SBE v Commissioner of Police[2024] QDC 168

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 1 May 2024 the appellant pleaded guilty in the Magistrates Court at Richlands to one charge of Driving while over the middle alcohol limit but not over the high alcohol limit, pursuant to section 79 (1F)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld)(Act) and one charge of obstructing a police officer pursuant to section 790 (1)(b) of the Police Powers and Responsibilities Act 2000 (Qld).
2. [2]
   For the drink driving offence, the appellant was fined $1500 and disqualified from holding or obtaining a driver licence for a period of 6 months from the date of sentence.^[1] A conviction was recorded. In respect of the obstruction offence, the appellant was convicted and not further punished, and a conviction was not recorded. The appellant does not take issue with the sentence imposed for the obstruction offence.
3. [3]
   By way of a Notice of Appeal filed on 30 May 2024, the appellant appeals against the sentence imposed on the drink driving offence on the sole ground that the sentence is manifestly excessive.

4. [4]
   The respondent accepts that the sentencing discretion miscarried, and the sentence imposed was manifestly excessive. 
5. [5]
   For the reasons outlined below, the appeal is allowed.

The legal framework for the appeal

6. [6]
   Section 222 (2)(c) of the Justices Act 1886 (Qld) 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.
7. [7]
   Subject to any granting of leave to adduce new evidence, an appeal pursuant to section 222 is by way of rehearing on the evidence below.^[2] No application to adduce new evidence was made on this appeal.
8. [8]
   In order to succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.^[3]  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.^[4] Where the appellant argues that the discretion has miscarried to produce a sentence that was excessive, as is the case here, it is necessary to show that the sentence imposed “was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed.”^[5]

9. [9]
   The powers of a judge on hearing the appeal are set out in section 225 of the Justices Act 1886 (Qld). Section 225 provides:

3. “225
   Powers of judge on hearing appeal

3. (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. …

3. (3)
   For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.”

10. Submissions made at first instance before the learned Magistrate

10. The circumstances of the offending

10. [10]
    The facts relevant to the drink driving charge are that on 1 April 2024, police were conducting breath testing on Archerfield Road in Richlands. At 9:19pm the appellant made a left-hand turn and crossed onto the incorrect side of the road whilst approaching the breath testing site. Police could smell liquor on the appellant’s breath and directed that he provide a specimen of breath for testing. The appellant failed to comply and was detained and transported to Inala police station where he was taken for testing. The appellant made admissions to consuming three beers over a period of approximately one hour and believed he was under the legal limit. The concentration of alcohol in the appellant’s breath was 0.110g/210L. The appellant was issued with a notice of immediate suspension and a notice to appear before the Magistrates Court at Richlands on 1 May 2024.

Antecedents of the appellant

11. [11]
    The appellant was 52 years of age at the time of the offending and sentence. He had no criminal history. His traffic history consisted of seven entries including exceeding the speed limit, failing to stop at a stop sign and using a mobile phone whilst driving. He had never been subject to a licence suspension or disqualification and never had a conviction recorded.

References were tendered on his behalf. He had completed the QTOP program. Submissions were made as to his employment namely that he worked as a quality engineer and “as part of his role there are tenders with government contracts and Army contracts, etcetera, and obviously criminal checks get done in respect of those matters, and even a drink driving matter might come up.”

Submissions as to penalty

The police prosecutor did not make any submissions as to the appropriate penalty. The submissions on behalf of the appellant were that the disqualification period should be three months and no conviction should be recorded. No specific submissions were made as to the fine that ought be imposed.

Matters referred to by the sentencing Magistrate

12. [12]
    The learned Magistrate referred to the following matters in the course of his sentencing remarks:

    1. he was taking into account the appellant’s “plea of guilty and the fact that you don’t have any previous criminal history and your traffic history is pretty reasonable in the circumstances”;
    2. the Act requires taking into account the level of the reading, the risk you pose to yourself and other road users, both real and theoretical;
    3. “at a reading of 0.110g, your responses and your ability to control a motor vehicle are compromised and you’re putting yourself, and more importantly, anyone else who’s on the road at risk of injury or death”;
    4. a deterrent penalty is to be imposed;
    5. at “0.110g, it’s not anywhere near the bottom of the range…”;
    6. a conviction was to be recorded for the drink driving charge. After referring to R v Briese [1997] QCA 10,  he then stated: “a drink driving conviction, of course, is obviously directly relevant to a decision to insure you, insure a motor vehicle and it’s relevant to the calculation of premiums, relevant to the decision as to whether to insure you or not and it’s relevant to the premiums other people have to pay if drink drivers are able to conceal the conviction for drink driving. I’ve never seen an instance, apart from maybe someone who’s a professional truck driver or something like that, where a conviction for a single drink driving has had any negative effect on their career at all. So I don’t think it will, I don’t think it’s anything to worry about at all, to be honest.”

