FHK v Queensland Police Service [2024] QDC 203

DISTRICT COURT OF QUEENSLAND CITATION: FHK v Queensland Police Service [2024] QDC 203 PARTIES: FHK (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: 2000 of 2024 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Sandgate DELIVERED ON: 26 November 2024 DELIVERED AT: Brisbane HEARING DATE: 25 November 2024 JUDGE: Sheridan DCJ ORDER: 1. Appeal allowed. 2. The orders made in the Magistrates Court at Sandgate on 20 June 2024 be set aside. 3. The following orders will be substituted: a. The appellant is fined $3000 and is disqualified from holding or obtaining a Queensland driver licence for a period of 15 months commencing on 20 June 2024. b. No conviction is recorded. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where appellant was sentenced to one charge of driving while under the influence of liquor contrary to Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1)(a) – where appellant was fined $3000 and disqualified from holding or obtaining a driver’s licence for a period of 20 months – where appellant appeals sentence on grounds the sentence was manifestly excessive – where appellant contends Magistrate miscarried sentencing discretion and placed undue weight on the appellant’s blood alcohol concentration – whether the Magistrate made a specific error –whether sentence manifestly excessive -- 1 of 8 -- 2 LEGISLATION: Justices Act 1886 (Qld) s 222, Penalties and Sentences Act 1992 (Qld) s 9 Transport Operations (Road Use Management) Act 1995 (Qld) s 79, s 86, CASES: Bailey v Commissioner of Police [2020] QDC 168 Hodgson v Commissioner of Police [2023] QDC 73 House v The King (1936) 55 CLR 499 Mayne v Purtill [2016] QDC 124 R v Pham (2015) 256 CLR 550 Teelow v Commissioner of Police [2009] Qd R 489 Wilson v Commissioner of Police [2022] QDC 15 COUNSEL: M I Churchill (sol) for the appellant. B White, Legal Officer employed by Office of the Director of Public Prosecutions, for the respondent SOLICITORS: Vocare Law for the appellant. Office of the Director of Public Prosecutions (Qld) for the respondent. Introduction [1] On 20 June 2024 the appellant pleaded guilty in the Magistrates Court at Sandgate to one charge of driving under the influence of liquor pursuant to s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM). [2] The appellant was fined $3,000 and disqualified from holding or obtaining a driver’s licence for a period of 20 months from the date of sentence. No conviction was recorded. [3] By way of notice of appeal filed 22 July 2024, the appellant appealed against the sentence on the ground that the sentence was manifestly excessive. [4] In the written submissions filed in support of the appeal, the primary submission was that the Magistrate placed undue weight on the appellant’s Blood Alcohol Concentration (BAC) and so the sentence should be set aside for specific error and the discretion exercised afresh. In the alternative, it was submitted that the sentence was manifestly excessive. -- 2 of 8 -- 2 The Legal Framework for the Appeal [5] Subject to any granting of leave to adduce new evidence, an appeal pursuant to s 222 is by way of rehearing on the evidence below.1 An application for leave to adduce new evidence was made on the hearing of the appeal. The appellant sought to tender an affidavit of himself in which he deposed to his suffering certain disorders and, in addition, attached to the affidavit a short report from his treating psychologist. The respondent objected to the receipt by the Court of the further affidavit on the basis that the material contained in the affidavit was available at the time of the original hearing and further, that the appellant had sworn to his suffering disorders in circumstances where there was no medical opinion supporting such diagnoses. The respondent submitted that the report from the treating psychologist was undated and therefore of limited use in supporting any submission as to the steps taken by the appellant post his offending. [6] It is true that the issues raised in the affidavit were matters raised in oral submissions by the appellant before the Magistrate and that, in giving his sentencing remarks, the learned Magistrate referred to the problems suffered by the appellant pertaining to the passing of his mother and the interplay with alcohol. The letter from the psychologist, whilst undated, confirms a referral following the death of the appellant’s mother and identifies the alcohol misuse; supporting the oral submissions made by the appellant before the Magistrate. The appellant was self-represented at that time. In the circumstances, I consider it is appropriate for the Court to receive the letter into evidence. I do not, however, consider it is appropriate for the Court to act on the basis of the statements contained in the affidavit where the appellant refers to disorders in respect of which there is no formal medical diagnosis. [7] In the determination of an appeal under s 222 of the Justices Act, s 222(3)(c) provides that, where the defendant pleaded guilty or admitted the truth of the complaint, they may only appeal under s 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive. [8] In order to succeed, an appellant must establish some legal, factual or discretionary error.2 1 Justices Act 1886 (Qld) s 223. 