Bailey v Queensland Police Service [2020] QDC 168

DISTRICT COURT OF QUEENSLAND CITATION: Bailey v Queensland Police Service [2020] QDC 168 PARTIES: DIANE PHYLLIS BAILEY (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 11 of 2020 DIVISION: Appellate PROCEEDING: Appeal under s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 7 April 2020 (delivered ex tempore) DELIVERED AT: Cairns HEARING DATE: 7 April 2020 JUDGE: Fantin DCJ ORDER: 1. Application for an extension of time for leave to appeal granted. 2. Appeal dismissed. 3. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL – PROCEDURE – POWER TO BRING APPEAL – POWERS OF COURT ON APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant’s notice of appeal was filed late – where the delay was caused by the late supply of a transcript of the Magistrates Court proceedings – where the respondent does not oppose the extension of time sought – whether it is in the interests of justice to grant the extension sought CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to driving under the influence of liquor and was fined $1,200 and disqualified from holding or obtaining a driver’s licence for 12 months – where the appellant had no prior criminal or traffic history – where the appellant appeals the sentence pursuant to section 222 Justices Act 1886 – whether the sentence imposed was manifestly excessive -- 1 of 7 -- 2 Legislation Justices Act 1886 s 222, s 224 Penalties and Sentences Act 1992 s 5, s 5A, s 9, s 48 Transport Operations (Road Use Management) Act 1995 s 79, s 79A, s 79B, s 86 Cases Batty v Queensland Police Service [2019] QDC 51 R v Pham (2015) 256 CLR 550 Elliot v Queensland Police Service [2015] QDC 90 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 R v Jackson [2011] QCA 103 R v Lawley [2007] QCA 243 Schwarz v Queensland Police Service [2013] QDC 105 Queensland Police Service v McGowan [2008] QDC 49 SOLICITORS The appellant appeared on her own behalf The Office of the Director of Public Prosecutions for the respondent (T Watkins) [1] On 2 December 2019, the appellant pleaded guilty in the Magistrates Court at Cairns to driving under the influence of liquor or a drug under section 79(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the ‘TORUM Act’). The offence occurred on 25 October 2019. The maximum penalty for that offence is 28 penalty units or nine months imprisonment. [2] By virtue of sections 5 and 5A of the Penalties and Sentences Act 1992 (Qld), a penalty unit at the relevant time was $133.45. Therefore, the maximum fine was $3,736.60. In addition, section 86(1) of the TORUM Act provides for an automatic period of disqualification from holding or obtaining a Queensland driver’s licence of six months. That disqualification period occurs automatically when a person is convicted of the offence under section 79(1) if, during the period of five years before conviction, they have not previously been convicted of other relevant offences. The disqualification occurs without any specific order. [3] In this case, the appellant’s reading was 0.21 per cent. The appellant was convicted and fined $1,200 and disqualified from holding or obtaining a driver’s licence for 12 months. [4] The appellant is self-represented on appeal. She applies for an extension of time within which to appeal, pursuant to section 222 of the Justices Act 1886 (Qld) (the ‘Justices Act’), against the sentence on the basis that the 12 month period of disqualification is manifestly excessive. [5] The application for extension of time was heard at the same time as the hearing of the merits of the appeal. For the reasons that follow, I would grant the application for an extension of time but dismiss the appeal. [6] An appeal must be filed within 28 days after the decision appealed from. Here, the appeal was filed late, on 7 January 2020. The appellant explained that the delay in filing the appeal was caused by not receiving a transcript from Auscript until 24 -- 2 of 7 -- 3 December 2019, which was after the Court closure on 23 December 2019. I am satisfied that the appellant has provided a reasonable explanation for the delay. The respondent did not oppose the short extension of time. There was no suggestion of prejudice to the respondent. I am satisfied it is appropriate to grant leave to extend the time in which to file the appeal to 7 January 2020. [7] The appellant filed an additional copy of a notice of appeal on 10 March 2020, which was substantially in the same terms of the earlier document filed. However, it attached her outline of argument and the documents she relied upon. One of those documents was an extract of advice her solicitor had provided to her on her prospects of appeal. I proceeded on the basis that the appellant had waived privilege in that extract of the advice and I treated the advice as part of her submissions on appeal, given that the contents of the advice were, so