Roach v Queensland Police Service [2015] QDC 150 (2 June 2015)

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CITATION:	Roach v Queensland Police Service [2015] QDC 150
PARTIES:	SWAYNE EDWARD ROACH (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: 204 of 2014
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Atherton
DELIVERED ON:	2 June 2015
DELIVERED AT:	Cairns
HEARING DATE:	24 May 2015
JUDGE:	Morzone QC DCJ
ORDER:	Application for extension of time allowed. Appeal against conviction dismissed. Appeal against sentence allowed. Set aside the orders made by the Magistrates Court on 30 September 2014 and substitute the following orders: (a) For the offence of driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 the appellant is convicted, fined $100 and disqualified from holding or obtaining a Driver’s Licence for 6 months. Conviction recorded. (b) For the offence of failing to provide a specimen of breath for analysis after a requirement under s 80(8) of the Transport Operations (Road Use Management) Act 1995, the appellant is convicted of driving under the influence of liquor under ss 79(1)(a) pursuant to 80(11)(a) of the Act, fined $100 and disqualified from holding or obtaining a Driver’s Licence for 6 months. Conviction recorded. (c) The disqualifications will be served cumulatively. (d) I direct the Registrar to refer the payment of fines to the State Penalties Enforcement Registry.
CATCHWORDS:	CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – conviction on guilty plea – limited appeal rights in respect of conviction - appeal against severity of penalty for offence of driving whilst under the influence of liquor under s 79(1) of Transport Operations (Road Use Management) Act 1995 (Qld) and offence of failing to provide specimen of breath for analysis on requirement under s 80(11) – whether sentence manifestly excessive. Legislation Justices Act 1886 (Qld), ss 222, 223(1), 224 & 227 Transport Operations (Road Use Management) Act 1995 (Qld) – ss 79(1), 80(8), 80(11), 86, 90A, 90B and 90D. Cases The Queen v Tait [1998] QCA 304; [1999] 2 Qd R 667 Meissner v The Queen [1995] HCA 41; (1994-95) 184 CLR 132 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 House v The King (1936) 55 CLR Mill v The Queen[1988] HCA 70; , [1988] 166 CLR 59 The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386
COUNSEL:	Appellant (self represented) R Logan for the Respondent
SOLICITORS:	The Office of the Director of Public Prosecutions for the respondent

[1] On 30 September 2014, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Atherton, and was sentenced as follows:

(a) For the offence of driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (the Act) the appellant was convicted and fined $1,200, and disqualified from holding or obtaining a Driver’s Licence for period of 12 months. Conviction recorded.

(b) For the offence of failing to provide a specimen of breath for analysis after a requirement under s 80(8) of the Act, the appellant was convicted of driving under the influence of liquor under s 80(11)(a) and fined $1,000 and disqualified from driving for 6 months disqualified from holding or obtaining a Driver’s Licence. Conviction recorded.

[2] The appellant applies pursuant to s 224(1)(a) of the Justices Act 1886 (Qld) for an extension of time for filing a notice of appeal against a decision of a magistrate pursuant to s 222 of the Justices Act 1886 (Qld).

[3] The appellant seeks to appeal his convictions and sentence. The parties have agreed that I deal with the application under s 224(1)(a) and the merits of the appeal contemporaneously.

[4] Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

[5] The appellant was charged with one count of driving under the influence of liquor under s 79(1)(a) of the Act and one count of failing to provide a specimen of breath for analysis after a requirement under s 80(8) of the Act.

[6] At the commencement of the hearing before the Magistrates Court on 30 September 2014, the appellant asked the court to “dismiss these two charges”, then toiled whether to plead “guilty” or “not guilty”, and then elected to plead guilty.

[7] The hearing then proceeded to a short sentence. The police prosecutor submitted on the facts relied upon as follows:

“... In relation to charge 1, 8:30 [pm] on 9th of September, police were called to attend the Tolga Hotel at Main Street, Tolga in relation to a make person causing a disturbance there. Police received information from number of witnesses at the hotel that identified the defendant driving a motor vehicle in front of the Tolga Hotel. Attention has been brought to his vehicle as he’s almost collided with another parked vehicle. The defendant’s been refused service by the hotel and he’s then left the hotel and subsequently located by police. The defendant’s become extremely aggressive towards police. The defendant – the police observed that he smelled strongly of alcohol and his speech was heavily slurred. Based on his indicia, police arrested the defendant for the matter before you for charge 1.

