Hodgson v Commissioner of Police
[2023] QDC 73
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- Hodgson v Commissioner of Police[2023] QDC 73
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Hodgson v Commissioner of Police[2023] QDC 73
Hodgson v Commissioner of Police[2023] QDC 73
DISTRICT COURT OF QUEENSLAND
CITATION: | Hodgson v Commissioner of Police [2023] QDC 73 |
PARTIES: | DANIEL HODGSON (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | DC 43 of 2022 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | Date of Orders: 04 May 2023 Date of Publication of Reasons: 08 May 2023 |
DELIVERED AT: | Southport |
HEARING DATE: | 20 April 2023 |
JUDGE: | Wooldridge KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – MAGISTRATES – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – an appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was sentenced for an offence of Being in charge of a motor vehicle while under the influence pursuant to s 79(1)(c) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the appellant was fined $1500 and disqualified from holding or obtaining a driver’s licence for a period of 12 months – where the appellant contends the sentencing discretion miscarried – where appellant contends the learned Magistrate erroneously placed weight on a roadside breath test – whether the sentence was manifestly excessive Justices Act 1886 (Qld) s 222, s 223, s 225, s 232, s 232A Transport Operations (Road Use Management) Act 1995 (Qld) s 79, s 79A, s 79B, s 86 Andrew Farmer v Queensland Police Service [2019] QDC 276 Barbaro v The Queen (2014) 253 CLR 58 House v The King (1936) 55 CLR 499 McDonald v Queensland Police Service [2018] 2 Qd R 612 Roach v Queensland Police Service [2015] QDC 150 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 R v Kilic [2016] HCA 48; (2016) 259 CLR 256 R v Pham (2015) 256 CLR 550 Scarce v The Commissioner of Police [2021] QDC 246 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | T Newman for the applicant A Tranent for the respondent |
SOLICITORS: | Donnelly Law Group for the applicant The Office of the Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]On 7 September 2022 the appellant pleaded guilty in the Magistrates Court at Beenleigh to one offence of being in charge of a motor vehicle while under the influence, pursuant to section 79(1)(c) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”). The appellant was fined $1500 and disqualified from holding or obtaining a driver’s licence for a period of 12 months from the date of sentence.
- [2]By way of a Notice of Appeal filed 4 October 2022 the appellant appeals against the sentence imposed on the ground that “the sentence imposed was, in all the circumstances, manifestly excessive”.
- [3]The focus of the appellant’s submissions on the appeal has been the factual basis on which the sentence proceeded, and the period of disqualification ordered.
The legal framework for the appeal
- [4]Section 222(2)(c) of the Justices Act 1886 provides that if a defendant pleads guilty or admits the truth of a complaint, they may only appeal under section 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive.
- [5]Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 of the Justices Act 1886 is by way of rehearing on the evidence below.[1]
- [6]In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.[2] A mere difference of opinion between an appellate court and the court at first instance about the way in which the sentencing discretion may or should have been exercised is insufficient to justify appellate intervention. Absent demonstration of specific error, an appellant need establish that the sentence imposed was unreasonable or unjust such that the appellate court is driven to conclude that the exercise of the sentencing discretion has miscarried in some way.[3]
- [7]The powers of a judge on hearing the appeal are set out in section 225. Section 225 provides:
“225 Powers of judge on hearing appeal
- (1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
…
- (3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
…”
The factual basis on which the appellant fell to be sentenced
The charge
- [8]The charge under section 79(1)(c) TORUM to which the appellant pleaded guilty read as follows:
“that on the 3rd day of May 2022 at Eurimbula in the Magistrates Courts District of Bundaberg in the State of Queensland, one Daniel Hodgson, whilst he was under the influence of liquor or a drug was in charge of a motor vehicle, namely a motor car, on a road, namely Eurimbula Road, Eurilmbula”[4].
