[2015] QDC 182

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE BOWSKILL QC

Appeal No 181 of 2014

DIANA DOROTHY EASTWOOD

v.

COMMISSIONER OF POLICE

MAROOCHYDORE

10.36 AM, FRIDAY, 19 JUNE 2015

JUDGMENT

HER HONOUR: This is an appeal under section 222 of the Justices Act 1886 (Qld) from an order of a Magistrate made at Southport on 20 August 2014.  By that order, the appellant was convicted on her own plea of guilty of the following charges.  Firstly, a charge under section 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 of driving a motor vehicle whilst over the middle alcohol limit, but not over the high alcohol limit.  And secondly, a charge under section 78(1) and (3) of driving a motor vehicle without a driver licence, that having been suspended under section 79B.

In respect of the first charge, the appellant was fined $600, in default, 24 days’ imprisonment, with three months to pay, and she was disqualified from holding or obtaining a driver’s licence for 12 months.  In respect of the second charge, she was fined $1000, in default 40 days’ imprisonment, with three months to pay, and she was disqualified from holding or obtaining a driver’s licence for two years.

By her appeal, the appellant seeks to appeal both her convictions and the sentences.  In terms of the appeal against conviction, the grounds set out in the notice of appeal filed on the 26th of November are that the convictions are unfair, that the Magistrate who dealt with the matter on the 20th of August 2014 should not have done so, because he had a conflict of interest, that the appellant was not given time on that day to give evidence and was “threatened if I did not plead guilty, this matter would be adjourned again until February 2015”, that  the appellant says she pleaded guilty under duress and exhaustion and the appellant also says she urgently needed a day licence for her livelihood, work, family, safety and medical reasons.

There is an important procedural issue to be dealt with, because section 222(2)(c) of the Justices Act essentially precludes any appeal against conviction where the defendant pleads guilty or admits the truth of a complaint.  In those circumstances, the person may only appeal on the sole ground that, relevantly, the penalty was excessive.  The Court of Appeal, for example, in Ajax v Bird [2010] QCA 2 at paragraph 4, has confirmed that from that provision it is clear that where a defendant enters an unequivocal plea of guilty, that person has no right of appeal against their conviction under section 222.  But there are authorities that suggest that an appeal against conviction is not precluded where the view can be formed that the appellant’s plea was equivocal or, on analysis, amounted to a plea of not guilty, and an example is Shaw v Yule [1995] QCA 611.  

I have carefully read the transcript of proceedings before the Magistrate on the 20th of August 2014 and I have listened to the appellant’s submissions today and I do not consider that the defendant’s plea of guilty to the two charges can be considered to be equivocal or could in any way be said to have amounted to a plea of not guilty.  There is a frequently cited statement of principle from the High Court’s decision in Meissner v The Queen (1995) 184 CLR 132 at 141, where Justices Brennan, Toohey and McHugh said:

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, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

In the same case, Justice Dawson, at 157, made the point that: 

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense;  to avoid publicity;  to protect his family or friends;  or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.

I have been through the circumstances on the 20th of August in oral submissions with the appellant.  What is apparent is that on that day, the matter of these two charges, which are said to have occurred on the 13th of March 2013, were called on before the Magistrate at just before 11.30.  The defendant pleaded not guilty to those charges and the trial commenced.  A number of police officers were called to give their evidence and were cross-examined by the defendant, who was representing herself.  There was in evidence the certificate of breath analysis, which the Magistrate noted is conclusive evidence in respect of that first charge, as well as the notice of suspension that was issued to the appellant in respect of the earlier drink driving charge that she faced on the same day.  

At about five to 4 in the afternoon, the Magistrate noted that the trial would need to be adjourned, because there was another prosecution witness to be called and then the appellant would also have to give her evidence.  The Magistrate indicated the next available date would be the 18th of December and otherwise, it would have to be February the following year.  The appellant said she wouldn’t be available on the 18th of December, as she had to be in Melbourne, and the Magistrate then sought to lock in a date for February of the following year.  

It was at this point that the appellant sought to change her plea from not guilty to guilty and it is apparent to me from the transcript that there is then an exchange between the appellant and the Magistrate about that.  Amongst other things that are discussed is the fact that the appellant had sought to plead guilty at an earlier stage, but the Magistrate then dealing with the matter wouldn’t accept that plea of guilty.  From material that has been put before me by the appellant, it is apparent that that was because the legal representative for the appellant had indicated defences sought to be relied on, which meant the Magistrate could not accept the plea of guilty.  Reference was also made to the appellant needing a day licence and the implications of that for her in circumstances where she had been charged twice with drink driving on the same day were addressed.