With respect to charge 2, the defendant was ... subsequently taken to the Mareeba Police Station, where a requirement was given to provide a specimen of breath on a breath analysis instrument. He refused to provide that specimen of breath. He was further warned and subsequently failed to comply with this requirement. The breath analysis test was discontinued. The defendant was arrested in relation to charges 1 and 2.”

[8] The police prosecutor then tendered a certificate issued under s 80(15B) of the Act relating to the defendant’s failure to provide that specimen of breath and also the defendant’s criminal and traffic history.

[9] The defendant was provided an opportunity to make submissions, which I summarise here.

[10] He explained that he drank a quantity of alcohol after he parked the car but before he entered the hotel.[1] He recalled that “I just had a plastic bottle of spirit type alcohol and the publican told me that I walked into his hotel or went into his dining room and fell over and then he had to call the police”. He referred to the report about his manner of driving and said: “I didn’t collide into a motor vehicle”.[2] The defendant agreed with the magistrate that there was no dispute that the defendant drove the car.

[11] The trial magistrate explained that the charge related to the manner of defendant driving and “... that you drove the motor vehicle when you were under the influence of liquor”. The defendant responded: “Well, my intention was to have three drinks, drive around to the hotel and then finish my bottle as I walked into the hotel”.

[12] The defendant then explained his need for a driver’s licence to visit his father in summer near Tamworth; his children in Bowen, and his mother in Harvey Bay. He explained his work history as a fruit picker and that he was a “disabled pensioner” at the time of sentence. As to his health, the defendant submitted that he had “severe arthritis” and “severe breakdown in the hips” and 57% loss of discs in the middle of the back. He added that he also took medication for a “a mental issue”.

[14] Pursuant to s 222(1) of the Justices Act 1886, the applicant had one month after the date of the order in which to appeal.

[15] This appeal was filed out of time on 8 December 2014 and the applicant has applied for an extension of time.

[16] Under s 224(1)(a), a District Court judge may, on the application of a party, extend the time for filing a notice of appeal. In R v Tait [1998] QCA 304; [1999] 2 Qd R 667, the Court of Appeal explained the considerations relevant to granting an extension of time at [29] as follows:

“... the court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. It may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all cases the court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.”

[17] The appellant has explained the delay in the application. The appellant says that he was unaware of the limited time to appeal, but acted quickly as soon as he realised the true position. There was no prejudice identified by the respondent and my provisional assessment was that there was merit in the appeal for reasons which I set out in full below.

[18] In my view the applicant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeal. I allow the application for leave to extend time.

[19] The parties have agreed that the appeal hearing should proceed and be determined in these reasons.

[20] Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced.

[21] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error by the magistrate.

[22] The appellant appeals against the conviction and sentence in reliance on the grounds of appeal in the notice of appeal, as follows:

1. The factual circumstances of the conviction and the ground for the conviction are incorrect; I was not driving the vehicle at the time alleged.

2. The sentence is too severe and manifestly excessive in all the circumstances.

[23] The respondent argued that appeal ground was incompetent because the appellant was constrained by his pleas of guilty to appealing only against the severity of the sentence imposed.

“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”.

[25] Section 222(2)(c) of the Justices Act 1886 (Qld) restricts appeals in circumstances where there a defendant is convicted on his own plea, and there is no appellable error arising from an order affecting that plea.

“A Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding, providing the plea is entered in exercise of free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does not act on such a plea, even if the person entering it is not in truth guilty of the offence.”

[27] In Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, the court discussed circumstances which could vitiate a plea, including if the accused lacked full understanding of the plea,[3] equivocally, ignorance, fear, duress, mistake or even the desire to gain a technical advantage.[4]

[28] None of these grounds are present here, and the appellant does not challenge the quality of his plea. Indeed, the transcript shows that the trial magistrate appropriately ensured that the defendant understood both the factual basis and consequences of his plea.

