Adams v Slattery [2014] QDC 55

DISTRICT COURT OF QUEENSLAND CITATION: Adams v Slattery [2014] QDC 55 PARTIES: SENIOR CONSTABLE LEE BRIAN ADAMS (appellant) v MICHAEL JAMES SLATTERY (respondent) FILE NO/S: D182/13 DIVISION: Civil PROCEEDING: Section 222 Appeal ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 27 March 2014 DELIVERED AT: Maroochydore HEARING DATE: 21 February 2014 at Maroochydore JUDGE: Long SC DCJ ORDER: Appeal allowed and pursuant to s 225 of the Justices Act 1886 and in respect of each of the orders made by the Magistrate on 7 November 2013: (a) The order imposing a good behaviour bond is set aside and instead and in relation to all of the respondent’s offences committed on 6 November 2013, he is fined the sum of $2,000. It is further directed that the Registrar give the particulars of the fine to SPER under s 34 of the State Penalties Enforcement Act 1999; (b) The order disqualifying the respondent from holding or obtaining a drivers’ license for six months, in respect of the offence against s 79(1) Transport Operations (Road Use Management) Act 1995, is amended to a period of 12 months; (c) The order disqualifying the respondent from holding or obtaining a drivers’ license for six months, in respect of the offence against s 80(11) Transport Operations (Road Use Management) Act 1995, is confirmed; and (d) The order that convictions be recorded in respect of each of the respondent’s offences, is confirmed. -- 1 of 13 -- 2 CATCHWORDS: APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appeal by complainant – where respondent pleaded guilty to offences of wilfully making unnecessary noise or smoke, obstruct police, fail to provide specimen of breath for analysis, and drive under the influence of liquor – where it is not usual for guilty pleas to be entered in respect of both an offence of fail to provide specimen of breath for analysis, and of drive under the influence of liquor – where the sentencing Magistrate erred by making a single order for all four offences – where imposition of a bond was an inappropriate response to the offending – whether s 16 of the Criminal Code Act 1899 applied to dealing with the offences of fail to provide specimen of breath and drive under influence of liquor and discussion of considerations arising in respect of dealing with such a coincidence of offending Criminal Code Act 1899, s 16, s 17 Justices Act 1886, s 47, s 222, s 225 Penalties and Sentences Act 1992, s 13, s 31, s 49, s 188(1)(a) Police Powers and Responsibilities Act 2000, s 790(1) State Penalties Enforcement Act 1999, s 34 Transport Operations (Road Use Management) Act 1995, s 79(1), s 80, s 90A, s 90D, s 91K, s 91R, Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 291(1)(b) Constable S J Miers v Blewitt [2013] QCA 23 R v Dibble; ex parte A-G (Qld) [2014] QCA 8 R v Tricklebank [1994] 1 Qd R 330; [1993] QCA 268 Schwarz v Queensland Police Service [2013] QDC 105 COUNSEL: A. Stark for the appellant S. Dixon for the respondent SOLICITORS: Queensland Police Service Solicitor for the appellant Legal Aid Queensland for the respondent -- 2 of 13 -- 3 Introduction [1] On 7 November 2013 a notice of appeal was filed by the complainant in proceedings in the Magistrates Court at Maroochydore, in respect of orders made in that court on that same day and consequent upon the conviction of the respondent, upon his guilty pleas to four offences committed on 6 November 2013. Those offences were:  wilfully making unnecessary noise or smoke (s 291(1)(b) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009);  obstruct police (s 790(1) Police Powers and Responsibilities Act 2000);  fail to provide specimen of breath for analysis (s 80(11) Transport Operations (Road Use Management) Act 1995);  drive under the influence of liquor (s 79(1) Transport Operations (Road Use Management) Act 1995). The sole ground of appeal is that sentence imposed upon the respondent is inadequate. [2] For present purposes it suffices to observe that the proceedings in the Magistrates Court, on 7 November 2013, were complicated by some issues that are not regularly encountered and which were not the subject of any sufficient, let alone full, ventilation or consideration and this ultimately led the sentencing Magistrate into some errors which are conceded by the respondent, on this appeal. [3] As I was informed by the experienced solicitor appearing for the respondent on this appeal, it is not a usual occurrence in the Magistrates Court for there to be guilty pleas entered in respect of both an offence pursuant to s 79(1) of the Transport Operations (Road Use Management) Act 1995 (―TORUM‖) and s 80(11) of that same Act. Further and as discussed further below, that situation raises some particular issues that must necessarily be addressed in the sentencing process. -- 3 of 13 -- 4 [4] As a consequence of this unusual situation, the Magistrate below, expressed concern about it and at one point suggested that there was an issue of ―double jeopardy‖. Although that contention was agreed with and supported by the legal representative for the respondent below1, a difficulty was the absence of any precision in identification of any legal issue that was or may be engaged, and as a consequence, neither was there any particular consideration given to identifying the precise considerations that arose in sentencing this offender. [5] In the circumstances and in the absence of any plea other than a plea of guilty, there could be no issue that arose under s 17 of the Criminal Code and no precise suggestion of any abuse