far as relevant, consistent with her grounds of appeal. [8] The appellant was 63 years old at the time of the offence and at sentence. She had no criminal history and no traffic history. On the evening of 24 October 2019, the appellant was at a friend’s house for dinner and drinks. Early the following morning, police were conducting patrols. At about 1.28 am, they saw a car driving at a slow speed in the middle of the road. The applicant returned a positive roadside breath test. She was taken to the police station where, at 2.01 am, she returned a positive result of 0.210 grams of alcohol in 210 litres of breath. The applicant’s licence was immediately suspended under the TORUM Act. [9] The appellant was represented by a solicitor on sentence in the Magistrates Court. Her solicitor tendered a certificate of completion of the online program Queensland Traffic Offenders Program dated 28 November 2019. He also tendered three references on the appellant’s behalf. The authors of those references said that the appellant was otherwise a person of good character, that she had expressed remorse, that she was a local business owner and that the offending was out of character. [10] The solicitor submitted to the Magistrate that the appellant had some personal stressors at the relevant time, including in her relationship, that she had been drinking at a friend’s house, that she had a sleep during the evening before deciding to drive home, and had seriously misjudged her capacity to metabolise the alcohol she had consumed. When detected by police, she had been driving very slowly in the centre of what the solicitor described as a narrow suburban street. [11] The solicitor submitted that her driving could be characterised as precautionary rather than reckless. He noted that she was otherwise a person of good character who had previously been a music teacher and now ran her own businesses as a marriage celebrant and beauty and massage therapist. She also volunteered in community sport. He submitted that the offending was out of character and that she was not a risk of reoffending. [12] Noting that her licence had been suspended at the date of the offence, he submitted that the appellant had been relying on family members and public transport, which had caused her substantial disruption. The appellant’s solicitor submitted to the Magistrate that a substantial fine may be appropriate and asked the Magistrate to impose the minimum period of disqualification, taking into account the approximately five weeks her licence had already been suspended. He submitted that: “Whilst it is not usual for the minimum, perhaps, to be imposed on a reading this high, taking into account her suspension of five weeks already, as well as mitigating -- 3 of 7 -- 4 features, in my submission, it may be appropriate to uplift the fine and keep the suspension at a minimum.” [13] However, the appellant’s solicitor made no submission about the appellant’s capacity to pay a fine, her financial circumstances, or the nature of the burden that payment of the fine would be on the appellant. Thus, there was no further information before the Court to take into account pursuant to section 48(1) of the Penalties and Sentences Act in considering a fine. In addition, the solicitor made no submission about the level of the fine that should be imposed. [14] The police prosecutor made no submissions on penalty at all. [15] Neither party assisted the Magistrate with reference to any authorities. [16] Her Honour’s sentencing remarks were brief. I will set them out in full: “Stand up, please, Ms Bailey. I have taken into account your early plea of guilty to the charge, the circumstances of the offence and the submissions that have been made. I do note that this is the first time you have been charged with such a matter. In fact, you have now [indistinct] before the Court. I have read the references that have been provided and they support the fact that this is out of character for you. I have no doubt that you are genuinely remorseful and I have no doubt that the last five weeks have been an extremely stressful time for you, awaiting the outcome of these proceedings. The reading is extremely high. Anything that is over 0.15 is in the high-range reading and your reading was far above that. I do, as I say, take into account your early plea, your lack of history and the difficulties that the loss of a licence is going to have for you, and I will reduce somewhat the period of disqualification that I would ordinarily apply, but it will not be quite as low as your solicitor has been asking. You will be fined $1200 for the offence. That will be referred to SPER. And you are disqualified today for a period of 12 months. And I can confirm that, in a reading of this nature, would ordinarily attract a higher period of disqualification than that from this Court. You must hand your licence, and at the end of