CDG v Commissioner of Police [2020] QDC 183

DISTRICT COURT OF QUEENSLAND CITATION: CDG v Commissioner of Police [2020] QDC 183 PARTIES: CDG (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 4183 of 2019 DIVISION: Appellate PROCEEDING: Appeal pursuant to section 222 Justices Act 1866 ORIGINATING COURT: Magistrates Court of Queensland DELIVERED ON: 17 July 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 17 July 2020 JUDGE: Loury QC DCJ ORDER: 1. Leave to adduce further evidence is refused. 2. The appeal is allowed. 3. Set aside the sentence only to the extent that no conviction be recorded. COUNSEL: K Juhasz for the appellant S Sherrie, legal officer, for the respondent SOLICITORS: Gilshenan & Luton Lawyers for the appellant Office of the Director of Public Prosecutions (Qld) for the respondent [1] The appellant pleaded guilty to one offence of driving a motor vehicle over the general alcohol limit. He was fined $800 and disqualified from driving for two months. A conviction was recorded. The appellant appeals against the order recording a conviction, but not the other penalties. His appeal is pursuant to section 222 of the Justices Act 1886. Such an appeal is to be conducted as a rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a great -- 1 of 5 -- 2 deal of weight on the Magistrate’s view.1 In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.2 [2] The recording of a conviction involves the exercise of a discretion. Accordingly, the principles referred to House v The King3 are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because he has allowed irrelevant matters to affect him, mistaken the facts or failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh. Circumstances of the offence [3] The appellant was breathalysed at 7:45 pm on Friday 4 October 2019 on Oxley Road. He admitted to having consumed between four and six schooners of beer earlier that day. His breath alcohol concentration was measured at 0.065 percent. [4] The appellant was 57 years of age at the time of the offence. He was a serving police officer and had served for some 32 years. The appellant was waiting for his teenage son to arrive at the Oxley Hotel. He consumed some beer whilst waiting. He attempted to contact his son over the space of some three to four hours, during which he consumed the beer. The appellant’s antecedents [5] A traffic history was placed before the learned Magistrate. It revealed that the appellant was convicted of drink-driving in 1984. He otherwise had six speeding convictions committed in 2001, 2003, 2006, 2012, 2013 and 2018. References were placed before the learned Magistrate which spoke of the offending being out of character for the appellant. He was described as being a person who ordinarily displays good judgment and is of exemplary behaviour. The referees spoke of his remorse and embarrassment, not just for himself but for his family and for the Queensland Police Service. The referees also spoke of the appellant’s involvement in mental health initiatives and charities that provide support to a number of community groups. The Magistrate’s decision [6] The learned Magistrate referred to the appellant’s previous drink-driving conviction. He considered that a deterrent penalty was required to send a message to other members of the community that there are consequences to such an offence, which usually includes the recording of a conviction. He considered that there was no evidence before him that the recording of a conviction was going to have any particular impact upon the appellant’s career, social or economic wellbeing. [7] The learned Magistrate took into account the appellant’s plea of guilty and the level of the reading. He considered that the consequences to the appellant of having been charged with the offence were in his words, “a bit over the top”. That was a reference to the submissions made on behalf of the appellant that as a consequence of being charged with the offence, he was stood down by the Queensland Police Service, directed to surrender his service-issued firearm and other accoutrements and to have 1 Robinson Helicopter Co Inc v McDermott (2016) 90 QLJR 679, 686 at [43]. 2 McDonald v Qld Police Service [2018] 2 Qd R 612. 3 (1936) 55 CLR 499. -- 2 of 5 -- 3 no unsupervised contact with any members of the public. He was subject to close and constant supervision during the period of the stand-down order. Further, he had received a formal notice that he was liable to disciplinary action. Consideration [8] Section 12(2) of the Penalties and Sentences Act 1992 sets out the matters which the Magistrate was required to take into account in determining whether or not to record a conviction. Submissions were directed to the appellant’s good character as revealed by the references tendered on his behalf, the lack of any recent traffic history and the impact that the recording of a conviction might have on the disciplinary process which was then yet to be undertaken. [9] The learned Magistrate’s sentencing remarks were delivered ex tempore and no doubt during the course of a busy morning in the Magistrates Court. They were necessarily shorter than would be expected had he had the benefit of timely reflection. The learned Magistrate did not comment at all upon the appellant’s character as referred to in the references. It appears that he had no regard to the significance of that matter when considering whether to record a conviction. [10] The appellant argues that the Magistrate also had no regard to the nature of the offence in determining whether to record a conviction, but, in my view, he did have regard to the nature of the offence. He described it as inherently serious and