DISTRICT COURT OF QUEENSLAND

CITATION:	NJL v Queensland Police Service [2022] QDC 258	
PARTIES:	NJL
(Appellant)	
	v	
	QUEENSLAND POLICE SERVICE
(Respondent)	
FILE NO/S:	BD 1794/2022	
DIVISION:
PROCEEDING:
ORIGINATING COURT:	Criminal
Appeal
Magistrates Court at Richlands	
DELIVERED ON:	27 October 2022 (ex tempore)	
DELIVERED AT:	Brisbane 	
HEARING DATE:	27 October 2022	
JUDGE:	Allen KC DCJ	
ORDERS:	1.	The appeal is allowed.
2.	The sentences are varied by substituting, instead of the fine of $2300 a fine of $1200 and substituting, for the 15-month period of licence disqualification, a period of 10 months licence disqualification.
3.	The sentence is otherwise confirmed.
4.	The Commissioner of Police pay the appellant’s costs of the appeal in the sum of $1950, with such sum to be paid to the Registrar to be paid over to the appellant within one month. 	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appeals against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to one charge of contravening a police protection notice and one charge of driving under the influence of liquor – where the appellant was fined $2300 and disqualified from holding or obtaining a driver’s licence for 15 months – where the appellant had no prior criminal or traffic history – whether the learned Magistrate failed to take into account the plea of guilty and other mitigating factors – whether the sentence imposed was manifestly excessive

Domestic and Family Violence Protection Act 2012 (Qld), s 178
Justices Act 1886 (Qld), s 222, s 223
Transport Operations (Road Use Management) Act 1995 (Qld), s 29, s 86

Bailey v Queensland Police Service [2020] QDC 168
House v The King (1936) 55 CLR 499
Wilson v Commissioner of Police [2022] QDC 15
	
APPEARANCES:	I A Munsie, instructed by Aitken Whyte Lawyers, for the appellant	
	A Worthington, Office of the Director of Public Prosecutions (Qld), for the respondent
	