Ground of appeal

13. [13]
    The appellant appeals on the sole ground that the sentence imposed was manifestly excessive. He raised the following issues which may have otherwise led to a sentence being imposed which was manifestly excessive:

    1. the learned Magistrate erred in his reasoning for imposing the period of disqualification;
    2. the learned Magistrate failed to sufficiently take into account relevant mitigating factors when imposing the overall sentence;
    3. the learned Magistrate erred in his reasoning for recording a conviction.
14. [14]
    It was submitted that in exercising its discretion afresh the Court may determine the appropriate sentence to be a fine of $600, a licence disqualification period of three months, and no conviction be recorded.

The position of the respondent on the appeal

15. [15]
    The respondent concedes that the learned Magistrate fell into error in his reasoning for imposing the period of disqualification. Today, in oral submissions, the respondent also conceded that the learned Magistrate erred in his reasoning for recording a conviction.
16. [16]
    The respondent concedes that the sentence imposed was manifestly excessive, in all the circumstances, having regard to other decisions of the District Court in appeals brought pursuant to section 222 of the Justices Act 1886 (Qld).
17. [17]
    Ultimately, the respondent concedes that the overall sentence was manifestly excessive and the appeal ought to be allowed. The respondent accepts this court ought to sentence the appellant afresh and the appellant’s submission as to sentence is appropriate. 

Consideration

18. [18]
    I agree with the joint submission of the parties that the learned Magistrate erred in his reasoning for imposing the period of disqualification. The learned Magistrate stated that he considered that the appellant’s blood alcohol level of 0.110g/210L of breath was “not anywhere near the bottom of the range”. As the respondent concedes:

“The Appellant was charged with driving over the middle alcohol limit, the middle alcohol range is from 0.100g/210L - 0.149g/210L. The appellant’s blood alcohol concentration was closer to the bottom of the range than the upper end. The learned Magistrate erred in stating that the reading was “not anywhere near the bottom of the range” and imposed a higher disqualification period to reflect the seriousness of the offending.”^[6]

19. [19]
    I agree with the respondent’s concession. Whilst I accept that the learned Magistrate may have been intending to convey that 0.110g/210L of breath is considerably above the starting point for the general alcohol limit, his choice of words is such that the concession by the respondent is appropriate. The “range”  for the offence the appellant was charged with is such that the appellant was closer to the bottom of the range than the upper end.
20. [20]
    I am also of the view that the learned Magistrate erred in his reasoning for recording a conviction. As was said by Wooldridge KC DCJ in OUE v Commissioner of Police [2023] QDC 147 at [48], which also concerned an appeal from the Magistrates Court at Richlands for a drink driving offence:

“The range of offending that may give rise to an offence of “drink driving” is broad, and the circumstances in which such offending may arise, and of the offender concerned, immeasurably broader. A sentencing judge must consider the potential benefits and detriments to the community in adopting the course of recording or not recording a conviction in any particular case.^[7] While the recording of a conviction serves to make the fact of the conviction known to those who have a legitimate interest in knowing of it,^[8] the learned Magistrate was in my view incorrect to proceed on the basis that the recording of a conviction for any offence of “drink driving” should be considered “the norm”, because of the relationship such as may exist between the prevalence of drink driving and insurance premiums for road-users, or otherwise. Such an approach is to circumvent the nature of the discretion under section 12 of the Penalties and Sentences Act 1992 (Qld).”^[9]