The Magistrate, in my view, made it clear that the appellant had the opportunity to come back on another occasion and proceed with defending the charges, but he also fairly explained to her the difficulties she was facing, particularly on the first charge, in light of the conclusive certificate evidence regarding her blood alcohol level.

The Magistrate ultimately adjourned the matter for 10 minutes to allow the appellant to think about her position, following which she came back and said she wanted to plead guilty, because she needed to get on with her life.  I should say the Magistrate had also pointed out to the appellant that any periods of disqualification could only start at the point when she was actually convicted of the offences and that they would have to be cumulative.

The Magistrate, once the appellant indicated she wanted to plead guilty, expressly said to her:

Has any person in authority suggested to you how you should plead?

And the defendant said:

No.

Having regard to all of that material, I do not see any basis for me to find that the plea of guilty was equivocal and the appellant has confirmed today that there were pragmatic reasons why she did that.  She wanted to get on with her life.  She wanted it over and done with.  And she considered that her plea of guilty would be taken into account by the Magistrate in the sentence – the penalty that he imposed.  That being the case, there is no basis on which to appeal the conviction, having regard to section 222(2)(c) of the Justices Act.

Turning, then, to the appeal against the sentence.  An appeal under section 222 is an appeal by way of rehearing on the evidence given in the proceeding before the Magistrates Court.  I am required to conduct a real review of the matter and the Magistrate’s reasons and make my own determination, but giving due respect and weight to the Magistrate’s conclusions.  But nonetheless, to succeed, the appellant must establish some legal, factual or discretionary error.  In particular, insofar as the sentence is concerned, this Court may not interfere unless an error of the kind identified in House v The King (1936) 55 CLR 499 at 504 to 505 has occurred.  It is not enough that this Court, on appeal, considers that, if it had been in the position of the Magistrate, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.

In respect of the first charge – that is the drink driving charge under section 79(1F) – of driving a motor vehicle whilst over the middle alcohol limit, a person who is guilty of that offence is liable to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding six months.  A penalty unit being just over $100, the maximum fine would be just over $2000.  Although there is a provision in subsection (2F) for dealing with somebody who has been convicted of an offence in the previous five years of drink driving, it seems to me that the maximum penalty is the same.  So that is the first part of the penalty.  There is a second part of the penalty and that is automatic disqualification from driving and relevantly, if a person is convicted of an offence under section 79(1F), which is driving over the middle alcohol limit and has been convicted in the last five years of an offence under section 79 (1), which is the high alcohol limit, the person is automatically disqualified by that conviction, without any specific order, from holding or obtaining a driver’s licence for a period of one year.  That is section 86(3A).  So in respect of that charge, the only discretion that the Magistrate had was as to the level of the fine and, as I have noted, the level of the fine imposed was $600.  

I should pause to mention there that, in the factual circumstances of this case, the appellant had been charged with a drink driving offence earlier in the morning of the 13th of March, and on that occasion, her blood alcohol content was .22, so she was charged with an offence under section 79(1).  She was convicted of that and dealt with on the 15th of May 2014, on which occasion she was fined $1500 and disqualified for six months, which is also consistent with the legislation.  So when the Magistrate was dealing with the charges I am concerned with, he was in a situation where this appellant already had a conviction under section 79(1), and he was therefore bound to apply the legislation, leading to an automatic disqualification of 12 months.  I am going to come back to the fine in a moment.  

In relation to the second charge, the position is the same.  Under section 78(3)(i), where a person commits the offence of driving without a licence in circumstances where their licence has been suspended under section 79B, that is, where they have been charged with a drink driving offence, there is a mandatory disqualification period for a minimum of two years, so, again, the Magistrate had no choice about that, no discretion.  The maximum penalty is 40 penalty units or one year imprisonment, so the maximum fine would be just over $4000, and in that regard, the Magistrate imposed a fine of $1000.  

So the only question is, insofar as there was a discretion in the Magistrate in terms of the fines he imposed, can I form the view that there was some error in the Magistrate’s exercise of his discretion in imposing a fine of $1000 and $600 on the 20th of August?  

