Ferris v Commissioner of Police [2023] QDC 206

DISTRICT COURT OF QUEENSLAND CITATION: Ferris v Commissioner of Police [2023] QDC 206 PARTIES: MARK FERRIS (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: BD 1884/2023 DIVISION: Appellate PROCEEDING: s 222 Appeal ORIGINATING COURT: Richlands Magistrates Court DELIVERED ON: 16 November 2023 DELIVERED AT: Townsville HEARING DATE: 17 October 2023 JUDGES: Richards DCJ ORDER: The appeal be allowed. The sentence set aside to the extent that the period of disqualification of the driver’s license should be reduced to eight months. The sentence otherwise remains. CATCHWORDS: CRIMINAL LAW – APPEAL PURSUANT TO THE JUSTICES ACT 1886 s 222 – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to driving under the influence and was sentenced to $1900 fine and 12 month licence disqualification period – where the appellant’s personal circumstances required him to drive his partner to the hospital weekly for treatment - whether the sentence was manifestly excessive in all the circumstances LEGISLATION: Justices Act 1886, s 222 CASES: Wilson v Commissioner of Police [2022] QDC 15 Chilcott v Commissioner of Police [2020] QDC 142 Purcell v Commissioner of Police [2016] QDC 342 NJL v Queensland Police Service [2022] QDC 258 R v Tilley (1991) 53 A Crim R 1 COUNSEL: N Haywood [by direct brief] for the appellant E Zambas for the respondent -- 1 of 6 -- 2 SOLICITORS: Office of the Director of Public Prosecutions for the respondent -- 2 of 6 -- [1] On 24 May 2023, the appellant was the subject of a random breath test on Monier Road, Darra. The test was performed at 12.11pm and the reading was 0.161. He told police that he had consumed a long neck of heavy beer at the Monier Hotel just prior to being intercepted. On 5 June 2023 he pleaded guilty to driving under the influence of liquor and was fined $1,900 and was disqualified from holding a driver’s license for a period of 12 months. [2] He appeals on the basis that the sentence was manifestly excessive but also that the sentencing process was marred by several errors of law. In particular, it was submitted that the learned Magistrate failed to take into account his early plea of guilty, the personal circumstances of the appellant and the disproportionate hardship caused by the sentence. It was also submitted that he should have, and did not, explain why the minimum sentence was not appropriate given the absence of aggravating features. [3] In his argument in relation to this appeal, it was submitted that the learned Magistrate did not give any indication that he had taken into account the early guilty plea by Mr Ferris. This is incorrect. The Magistrate specifically stated in his decision that he had taken into account the plea of guilty1 and in that respect this case can be distinguished from the case of Wilson2 upon which the appellant relies. [4] In relation to the personal circumstances of the appellant, the Magistrate said that he had taken into account those personal circumstances,3 however, little attention was paid by the Magistrate to the dire circumstances of the appellant’s partner’s health issues. [5] The appellant submitted that the learned Magistrate should have taken into account the availability of a bus from Fernvale to Ipswich, the impact of a loss of license on existing clients and his business and the fact that he was the sole breadwinner for the family. [6] Some of these factors are more relevant than others. [7] If the appellant wanted the Magistrate to take into account that his partner would have difficulty attending appointments in Ipswich, then it was incumbent on him to build 1 Decision dated 5 June 2023, 1-2 ll 12-14. 2 Wilson v Commissioner of Police [2022] QDC 15. 3 Decision dated 5 June 2023, 1-2 ll 12-13. -- 3 of 6 -- 4 an argument that this was the case. Statements made from the bar table that the appellant was the only viable method of transport should have been supported by affidavit or other relevant material. The impact on existing clients and his business are factors for the Magistrate to consider, however, they are less persuasive given that the appellant was the person who chose to consume a significant amount of alcohol in the middle of the day. His lack of concern for his clients and his ability to work his business was reflected in his behaviour that day. [8] The impact on his family was a factor to be taken into account on sentence, but cannot be used to overcome the importance of personal and general deterrence. An offender cannot hide behind the hardship he creates for his family and a court must be careful not to give too much weight to personal factors.4 [9] At the hearing of this matter, the appellant tendered, and the Crown did not object to, a letter from the Ipswich Hospital outlining the treatment plan for the appellant’s partner. Her chemotherapy involves weekly visits to the Ipswich Hospital. Radiation will commence four weeks