[29] Instead, as I apprehend it, the appellant challenges the conviction on the grounds that on the facts admitted on the plea, he could not in law have been guilty of the offence of failing to provide a specimen when required because he was not driving the vehicle at that time.

[30] It seems me that the appellant is labouring under a fundamental misconception. It is not necessary a defendant to be found driving by the police at the time of issuing the requirement to provide a specimen of breath. Subsection 80(8) empowers a police officer to require a specimen of breath analysis under s 80(8) from a person arrested for an offence against s 79 of the Act. The person will commit an offence under s 80(11) he or she fails to provide a specimen of breath when required to do so under s 80(8) of the Act.

[31] All these elements are satisfied here. The police arrested the appellant for an offence under s 79(1)(a), namely driving his car whilst under the influence of liquor, based on witness accounts of the manner of his driving outside the Tolga Hotel, and the indicia of alcohol on his breath. He was taken to the police station at Mareeba where he was lawfully required to provide a specimen under 80(8) and he failed to give one as evidenced by the certificate tendered pursuant to s 80(15(b) of the Act. The offence was properly constituted and there is therefore no basis to disturb the plea of guilty.

[32] For these reasons, the appellant has no right of appeal against conviction.

(a) For the offence of driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (the Act) the appellant was convicted of the offence and fined $1,200, and disqualified from holding or obtaining a Driver’s Licence for period of 12 months. Conviction recorded.

[34] Section 79(1)(a) is directly relevant to the offence constituting the first charge of driving whilst under the influence of liquor. Relevantly, s 79(1)(a) provides that:

79 Vehicle offences involving liquor or other drugs Offence of driving etc. while under the influence

is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.”

[35] Subsequent provisions provide for escalating penalties having regard to the incidence of like offending in within 5 years and the blood/alcohol concentration having regard to the defined general alcohol limit, middle alcohol limit and high alcohol limit. These are not relevant to this offending, nor are ss 86(2A) and (2C) which require the court to have regard to the concentration of alcohol in the breath of the appellant, and the danger, real or potential, to the public in the circumstances of the case.

[36] For an offence against s 79(1), s 86 effectively imposes a minimum disqualification period of 6 months, by only empowering the court to make a specific order imposing a longer period or absolute disqualification. Section 86(1) and (5) provides that:

(1) A person who is convicted of an offence in relation to a motor vehicle against section 79(1) is, if during the period of 5 years before conviction the person has not been previously convicted —

disqualified by such conviction and without any specific order for a period of 6 months from the date of such conviction from holding or obtaining a Queensland driver licence.

(5) In the case of any conviction referred to in this section in respect of which a person is disqualified by such conviction and without any specific order for a period of time specified from holding or obtaining a Queensland driver licence, the judge before whom such person is so convicted on indictment or the justices by whom such person is so convicted may order that from the date of conviction such person be disqualified absolutely or for a longer period than the period specified in the person’s case from holding or obtaining a Queensland driver licence, and the person, on the making of the order, is disqualified under and in accordance with that order.”

[37] By force of s 80(11), s 79(1) is also relevant to the second charge for the offence of failing to provide a specimen of breath for analysis. Section 80(11) relevantly provides:

(11) If a police officer makes a requisition under subsection (8), (8C) or (9) in relation to a person and the person fails to provide as prescribed in this section—

(a) a specimen of the person’s breath for analysis by a breath analysing instrument; ....

(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).

[38] Therefore, in relation to the second offence the appellant was deemed to have committed an offence against s 70(1)(a) and is subject of the same penalty, not exceeding 28 penalty units or imprisonment for a term not exceeding nine months. Likewise, s 86(1) applies because the appellant had not been convicted of a similar offence in the preceding 5 years.

[39] The labyrinth continues with the need to consider the application of section 90B, which requires cumulative periods of disqualification for offences committed at different times. Section 90B provides:

(b) before the period of disqualification for the initiating disqualification ends, the person is disqualified again on 1 or more occasions (a later disqualification) as mentioned in paragraph (a).

(3) Each period of disqualification whether for an initiating disqualification or later disqualification takes effect cumulatively with each other period of disqualification.

[40] Offences against ss 79(1) and 80(11) are each a “designated offence” and a “drink driving offence”, and s 86 is a “relevant disqualifying provision” for the purposes of ss 90B to 90D.

