with the application for restricted licence and found that the appellant was an eligible person to be granted a restricted licence before stating:
Now, for the offence you are disqualified from holding or obtaining a Queensland driver’s licence for a period of four months from today, and I direct that a restricted licence be issued to you during that period of disqualification…
- The appellant has appealed against the sentence imposed by the learned Acting Magistrate pursuant to section 222 of the Justices Act 1886 (Qld). The appeal is by way of a rehearing on the record. The onus is upon the appellant to show that there has been some error in the decision under appeal. The appeal is against the exercise of discretion and so the principles in House v The King (1936) 55 CLR 499 at 504-505 apply.
- Where a person pleads guilty to a summary charge, they may only appeal pursuant to section 222 “on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”. A court ought not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to penalty. To succeed on the appeal, the appellant must satisfy the appellate court that the sentence imposed is outside the acceptable scope of judicial discretion. Often such is established by reference to comparative decisions. Even if an appellate court finds that the sentence was at the top end of a permissible range or has a different view as to how the discretion should have been exercised, that is not sufficient justification for interference with sentence. The court should only interfere upon being satisfied of manifest excess of sentence and error of the second type referred to in the earlier cited passage of House v The King.
- The appellant does not complain about the quantum of the fine imposed or the recording of a conviction. The stated grounds of appeal are:
- The sentence is manifestly excessive to the extent of the disqualification period imposed;
- The learned sentencing Magistrate failed to properly take into account the plea of guilty.
- The appellant repeats those submissions made on his behalf in the Magistrates Court and submits that, having regard to those mitigating factors of the lack of any relevant previous convictions, the cooperation with police by way of admissions analogous to those attracting the particular leniency discussed by the High Court in AB v The Queen, the appellant’s early plea of guilty, his completion of the Queensland Traffic Offenders Program and his favourable antecedents, including employment history, that a disqualification of four months, albeit tempered by the grant of a restricted work licence, renders the sentence manifestly excessive.
- The ground of appeal alleging specific error by the learned Acting Magistrate failing to state, as required by section 13(3) of the Penalties and Sentences Act 1992 (Qld) (PSA), that he took account of the guilty plea in determining the sentence imposed, is relied upon as a reason why the sentence imposed is manifestly excessive. It is certainly reasonably arguable that the learned Acting Magistrate failed to comply with section 13(3) of the PSA, despite his reference to the fact of the appellant’s plea of guilty. It would have been better had the learned Acting Magistrate gone on to specifically state that the plea of guilty was taken into account in determining sentence. However, the question for the court remains one whether or not the sentence imposed is manifestly excessive.
- The appellant was to be sentenced for driving a motor vehicle whilst above the general alcohol limit of 0.05 BAC, but not over the middle alcohol limit of 0.10 BAC. As noted earlier, the actual reading was 0.086 BAC. The range of disqualification provided in the circumstances of the appellant’s offending was a period of not less than one month and not more than nine months disqualification. It is relevant, when considering whether or not the imposition of a four month disqualification period renders the sentence manifestly excessive, that the effect of that disqualification upon the appellant was tempered to some extent by the grant of the restricted work licence.
- Neither party has been able to refer to comparative decisions to assist this court in a determination as to whether or not such a sentence is within the range of sentences ordinarily imposed in the Magistrates Court for such offending or, to the contrary, stands apart from such a usual range. This court is therefore not assisted by a consideration of the yardsticks of any comparative decisions. Regard must be had to all the circumstances of the offence and the offender. I note that the BAC reading of the appellant falls somewhat above the middle of the range of BAC for such an offence. I note that the length of disqualification imposed falls a little below halfway in the range of periods of disqualification provided.
- In all the circumstances, it would have been well within the proper exercise of the sentencing discretion for the learned Acting Magistrate to accede to the submission on behalf of the appellant that a period of disqualification of no more than two months be imposed, or that some other period less than four months disqualification be imposed. However, I am not satisfied that the appellant has demonstrated that the imposition of a period of four months disqualification falls outside a permissible exercise of sentencing discretion. I am not satisfied that the sentence imposed is unreasonable or plainly unjust. I am not satisfied that the sentence imposed is rendered manifestly excessive because of the imposition of a four month period of disqualification. The appeal is dismissed.
- Published Case Name:
Franich v Commissioner of Police
- Shortened Case Name:
Franich v Commissioner of Police
 QDC 171
Allen QC DCJ
19 Jul 2022