His Honour’s reasons are very short, possibly explained by the fact that there had been half a day of trial before the sentence was dealt with.  What appears, to me, from the transcript is that there was an issue about the appellant’s traffic history, but in fairness to the appellant, the Magistrate did not act on the challenged entries in that history, so that did not go to the detriment of the appellant.  Some documents were handed up but then were returned to the appellant.  They were not marked as exhibits.  

The submissions that were heard by the Magistrate in relation to penalty were brief, to say the least, and the reasons that have been given are brief and do not provide any particular indication as to what the basis for setting the fines at the level that they were was.  Now, on the one hand, and in fairness to the Magistrate, it seems to me that those fines are eminently reasonable when you have regard to the nature of the offences.  That is, a second drink driving charge in a short space of time and a driving while on a suspended licence in respect of the earlier drink driving charge.  They are, in one case, a quarter of the maximum penalty, and in another case, about a third.

The one issue that I have considered, though, is that this appellant had effectively committed three offences within a short space of time on the 13th of March 2013.  That is, the earlier drink driving charge, the later drink driving charge and the driving while on a suspended licence.  The matters were not dealt with at the same time.  The earlier charge was dealt with on the 15th of May 2014.  These charges were dealt with on the 20th of August 2014.  

Although the Magistrate had absolutely no choice in relation to the disqualification periods, including that they had to be cumulative, he did have a discretion insofar as the fines were concerned, and when one considers that a $1500 fine was imposed for the earlier offence and then a combination of $1000 and $600, which comes to $3100, together with a defendant who was then going to be disqualified from holding a driver’s licence for a total period of three and a-half years in respect of all of those offences, it seems to me that the totality principle, in respect of which I would refer to the helpful analysis in R v LAE [2013] QCA 189, required the Magistrate to consider the overall impact of the sentences in respect of offences of the same nature committed at about the same time.

And I add to that that it is the case that this appellant would have difficulty on the basis of her employment situation in paying a large amount in terms of fines and then also being faced with a lengthy period of time of not being able to drive, which would, I am prepared to infer, impact on her ability to work as well.  

I have to say it is not without some hesitation, but on balance, that I have come to the view that in not considering issues of totality, the Magistrate could be said to have erred insofar as his discretion to impose the fines in respect of those offences is concerned, so in that respect only, I propose to allow the appeal in respect of sentence, only insofar as varying the imposition of the fines in a moderate way. It seems to me that, having regard to the seriousness of the charges which cannot be ignored, a fine of $400 in respect of the first offence and $600 in respect of the second offence would have, to my mind, taken account of those principles of totality.  

I am conscious of the requirement not to engage in tinkering, but I think in fairness, one has to take into account these three offences being committed on the same day, delays in dealing with them, which I am not sure of the reasons for, but on balance, that seems, to me, to be an appropriate outcome.  

So the order will be, then, that the appeal is allowed only in relation to sentence, and in that regard, the only variation that I make to the penalty imposed by the Magistrate is as I have indicated in respect of the fines.  

…

So in respect of the first charge, you are convicted and fined the sum of $400 with that being referred to SPER, and the disqualification period remains as it was imposed by the Magistrate, and in respect of the second charge, you are fined $600 which is referred to SPER, but, likewise the disqualification period, remains the same.

…

HER HONOUR:   Okay.  Now, do you understand everything that has been said and how it has been dealt with?

APPELLANT:   Not really.  

HER HONOUR:   Okay.  So the bottom line is, insofar as your conviction is concerned, there is no right to appeal because I have found that your plea of guilty was unequivocal.  It was clear, and that means that under the legislation, you cannot appeal your conviction.  Insofar as your sentence is concerned, what I have said is there’s no error demonstrated in relation to the disqualification periods, because the Magistrate had no choice.  They are mandatory periods.  Insofar as the fines are concerned, I have said, although it has caused me some hesitation, I think he may have made an error in the exercise of his discretion, because he was looking – because of the three offences all occurring on the same day, and it would have been appropriate to look at the whole picture in terms of the fines, so I have said I’ll allow your appeal just to that extent.  I am re-exercising the discretion, and I have reduced the fines not entirely, because these are very serious offences, but I have reduced them somewhat.  Okay.  So rather than it being a total of $1600 on that second – for the second and third charges, it’s $1000, and they’ve been referred to SPER.  Does that all make sense?

APPELLANT:   Yes.

HER HONOUR:   Okay.

…
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