the 12 months, you must contact the Department of Transport to get your licence back. If you drive on a Court-ordered disqualification, the penalty is even more severe than what you have received today, so do not be tempted to do that. This will appear on your traffic record; it is not a criminal record. Thank you.” [17] The sole ground of appeal in the notice of appeal is that the sentence was manifestly excessive. In accordance with section 222(2)(c) of the Justices Act, properly, the ground of appeal is that the punishment was excessive. [18] The appellant submits that the Magistrate erred in the following ways, which led to an excessive penalty. First, by failing to take into account the five weeks that she had been without a licence from the date of the offence on 25 October 2019. Second, by giving too much weight to the blood alcohol content reading and allowing it to overwhelm the sentencing discretion. Third, by failing to give adequate weight to her antecedents (a mature woman with no traffic history), her rehabilitation (completion -- 4 of 7 -- 5 of the Queensland Traffic Offenders Program), her cooperation with police, and the character references. [19] The first ground may be quickly disposed of. There is no basis for the appellant’s submission that the Magistrate failed to take into account the period for which her licence had been suspended. The appellant’s solicitor expressly informed the Magistrate of that fact. The fact that the Magistrate did not expressly refer to the approximately five weeks of suspension in her sentencing remarks does not mean she did not take it into account. No error of law is demonstrated. [20] The second and third grounds may be dealt with as part of an overall argument by the appellant that the sentence was manifestly excessive. That is, when all the appropriate considerations are weighed, that the sentence fell outside the range of the proper sentencing discretion. [21] Before turning to consideration of the cases referred to on appeal, it is necessary to say something about the circumstances in which a sentence will be manifestly excessive. [22] Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle; see R v Pham (2015) 256 CLR 550 at page 559 at [28]. [23] The result of the impugned sentence must be unreasonable or plainly unjust and the appellate court must infer that, in some way, there has been a failure to properly exercise the discretion which the law reposes in the court of first instance: see Hili v The Queen (2010) 242 CLR 520 at [58] and [59]. [24] The Court ought not interfere with a sentence unless it is manifestly excessive, vitiated by an error of principle, there has been a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried: see House v The King (1936) 55 CLR 499 at 504 to 505. [25] To succeed in the appeal, the appellant must demonstrate 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. That is because there is no one right penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances, and their opinions must be respected unless the sentence imposed is beyond the allowable range or is otherwise affected by an error of fact or law: see R v Jackson [2011] QCA 103 at [25]. [26] Here, the general limit for alcohol under the TORUM Act is 0.05 per cent blood alcohol content, and the high alcohol limit is 0.150 blood alcohol content. The appellant returned a blood alcohol content reading of 0.210. That reading was significantly above the high alcohol limit. The automatic disqualification period of six months from the date of conviction applies whether or not any other penalty is imposed. The court may impose a longer period of disqualification, including up to absolute disqualification: see section 86(5). -- 5 of 7 -- 6 [27] Under section 86(2A), the period of disqualification must be decided by the court which, in making its decision, must have regard to the concentration of alcohol in the blood or breath of the defendant or the presence of a relevant drug in the defendant’s blood or saliva and the danger, real or potential, to the public in the circumstances of that case. [28] Therefore, it follows that a high alcohol reading of 0.210 per cent would be an aggravating factor in considering the period for which the defendant should be disqualified. The higher the blood alcohol reading, the more likely there is to be a real or potential danger to the public in the circumstances of this case. In addition, under section 86(7), in deciding a period of disqualification for a person whose licence is suspended under section 79B, the Court may take into account the period of suspension or disqualification that has already been served under that section. [29] On the hearing of this appeal, the Crown provided three decisions of this Court by way of comparables. The Crown was unable to identify any decisions of the Court of Appeal that were said to be of assistance. Turning to those