[1]	On 26 July 2022, the appellant appeared before the Richlands Magistrates Court and pleaded guilty to one charge of contravening a police protection notice contrary to section 178(2) of the Domestic and Family Violence Protection Act 2012 (Qld) and one charge of driving under the influence of liquor, contrary to section 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM).
[2]	The learned sentencing Magistrate imposed one fine of $2300 for both offences.  The appellant was disqualified from holding or obtaining a driver’s licence for a period of 15 months.  No conviction was recorded with respect to the offence of contravention of a police protection notice.  A conviction was recorded with respect to the offence of drink-driving. 
[3]	On 27 July 2022, the appellant filed a Notice of Appeal against sentence pursuant to section 222 of the Justices Act 1886 (Qld) (Justices Act).  Pursuant to section 223 of the Justices Act, such an appeal is by way of rehearing on the evidence before the Magistrates Court and any new evidence adduced with the leave of this Court.  Neither party has sought leave to adduce new evidence.  
[4]	The circumstances of the appellant’s offending can be summarised as follows.  During the evening of 7 July 2022, the appellant had consumed two bottles of wine.  She and her husband had an argument.  As a result, police attended their residence and issued the appellant with a domestic violence police protection notice containing a ‘cool-down condition’ requiring that the appellant not attend within 100 metres of her home address for a period of 24 hours. Police transported the appellant to the Calamvale Hotel, leaving her at that location at 11:00pm.  The appellant attempted to obtain accommodation, but there were no rooms available at the hotel.  The appellant did not have any money with her.  It was a cold evening.  The appellant walked about five kilometres back to her home, arriving at about 1:00am on 8 July 2022.  She slept on a couch and awoke at about 10:00am.  A verbal argument took place between the appellant and her husband leading to the appellant’s child contacting the police.  The appellant left the residence in her motor vehicle.  Police arrived as the appellant was leaving in her vehicle.  The appellant drove the vehicle to a location one street from her residence.  Police located the appellant in her parked vehicle and arrested her after she provided a positive breath test.  The appellant provided a specimen of breath at 11.58am, revealing a BAC of 0.187%. It was not alleged that the appellant had consumed alcohol between that time and the time of her departure from the residence on the night of 7 July 2022.  The appellant was sentenced on the basis her drink-driving occurred when she was still intoxicated from her consumption of alcohol the previous evening.  There was some medical evidence suggesting that the appellant’s metabolism of alcohol might be slower than ordinary.  
[5]	The appellant was 45 years of age at the time of offending and sentence.  She had no prior criminal history or any prior offences of driving under the influence of liquor.  She was sentenced on the basis that she had no prior traffic history.  The appellant spent a few hours in the watch-house following her arrest by police.  The appellant’s licence was automatically immediately suspended when she was charged, meaning that she had been suspended from driving for a period of 18 days at the time of sentence. Prior to the sentence, the appellant had completed the Queensland Traffic Offenders Program, including authoring a document which demonstrated considerable insight into and remorse for her traffic offence.  
[6]	The learned sentencing Magistrate’s sentencing remarks were succinct:
Because, of course, three and a-half times the legal limit, if you had killed or seriously injured someone else, you would be in a whole world of trouble, far, far greater than you are now.  And if it had been one of your children, of course, and who had been on the receiving end of some drunken idiot behind the wheel of a car, I’m sure your response to that would be about the same as mine as to any high-range drink-driver who appears to be before the Court, that is, community has no tolerance for it at all, full stop.  There is no excuse, no mitigation.  You know you cannot drink and drive.  It is no great secret to anybody.  And there is the road toll every year from fools who get on the road with alcohol and drugs in their bloodstream.  
I have taken into account the plea of guilty and the other things Mr Marini has mentioned.  For the two offences, you are convicted and fined $2300, referred to SPER.  A conviction is recorded for the drink-driving charge.  No conviction is recorded for the breach of the PPN but if you breach it, domestic violence order, for example, if one is being made – I do not know whether it has or is not – but it has been … and you breached that, you can expect a recording of a conviction next time. Licence is disqualified for 15 months.  Give it to the Prosecutor, please.  Give him your driver’s licence. 
(Emphasis added.)
[7]	The maximum penalty for the drink-driving offence was 28 penalty units or nine months imprisonment.  Pursuant to section 86(1) of TORUM, a mandatory minimum disqualification period of six months applied.  
[8]	The onus is upon the appellant to show that there has been some error in the decision under appeal.  The appeal is against the exercise of discretion, and so the principles in House v The King (1936) 55 CLR 499 at 504-505 apply.  I should not interfere with sentence unless it is manifestly excessive, that is, unreasonable or plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to penalty.  To succeed on the appeal, the appellant must satisfy the court that the sentence imposed is outside an acceptable scope of judicial discretion.  Often such is established by reference to comparative decisions. Even if an appellate court finds that the sentence was towards the top end of the permissible range or has a different view as to how the discretion should have been exercised, that is not sufficient justification for interference with sentence. The court should only interfere upon being satisfied of specific error in the exercise of discretion or manifest excess of sentence.  
[9]	The sole ground of appeal is that the sentence imposed is manifestly excessive.
[10]	The appellant does further assert specific error in that the first highlighted portion of the sentencing remarks quoted earlier suggest that the learned sentencing Magistrate has excluded matters in mitigation, including the appellant’s pleas of guilty from consideration of an appropriate sentence.  
[11]	However, when one considers the second highlighted part of the sentencing remarks quoted earlier, the Magistrate’s statement, “There is no excuse, no mitigation”, is best regarded as a rebuke of the appellant for drink-driving, rather than a statement of reasoning towards sentence.  It is not possible to reason that the learned sentencing Magistrate failed to take into account the plea of guilty and other mitigating factors referred to by her solicitor in light of the clear statement by the learned sentencing Magistrate that he did take such matters into account. However, the absence of any further reasons from the learned sentencing Magistrate, including an examination of the circumstances of the offending and the particular matters relied upon by the appellant by way of mitigation, make it difficult to see how the learned sentencing Magistrate factored in such matters when arriving at sentence.
[12]	The ultimate question remains, however, whether the sentence imposed is manifestly excessive.  The appellant submits with reference to comparative decisions, namely Bailey v Queensland Police Service [2020] QDC 168 and Wilson v Commissioner of Police [2022] QDC 15 and other decisions discussed therein, that the sentence imposed, both by way of the quantum of the fine and the length of the disqualification period, falls outside an appropriate range of sentence and is manifestly excessive.
[13]	The respondent submits to the contrary but does not refer to any comparative decisions in support of the contention that the sentence falls within a proper range of exercise of discretion.  The respondent submits that the appellant’s reliance upon the comparative decisions is misplaced in that none of them include the additional offence of contravention of a police protection notice.  
[14]	The appellant had no previous criminal history.  She was sentenced on the basis that she had no prior traffic history, and the respondent does not seek that this Court take any different approach in that regard.  In the particular circumstances that led to its commission, the offence of contravention of a police protection notice should be regarded as falling at the lowest end of a range of seriousness for such an offence.  If dealt with alone, it should have attracted modest punishment.  If dealt with, in the way it was approached by the Magistrate and contended by the parties, by a global fine for both offences, I would not consider that it would inflate such a fine any more than, say, $200. The level of criminality associated with the drink-driving offence is also towards the lower end of seriousness given the circumstances, including the fact that the appellant was removing herself from her home in compliance with the police protection notice and only drove one street away before parking her vehicle. 
[15]	In all the circumstances, and insofar as the comparative decisions relied upon by the appellant provide some yardsticks by way of assistance in determining sentence, I am satisfied that the sentence imposed is manifestly excessive, both with respect to the quantum of the fine and the length of the period of licence disqualification.
[16]	I order as follows:  
(1)	The appeal is allowed; 
(2)	The sentences are varied by substituting, instead of the fine of $2300, a fine of $1200 and substituting, for the 15-month period of licence disqualification, a period of 10 months licence disqualification;
(3)	The sentence is otherwise confirmed; and
(4)	The Commissioner of Police pay the appellant’s costs of the appeal in the sum of $1950, with such sum to be paid to the Registrar to be paid over to the appellant within one month.