The submissions before the learned Magistrate[5]
- [9]The police prosecutor informed the Magistrate that the police had attended upon a Toyota Landcruiser and observed the engine to be running and the appellant “passed out in the front driver’s seat with his head back”. [6]
- [10]
- [11]Upon the breath specimen result being referred to in the oral submissions of the prosecutor, the solicitor appearing for the appellant interjected to state “that’s roadside”. This was confirmed by the prosecutor, who further clarified that it appeared the attending police had been required to attend to another matter and had been unable to “deal with” the appellant at the time, but had charged him with being in charge of the vehicle.[9]
- [12]The appellant’s solicitor informed the learned Magistrate that the appellant had been camping with others in a national park, and some of those whom he had been with had become involved in an altercation which turned extremely violent. The appellant had not otherwise been intending to drive, but had decided to drive away to escape from the situation. It was in those circumstances that he came to be parked beside the road “in control” of the vehicle, as charged. The police had happened upon the appellant on their way to respond to the incident at the national park. That was also the context as to why the appellant had not been taken to the police station and “subjected to an actual breath test”.[10]
- [13]A short time later His Honour observed that the “reading” – being the specimen of breath obtained roadside of 0.327 – was an “extraordinarily high reading”[11]. The appellant’s solicitor responded as follows:
“Your Honour, that reading’s actually not admissible. It is a roadside reading. And as your Honour is aware…there’s a reason why the roadside reading is not used as admissible evidence….obviously [the appellant] accepts that he was in range, but as your Honour will note, there are many circumstances that affect a roadside….”.[12]
- [14]To this the learned Magistrate stated “sure”, and observed that the appellant had been "charged”.[13]
- [15]Relevant to the issues on the appeal, Counsel for the appellant identified[14] that the acceptance that the appellant was “in range” was to be understood, in context, to be an acceptance that the appellant was within the “high alcohol”[15] range - that is, that that he had a breath alcohol concentration of at least 0.15.
The reasons of the learned Magistrate
- [16]In the course of his concise sentencing remarks[16] the learned Magistrate stated that he took into account what had been said on the appellant’s behalf, and “the circumstances of this particular offending behaviour”.[17] His Honour did not make any more specific reference to the conduct or criminality for which the appellant was being sentenced. No reference was made to any specific concentration of alcohol in the appellant’s breath.
The submissions on appeal
- [17]In the appellant’s written submission on the appeal, it was submitted[18] that the appellant had been informed by the police, following case conferencing in the Magistrates Court, that he was to be charged (or as understood, sentenced) only on the basis of his indicia – that is rather than any particular alcohol concentration reading – and that he had thereafter pleaded guilty to the offence at the first opportunity. It was submitted that the prosecutor’s reference to the breath test result in the course of submissions was unexpected and erroneous.
- [18]There was no application on this appeal to adduce new evidence pursuant to section 223(2) Justices Act 1886 (Qld). It was accepted in the course of submissions at the hearing of the appeal[19] that the appeal therefore ought to proceed on the basis of the record of the proceedings below[20], and not with reference to what may have been discussed between the parties prior to the hearing, that not being apparent on the record.
- [19]The appellant’s submissions maintained that the breath test result was in any event “inadmissible and irrelevant detail” on the sentence proceedings,[21] and to the extent the reading was referred to it should have been identified that it was indicative only of an alcohol concentration exceeding the high alcohol limit.[22]
- [20]It was submitted that the appellant fell to be sentenced on the basis that he was under the influence and had a concentration of alcohol in his breath over the high alcohol limit of 0.15[23] but not (more specifically) of 0.327 as referred to by the prosecutor in the course of oral submissions at the sentence hearing.
- [21]
- sentenced the appellant on the basis he had an admissible breath alcohol concentration of 0.327; and/or
…
- erroneously placed weight on the roadside breath test reading and imposed a sentence that was manifestly excessive in the circumstances.
The position of the respondent
- [22]The respondent conceded that the roadside reading here was not admissible evidence of a particular alcohol concentration.[25]
- [23]It was however submitted that the learned Magistrate was entitled to take into account the result as “an indicator of alcohol concentration”[26]; that is, that the appellant had an alcohol concentration within the high alcohol range, the evidence of the reading being indicative of that and of his being, as per his plea, “under the influence”.[27] The appellant, therefore, fell to be sentenced on the basis that he was in charge of the vehicle in the circumstances described, and under the influence of liquor in that he was in the high alcohol range and displaying such further indicia as referred to. As concerns his being in the high alcohol range, he fell to be sentenced on the view most favourable to him, being that his alcohol concentration was to the bottom of that range.[28]
Discussion
- [24]The admissibility of roadside breath test results at law, more generally[29], need not here be considered. It is not in issue that in the present case there was not admissible evidence, or more particularly, admissible evidence before the court, of the appellant having a concentration of alcohol in his breath at the relevant time in the order of 0.327. It is also not in issue that, as a factual contention, it was not accepted by the appellant that his breath alcohol concentration at the relevant time was 0.327.
- [25]Ultimately, there was no divergence between the parties as to the factual basis on which the sentence would be understood to have proceeded, and the basis on which the learned Magistrate ought to have proceeded. I accept the submissions of the parties in that regard.
- [26]A review of the record, however, does not in my view compel a conclusion that the learned Magistrate proceeded, ultimately, on other than the basis identified by the parties before me to have been the appropriate sentencing basis. The charge to which the appellant pleaded guilty, did not require evidence of a particular alcohol concentration. His Honour’s remarks did not refer to any particular breath alcohol concentration. It is evident from his Honour’s remarks that the learned Magistrate was cognizant of the charge to which the appellant had pleaded guilty, and the submissions made by the appellant’s legal representative.