he referred to having taken into account the level of the reading, which was 0.065 percent. [11] The learned Magistrate’s reference to drink-driving being inherently serious was relevant to the exercise of his discretion whether or not to record a conviction. However, that was only one aspect of it. The factors which militated against the recording of a conviction included the good character of the appellant, his minor traffic record given the lengthy period of time over which he had held his licence, and the impact the recording of a conviction would have on further disciplinary proceedings which had been commenced. [12] The learned Magistrate considered it disingenuous for the appellant to rely upon his position as a police officer and any potential disciplinary penalty that might be imposed, however trivial. He considered the previous conviction for drink-driving did not affect the appellant’s career as a police officer, so it was unlikely that the appellant would suffer any further consequence as a result of his conviction for a second drink-driving offence. [13] It must be borne in mind that the earlier conviction for drink-driving was in 1984, prior to the Fitzgerald Inquiry which resulted in very significant organisational reform of the then known Queensland Police Force. Much has changed since that time. In 1984 random breath testing had not been introduced in Queensland. The attitude of the Courts, the Parliament and the public to drink-driving offences has changed significantly since 1984. The disciplinary powers which include demotion, comprehensive transfer, dismissal, suspension, performing unpaid community service and a fine are found in the Police Service Administration Act 1990. It is unknown what disciplinary powers, if any, even existed in 1984 prior to the substantial reform of the Queensland Police Service and the introduction of the Police Service Administration Act 1990. -- 3 of 5 -- 4 [14] It was an error for the learned Magistrate to consider that because the earlier conviction had no effect upon the appellant’s career that there would be no further impact on his career as a consequence of this conviction. It was submitted to the learned Magistrate that the Queensland Police Service considered the penalty imposed by the Court in determining the appropriate disciplinary response. That included whether the Court considered the offence so serious as to warrant the recording of a conviction. The Prosecutor said in reply that he did not advocate for a conviction to be recorded. He did not dispute the submission made that the recording of a conviction was a matter relevant to the determination of discipline proceedings and the sanctions which would be imposed. [15] The failure of the learned Magistrate to have regard to the appellant’s good character and his finding that the recording of a conviction would have no further impact on the appellant’s career when exercising his discretion whether or not to record a conviction supports a conclusion that the exercising of that discretion miscarried. Accordingly, it is necessary to re-exercise that discretion. [16] The appellant relies upon new material for which leave is required. That material is a further letter from one of his referees which refers to a conference to be held in the United States of America in March or April 2021, which he considers would be something that would be of particular benefit to the appellant. He refers to the possibility that a recorded conviction may affect his ability to attend the international conference. [17] The Prosecutor has opposed reliance upon that material. To that end, he has also produced a document which tends to suggest that a drink-driving conviction is not grounds to deny entry into the United States of America, however, multiple convictions in combination with other misdemeanour offences can make a person inadmissible for entry. The appellant’s counsel has also referred to the fact that if the appellant travels for business to the United States of America, he will require a visa and it is unknown what the outcome of the recording of a conviction would have on his ability to apply for a visa. [18] The material tendered at the original hearing, particularly the references, quite clearly demonstrate that the appellant is otherwise a man of good character, that this offence was out of character and that he ordinarily displays good judgment. [19] The delay in this matter proceeding and the impact of the COVID-19 pandemic has resulted in the disciplinary hearing now having proceeded. The penalty imposed upon the appellant is a significant one. It is such that, in my view, it affects his social and potentially economic position. The appeal period in relation to that disciplinary hearing has not passed and it would be open to him to take the matters further, should a conviction not be recorded. [20] I do not consider that the material that the appellant now seeks to rely upon in terms of travel is such that it carries any great weight in the determination of the recording of a conviction. In my view, the appellant’s maturity, his minor traffic record despite having held a licence for 35 years and his employment as a police officer means that the recording of a conviction has a real potential consequence of materially adversely impacting upon his social and economic wellbeing. I would, in those circumstances, exercise the discretion afresh and order that no conviction be recorded. -- 4 of 5 -- 5 [21] My orders are: 1. leave to adduce further evidence is refused; 2. the appeal is allowed; and 3. I set aside the sentence imposed below to the extent that no conviction be recorded but not otherwise. -- 5 of 5 --