of process or any application for any stay of proceedings was made. It would appear the concern was as to the application of s 16 of the Code. However, and as is common ground between the parties on this appeal, no such issue arises. However and for reasons that are elaborated below, that conclusion involves consideration of matters that are not entirely straightforward and in terms of the now resolved position of the parties, comes after some obvious careful deliberation. [6] It should be noted that s 16 of the Code is concerned with issues relating to punishment and therefore potentially remains an issue for this court, in terms of any order that is made in respect of the sentence to be imposed on the respondent. That is particularly so in this case, as it is conceded and I accept, that on a review of the record, the sentencing discretion of the Magistrate below has miscarried and that the sentence imposed is both manifestly inadequate and afflicted by error, in that a single order pursuant to s 31 of the Penalties and Sentences Act 1992 was imposed for all four offences. Although, the later consideration is, in reality, incidental to the former and by itself was amenable to correction by reopening of the proceedings in the Magistrates Court under s 188(1)(a) of the Penalties and Sentences Act. The Circumstances [7] The circumstances of the offending were put before the Magistrate as follows: ―On the 6th of November the defendant was observed driving blue Holden sedan at the intersection of Sunhaven Court and Doolan Street at Nambour. The vehicle‘s left-hand wheel was observed to 1 A different lawyer to the respondent‘s legal representative in this court. -- 4 of 13 -- 5 spin with excessive speed causing a white, thick cloud of smoke to pour off on the rear tyre. The defendant then turned left heading north along Doolan Street, making an immediate U-turn and accelerating past the police vehicle. The defendant also was observed to turn right into Sunhaven Drive, parking in the vehicle in the car park of an address at Sunhaven Court. The police observed the defendant stop the vehicle and alight from the driver‘s side door before being apprehended at the rear of this car. Police questioned the defendant about his driving manner which caused him to become violent, attempting to push through officers saying ‗fuck off‘. Police could smell liquor about the defendant. Found his speech to be extremely slurred and he was unsteady on his feet. The defendant was detained by police for he was struggling violently, flexing both arms and shoulders and attempting to break free from the police glass (sic). The defendant was handcuffed by police before he (sic) placed in the rear of the police vehicle. Under a requirement made – direction was given to him for a roadside breath test which indicated positive. He‘s then detained and he became increasingly violent, kicking out with his feet, attempting to alight from the police vehicle. The defendant was forcibly placed and secured in the police vehicle where he continued to bash his head against the glass window. A short time later, the defendant was transferred to secure police transportation device where he again kicked the police and attempted to break free from their grasp. The defendant was forcibly secured in the transport device before being conveyed to the Maroochydore Police Station for a breath analysis. The defendant was questioned by police about his manner of driving. He refused to admit to being the driver. The defendant was questioned about the amount of liquor he consumed before being apprehended by police. He admitted to consuming about nine self-mixed drinks of Jim Bean (sic) bourbon, rum and coke and stating, ‗I‘m pretty pissed‘. At about 2.39 pm at the police station at Maroochydore a requirement was made, the defendant provided – a direction was made for the defendant to prove a specimen of breath for analysis. The defendant refused to provide a specimen of breath – another opportunity and he refused and claimed he was not the driver of the motor vehicle. The defendant was placed under arrest for the – in relation to the other offences and escorted to the next door watch- house. Upon arrival at the watch-house, he continued his violent behaviour and struggled against police. The defendant kicked out at watch-house staff where he was restrained from continuing his behaviour.‖2 2 T 1-3 l37 – 1-4 l31 -- 5 of 13 -- 6 [8] The respondent‘s criminal and traffic histories were tendered, as was a certificate in relation to his failure to supply the specimen of breath for analysis. Then for the respondent, after indicating that he was 23 years of age and on a disability support pension and when asked why he was on that pension, his legal representative continued: ―He instructs he has anxiety and depression and anger management issues. He has been medicated in that regard since he was about 16 years of age. He has largely been compliant with his medication. He rarely does drink to the excess that he did on this particular night. He has previously drunk whilst he‘s on medication but not like this. And he‘s had some significant issues since his father died when he was 12 years of age. He does not have a steady doctor as such, but as I indicated he is regular with his medication but he‘s also instructed that he‘s become more depressed lately and unfortunately he hasn‘t gone to a doctor or doesn‘t have a relationship with a doctor to say, ‗My medication may not be working or suitable anymore‘. He has a partner and lives with – who is the mother of his son, his three year old son and they have a very good relationship. He has no recollection of these particular offences at all and he is quite distressed about his current predicament. He certainly has never (sic) a period of actual custody before. In, I think, September of this year he was sentenced to 14 months with a parole release for assault occasioning bodily harm which would indicate that there does seem to be some anger management issues that some supervision and warrant that. He is now subject to a 28 day suspension or return to prison warrant for those charges as a result of being charged with the current charges.