Elliott v Queensland Police Service [2015] QDC 90

DISTRICT COURT OF QUEENSLAND CITATION: Elliott v Queensland Police Service [2015] QDC 90 PARTIES: GREGORY STUART ELLIOTT (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 18/14 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Gladstone DELIVERED ON: 4 March 2015 ex tempore DELIVERED AT: Gladstone HEARING DATE: 4 March 2015 JUDGE: Burnett DCJ ORDER: 1. The appeal be dismissed. 2. There be no order as to costs. CATCHWORDS: APPEAL – s 222 Justices Act 1886 – whether previous convictions relevant consideration. CRIMINAL LAW – DRIVING OFFENCES – so under the influence of liquor or drugs as to be incapable of control – where appellant convicted of similar offences in another state – whether such convictions relevant. LEGISLATION: Justices Act 1886 (Qld), ss 222, 223, 225. Transport Operations (Road Use) Management Act 1995, ss 79, 80, 86. CASES: Teelow v Commissioner of Police [2009] QCA 84 COUNSEL: The appellant appeared on his own behalf. D. Kovac for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the respondent -- 1 of 5 -- 1 [1] HIS HONOUR: On the second of October 2014, the appellant, Gregory Stuart Elliot, was convicted and fined in respect of an offence of driving under the influence of liquor. He was fined $2500 and his licence was disqualified for two years. The particulars of the complaint, which was referred by bench charge sheet dated the 9th of August 2014, was that on that day, at Gladstone Central, he, whilst he was under the influence of liquor or a drug, drove a motor vehicle, namely, a Holden utility, on a road, namely, Goondoon Street, Gladstone Central. It was averred that the Holden utility was a motor vehicle as defined in schedule 4 of Transport Operations (Road Use) Management Act 1995 and that Goondoon Street, Gladstone, was a road as defined in schedule 4 of that Act. [2] Insofar as he was under the influence of liquor or a drug, there was evidence before the Court of a breath analysis certificate issued by Renee Brooke Anstee, an authorised officer to operate a breath analysing instrument, that on the 9th of August 2014, at 2120 hours, she analysed a specimen of Mr Elliott’s breath and that the concentration of alcohol indicated by such analysis to be present in the breath of Mr Elliott was 0.265 grams of alcohol in 210 litres of breath. That is otherwise colloquially known as a reading of 0.265. [3] By reason of that matter, he was charged with that offence under s 79 Transport Operations (Road Use) Management Act 1995, which provides as follows: “79(1) Offence of driving etc. while under the influence: any person who, while under the influence of liquor or a drug – (a) drives a motor vehicle … is guilty of an offence and is liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.” [4] The penalties provided for in s 79(1) Transport Operations (Road Use) Management Act 1995 are expanded by operation of s 86(1) of the Act. In this instance, the section provides a mandatory period of six months disqualification of licence. [5] When the matter came before the learned magistrate, his Honour, after hearing submissions on behalf of the appellant, determined to impose a sentence of two year’s disqualification and a fine of $2500. Relevant to his Honour’s decision, as expressed in reasons provided by him on the 2nd of October 2014, were the following considerations. He’d taken into account the appellant’s blood alcohol reading, the potential risk that he constituted to other road users with a reading five times the legal limit and, although not expressly stated in reasons, no doubt, took into consideration the submissions made by police, incorporating his previous traffic history and submissions made by his solicitor that at the time of these events, he was also on medication, which it was contended had the effect of inducing the appellant into a false sense of security concerning the level of intoxication. In addition, the solicitor informed the court that at the time, he had recently undertaken surgery with follow-up treatment likely for reconstructive surgery on his teeth and gum in respect of treatment for cancer that, I assume, he still continues to suffer from. -- 2 of 5 -- 2 [6] The appellant has brought this appeal seeking to set aside the orders of the Court made 2 October 2014 on the grounds that the sentence was manifestly excessive having regard to his personal circumstances and his traffic history. He relies particularly upon the fact that he has no relevant traffic history in Queensland and his personal circumstances. In passing, I note these matters were not agitated in any particular detail before the learned magistrate at the time his Honour passed sentence. [7] So far as these appeals are concerned, the appeal is governed by s 222(2)(c) of the Justices Act 1886, which provides that: “(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” [8] The conduct of the appeal is governed by s 223(1) of the Justices Act 1886 that provides the appeal is by way of a re-hearing on the evidence given in the proceeding before the justices. There is provision for the admission of fresh, additional or substituted evidence in certain circumstances. Section 225(1) of the Justices Act 1886 provides that: “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” [9] Those provisions have been considered by the Court of Appeal in Teelow v Commissioner of Police [2009] QCA 84 where, at [4], Muir JA observed: “[4] It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.” [10] In this case, the relevant evidence before the learned magistrate was contained not only in the allegations alleged in the bench charge sheet, but also, more particularly, the appellant’s prior criminal history. In his outline and in oral submissions, the appellant contends that these factors were not relevant to the decision made by the learned magistrate. Respectfully, I do not agree. Although the traffic history informing the learned magistrate’s decision was history from New South Wales, in this Commonwealth of Australia, there are now clear memorandums of understanding in existence between states in relation to the receipt and exchange of traffic history information. The information received by the Queensland Police from the New South Wales Police Service in respect of this appellant’s