21. [21]
    It does not appear that there has been any change in position of the learned Magistrate since the decision of Judge Wooldridge KC. The learned Magistrate did not refer in his reasons to the mandated factors in section 12 (2) of the Penalties and Sentences Act 1992 (Qld). There is no consideration in the remarks of matters personal to the respondent with respect to recording a conviction. After making a generalised statement about drink driving convictions and insurers as well as insurance premiums, the learned Magistrate stated, “I’ve never seen an instance, apart from maybe someone who’s a professional truck driver or something like that, where a conviction for a single drink driving has had any negative effect on their career at all. So I don’t think it will, I don’t think it’s anything to worry about at all, to be honest.”
22. [22]
    There was absolutely no evidence in the present case supporting the Magistrate’s generalised statement. The submissions on behalf of the appellant at first instance included that the appellant had been employed with the same company as a quality engineer for the past 10 years and as part of his role “there are tenders with government contracts and Army contracts, etcetera, and obviously criminal checks get done in respect of those matters, and even a drink driving matter might come up.”
23. [23]
    As has been previously stated by Judges of this court, distinguishing a traffic offence conviction to a conviction recorded for any other type of criminal offence is a “legal fiction” and “the recording of a conviction is both a legal and social censure, which results in the diminution of a defendant’s character in the community.”^[10]

24. [24]
    Specific error has not been relied upon by the appellant. Rather, it is jointly submitted that the issues identified may have otherwise led to a sentence being imposed which was manifestly excessive. I accept the joint submission of the parties on appeal that a  review of decisions of this Court^[11] supports the conclusion that the overall sentence imposed on the appellant was excessive, so as to be unreasonable and plainly unjust, and ought to be set aside.

The sentence to be imposed

25. [25]
    For the reasons outlined above it is necessary that the sentencing discretion be considered afresh.
26. [26]
    I take into account the factors as detailed in section 9 (1) Penalties and Sentences Act 1992 (Qld), and the matters to which a court must have regard to in sentencing an offender outlined in section 9 (2) Penalties and Sentences Act 1992 (Qld).  Matters of deterrence, community protection and community denunciation are of significance to the exercise of the sentencing discretion for the present offence. To my mind, specific deterrence whilst still a factor is less important than in other cases given the appellant’s lack of relevant history and his completion of a rehabilitation program.
27. [27]
    The Act provides that in determining the relevant period of licence disqualification to impose, a court must have regard to “the concentration of alcohol in the blood or breath of the defendant…and the danger, real or potential, to the public in the circumstances of the case”.
28. [28]
    Section 12 of the Penalties and Sentences Act 1992 (Qld) provides:

3. “12
   Court to consider whether or not to record conviction

3. (1)
   A court may exercise a discretion to record or not record a conviction as provided by this Act.

3. (2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

3. (a)
   the nature of the offence; and

3. (b)
   the offender’s character and age; and

3. (c)
   the impact that recording a conviction will have on the offender’s—

3. (i)
   economic or social wellbeing; or

3. (ii)
   chances of finding employment.”

29. [29]
    These identified considerations are not exhaustive of matters that may be relevant to the exercise of the discretion in any particular case. 
30. [30]
    The respondent fairly summarises some of the relevant factors in this case at paragraph 8.2 of their submissions:

“The appellant was a mature man at 52 years of age at the time of the offending. He had no criminal history and a relatively minor traffic history. The appellant came to the attention of police because of a random breath test, and he made admissions to consuming alcohol. He entered an early plea of guilty and had completed the Queensland Traffic Offender’s program. The appellant is in gainful employment and there were two character references tendered at sentence that spoke to the appellant’s good character and remorse. At the time of sentence, the appellant had been suspended from driving for a period of one month.”

31. [31]
    Consistent with the submission of both parties, I have determined that a fine of $600 is appropriate. The appellant ought to be disqualified from holding or obtaining a Queensland driver licence for a period of three months.
32. [32]
    In all of the circumstances, and consistent with the joint submission of the parties, I exercise my discretion in favour of not recording a conviction. The nature and circumstances of this offending do not demand for a conviction to be recorded and all other factors militate against a conviction being recorded as is conceded by the respondent. I refer again to the respondent’s summary at 8.2 of their outline and the submissions of the legal representative below as to the impact of the recording of a conviction which I have already summarised.

Costs

33. [33]
    The appellant seeks an order for costs to be calculated in accordance with the Justices Regulation 2014 (Qld), schedule 2, being an amount of $1800. The respondent opposes an order for costs as the “police prosecutor did not lead the Magistrate into error”. That may well be the case however the police prosecutor did not make any submissions as to the appropriate sentence to assist the Magistrate. There is no reason in the present case to not order costs in all the circumstances.
34. [34]
    I order that the respondent pay the appellant’s costs on this appeal, calculated to be in the amount of $1800.