‖3 [9] The solicitor went on to submit that the mental health issues she had outlined may go to the question of the weight to be placed on general deterrence, particularly in terms of lowering the disqualification period, which was indicated to be of most concern to the respondent. [10] Relevantly, the sentencing remarks of the Magistrate were: ―I‘m placing you on a bond because of your personal circumstances and the fact that you actually are going to be inside for 28 days. I have very much taken that into account. I do not accept that you‘ve got the capacity to pay a fine. So therefore I‘m going to place you on a bond for these offences. However, I have to give you a mandatory minimum disqualification for both the UIL and the failing to provide a test, a breath test. So there will be one penalty, one general penalty for all offences and you‘re going to be placed on a good behaviour bond for a period of three months upon you entering into a 3 T 1-5 ll16-34 -- 6 of 13 -- 7 reconnaissance of $300 that you be of good behaviour for that three months and not commit any further offences. A conviction will be recorded because of your history.‖4 Some Statutory Context [11] Quite apart from the complications following from the fact of these offences being committed in breach of parole and the suspension of his parole order as a result of that, dealing with the applicant‘s guilty pleas to both an offence under s 79(1) and also under s 80(11) of TORUM necessarily complicates this case. [12] It can be accepted that the punishable act in respect of an offence under s 80(11) is the failure to meet a requisition made, under a relevant provision, for a sample of breath saliva or blood, for analysis and is therefore necessarily a different act to an act of driving, attempting to put in motion or being in charge of a motor vehicle, tram, train or vessel whilst under the influence of liquor, as is punishable by s 79(1), and therefore s 16 of the Code does not apply5. However it does not therefore follow that there are no further considerations that may arise as to the appropriate punishment, particularly by having regard to any overlap or correlation between those offences and that position is complicated by the legislative expression of the effect and consequence of an act made punishable by s 80(11). That is, that upon proof of that punishable act: ―each of the following applies— (d) the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1); (e) the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver licence, as the person would be if the offence were actually an offence committed by the person against the appropriate provision of section 79(1).‖ [13] In context, s 80(11) of TORUM can be seen as one of a number of provisions regulating the use of particular vehicles by persons affected by alcohol or drugs. It 4 D 2, ll1-12 5 R v Dibble; ex parte A-G (Qld) [2014] QCA 8, R v Tricklebank [1994] 1 Qd R 330; [1993] QCA 268 -- 7 of 13 -- 8 does that by providing for the offence of failing to provide the specimen requested pursuant to s 80(8), (8C) or (9) of TORUM. A similar offence is provided in s 80(5A) in respect of a failure to provide a specimen of breath or saliva for testing. The essential difference is that the request to which s 80(5A) is directed may but need not necessarily be, a preliminary step towards the requisition to which s 80(11) is directed and it is only the outcome of the later requisition which is given evidential effect, pursuant to any certificate issued under s 80(15) or (15B). [14] Penalties are provided for each offence but and unlike the position in respect of the failure to which s 80(5A) is directed, the penalty for the failure to which s 80(11) is directed, is effectively provided by a deemed consequence of being taken to be guilty of and liable to the same punishments as for, an offence under s 79(1) of TORUM, rather than any separate or discreet penalty. An effect is to obviate any attempt to avoid the consequences of the analysis of a lawfully obtained sample of breath, saliva or blood by deeming the commission of an offence against s 79(1) irrespective of what the actual analysis may have revealed, with all the usual consequences of the commission of such an offence. [15] That has a further particular consequence relating to punishment, in that s 86 of TORUM provides for periods of disqualification for conviction ―of an offence in relation to a motor vehicle against section 79(1)‖, by way of statutory effect and irrespective of any specific order of a court. Whilst it is correct to observe that this does not in fact provide for a minimum penalty that must be imposed by a court dealing with an offender, the effect is to provide for a statutory minimum disqualification period, subject to any longer period that may be ordered by a court. [16] There was no suggestion raised in this appeal, other than that this section applies to the deemed effect