- [27]It has not in my view been demonstrated that the learned Magistrate sentenced the appellant on the basis that, further to having a breath alcohol concentration in the high alcohol “range”, that is of at least 0.15, the appellant had any particular breath alcohol concentration at the relevant time.
- [28]Accordingly, I do not accept that specific error has been demonstrated on this basis alleged by the appellant.
Was the sentence imposed manifestly excessive?
- [29]Proceeding on the basis that the learned Magistrate did not err in his understanding of the basis on which the appellant was to be sentenced, it remains necessary to consider whether the sentence imposed was in all the circumstances, manifestly excessive.
- [30]At first instance the prosecution did not make any submissions as to the appropriate penalty to impose, including by way of disqualification period.
- [31]On behalf of the appellant at first instance it was submitted[30] that the learned Magistrate may impose a fine. No submission was made as to the quantum of the fine, but the learned Magistrate was asked to make the fine “the focus” rather than the licence disqualification. The learned Magistrate was asked to consider ordering a licence disqualification period of “close to the mandatory minimum”, being 6 months from the date of sentence[31].
- [32]The appellant’s level of alcohol, or the degree that he was under the influence was clearly of relevance. However, as the learned Magistrate identified, the conduct of the appellant, being “in charge” of a vehicle in the circumstances alleged, was less serious than, for example, an allegation of driving of the vehicle under the influence.[32] The precipitating circumstances, in which the appellant came to be found by police “in charge” of the vehicle, without excusing his conduct, were also somewhat unusual, and were relevant to a consideration of the appropriate exercise of the sentencing discretion in this case.
- [33]His Honour referred to the appellant’s prior traffic history, as including “a previous in 2014 for like offences[33] but nothing since”.
- [34]Additionally, the appellant had in the “past year” undergone personal stressors, including the loss of employment and the sudden passing of his sister.[34]
- [35]The appellant’s licence had, as at the time of sentence, been suspended for the period of over four[35] months since he was charged[36]. His Honour here expressly referred to having taken the earlier licence suspension period into account[37] in determining the period of licence disqualification to order.
- [36]Further, the appellant had in the intervening period since the offence completed the Queensland Traffic Offenders Program. The appellant was at the time of sentence seeking employment as an electrician, the prospects of which it was submitted would be impaired by an ongoing licence disqualification.
- [37]Although it is necessary to consider the sentence orders made as a whole, including the fine imposed, the submissions on the appeal were, consistent with the submissions made at first instance, primarily directed toward the period of licence disqualification ordered. It was submitted that a licence disqualification of 12 months from the date of sentence, resulting in the total period that the appellant was thereby to be without a licence being in excess of 16 months was, in all the circumstances, excessive and unjust.
- [38]Section 86(2A) TORUM provides that in determining the relevant period of licence disqualification, a court must have regard to “the concentration of alcohol in the blood or breath of the defendant, or the presence of a relevant drug in the defendant's blood or saliva, and the danger, real or potential, to the public in the circumstances of the case.” That is not to suggest that other matters may not also be of relevance. Here, as noted, the appellant was to be sentenced as having a concentration of alcohol in his breath of at least 0.15. Clearly being in control of a vehicle with the engine turned on, while under the influence, would be thought to present at least a potential risk to public, although the degree of that risk is difficult to further quantify on the facts otherwise presented. No submissions were made by the prosecution before the learned Magistrate directly addressing the danger presented to the public, real or potential, in the circumstances. The submissions of the appellant, which were not contested, were to the effect that that after administering the roadside breath test the police “basically let [the appellant] go, and passed on”, in the context of their attendance being required at the “violent altercation” which the appellant had sort to remove himself from.
- [39]The appellant on this appeal has also referred the Court to a number of other cases[38] of the District Court which it is submitted, assist in demonstrating that the length of the disqualification period here was plainly unreasonable and unjust, such that the Court would conclude that there must have been some error in the sentencing discretion. I have had regard to the decisions mindful that while the range of sentences imposed in the past may inform consistency in sentencing and a uniform application of principle, they do not fix the boundaries of the penalty that may be appropriate in the instant case.[39]
- [40]It may be accepted that matters of deterrence, community protection and community denunciation are of significance to the exercise of the sentencing discretion for offences under section 79 TORUM. Here, while the appellant did have relevant traffic history, that need also be considered in the context of the intervening period since that earlier conduct, and the circumstances of his offending on this occasion.
- [41]In my view, in all the circumstances, the disqualification of the appellant for a period of 12 months from the date of sentence was manifestly excessive. I reach that view in particular having regard to the conduct for which the appellant fell to be sentenced, the circumstances of the offending, the relevant legislative considerations, and the period of time the appellant’s licence had been suspended prior to sentence.
