Edwards v Commissioner of Police [2021] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: Edwards v Commissioner of Police [2021] QDC 194 PARTIES: EDWARDS (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: Appeal no. 149 of 2021 DIVISION: Criminal PROCEEDING: Appeal pursuant to s 222 of Justices Act 1886 (Qld) ORIGINATING COURT: Magistrate’s Court DELIVERED ON: 24 June 2021, delivered ex tempore DELIVERED AT: Brisbane HEARING DATE: 24 June 2021 JUDGE: Burnett AM DCJ ORDER: 1. Appeal allowed and sentence imposed on 1 December 2020 at Richlands Magistrate’s Court be set aside. 2. That appellant is re-sentenced as follows – a. In respect of driving over the middle alcohol limit, not being the holder of a license: 12 months’ probation and disqualified from holding or obtaining a driver’s license for 6 months. b. In respect of driving a motor vehicle without a driver license, repeat offender, type 2 vehicle related offence: sentenced to 50 hours of community service to be performed within 12 months and disqualified from holding or obtaining a driver’s license for 6 months. CATCHWORDS: MAGISTRATES – QUEENSLAND – APPEAL – where the appeal was brought 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, not being the holder of a license of learner probationary or provisional license – where the appellant pleaded guilty to driving a motor vehicle without a driver license, repeat -- 1 of 5 -- 2 LEGISLATION CASES COUNSEL: SOLICITORS: offender type 2 vehicle related offence – whether the sentence imposed by the learned Magistrate was manifestly excessive Justices Act 1886 (Qld) s 222, 223 Penalties and Sentences Act 1992 (Qld) s 92(1)(a), 103(1), 187 Forrest v Commissioner of Police [2017] QCA 132 House v King (1936) 55 CLR 499 M Jones for the applicant N Kljaic for the respondent Legal Aid Queensland for the applicant Commissioner of Police for the respondent [1] The appellant appeals a decision made convicting and sentencing her on the 1 st of December 2020 in respect of two offences: one of driving over the general alcohol limit but not over the middle alcohol limit, not being the holder of a licence or learner probationary or provisional licence, and one of driving a motor vehicle without a driver licence, repeat offender type 2 vehicle related offence. [2] The Magistrate imposed a sentence as follows: that the appellant be sentenced to three months imprisonment wholly suspended for an operational period of three years and that she be disqualified from holding or obtaining a Queensland driver’s licence absolutely. The appeal is one under section 222 of the Justices Act 1886 (Qld). It is an appeal against sentence only, with the appellant having pleaded guilty to the charges in the Magistrates Court. Relevantly, section 222(2)(c) of the Justices Act 1886 (Qld) provides that in respect of appeals against sentences: … if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that the … punishment was excessive or inadequate. [3] The section 223(1) of the Act provides that the appeal Is by way of rehearing on the evidence given in the proceeding before the justices. [4] In some circumstances, new evidence may be admitted. In addition, in this instance, an extension of time is required, having regard to the notice of appeal being filed about 18 days following the expiration of the appeal date. [5] Dealing first with the extension point, an explanation is afforded for the failure to lodge the appeal in time. No prejudice is contended for by the respondent. Accordingly, time is enlarged. So far as the appeal itself is concerned then, on hearing the appeal an appellate court must conduct a -- 2 of 5 -- 3 …real review of the evidence and make up its own mind about the case. That has been established by numerous cases: see for example Fox v Percy, Warren v Coombes, Dwyer v Calco Timbers.1 [6] Those principles have informed my approach to this sentence. As I said, the defendant pleaded guilty in the Magistrates Court. Having regard to the facts as outlined in the transcript, it is apparent that on the 7th of October at about 11.50 am, the appellant was stopped by a police vehicle for a traffic speeding infringement. She was the sole occupant of the vehicle. She indicated she did not have a driver’s licence. She showed that she had an expired learner’s permit, it having expired in August of 2017. She admitted at the time that she had drunk two large cans of 10 per cent bourbon in the preceding couple of hours. She proceeded to provide a positive roadside test and a later test on an approved instrument which certified a blood alcohol concentration of .064. She had previously had an unlicenced driving offence conviction on the 3rd of February 2020. Those facts broadly support the convictions which were subsequently entered. [7] Her general antecedents are that she is 45 years of age. It is apparent from her traffic history that she has a history of contraventions and breaches commencing from 2001 up until 2020. It extends over two pages. It involves five entries for unlicensed driving, three entries for alcohol driving related offences and a number of other entries for other breaches including speeding and failure to stop at a traffic signal. It is certainly not the worst history that I have seen, but it does tend to demonstrate some persistent offending over the course of 20 years, although I note there was about a five year hiatus in offending between about 2014 and 2019. She otherwise has a minor criminal history which is irrelevant in terms of the current matter. [8] Otherwise, she