Doyle v The Commissioner of Police [2015] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: Doyle v The Commissioner of Police [2015] QDC 155 PARTIES: ELIZABETH DOYLE (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO: 3742/14 DIVISION: Criminal PROCEEDING: Appellate ORIGINATING COURT: Brisbane District Court DELIVERED ON: 16 June 2015 DELIVERED AT: Gladstone HEARING DATE: 17 April 2015 JUDGE: Kingham DCJ ORDER: 1. Appeal allowed and sentences on all offences set aside. 2. Convictions are recorded for all offences. 3. A single fine of $1,500 is imposed in relation to all offences. 4. The fine is referred to the State Penalties Enforcement Registrar. 5. In respect of each count of driving a motor vehicle whilst disqualified, Ms Doyle is disqualified from holding or obtaining a driver’s license for a period of two years. CATCHWORDS: APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE – where appellant pleaded guilty to traffic and bail offences – where learned Magistrate imposed a fine, suspended appellant’s driver’s licence, and recorded convictions – where agreed that Magistrate’s failure to consider the appellant’s financial circumstances when imposing a fine constituted an appealable error – where appellant further argued that no conviction should be recorded – where appellate judge exercised discretion to resentence. COUNSEL: D.R. Wilson for the appellant -- 1 of 5 -- 2 A.J. Griffiths for the respondent SOLICITORS: Lawler Magill for the appellant Office of the Director of Public Prosecutions for the respondent [1] Ms Doyle pleaded guilty on 4 September 2014 to four summary offences and was sentenced by a Magistrate on that date. She appeals against sentence on the grounds that the sentence imposed was manifestly excessive and no conviction should have been recorded. At the hearing the Commissioner of Police conceded there was an appealable error in the Magistrate’s decision on sentence. That was his failure to take into account Ms Doyle’s financial circumstances in imposing a fine, as he was required to do by s 48 of the Penalties and Sentences Act 1992. It is common ground, therefore, that this Court is entitled to exercise its sentencing discretion afresh and this is what both parties urged the Court to do. [2] There was one dispute as to the scope of resentence. The Commissioner argued that the error related only to the imposition of the fine and not to any other aspect of his Honour’s sentence and, in those circumstances, the Court should only vary the sentence in relation to the fine imposed. Sentencing is not a process of discreet exercises. The penalty imposed, as a whole, including the period of disqualification and whether or not a conviction should be recorded should, in my view, be considered afresh. The Court must be satisfied the sentence, overall, is not disproportionate to the offending. [3] Ms Doyle pleaded guilty to the following charges: 1. Driving a motor vehicle whilst disqualified by a Court on 17 January 2014; 2. Unlawfully possessing a motor vehicle on 17 January 2014; 3. Driving a motor vehicle whilst disqualified by a Court on 24 January 2014; 4. Failing to appear in accordance with a bail undertaking on 21 May 2014. [4] Ms Doyle was 25 years at the time of offending and is still 25 years of age. She was intercepted by Police who were investigating another matter. At the time she was the driver and sole occupant of her vehicle. When Police asked her to produce her driver’s license she informed them that she was unlicensed. Later investigations revealed that she had been disqualified from driving by order of the Brisbane Magistrate’s Court on 9 August 2013 for a period of eight months. This offence, then, occurred a little -- 2 of 5 -- 3 over 5 months after she had been disqualified. Ms Doyle advised the Police she was aware of her disqualification and that she had no other way of getting to work. [5] The vehicle she was driving was a hire car owned by Avis. She had initially hired the car for a period of one week from 18 November 2013 but had not returned it to the company. Avis contacted her demanding further payment or return of the vehicle sometime after 18 December 2013. She had not returned the vehicle. These facts constituted the charge of unlawfully possessing a motor vehicle. [6] The second driving offence occurred at the same location as the first, Orchid Avenue, Surfers Paradise. On 24 January, a week after the first offence, Police observed her driving and recognised her as a disqualified driver. Police intercepted her vehicle and informed her she was under arrest for driving whilst disqualified. She again stated that she was aware of her disqualification but had no other way of getting to work. [7] The relevant maximum penalties for the offences are: (a) Breaching bail – 40 penalty units or two years imprisonment; (b) Unlawful possession – of a vehicle 20 penalty units or one year imprisonment; (c) Disqualified driving offences – 60 penalty units or 18 months imprisonment and a disqualification of between two and five years. [8] It is common ground that, given Ms Doyle’s history, the disqualification periods for the two offences take effect cumulatively upon each other pursuant to s 90C of the Transport Operations (Road Use Management) Act 1985. [9] The issues to consider on this sentence are:  Whether a conviction should be recorded for these offences;  What penalty should be imposed for each, bearing in mind that it is common ground that fines are appropriate; and  What periods of disqualification should be imposed. [10] Dealing firstly with the question of recording a conviction, Ms Doyle is a mature albeit still relatively young woman but is certainly not at an age where extreme youth plays a part in the sentence. Submission has been made that recording a conviction -- 3 of 5 -- 4 would be detrimental to her economic and social wellbeing but there is no suggestion that recording a conviction would cause her to lose her current employment. Further, although she is still relatively young, Ms Doyle has a lengthy traffic history for one of her age. She has shown a repeated disregard for road rules designed to ensure the safety of other road users. Further, the repeated disregard of Court orders that she must not drive a vehicle demonstrate there is a need for personal deterrence in her case. I also note that the second act of disqualified driving occurred only one week after the first. Further, consistent with her disregard of other requirements, she failed to appear in accordance with her bail undertaking to do so. Taking all those matters into account it is appropriate to record convictions for the offences to which she has pleaded guilty. [11] As to the fine, counsel for Ms Doyle submitted a fine in the range of $1,200 to $1,500 is appropriate taking into account all four offences. Counsel for the Queensland Police Service provided sentencing statistics graphs for two of the offences: driving without a license whilst disqualified and unlawfully using or possessing a vehicle. They provide adequate support for the submission that has been made by counsel for Ms Doyle. Given the repeated offending in relation to driving whilst disqualified, fines towards the upper end of the range would seem to me to be appropriate. A $1,500 fine is certainly a significant imposition on a person of her means. Bearing that in mind, a single fine of $1,500, in respect of all four offences, will be imposed. In setting the fine I have taken into account the material provided by Ms Doyle about her capacity to pay. I will direct that the fine is referred to the State Penalties Enforcement Registrar immediately. [12] Turning to the total disqualification period, counsel for Ms Doyle has argued that her term of four years overall (representing two cumulative periods of two years), is appropriate. This is the mandatory minimum for both and the cumulative aspect of the disqualification is automatic. It would be open to the Court to impose a further period of disqualification given the further offences involving a motor vehicle. However, a four year disqualification period is lengthy for any person. For one still relatively young, it will serve as adequate deterrence. In my view, it is not necessary to impose a longer period of disqualification to reflect the unlawful use of a motor vehicle offence. -- 4 of 5 -- 5 [13] Orders 1. Appeal allowed and sentences on all offences set aside. 2. Convictions are recorded for all offences. 3. A single fine of $1,500 is imposed in relation to all offences. 4. The fine is referred to the State Penalties Enforcement Registrar. 5. In respect of each count of driving a motor vehicle whilst disqualified, Ms Doyle is disqualified from holding or obtaining a driver’s license for a period of two years. -- 5 of 5 --