[41] Section 90D then renders some matters immaterial to the cumulative effect of disqualifications under s 90B, including, as is relevant here, the fact that periods of disqualification are imposed or ordered at the same hearing is immaterial.

[42] Generally, the court must impose a sentence in accordance with s 9(1) of the Penalties and Sentences Act 1992, and must have regard to the matter listed s 9(2), relevantly here: the maximum and any minimum penalty prescribed; nature and seriousness of the offence; appellant’s blameworthiness; the appellant’s character, age and intellectual capacity; any aggravating or mitigating factors; the prevalence of the offence; assistance by the appellant to the police investigation; the appellant’s past record of offending; any other relevant circumstances.

[43] As to the imposition of fines, s 48(1) of the Penalties and Sentences Act 1992 provides 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 the financial circumstances of the offender; and the nature of the burden that payment of a fine will be on the offender.

[45] This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature6 or there is otherwise a miscarriage of justice.

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."

[47] A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried because the magistrate acted on a wrong principle, allowed extraneous or irrelevant matters to affect him, operated under a mistake of fact or did not take into account a material consideration, or alternatively it must be shown that the sentence was unreasonable or unjust.[6]

[48] Whilst I have no doubt that the magistrate, in sentencing the appellant, drew upon his extensive knowledge and experience, it is not clear whether he had regard to any particular matters of principle and findings supported by evidence, especially any view of blood/breath alcohol concentration. The transcript of the sentence reasons provides little insight into these matters:

“I’ll take your plea of guilty into account and, as best I can, the explanations which you have made but my concern is, of course, your manner of driving which was dangerous and it’s lucky, I suppose, that there was no accident actually caused. In respect of the drink driving charge, you are convicted and fined $1200. A conviction is recorded. You are disqualified from holding or obtaining a driver’s licence for 12 months. In respect of the other charge, you are convicted and fined $1000. A conviction is recorded. You are disqualified from holding or obtaining a driver’s licence for six months. I’ll refer the fines to SPER for you. I can, if you wish, give consideration of converting those fines to what is called a fine option order where you perform unpaid community services instead of paying the fines. But if you want to leave them at SPER, I’ll just leave them at SPER for you.”

[49] When applying the offence and sentencing provisions, a court cannot exercise the sentencing discretion in a vacuum. Although the sentencing process does not require the strict adherence to the rules of evidence, it must nevertheless be evidenced-based. The magistrate was required to give more or less weight the evidence adduced during submissions. The magistrate was not well assisted by the prosecutor both in relation to the adequate proof of evidence supporting the facts and submissions on the law.

[50] The magistrate was bound to impose a minimum period of 6 months disqualification or longer pursuant to s 86. In doing so, the application of the totality principle to impose concurrent periods of disqualification were not open since the offences were caught by s 90B, which required cumulative periods of disqualification for such offences committed at different times. Having said that the paucity of evidence did not support the imposition of a fine of $1,200 for the first charge or $1,000 for the second charge. Similarly, there is no evidentiary basis to support 12 months disqualification for the first charge being twice the minimum prescribed by s 86(1).

[51] In my respectful view, the trial magistrate erred in exercising the sentencing discretion by:

1. Allowing erroneous or irrelevant matters to guide or affect him by conflating facts and thereby gave weight to the manner of driving which was not an element of the second charge.

2. Failing to take into account some material considerations including the assistance by the appellant to the police investigation; the appellant’s past record of offending, and finding of concentration of alcohol in the breath of the appellant;

3. Acting upon a wrong principle by failing to have regard to the provisions imposing cumulative disqualification, and the improperly considering the totality principle; and

4. Acting without evidence or contrary to the weight of the evidence in relation the fines imposed, and the potential danger to the public in the circumstances of the case;

5. The magistrate failed to take proper account of the appellant’s financial circumstances and burden to pay the fines as a pensioner.

[52] Whilst it is not clear how the magistrate reached the sentences, the result, in my respectful opinion was erroneous and unreasonable or plainly unjust.

[53] In those circumstances, this court is obliged to exercise the sentencing discretion afresh in relation to the offences.[7]

[54] The maximum fine and imprisonment and any minimum disqualification penalties are variously prescribed as above.