2 Teelow v Commissioner of Police [2009] Qd R 489 at [3]. -- 3 of 8 -- 3 [9] 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, in order to succeed an appellant must 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 [10] The powers of a judge on hearing the appeal are set out in s 225 of the Justices Act. 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 Circumstances of the Offending [11] The facts relevant to the drink driving charge are that on 23 April 2024, police attended an incident in which the appellant’s car was found in drive and resting up against a garbage bin that had been forced against a garage door. The appellant’s car was found approximately 130 metres from his home. The appellant had passed out in the driver’s seat and had to be removed by police. It appeared that the appellant had apparently continued straight ahead when the road took a right turn. The appellant was transported to Prince Charles Hospital. The appellant was subsequently tested and found to have a blood alcohol concentration of 0.396. [12] The appellant was 39 years of age at the time of the offending and sentence. He had no criminal history nor traffic history. [13] The learned Magistrate, in giving his sentencing remarks, referred to the following matters: (a) the appellant’s plea of guilty describing it as a plea of guilty at the earliest opportunity; 3 House v The King (1936) 55 CLR 499 at 504-505; R v Pham (2015) 256 CLR 550 at [28]. -- 4 of 8 -- 4 (b) the “staggering reading of 0.396”; (c) the appellant having been involved in a crash which involved the appellant having failed to take a turn, going straight ahead into the garage area of a house where he was found by police unconscious with the motor still running; (d) the appellant’s mother having passed away in January 2024 which had had an impact upon him and that the appellant was seeing a psychologist; and (e) the appellant having engaged with a support group and was seeking to deal with problems pertaining to the passing of his mother and presumably the interplay with alcohol. [14] The Magistrate noted that the appellant worked in IT, was single and had no prior history. The Magistrate considered that the recording of a conviction “could imperil employment or career advancement” and decided not to record a conviction. Submissions on Appeal [15] It was submitted on behalf of the appellant that there was specific error in this case. In making that submission, it was said that the sentencing remarks of the Magistrate indicated that he placed great weight on the BAC. Reference was made to the Magistrate having referred to the “staggering” and “staggeringly high” reading in support of the submission that the BAC was foremost in the learned Magistrate’s mind. [16] It was submitted that for an offence under s 79(1) of the TORUM what is relevant is the extent to which the offender is acting under the influence of alcohol; it being assumed that the offender is sufficiently intoxicated to be considered to be driving under the influence and the BAC is no longer directly relevant. In these circumstances, it was submitted the learned Magistrate’s overwhelming reliance on the BAC in determining the sentence constituted specific error and the case fell for resentencing. [17] In reliance on previous cases of this Court,4 in Hodgson and Bailey, it was submitted that the sentence imposed was excessive and the appropriate sentence for offending 4 Wilson v Commissioner of Police [2022] QDC 15 (Wilson); Hodgson v Commissioner of Police [2023] QDC 73 (Hodgson); Bailey v Commissioner of Police [2020] QDC 168 (Bailey). -- 5 of 8 -- 5 of the same gravity ought to lead to a sentence of a fine of roughly $1,200 to $1,500 and a disqualification period of around 12 months. It was said that the factors to which the learned Magistrate ought to have primary regard when imposing a period of disqualification were the need for punishment and the need to protect the community from the risks involved. [18] The respondent submitted that the degree that a defendant is under the influence is clearly of relevance. The respondent submitted that the BAC reading is