Garner v Commissioner of Police [2018] QDC 223 (14 June 2018)

Last Updated: 8 November 2018

DISTRICT COURT OF QUEENSLAND

CITATION:	Garner v Commissioner of Police [2018] QDC 223
PARTIES:	JUSTIN LESLIE GARNER (appellant) v COMMISSIONER OF POLICE (respondent)
FILE NO/S:	19/17
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Maryborough
DELIVERED ON:	14 June 2018 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2018
JUDGE:	Farr SC DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant pleaded guilty to one charge of driving under the influence of liquor or a drug – where appellant was fined and disqualified from holding or obtaining a drivers licence for a period of 16 months - whether the period of disqualification imposed was manifestly excessive Justices Act 1886 (Qld) s 222 House v The King (1936) 55 CLR 499 Queensland Police Service v Pacey [2010] QDC 240
COUNSEL:	The appellant appeared on his own behalf J Geary for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions for the respondent

[1] This is an appeal pursuant to section 222 of the Justices Act against a sentence handed down on the 25th of October 2017 in the Magistrates Court at Maryborough. The appellant pleaded guilty to one count of driving under the influence of liquor or a drug, such offence having occurred on the 7th of September 2017. He was fined $1300 and disqualified from holding or obtaining a driver’s licence for a period of 16 months. This appeal relates to the length of that disqualification period. The facts relevant to the charge were that at about 5.40 pm on the 7th of September 2017, police were called to Teddington Road at Maroochydore in response to a report that they had received.

[2] Upon arrival, the vehicle they were looking for was not there. They then drove approximately eight kilometres down that street before locating the vehicle that had been the subject of the information. It was pulled over on the side of the road. The keys were in the ignition, and the car engine was still running. The appellant was in the driver’s seat of that car. Police said that he was blinking and frequently slurring his words and had red bloodshot eyes. He was also argumentative with police and appeared to be nervous and was lying down on the seat at the time and, despite attempting to sit up, would resume the lying-down position.

[3] This, of course, unexpectedly alerted police to the potential for him being affected by a substance. A breath test resulted in a zero reading, but the defendant – sorry – the appellant told police that he had consumed 10 Panadol tablets and two Panadeine tablets over the course of the day due to a toothache. He told police that he was driving home from Hervey Bay and admitted that he was not in a fit state to drive. He handed a box of what is referred to as Panadeine tablets to the police; it had a couple of tablets removed. He was detained and taken to the Maryborough hospital.

[4] Upon his appearance before the court below, he represented himself. He was asked if he wished to adjourn the matter to obtain legal representation or at least legal advice. He refused that opportunity and said that he wished to have the matter dealt with that same day and then entered a plea of guilty, which he indicated was made of his own accord and that he had not been influenced in any way in the entry of that plea. He has, as I have indicated, now appealed against that disqualification period. His notice of appeal did not provide any grounds of appeal, but accompanying paperwork suggested a number of complaints, but ultimately the only one that is really relevant today’s – to today’s hearing is that the sentence in that respect was manifestly excessive.

[5] An appeal of this nature is by way of rehearing on the evidence given in the court below. Of course, new evidence can be admitted if it is of potential relevance and may demonstrate a miscarriage of justice. The appellant ultimately conceded that the paperwork that he brought to court today did not further the submission that he intended to make and was really only relevant to the issue of his state of health on the day in question, which was not the subject of any dispute and was accepted by the court as being the reason for him taking the medication that he had taken. During the course of submissions, the appellant himself stated on three separate occasions that on the day in question, he had taken Panadeine Forte, which had been provided to him by his mother, as well as Panadeine Extra, and it was on that factual basis, as I read the transcript, that the Magistrate proceeded, which of course he was quite entitled to do.

[6] The respondent has submitted that the appeal is without merit. The appellant has submitted that in his opinion, the disqualification period was excessive for two reasons, one being that he had been suspended from driving from the date of the offence until his appearance in court, which was a period of about a month and a-half, and that that was not taken into account by the sentencing magistrate, and secondly, that he feels that the 16-month period of time is excessive and that 12 months would have been more appropriate.

[7] Of course, of relevance to the matter is the fact that he pleaded guilty. So too is the fact that he had a prior conviction for an offence of driving whilst a relevant drug is present, that offence having occurred on the 12th of September 2015, and he was dealt with on the 1st of December that year. On that occasion, he was fined $900 and disqualified from holding or obtaining a driver’s licence for a period of six months. The magistrate took into account that prior conviction in an appropriate way in determining the sentence on this occasion. It is true to say that the magistrate did not take into account the one and a-half month period of suspension that I have just referred to because that information was not conveyed to the magistrate during the course of the submissions by either the prosecutor or the appellant. It may be that that is a relevant consideration for the purposes of this appeal, and I will return to it.

[8] The appellant’s second submission, that in – he feels that the sentence was excessive, of course, carries little persuasive value, and this court, of course, is guided by what might be considered to be the appropriate sentencing range as demonstrated by the penalties imposed in other similar matters. I note, of course, that no two matters are ever identical, but the examination of sentences imposed elsewhere for similar matters provides a reasonable range for offences – for sentences for offences. It must be noted, of course, that no one sentence could be said to be perfectly correct and that there is usually a range available on any given matter. It must also be noted, of course, that this court is not in a position of simply substituting a sentence that this court might have imposed because it reached a different conclusion to that of the court below. Before the exercise of this court’s discretion is enlivened, error on the part of the court below must be demonstrated in the House v R sense.

[9] The respondent has referred me to a number of comparable decisions that are contained in its written outline of submissions. I do not intend to repeat the details of those during the course of these remarks, with one exception, that is, the Queensland Police Service v Pacey [2010] QDC 240. It is submitted that this matter represents a penalty that falls very much at the lower end of the sentencing range. In that matter, the appellant, after initially being disqualified for a period of two years, was successful in her appeal, and it was reduced to eight months and 10 days. It was a matter where she had prescription medication in her system at the time due to a number of medical conditions. She was 29 years of age. Importantly and significantly, she only had two prior entries on her traffic history, both of which were relatively minor. One was for disobeying a left-hand turn sign and the other for exceeding the speed limit by more than 20 kilometres but not more than 30 kilometres per hour. That traffic history, of course, must be compared and contrasted to the appellant here, who has that prior conviction for an identical offence just two years earlier.

[10] The result of that is that the sentence imposed in Pacey seems to me to be quite consistent with the sentence imposed in this matter. There can be no doubt that a sentence – that is, a disqualification period – significantly greater than that imposed in Pacey was appropriate in the circumstances of this case. In my view, the comparable decisions demonstrate that a disqualification period ranging, really, anywhere between 15 to 18 months, it seems to me – perhaps even a little more – was well within the appropriate range for this offence, given the traffic history – the relevant traffic history of the appellant.

[11] Whilst I accept that it would have been of some relevance to the magistrate to be informed of the one and a-half month period of suspension prior to the court appearance that day, that does not, in and of itself, result in the discretion of this court being enlivened because, as I have indicated, in my view a sentence of anything up to – a disqualification period of anything up to 18 months would have been within an appropriate sentencing discretion.

[12] The effect of this sentence was overall a period of seventeen and a-half months, which, whilst at the upper end of that which I would consider to be not excessive, it nevertheless could not be categorised as being excessive in the circumstances. For those reasons, it is my view that no miscarriage of justice has arisen as a result of the magistrate not being informed of the one and a-half month suspension period, and I am not of the view that the 16-month disqualification period was excessive in the circumstances. For those reasons, the appeal is dismissed.