Cogliati v Queensland Police Commissioner [2019] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: Cogliati v Queensland Police Commissioner [2019] QDC 24 PARTIES: COGLIATI (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: DC 3263 of 2018 DIVISION: District Court PROCEEDING: Appeal against sentence ORIGINATING COURT: Magistrates Court at Holland Park DELIVERED ON: 1 March 2019 DELIVERED AT: District Court at Brisbane HEARING DATE: 22 February 2019 JUDGE: Loury QC DCJ ORDER: Appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one charge of driving without due care and attention – where the appellant had 15 speeding convictions in his traffic history – where the appellant inadvertently hit a police officer causing injury – where the appellant’s licence was disqualified for 12 months – whether that sentence was manifestly excessive COUNSEL: Woodford, M J for the Appellant Fraser C, Legal Officer, Director of Public Prosecutions for Respondent SOLICITORS: McMahon Law for the Appellant Queensland Police Service for the Respondent [1] The appellant was convicted on his own plea of guilty on 7 September 2018 of one charge of driving without due care and attention. The only penalty imposed by the learned Magistrate was to disqualify the appellant’s licence for a period of 12 months. A conviction was not recorded. -- 1 of 6 -- 2 Circumstances of offence [2] The appellant was driving his car in the carpark of the Garden City Shopping Centre. Two police officers were at that time escorting a person from the shopping centre. The appellant sounded his horn at the police officers. One of the officers waved his hand dismissively at the appellant. The appellant sounded his horn three more times. One of the officers moved to the driver’s side window of the appellant’s car and made a requirement of him to produce his driver’s licence. The appellant refused and an argument occurred between him and the police officer. Inadvertently, the appellant’s car moved forward. The second police officer was standing in front of it. She yelled at the appellant to stop and raised her arm making a stop signal. The appellant’s car hit the officer in the legs. She sustained bruising and swelling to her knees and a contusion to her calf muscle. [3] The appellant sincerely apologised to both police officers at the scene. He indicated that he did not realise that they were escorting the third person out of the shopping centre to the police station and had he known he would have taken a different exit. The appellant’s antecedents [4] The appellant was 85 years of age. He had no previous criminal history. His traffic history revealed 15 convictions for speeding between 1989 and 2017. On three occasions he had been sent a warning letter due to the accumulation of demerit points. The last of those warning letters was sent in 2012. The last speeding conviction was in 2017. The sentencing remarks [5] The learned Magistrate accepted that the appellant’s plea of guilty demonstrated remorse. She accepted that the appellant was an upstanding member of the community who had contributed to his community. She accepted that the appellant thought that he had put the vehicle into ‘park’. She referred to the impact of the injury to the police officer, which resulted in her being placed on light duties for some unknown period. She accepted that the appellant’s conduct was accidental and inadvertent. She considered that the appellant’s conduct demonstrated disrespect for the police but it was at the lower end of the continuum. [6] The learned Magistrate referred to the fact that the offence occurred in a carpark where there were potentially children, prams, the elderly and those with disabilities moving about the carpark. She said that in those circumstances extreme care and patience ought to have been exercised by the appellant. The learned Magistrate took into account that the appellant would suffer if his licence was disqualified as he drove both himself and his wife to medical appointments. She referred to the difficulty structuring a sentence, which reflected the seriousness of the conduct balanced against the appellant’s impeccable character over a long period of time. The Magistrate accepted that the appellant’s conduct was neglectful but nonetheless had serious consequences given that a person was injured. -- 2 of 6 -- 3 The law [7] The appellant appeals, pursuant to section 222 of the Justices Act 1886 (Qld) on the ground that the sentence was excessive. Such an appeal is by way of re-hearing on the original evidence given in the court below.1 That requires this Court to conduct a real review of the evidence and the reasons for sentence by the Magistrate to determine whether she has erred in fact or law. If this Court concludes that there has been an error, it is required to make its own findings of fact and to formulate its own reasoning for sentence.2 [8] The appellant does not assert any specific error on the part of the learned Magistrate but rather argues that the sentence imposed was “unreasonable or plainly unjust”,3 such that it can be inferred that there was some failure to properly exercise the sentencing discretion. Consideration [9] The appellant’s conduct was a serious example of the offence of driving without due care and attention. Whilst it occurred at the lowest speed, nonetheless his conduct occurred in a shopping centre carpark where it could be expected that there would be pedestrians. The appellant knew that there were people in front of his car when he sounded his horn at the police officers. He knew that there was an officer and another person in front of his car when he commenced arguing with a police officer at his driver’s side window. His inadvertence, which resulted in his car rolling forward, had the consequence that he hit a person with his car. There existed a potential for serious injury to have resulted. [10] The appellant was genuinely remorseful for his conduct and he is otherwise a man of good character having reached the age of 85 years without acquiring any criminal convictions. The appellant’s driving history does reveal a lack of patience on the roadways, with his having been convicted on 15 occasions of speeding. His conduct on 21 May 2018 arose from his lack of patience for the police officers who were performing their duties. [11] Considerations of deterrence, punishment and protection of the community were relevant to the exercise of the discretion as was the compelling nature of the appellant’s personal circumstances and the impact that the loss of his licence would have on both himself and his wife. [12] The power to disqualify the appellant’s licence arose under section 187 of the Penalties and Sentences Act 1992 (Qld) which provides: 1. If— (a) an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and (b) the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of 1 Justices Act 1886 (Qld) section 223. 2 Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ. 