Farmer v Queensland Police Service [2019] QDC 276

DISTRICT COURT OF QUEENSLAND CITATION: Andrew Farmer v Queensland Police Service [2019] QDC 276 PARTIES: ANDREW FARMER (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 913/19 DIVISION: Appellate PROCEEDING: Appeal under section 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court of Queensland DELIVERED ON: 13 December 2019, ex tempore DELIVERED AT: Brisbane HEARING DATE: 13 December 2019 JUDGE: Loury QC DCJ ORDER: 1. The appeal is allowed to the extent of setting aside the order disqualifying the appellant from obtaining a driver’s licence for 18 months. 2. Substitute an order disqualifying the appellant holding or obtaining a driver’s licence for nine months. CATCHWORDS: CRIMINAL LAW – DISQUALIFICATION FROM DRIVER’S LICENCE – APPEAL – WHETHER SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to driving under the influence of liquor – where the appellant was fined $1,500 and disqualified from holding or obtaining a driver’s licence for 18 months – where the appellant appeals the sentence on the basis that the disqualification period was manifestly excessive – where such an appeal is by way of rehearing of the evidence before the Magistrate and any other evidence deemed admissible – where the appellant cooperated with the administration of justice. Justices Act 1886 s 222 Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(1A), 86(2A) -- 1 of 4 -- 2 COUNSEL: SOLICITORS: Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 B. Peters for the Appellant. A. Fritz from the Respondent. Brisbane Criminal Lawyers for the Appellant. Officer of the Director of Public Prosecutions (Queensland) for the Respondent. [1] On the 15th of February 2019, the appellant pleaded guilty to an offence that on the 1st day of January 2019 at Oxley, he drove a car under the influence of liquor, pursuant to section 79(1A) of the Transport Operations (Road Use Management) Act 1995. He was fined $1,500 and disqualified from holding or obtaining a driver’s licence for 18 months. [2] The circumstances of the offence were that at 12.45 am he drove on an on-ramp onto the Ipswich Motorway. He collided with a concrete barrier on the right side where the ramp merges with the motorway before colliding head on with the barrier on the left side of the on-ramp. Police spoke to the appellant at 1.00 am at which time they noted his eyes were glassy and bloodshot and he smelt strongly of liquor. He admitted being the driver of the car which crashed. He could not recall how the crash occurred. He said he did not normally drink but had consumed six beers because of a number of family issues. [3] The appellant told the Magistrate in his submissions that he had not had a drink in 25 years. He was going through a divorce at the time of the incident. He said that he was thankful that no one else got injured. He started seeing a psychologist about his drinking, after the incident. [4] The appellant was 35 years of age at the time of the offence. He had a relatively minor traffic record. It did not contain any previous convictions for drink driving. Most of his traffic convictions were acquired when the appellant was a learner driver and likely reflect his immaturity. He otherwise had two speeding convictions, one in 2010 and one in 2014. [5] In his reasons, the Magistrate took into account the appellant’s plea of guilty. He said that he could not have been a greater risk to himself and other road users. He said that the appellant drove into the barrier whilst asleep. It was only the presence of the barriers that prevented anyone else being injured. He referred to the need for a deterrent sentence. He said that he took into account the level of the appellant’s intoxication and the risk he posed to others. [6] The appellant appeals pursuant to section 222 of the Justices Act 1886 on the ground that the sentence is manifestly excessive. Such an appeal is by way of rehearing on the evidence before the Magistrate and any other evidence I allow to be admitted. The powers of the appellate Court are only exercisable if the appellant establishes that having regard to all the evidence now before the appellate Court, that the order the subject of the appeal is the result of some legal, factual or discretionary error.1 As this is an appeal against the exercise of a sentencing discretion, in order to succeed, the appellant must satisfy this Court that the learned Magistrate acted upon a wrong 1 See Allesch v Maunz (2000) 203 CLR 172. -- 2 of 4 -- 3 principle, allowed an extraneous or irrelevant matter to affect him, operated under a mistake of fact or did not take into account a material consideration.2 It is not enough that I may have imposed a different sentence. It must appear that there has been some error in the exercise of the discretion. Such an error will be evident where the sentence is plainly unreasonable or unjust. [7] The appellant contends that the sentence is manifestly excessive because of the length of the period of disqualification. The minimum mandatory disqualification period was six months. Section 86(2A) of the Transport Operations (Road Use Management) Act 1995 required the Court to have regard in determining the period of disqualification to the concentration of alcohol in the blood of the appellant and the danger, real or potential, to the public in the circumstances of the case. Relevant here is that the prosecution did not allege a particular blood alcohol concentration. The appellant accepted, by his plea, that his blood alcohol concentration was at least 0.15 per cent. That is a significant blood alcohol concentration. The fact that the sentence proceeded without a certificate having been produced, evidences the appellant’s significant cooperation with the administration of justice in that he did not require the matter to be adjourned so that proof could be obtained by the prosecution as to his level of intoxication. That is not a matter referred to by the learned Magistrate in his reasons. The Magistrate otherwise properly took into account the danger that the appellant presented to the public. I consider the failure to take into account the significant cooperation with the administration of justice, a material consideration which gives rise to an error of the sort referred to in House v The King. [8] The learned Magistrate has also inferred that the appellant was asleep. I do not consider that inference to be properly open on the evidence before him. The appellant could not remember what had occurred. There was insufficient evidence to prove that he was asleep when he collided with the barriers. The appellant was clearly intoxicated and that, more likely, explains his crashing into the barriers. Accordingly, it is necessary for me to exercise the sentencing discretion afresh. [9] A further matter in the appellant’s favour is that his traffic history was relatively minor. He had no previous convictions of a like nature and his most recent conviction was for a single offence of exceeding the speed limit in 2014, for which he was fined $146. The offence of driving under the influence of liquor could be said to be out of character. The appellant placed some material before the learned Magistrate in the form of an email sent, that indicated that he acknowledged his guilt and indicated he was pleading guilty, on the 15th of January 2019. The email sets out an apology for his actions. He explained that he was going through a separation from a long marriage and that his actions were completely out of character as he had not drunk in over a year. He referred to the fact that he was glad that no one else was hurt from the incident and had started to see a psychologist. He apologised for his actions and indicated that he had learned greatly from what had occurred and he planned to never drink again. [10] I am told that the appellant is a self-employed electrician. He has now been without a licence for 11 and a half months from the 1st of January 2019. The appellant’s significant intoxication and the real danger he posed to other road users in that state warranted a disqualification period longer than the statutory minimum but not so long, in my view, as the 18 months imposed by the Magistrate. The disqualification period 2 See House v The King (1936) 55 CLR 499. -- 3 of 4 -- 4 operates as an additional penalty to the significant fine that was imposed upon the appellant. The need for deterrence and protection of the public from the appellant’s concerning conduct are sufficiently met, in my view, by a nine-month disqualification period. I have particularly taken into account that the appellant’s level of intoxication was such that he crashed the car although I acknowledge that he was not charged with any further driving offences. [11] My orders are: 1. the appeal is allowed to the extent of setting aside the order disqualifying the appellant from holding or obtaining a driver’s licence for 18 months; and 2. substituting an order disqualifying the appellant from holding or obtaining a driver’s licence for nine months. -- 4 of 4 --