of a s 80(11) offence and also to the admitted offence under s 79(1) of TORUM. However, that conclusion then has the further consequence pursuant to s 90B, that the periods of disqualification which are imposed for each offence (whether the statutory minimum or otherwise) are required to have cumulative effect.6 6 It can be noted that an offence against s 80(11) is specifically included in the definition of ―drink driving offence‖ in s 90A and that s 90D clarifies that this is the consequence, irrespective of whether or not the periods of disqualification are imposed or ordered at the same hearing or as to which sequence in which they are imposed or ordered. -- 8 of 13 -- 9 [17] That consequence is a matter relevant to the exercise of the sentencing discretion in this case and is necessarily to be taken into account in fixing a sentence appropriate to all of the relevant circumstances. [18] It can also be noted that, as opposed to offending conduct involving positive acts, such as in the nature of resisting arrest or obstructing police7, usually, a failure by an offender to cooperate with police investigations, by self-incrimination or otherwise, is not regarded as punishable, or even an aggravating factor in sentencing.8 However and within the context and purpose of the legislative provisions aimed at offending by drink or drug affected drivers, there is an obvious statutory expectation of self-incrimination, by provision of the required samples and it is specifically provided that failure to do so under s 80(5A) is separately punishable. [19] However, the position in respect of the offence under s 80(11) is complicated by the specific provisions referred to above, as to the effect of that offence in deeming a commission of the most serious available offence, under s 79(1). That situation raises an obvious question about the utility of the prosecution proceeding with a s 80(11) offence when there is an acceptance, by guilty plea, of an offence under s 79(1). However that is not a direct concern of a court and in this case any such concern may be passed over, because the respondent entered guilty pleas to and was convicted of both offences. In those circumstances and as I have already noted, the critical issue then became one of dealing with the circumstances and effects of that situation (together with the other offences committed by the respondent), so as to achieve an appropriate sentencing outcome. Discussion [20] In this case, the prosecution relied upon evidence of the indicia of intoxication and the admissions of the respondent as to his consumption of alcohol, as to the charge under s 79(1) of TORUM, separately and in addition to the deemed effect of the s 80(11) offence and the respondent admitted the commission of both offences. At 7 The latter being an offence of which the respondent was also convicted here. 8 On the contrary, the principle is that such cooperation, if it occurs, may be a mitigating factor: see s 13 Penalties and Sentences Act 1992. -- 9 of 13 -- 10 the very least, a point is well made for the respondent, to the effect that his guilty plea to the s 79(1) offence tended to mitigate (or largely overcome) his culpability for failing to provide the specimen of breath. [21] The respondent had criminal history of some significance and had most recently and on 3 September 2013 been sentenced to 14 months‘ imprisonment, with an immediate parole release, for an offence of assault occasioning bodily harm, committed on 16 February 2013.9 It was the suspension of this period of parole that had given rise to the liability for 28 days‘ imprisonment which was referred to by the respondent‘s legal representative in the Magistrates Court. [22] The respondent‘s traffic record indicated some further offending of significance, including drink driving offences committed on 3 June 2007, 28 December 2007 and 26 December 2011. Although it was common ground on this appeal10, that the most recent instance had to be ignored, for the purpose of dealing with the offences under s 79(1) and s 80(11) of TORUM, having regard to the decision in Constable S J Miers v Blewitt11 and the absence of a requisite notice pursuant to s 47 of the Justices Act 1886. [23] In these circumstances and as was conceded by the respondent upon this appeal, the selection of a bond imposed pursuant to s 31 of the Penalties and Sentences Act, as a sentencing option, was clearly an inappropriate response to the circumstances of the offending, particularly having regard to the respondent‘s antecedents and his commission of those offences whilst on parole. It suffices to note that having regard to the terms of s 31 of the Penalties and Sentences Act 1992 such an order is made to secure the release of an offender ―instead of being sentenced to punishment to which the offender is liable‖. Further and whilst the consequences to the respondent under his parole order are relevant considerations, they do not in any way mitigate this offending. 9 Although the only prior orders involving imprisonment had been a 6 month period to be served by way of Intensive Correction Order and 1 month wholly suspended for 12 months, each imposed on 31 May 2011 and in respect of offences of common assault, assault occasioning bodily harm, attempted entry of premises with intent, wilful damage and breach of bail condition. 10 But not a point raised or considered before the Magistrate. 