Bridge v Queensland Police Service [2012] QDC 267

[2012] QDC 267 DISTRICT COURT APPELLATE JURISDICTION JUDGE RACKEMANN No 50 of 2012 LINCOLN SCOTT BRIDGE Appellant and QUEENSLAND POLICE SERVICE Respondent SOUTHPORT ..DATE 02/08/2012 ORDER -- 1 of 6 -- HIS HONOUR: This is an appeal against sentence for an offence of driving under the influence of alcohol. The offence occurred on the 1st of January 2012 and the appellant pleaded guilty and was sentenced on the 30th of January this year. A conviction was recorded and a $2,500 fine was imposed, together with a disqualification of 11 months. The appeal is on the basis that the sentence arrived at, in its totality, is manifestly excessive and it is also said that the Magistrate arrived at that sentence by placing too much weight on a significant, but dated, offence and by giving no, or inadequate, consideration to the effects that a disqualification period of that length would have upon the appellant. A matter which clearly weighed heavily upon the Magistrate was the fact that in 1994 the appellant had been dealt with for the most serious of driving offences, being dangerous driving causing death with a circumstance of aggravation - which occurred in May 1992. For that he received a sentence of imprisonment and was disqualified from holding a driver's licence for five years. In the course of sentencing submissions, the learned Magistrate emphasised that, having had such an experience, the appellant should "never, ever, ever, ever, ever" have taken a risk with driving again. It must be acknowledged, however, that that offence occurred two decades ago, and that the driving history of the defendant -- 2 of 6 -- since, whilst perhaps not exemplary, has been relatively good. He has only incurred two fines in the period since, one being for speeding in the range between 20 and 30 kilometres per hour over the limit, and one red light offence. Not only has his traffic history since been limited to those two offences, it may be observed that those two offences occurred in 2007, and more than four years passed between that and this offence, during which there were no offences at all. It might also be noted that this is the first occasion upon which the appellant was being dealt with for an offence of this kind. He is certainly not a recidivist drink driver. The offence on the evening occurred when his taxi did not arrive to pick him up from a New Year's party and he made the fateful decision to drive when he had a blood alcohol concentration of .152. Of course, driving with such a blood alcohol concentration is a serious matter and carries potential risk, as the Magistrate rightly observed. However, there is no suggestion that there was any particular aberrant driving behaviour involved, as opposed to the potential hazard constituted by driving under the influence. In the course of sentencing submissions, the learned Magistrate was informed that there had been effectively a one month suspension prior to the sentence which should be taken into account, and so it would appear that his Honour had adopted a starting point of a 12 month suspension before -- 3 of 6 -- deducting the one month. A matter of considerable concern to the defendant/appellant was his employment situation. In that regard, he had employment as a business broker and licensed real estate agent. The references before the learned Magistrate spoke of the defendant's good character otherwise, as, indeed, the learned Magistrate acknowledged. One matter which was highly relevant to the defendant/appellant, which is not referred to in the sentencing remarks, is the extent to which the defendant relied upon his licence for work and the effect which a lengthy disqualification would have on him in that regard. Those matters were dealt with in the reference from his employer, and it is not in issue that any period of disqualification has a particularly negative impact on this defendant/appellant by reason of his employment. Just because one relies on a motor vehicle for gainful employment, of course, does not give one an immunity from being disqualified from holding a licence. As was pointed out on behalf of the prosecution, the Transport Operations (Road Use Management) Act 1995 requires the decision-maker to have regard to the concentration of alcohol in the blood, but also the danger, real or potential, to the public in the circumstances of the case. A disqualification is as much about protecting the public as it is in relation to punishment. -- 4 of 6 -- In light of this particular concern for this particular defendant, it was volunteered on his behalf during the sentencing submission that the Magistrate could adopt a higher than usual fine if that was seen as appropriately balanced by a moderation of the suspension. Ultimately what the learned Magistrate has done, however, is to adopt a very high fine together a quite substantial period of disqualification. In my view, the combination of those has resulted in a sentence which is manifestly excessive, and it seems to me that that has been arrived at by reason of giving too much weight to the significant but now dated offence dating back to the early 1990's and too little weight to the impact of the disqualification on this particular person. In the circumstances, I will vary the sentence to one which involves a fine of $1500 and a disqualification for eight months. Anything further? MR CARTLEDGE: Your Honour, I've an application for costs. HIS HONOUR: Anything to say? MR MITCHELL: They follow the event, your Honour. HIS HONOUR: Yes, I order that the respondent pay the appellant's costs. MR CARTLEDGE: Thank you, your Honour. Just a scale. -- 5 of 6 -- HIS HONOUR: In accordance with the relevant scale. MR CARTLEDGE: Thank you, your Honour. HIS HONOUR: Thank you. You're excused. ----- -- 6 of 6 --