3 House v The King (1936) 55 CLR 499 at 505. -- 3 of 6 -- 4 justice, be disqualified from holding or obtaining a Queensland driver licence; the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence. 2. Subsection (1) applies whether or not a conviction is recorded. [13] In R v Osborne,4 Henry J said of the discretion to disqualify a licence, [57] “However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include: − the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so; − the consequences of the disqualification upon the offender’s future employment prospects; − the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; − the extent to which the disqualification period will operate as an additional penalty to other penalties imposed. [58] As to the latter consideration, in R v Nhu Ly Macrossan CJ stressed the desirability of the disqualification serving some purpose other than that served by other available punishments: ‘Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty, is not meant to be simply a gratuitous addition to other available punishments. There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term.” [59] Section 9(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment, rehabilitation, deterrence, denunciation and community protection. It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender. However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.” (footnotes omitted) [14] The licence disqualification was the only penalty imposed by the learned Magistrate. It was designed therefore to reflect all of the purposes of sentencing which were relevant to the exercise of the sentencing discretion including punishment, deterrence and denunciation. 4 [2014] QCA 291 at [57 - 59]. -- 4 of 6 -- 5 [15] I have been referred to the comparable decision of Hamer v Police,5 where an appeal was allowed to the extent of removing the disqualification order. Mr Hamer pleaded guilty to driving without due care and attention for what was described as a “not particularly serious example of careless driving”. He performed a u-turn over double white lines. The penalty imposed was a fine of $450 (described as substantial) with a conviction recorded, together with a licence disqualification for six months. It was said of Mr Hamer’s conduct that he had not put anyone at risk and had not driven at excessive speed. His driving was categorised as irresponsible. Mr Hamer’s license was important to his livelihood. [16] The appellant’s conduct is in my view more serious than that of Mr Hamer given that his car hit a person who was walking in a shopping centre. Whilst the absence of his licence will result in isolation for both the appellant and his wife, it will not impact upon his livelihood. The appellant lives in a suburb of Brisbane which is accessible via public transport. Given the absence of any other penalty and the non-recording of a conviction, the decision in Hamer does not indicate to me that the sentence imposed upon the appellant is excessive. [17] I have been referred to the decision of Miller v Commissioner of Police.6 Mr Miller pleaded guilty to driving without due care and attention and was fined $1500 with a default period of imprisonment of two months. On appeal the disqualification period was reduced from six months to three months. Mr Miller was driving a truck on a highway when he fell asleep at the wheel. When he awoke the truck was veering to the left. His attempt at correcting the travel of the truck resulted in it performing an uncontrolled 180 degree turn before dropping off a bridge landing on its roof. The circumstances were considered serious as the appellant was a professional truck driver who did not heed the warning signs that he was tired. The learned District Court judge considered that the Magistrate had erred as he attempted to achieve consistency by comparing the particular circumstances of the case with the circumstance that applies where there is a mandatory period of disqualification. The disqualification imposed by the learned District Court judge served the purpose of deterrence in circumstances of a serious offence which only by sheer luck did not result in injury or death. In considering the length of the disqualification period, regard was had to the fact Mr Miller was a young person with a minor traffic history and the consequences to him of the loss of his licence. He was employed as a truck driver. Additionally another significant penalty was imposed of a substantial fine with a default period of imprisonment. The decision of Miller does not, to my mind, demonstrate that the period of disqualification imposed upon the appellant was excessive. The appellant’s disqualification served to punish him for the serious offending in which he engaged and it served to deter both him and others who might drive in a careless, inpatient way in the carpark of a shopping centre where pedestrians are likely to be on the roadways. [18] I have also been referred to Healey v Commissioner of Police.7 Mr Healey had a head- on collision with another car whilst travelling on a straight section of road where the speed was limited to 100 kilometres per hour. The appellant’s car sustained major damage as did the vehicle with which he collided. A third vehicle travelling behind the vehicle into which Mr Healey crashed also crashed into that vehicle. There were 5 [2002] QDC 270. 6 [2015] QDC 213. 7 [2016] QDC 192. -- 5 of 6 -- 6 some injuries sustained although not significant. Mr Healey had fallen asleep at the wheel and upon awaking he overcorrected causing his vehicle to enter the lane of the on-coming traffic and crash into the vehicle in that lane. Mr Healey was 19 years of age and had no previous traffic convictions. He was employed as a delivery driver. He was fined $1200, a conviction was recorded and his licence was disqualified for a period of six months. It was considered on appeal that the learned Magistrate erred as he did not articulate the purpose for which he was disqualifying Mr Healey’s licence and he failed to have regard to matters relevant to that consideration. In particular he failed to have regard to the consequences of the loss of licence to Mr Healey. The learned District Court judge resentenced the appellant by setting aside the order disqualifying the appellant’s licence and imposed a disqualification period of three months. This decision does not demonstrate to me that the period of disqualification imposed upon the appellant was excessive. I come to that view again because the appellant did not receive any further penalty as did Mr Healey and the conviction was not recorded. [19] In considering whether the penalty imposed was excessive it is not enough that I might have imposed a different sentence if I was sentencing at first instance. The penalty must be shown to be “plainly unreasonable or unjust” such that I can infer that there has been an error in the exercise of the sentencing discretion. 8 Given that the licence disqualification was the only penalty imposed, it served to punish the appellant and to deter others from committing the same or a similar offence. When further consideration is given to the fact that the conviction was not recorded, I am not persuaded that in the circumstances of this offence that the appellant has demonstrated that the penalty was excessive. [20] Therefore, the appeal is dismissed. 8 House v The King (1936) 55 CLR 499 at 505. -- 6 of 6 --