a reliable indicator of a defendant’s state of intoxication. [19] Further, it was submitted that in sentencing an offender in Queensland, amongst other things, under s 9 of the Penalties and Sentences Act 1992 (Qld) (PSA) a court must have regard to, the nature of the offence and how serious the offence was, the extent to which the offender is to blame for the offence, the presence of any aggravating or mitigating factors concerning the offence and any other relevant consideration. [20] In making submissions, the respondent referred to the provisions of s 86(2A) of the TORUM and the reference there to the court having regard to the concentration of alcohol in the blood in determining the relevant period of disqualification and the danger, real or potential, to the public in the circumstances of the case. [21] The respondent accepted that the BAC reading is not necessary to prove the elements of the charge under s 79(1) of the TORUM but it was submitted it is one of many indicators of the appellant’s extreme state of intoxication while operating a motor vehicle. It was submitted that the learned Magistrate was entitled to take it into account, as he did, and it did not result in specific error. [22] Further, it was submitted that an analysis of the cases does not result in a conclusion that the sentence imposed was excessive. Consideration [23] The maximum penalty for an offence under s 79(1) of the TORUM at the time was $4,334 fine or nine months’ imprisonment. Section 86(1) of the TORUM prescribes a mandatory minimum period of licence disqualification for a period of six months, without any specific order. In addition, s 86(5) confers on the sentencing court a discretion to impose some other period of disqualification. Section 86(5) is drafted -- 6 of 8 -- 6 in different terms to s 86(2A) and (2C) and does not contain the statutory prescriptions as contained in subsections 2A and 2C where specific reference is made to the concentration of alcohol in the blood and the real or potential danger to the public. [24] It is accepted that s 86(2A) and (2C) do not relate to offences against s 79(1). As has been previously observed, that is not to say that the criteria referred to in subsections 2A and 2C are not relevant considerations to the exercise of the discretion under s 86(5); however, they are not the prescribed statutory criteria.5 [25] I do not consider that the sentencing remarks of the learned Magistrate suggest that the Magistrate had proceeded on any mistaken understanding and that he was doing otherwise than considering the BAC to be a factor to be considered. In the exercise of the sentencing discretion, in accordance with s 9 of the PSA, the BAC must be a relevant consideration. [26] Likewise, it was relevant to consider the steps taken by the appellant to address his misuse of alcohol and his underlying problems, as the Magistrate did. [27] On this appeal, the appellant referred the Court to a number of cases which, it was submitted, assist in demonstrating that the sentence imposed here, with a particular emphasis on the length of the disqualification period, was plainly unreasonable and unjust, such that the Court would conclude that there must have been nevertheless some error in the sentencing discretion. I have had regard to those decisions,6 conscious that the range of sentences imposed in the past may inform consistency and a uniform application of principle but mindful that they do not fix the boundaries and that each matter must be considered on its own facts. [28] In my view, in all the circumstances, I consider that the sentence imposed by the Magistrate was manifestly excessive. The fine imposed was 70% of the maximum. The period of disqualification of more than three times the mandated minimum. I reach that view having regard to the conduct of the appellant and the serious circumstances of the offending but also taking into account the early plea of guilty, 5 Mayne v Purtill [2016] QDC 124. 6 Wilson; Hodgson; Bailey. -- 7 of 8 -- 7 the lack of any criminal or traffic history, the expressions of remorse and the steps already taken to rehabilitate. [29] I consider the appropriate sentence, given the significant fine, would have been a period of 15 months disqualification from the date of sentence; with no conviction to being recorded. Orders [30] For these reasons, I make the following orders: 1. Appeal allowed. 2. The orders made in the Magistrates Court at Sandgate on 20 June 2024 be set aside. 3. The following orders will be substituted: a. The appellant is fined $3000 and is disqualified from holding or obtaining a Queensland driver licence for a period of 15 months commencing on 20 June 2024. b. No conviction is recorded. -- 8 of 8 --