11 [2013] QCA 23. -- 10 of 13 -- 11 [24] In any event, there was the error in the making of a single order for all offences and the respondent will need to be resentenced. That can and should be done in this court. [25] In this court, it was common ground that the most appropriate penalty for the respondent‘s offending was by way of imposition of a fine and I accept that it would now be unjust and inappropriate to visit any custodial sentence on the respondent, by way of correction of the errors made below.12 As far as the respondent is concerned, making that submission entailed the necessary implication that he had capacity to pay a fine in the order of $1,500 to $2,00013 but in having regard to his position as a disability pensioner, it was contended that the recovery of any such fine should be immediately referred to the State Penalties Enforcement Registry (―SPER‖). That implicit concession, which was expressly confirmed in the appeal hearing, stands in contrast to the Magistrate‘s finding of lack of such capacity but the record reveals that the Magistrate did not take any detailed submissions on the issue. After the respondent‘s legal representative had addressed the disqualification period as being of most concern to the respondent, she then proceeded to address the issue of further penalty but was almost immediately cut off by the Magistrate‘s indication of an intention to place the respondent on a bond ―because of his personal circumstances‖.14 [26] The respondent, raised another consideration to be taken into account, in the further statutory effect of the respondent‘s conviction, in that pursuant to s 91K of TORUM and at the end of the accumulated period of disqualification for the s 79(1) and s 80(11) offences, any drivers license again granted to the respondent attracts an interlock condition. That is, for the ―interlock period‖ (a period of two years from the end of the disqualification period) or the ―prescribed period‖ (a period of 12 months of holding a valid drivers license with a fitted interlock device or having an effective interlock exemption), the respondent may only drive a nominated vehicle 12 This Court was informed that the respondent remained in custody in respect of his breach of parole up to the time of the appeal hearing. 13 It can be noted that a fine in the order of $2,000 was within the parameters of the appellant‘s submissions, as to an appropriate outcome and also that pursuant to s 49 of the Penalties and Sentences Act 1992 (Qld), a single fine may be imposed for more than one offence, particularly as is the case here, where the facts relating to all of the offences are relevant to each of them as a related course of conduct. 14 T 1-5 l40 – T1-6 l25 -- 11 of 13 -- 12 that is fitted with a prescribed alcohol ignition interlock device. [27] Effectively this means that subject to obtaining an exemption under s 91R, the respondent will be confronted with an election to either abstain from driving any motor vehicle for two years or to incur the cost of fitting an interlock device, for a period of 12 months. The appellant did not contend that this was an irrelevant consideration, particularly as to the additional potential impost upon the respondent‘s financial circumstances.15 It may be further observed that these provisions serve to further underline not only the protective purpose for which the respondent is to be sentenced, including in respect of any period of disqualification to be imposed, but also the punitive effect of the consequences of his offending. [28] Having regard to all of the circumstances, I am satisfied that a fine of $2,000 is an appropriate response. [29] As to an appropriate disqualification period, having regard to the effective admission of being substantially under the influence of liquor, the respondent‘s conduct in his driving of the vehicle in question and his relevant antecedents, an appropriate disqualification is for a period of 18 months and that, in all of the circumstances, is best structured upon the basis of an order in respect of the s 79(1) offence for a period of 12 months. Although no further order would be necessary having regard to the statutory consequences, as the Magistrate did and for the interests of clarity and certainty, it is best that there be an order that the period of disqualification for the s 80(11) offence be six months and to note that, in combination, that is a total period of 18 months‘ disqualification. Orders [30] Accordingly the appeal is allowed and pursuant to s 225 of the Justices Act 1886 and in respect of each of the orders made by the Magistrate on 7 November 2013: (a) The order imposing a good behaviour bond is set aside and instead and in relation to all of the respondent‘s offences committed on 6 November 2013, he is fined the sum of $2,000. It is further directed 15 See Schwarz v Queensland Police Service [2013] QDC 105, where it was noted to be common ground that the cost of fitting such a device was between $2,200 and $2,500, at [41]. -- 12 of 13 -- 13 that the Registrar give the particulars of the fine to SPER under s 34 of the State Penalties Enforcement Act 1999; (b) The order disqualifying the respondent from holding or obtaining a drivers‘ license for six months, in respect of the offence against s 79(1) Transport Operations (Road Use Management) Act 1995, is amended to a period of 12 months; (c) The order disqualifying the respondent from holding or obtaining a drivers‘ license for six months, in respect of the offence against s 80(11) Transport Operations (Road Use Management) Act 1995, is confirmed; and (d) The order that convictions be recorded in respect of each of the respondent‘s offences, is confirmed. -- 13 of 13 --