decisions provided by the Crown, the first and of most assistance to me was the decision in Schwarz v Queensland Police Service [2013] QDC 105 (‘Schwarz’). [30] In that case, the appellant pleaded guilty to one count under section 79(1), having returned a reading of 0.244 per cent blood alcohol content. He had one prior offence of drink-driving some 21 years before the offence. He was fined $2,000 and his licence disqualified for 14 months. Having found error, the District Court proceeded to resentence. The Court referred to an earlier decision of Cummins v Johnson [2009] QDC in which the appellant had a previous conviction for driving under the influence. The reading on that occasion was 0.22 per cent. In that case, the appellant was fined $2,100 and disqualified for nine months. However, the penalty unit at that point in time was much lower, only $100. The Court in Schwarz said that the range of penalty was somewhere between 12 and 18 months, that a disqualification period of 14 months could not be said to be outside of the range or excessive, and that the range of the fine may have been somewhere between $1,500 and $2,500. Schwarz’s reading was slightly higher than in the subject case, and Schwarz had a previous conviction, albeit an extremely dated one. However, he received a larger fine and a lengthier period of disqualification. [31] In Elliot v Queensland Police Service [2015] QDC 90, the appellant was convicted of one count under section 79(1), having returned a reading of 0.265 per cent blood alcohol content. He was fined $2,500 and his licence disqualified for two years. The applicant had two previous drink-driving convictions which were outside the five year timeframe which increases the penalty. The appeal against sentence was dismissed. [32] In Batty v Queensland Police Service [2019] QDC 51, the appellant refused to provide a specimen of breath and was therefore deemed guilty of an offence against section 79(1) by virtue of section 80(11). He was fined $900 and his licence disqualified for 12 months. That was not disturbed on appeal. However, I note that this was an attempt to appeal against a conviction in circumstances where the appellant had pleaded guilty. The court ultimately found that there was no evidence to suggest any equivocation in his pleas of guilty and that there was no right to appeal to the District Court. Therefore, that case is of no assistance on the sentence appeal before me. -- 6 of 7 -- 7 [33] Finally, the appellant relied upon the decision of this Court in Queensland Police Service v McGowan [2008] QDC 49. That decision is also of little to no assistance. It involved an offence under section 80(11) of refusing to provide a specimen of breath, which is deemed to be an offence under section 79(1) and the offender liable to the same punishment. In that case, the defendant was a 63 year old first offender who was found stationary at the service station. She had significant mitigating circumstances in her favour supported by medical evidence of a medical condition. Such mitigating factors are absent here. The District Court, on appeal, reduced the penalty from nine months disqualification to six months disqualification. The $1,000 fine was not challenged or appealed. The decision in that case does not support a finding that the 12 month period of disqualification was excessive in this case. Indeed, the Magistrate expressly noted that in light of the mitigating circumstances, she would impose a period of disqualification lower than what she would ordinarily have applied for a reading of such a high level. [34] My review of these decisions leads me to the conclusion that the sentence imposed, in particular the 12 months disqualification, was well within the proper exercise of the sentencing discretion for this offence. [35] It is not to the point that a different Magistrate or Judge may have imposed a slightly shorter or slightly longer period of disqualification or a slightly higher fine. In my view, all of those would have been open. Nothing about my consideration of those comparable authorities supports the appellant’s submission that the sentence imposed on her, taking into account the entirety of the penalty, was manifestly excessive in the circumstances. In my view, the combined penalty gave sufficient allowance for the mitigating factors, including the appellant’s early plea of guilty, her personal circumstances and the matters referred to by her solicitor. It adequately reflected the requirement for general and personal deterrence, denunciation, community protection and the appellant’s steps towards rehabilitation. [36] Therefore, I conclude that the sentence was not outside the sentencing discretion. It was not manifestly excessive. [37] I make the following orders: 1. The appellant’s application for an extension of time is granted. 2. The appeal is dismissed. 3. No order as to costs. -- 7 of 7 --