- [42]The appellant has now been without a driver’s licence for a total period of, effectively, 12 months, once the suspension upon being charged, and the disqualification period from the date of conviction (and sentence), are considered. That period in my view adequately reflects the relevant sentencing considerations. In the circumstances I order that the appellant is disqualified from holding or obtaining a driver’s licence for a period of eight months from the date of conviction.
- [43]The quantum of fine imposed however was in my view appropriate, and remains appropriate, particularly given the approach to the exercise of the sentencing discretion urged by the appellant’s legal representative at first instance.
Costs
- [44]The respondent did not oppose an order that the respondent pay the appellant’s costs of the appeal on the standard basis,[40] in the event that the appeal were allowed. I so order.
Footnotes
[1]Justices Act 1886 (Qld) s 223.
[2]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3], [4]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].
[3]See House v The King (1936) 55 CLR 499 at 504-505; R v Pham (2015) 256 CLR 550 at [28].
[4]The charge also included specific averments that the motor car was a motor vehicle, and Eurimbula Road was a road, as defined in schedule 4 of TORUM.
[5]The transcript of proceedings is not itself paginated and as such the pagination of the transcript as part of the exhibits to the affidavit of Shawn Singer, filed on behalf of the respondent, and marked Exhibit 3 on the appeal, has been utilised.
[6]Exhibit 3, page 9 line 38.
[7]Exhibit 3, page 9 line 44.
[8]To indicate that the appellant had a concentration in his breath of 0.327 of alcohol in 210L of breath.
[9]Exhibit 3, page 9 line 47 to page 10 line 4.
[10]Exhibit 3, page 10 lines 15-26.
[11]Exhibit 3, page 11 line 11.
[12]Exhibit 3, page 11 lines 13-21.
[13]Exhibit 3, page 11 lines 19-23.
[14]Transcript of proceedings of 20 April 2022, page 18 line 41 to page 19 line 17.
[15]As defined in section 79A(3) TORUM.
[16]The remarks as transcribed are 11 lines of text.
[17]Exhibit 3, page 13 lines 1-2 and lines 7-8.
[18]Page 3 of the Outline of Argument of the Appellant at paragraphs b)-d).
[19]Transcript of proceedings of 20 April 2023, pages 2 to 3.
[20]Section 223(1) Justices Act 1886 (Qld).
[21]Page 3 of the Outline of Argument of the Appellant at paragraph d).
[22]Transcript of proceedings of 20 April 2023, page 10 line 47 and page 11 line 32.
[23]To the extent that the submissions at the hearing had been directed to the offence under section 79(1) TORUM only having application in circumstances where a defendant had an alcohol concentration of over 0.15, I do not accept those submissions. However, it is unnecessary to address those submissions further in light of the acceptance that the plea here proceeded on the basis that the concentration of alcohol in the appellant’s breathe would be understood to have been in that (high) range.
[24]Page 2 of the Outline of Argument of the Appellant.
[25]Paragraph 6.6 of the Respondent’s outline of submissions; Transcript of proceedings of 20 April 2023, page 32 lines 19-20.
[26]Paragraph 6.8 of the Respondent’s outline of submissions.
[27]Transcript of proceedings of 20 April 2023, page 31.
[28]Transcript of proceedings of 20 April 2023, page 32 lines 34-47.
[29]Including evidentiary provisions relating to the certificates of analysis.
[30]Exhibit 3, page 11 lines 7-9.
[31]Section 86(1) TORUM.
[32]Exhibit 3, page 11 lines 25-27. While the submissions of the appellant’s legal representative referred to the appellant having earlier driven some undisclosed distance, to where he was located by the police, that was not a particular of the conduct alleged by the prosecution, and it is evident from the transcript of proceedings that the learned magistrate proceeded on the basis that the conduct that the appellant was to be sentenced for was limited to his being “in charge” as found.
[33]Failing to provide specimen of breath - two entries of the one date, one penalty imposed.
[34]As evidenced in a letter under the hand of the appellant’s father, tendered on sentence and referred to in the remarks of the learned Magistrate.
[35]In submissions before the Magistrates Court the appellant’s then legal representative had referred to the appellant’s licence having been suspended for a period of five months, but this would appear to be incorrect given the date of the charge and the date of the hearing.
[36]Pursuant to section 79B TORUM.
[37]As is permitted under section 86(7) TORUM.
[38]Andrew Farmer v Queensland Police Service [2019] QDC 276; Roach v Queensland Police Service [2015] QDC 150; Scarce v The Commissioner of Police [2021] QDC 246.
[39]R v Kilic (2016) 259 CLR 256 at [22]; Barbaro v The Queen (2014) 253 CLR 58 at 74.
[40]In accordance with sections 226, 232 and 232A(1) of the Justices Act 1886, and Justices Regulation 2014, schedule 2.