driving history indicated two high- range offences a little over five years beyond the date of the offending the subject of this appeal. [11] The first was a conviction on the 27th of March 2009 in respect of an offence that occurred on the 28th of December 2008 when the appellant failed to submit a breath test -- 3 of 5 -- 3 analysis, in respect of which he was fined and disqualified for two years, an offence that has its parallel in the Queensland legislation in s 80(11) Transport Operations (Road Use) Management Act 1995, which similarly provides that if a police officer makes a requisition for a specimen and the respondent fails to provide the appropriate specimen, then the person is deemed to have committed an offence under s 79(1) Transport Operations (Road Use) Management Act 1995, an offence of the kind concerning which the appellant appeared before the learned magistrate. [12] The second relevant matter was a conviction on the 12th of June 2007 before the Albury Magistrates Court in respect of an offence that occurred on the 8th of April 2007, where the appellant was convicted of an offence of driving with a high-range of alcohol, in respect of which he was fined $1300 and disqualified from driving for one year. [13] The only saving grace for the appellant in this instance in respect of the sentence of disqualification is that these two offences occurred outside the five years preceding the commission of this offence. Had he committed this offence within five years of the two New South Wales offences, although he would not have been subject to the mandatory requirement in Queensland for a period of imprisonment, that would have been the sentence that the learned magistrate would, no doubt, have been entertaining. It, in my view, would have been quite appropriate to impose such a sentence, for instance, had that been the fact. [14] Likewise, I think there was nothing inappropriate in the learned magistrate adopting an approach that these two offences having been committed outside five years, the sentence ought reflect a sentence commensurate with the sort of sentence that would have been imposed had the offending occurred in Queensland. [15] Having regard to those matters and, in particular, having regard to the maximum which would apply if both those previous offences had occurred within five years, namely imprisonment, and the mandatory period of disqualification that would apply in respect of that matter, it’d be a disqualification of two years. The mandatory disqualification period that would apply if one of those offences had occurred in Queensland within five years, namely 18 months, and recognising that the strict mandatory sentence applicable because the two other offences had occurred outside Queensland was six months, his decision to impose a period of disqualification of two years or 24 months was, in my view within the appropriate sentencing range. I’m not satisfied that his sentence in respect of disqualification was manifestly excessive and I do not intend to disturb it. [16] So far as the second component of his Honour’s decision, that is the decision in respect of the financial penalty or fine, the Penalties and Sentences Act 1992 provides, in respect of fines, that if a Court decides to fine an offender then in determining the amount of the fine and the way in which it is to be paid the Court must, as far as practicable, take into account (a) the financial circumstances of the offender and (b) the nature of the burden that the payment of a fine will be on the offender. [17] As I noted at the outset, no express submissions were made by the appellant’s counsel on the day that the matter came before his Honour for sentence. The only relevant material provided by his counsel on that occasion was that he was single, he lived by himself, he had two children that live with their mother outside Gladstone. It was submitted that his Honour ought take into account that a fine was an appropriate penalty -- 4 of 5 -- 4 together with disqualification, but that his Honour direct his mind to mitigation of the length of disqualification where he was then off work while he was receiving treatment. It was noted that he typically worked as a painter. No particulars of income were provided by the appellant’s counsel to his Honour. [18] In the ordinary course, the penalty that was imposed by his Honour on that occasion was within the range of fines that would be expected to be imposed upon an offender who had two prior high range convictions when appearing before a Court on a third high-range conviction. However, although not strictly required to, I have permitted the appellant to inform me today of his financial circumstances. Although I understand the appellant’s situation is one whereby he is presently working part time, he has an intention to return to full-time employment upon the conclusion of his medical treatment. However, the greater impediment to his return to employment is not his medical condition but, rather, his absence of a driver’s licence. In turn, the greatest impediment to his earning an income is the absence of a driver’s licence. [19] He was not eligible to make application for a restricted licence because of the high range of the relevant reading and it follows he will have to endure the two years’ disqualification. In any event, he has part-time employment available to him and, of course, any fine is referred to SPER, through which agency the appellant is able to negotiate an appropriate payment program to facilitate payment of the fine over time. In my view, there is nothing exceptional about the fine. There is nothing exceptional about his circumstances. He can earn and does earn approximately $800 per week in part-time employment. [20] Having regard to his personal and other commitments, although he says he has no savings, I think there is capacity for him, over time, to pay the fine. I also think payment of the fine over time, together with the lengthy period of disqualification, will serve to remind him of the significance of his offending. He has a horrible history and one that extends, now, over at least the last seven years. It follows the punitive elements of the penalty are important, in this instance. In my view, the fine is appropriate and I will refuse the appeal. The appeal is dismissed. -- 5 of 5 --