is employed in a capacity of a dance instructor and I understand from submissions made she has a child. It seems, having regard to the sentence imposed by the learned Magistrate, it was, in my view of all the circumstances, far beyond that which would be reasonable as to invoke the principle House v The King (1936) 55 CLR 499. It is, in my view, an entirely unreasonable sentence having regard to her antecedents. Although, having said that, I fully appreciate the learned Magistrate’s frustration with having to deal with a defendant who has, in this instance, had numerous appearances in relation to driving offences. [9] Ultimately, in this instance, I am of the view that the sentence was so manifestly excessive as to bespeak error without necessarily requiring me to descend into further analysis. Although, if I were to do so, two matters obviously had not been adequately addressed in the learned Magistrate’s reasons. That first includes credit for the early plea, and the second, relevant discussion concerning whether or not a sentence of imprisonment is an appropriate sentence, given that it is, by legislation, a sentence of last resort. [10] Turning then to sentence, factors that, in my view, ought to inform sentence in this case include, as I have noted, the early plea. Against her, of course, is she is a mature offender. She does have a history of offending, albeit not significant but also not insignificant. And, of course, it is relevant, in my view, that she has not ever obtained a driver’s licence although she plainly has been driving a motor vehicle for the best 1 Forrest v Commissioner of Police [2017] QCA 132 at [4]. -- 3 of 5 -- 4 part of 20 years. That, in particular, is a matter of concern as was identified by the learned Magistrate because of a need for community protection. Community protection sounds not only in people being licenced, but also the comfort that the community draws from knowing that at a minimum a driver has undergone some essential training, which includes an appreciation of the laws of the road and other aspects of controlling a vehicle in a safe way. [11] The reality is that driving a motor vehicle is a potentially dangerous task and albeit that it seems to be one which is taken for granted by most members of the community, it is something that requires appropriate training to ensure that a driver is competent. Plainly, a driver who has never undergone a licence test and successfully obtained a driver’s licence has not had that confidence tested and the community is entitled to expect that at the very minimum. [12] That said, in this instance, so far as sentencing principles are concerned, of course, there is the need for both general, and in this case, specific deterrence, together with community denunciation. Community protection is also a factor which I think should sound in the sentence imposed. That, of course, does not ignore the prospect of rehabilitation. At this stage, having regard to the appellant’s antecedents, I am of the view that the benefit is to be achieved for the community by the defendant being subject to an order for probation, requiring her to, under the supervision of officers, undertake various courses and programs that will assist her in learning to drive. I note that driving courses can be undertaken off road and hopefully she will not require a licence to undertake such programs. [13] In addition, there are static courses that can be undertaken such as driver awareness programs, defensive driver programs and so forth, none of which do require a licence but which will serve to enhance the defendant’s knowledge of road safety. These are all factors which are, I think, important in her rehabilitation. But I will leave those matters to the probation service. So far as reparation to the community is concerned, community service for 50 hours over the period of 12 months I think will serve to reinforce in the mind of the appellant the need to abide by the rules of the road and she will undertake such community service as is directed, which on my reckoning would be probably about four hours a month over the next 12 months. [14] That, again, I think achieves a greater rehabilitative outcome for the community than a suspended sentence, which would ultimately not be activated if the appellant did simply as she was directed to do, and that is not to drive for the next 12 months while she is subject to disqualification. That, in my view, should be a given and on that basis I think community service effects a more significant punishment than the prospect of a suspended sentence, particularly given that if she were to breach it at any time over the next 12 months it is unlikely that the sentence would be activated unless the breach involved her engaged in an offence concerning driving a motor vehicle. [15] It follows that the sentences I will impose in respect of the offences will be as follows: in respect of the offence of driving a vehicle over the general alcohol limit but not over the middle alcohol limit, not being the holder of a licence or learner probation or provisional licence holder, the appellant will be sentenced to 12 months probation, and in addition, will be disqualified from holding or obtaining a driver’s licence for 6 months; in respect of the offence of driving a motor vehicle without a driver licence repeat offender, type 2 vehicle related offence, the defendant will be sentenced to 50 -- 4 of 5 -- 5 hours community service to be undertaken within 6 months. The sentences will be served cumulatively. -- 5 of 5 --