[55] The appellant was born on 28 March 1964 and was 50 at the time of the offences. He had a long and appalling criminal and traffic history, which was tendered, but he had not committed similar offences to those being dealt with at sentence. The appellant’s character is marred by his criminal history. The appellant’s plea was early and he was generally co-operative with the police.

[56] The appellant had a good his work history as a fruit picker. However, at the time of sentence he was, and remains, a disabled pensioner. His capacity to pay fines is very limited. As to his health, the defendant has “severe arthritis” and “severe breakdown in the hips” and 57% loss of discs in the middle of the back. He also requires medication for a “a mental issue”.

[57] In respect of the first charge of driving whilst under the influence of liquor: The best evidence offered at the sentence hearing was the scant description provided by the police prosecutor of the appellant’s manner of parking outside the Tolga Hotel at 8:30 pm on 9 September 2015. Later, at an undefined time the police observed indicia that the appellant “smelled strongly of alcohol and his speech was heavily slurred”. It is not clear whether the smell emanated form the appellant’s breath, or his body or his clothing. There was also no assistance given to the court about the meaning of the subjective descriptions of “strongly” and “heavily”. No witness or police statements were tendered to clarify any of these descriptors. I accept the appellant’s version that he had at least three drinks, before parking at the hotel. In the absence of any better evidence, I opine that there is insufficient evidence to conclude to form any view about the appellant’s blood/breath alcohol concentration save that it was probably in the lower end of that range. His conduct in parking the vehicle may have presented a potential danger to the public but any concluded view about that would be purely speculative. There is insufficient evidence to conclude that the appellant may have been affected by his medication. The offence remains prevalent and ought be denounced by the community. Elements of personal and general deterrence are pertinent. In my view a fine of $100 and the minimum period of disqualification of 6 months would be just and appropriate in the circumstances of this case.

[58] As for the second charge of failing to provide a breath specimen for analysis, I accept that the appellant may have consumed further alcohol between his driving and the time of his failure to provide the breath specimen at 9:33 pm (Exhibit Certificate). No additional evidence was offered in respect of the appellant’s demeanour relevant to this separate offence. However, his general demeanour was likely to be consistent with the observations made by the police after the driving incident. The manner of his driving is irrelevant to this offence. Again, in the absence of any better evidence, I opine that there is insufficient evidence about the appellant state. The offence is serious in terms of effective policing and law enforcement. The deeming effect of the penalty provides an aggravating effect. Clearly personal and general deterrence looms large. His behaviour reflects his disregard for public safety and his irresponsible character. In my opinion a fine of $100 and the minimum period of disqualification of 6 months would be would be just and appropriate in the circumstances of this case.

[59] Offences against ss 79(1) and 80(11) are each a “designated offence” and a “drink driving offence”, and s 86 is a “relevant disqualifying provision” for the purposes of ss 90B to 90D. They were committed at different times albeit proximate to each other, and it is immaterial that the periods of disqualification are imposed or ordered at the same hearing. By force of ss 90B and 90C the periods of disqualification must be served concurrently.

[60] Whilst his capacity to pay fines is very limited, I am satisfied that the appellant has the financial capacity to pay the proposed fines over time and I will direct the Registrar to refer the non-payment to the State Penalties Enforcement Registry.

[65] The orders made by the Magistrates Court on 30 September 2014 are set aside and the following orders will be substituted:

(a) For the offence of driving under the influence of liquor under s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 the appellant is convicted, fined $100 and disqualified from holding or obtaining a Driver’s Licence for 6 months. Conviction recorded.

(b) For the offence of failing to provide a specimen of breath for analysis after a requirement under s 80(8) of the Transport Operations (Road Use Management) Act 1995, the appellant is convicted of driving under the influence of liquor under ss 79(1)(a) pursuant to 80(11)(a) of the Act, fined $100 and disqualified from holding or obtaining a Driver’s Licence for 6 months. Conviction recorded.

(d) I direct the Registrar to refer the payment of fines to the State Penalties Enforcement Registry.

Queensland District Court Decisions

Roach v Queensland Police Service [2015] QDC 150 (2 June 2015)