after the end of chemotherapy and that is to take place in Springfield. Before me there was no indication of whether Blue Care would be available to assist with trips to Springfield and there is no evidence that alternative methods of transport have been investigated by the appellant. [10] The appellant has a relevant traffic history with three previous entries for exceeding the speed limit by less than 15 km/hr, one for exceeding the speed limit by more than 20 km/hr, failing to stop at a red light and failing to stop at a stop sign intersection. These entries show that he is not as careful a driver as he should be. His most relevant conviction is a 2012 conviction for driving under the influence of liquor. He registered a reading of .077 on that occasion and was disqualified from driving for 2 months. [11] The applicant argued that this was not relevant because of its age however I disagree with that proposition. The fact that he has previously been convicted of driving under the influence of alcohol is a significant circumstance of aggravation. [12] In sentencing the appellant the learned Magistrate said he took into account the appellant’s remorse, his plea of guilty, his personal circumstances, his completion of the Queensland Traffic Offenders Program, his alcohol reading, the nature and 4 R v Tilley (1991) 53 A Crim R 1. -- 4 of 6 -- 5 seriousness of the offence and the danger posed to the appellant and other road users. It is noted that although potentially dangerous, the appellant was not pulled over because he was driving in an erratic or dangerous manner. [13] The appellant submits that the learned Magistrate should have explained the reason for imposing a sentence which was significantly higher than the minimum mandatory sentence. The argument is that the appellant’s reading was close to the lower end of the high limit of 0.15 so that means that, absent any aggravating considerations, that he should have imposed a sentence which was close to or at the minimum mandatory licence disqualification of six months rather than the 12 months imposed particularly when this was coupled with a significant fine of $1,900. [14] I reject any suggestion that the learned Magistrate should have to justify why he did not impose the minimum mandatory sentence simply because the reading was towards the lower end of the upper range. I adopt the remarks of Farr DCJ in Chilcott v Commissioner of Police [2020] QDC 142 at [11]: “… a minimum six-month disqualification period as prescribed by legislation does not of itself mean that the parliament has considered that period of time to be an appropriate disqualification period for an offender who has a reading of 0.15. It means nothing of the sort. All that parliament has done is legislate a mandatory minimum. In the same legislation, parliament has also allowed for the courts to exercise a discretion to impose a disqualification period longer than six months if considered appropriate.” [15] In developing this argument, the appellant has relied on cases of Purcell v Commissioner of Police [2016] QDC 342 and Wilson v Commissioner of Police [2022] QDC 15. Both of those cases are less serious than this one. Wilson was a younger man and had no prior convictions for drink driving and Purcell fell just within the mid alcohol reading range rather than exceeding the high alcohol reading range. [16] At the hearing of this matter, counsel also referred to NJL v Queensland Police Service [2022] QDC 258. Again, that was a matter that was slightly different in that NJL had a higher BAC reading but the circumstances were quite unusual in that she was sleeping in her car while still under the influence after she drove away from her home because she was in breach of police protection notice. -- 5 of 6 -- 6 [17] In my view, given the traffic history of the appellant and even allowing for the fact that he may drive a lot for his work, a sentence which included a 12 month licence disqualification would not be out of the range. However, in the circumstances of this case it is difficult to see how the learned Magistrate took into account the extreme hardship that a 12 month disqualification would cause the family generally given the significant illness that is currently being faced by the appellant’s partner. There are three dependent children in the home and it will be extremely difficult for the appellant’s partner to be able to complete her treatment without some assistance from him. Additionally, it is reasonable to accept that the stress involved in the relatively recent diagnosis of the partner’s illness may have contributed to his behaviour on the day in question. [18] For this reason, and in order to recognise this particular circumstance, the appeal should be allowed, the sentence set aside to the extent that the period of disqualification of the driver’s license should be reduced to eight months. The sentence otherwise remains. -- 6 of 6 --