DISTRICT COURT OF QUEENSLAND

CITATION:	ZXL v The Commissioner of Police [2022] QDC 293	
PARTIES:	ZXL
(Appellant)
v
THE COMMISSIONER OF POLICE
(Respondent)	
FILE NO:	D123/22
	
DIVISION:	Civil	
PROCEEDING:	Appeal – Justices Act 1886 (Qld) s 222	
ORIGINATING COURT:
	Magistrates Court (Childrens) at Maroochydore 	
DELIVERED ON:	16 December 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	9 December 2022	
JUDGE:	Devereaux SC CJDC	
ORDER:	1.	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE – SENTENCE NOT IN ACCORDANCE WITH LAW - SENTENCE MANIFESTLY EXCESSIVE - where the appellant plead guilty to one offence of driving with relevant drug in his saliva – where the appellant was disqualified from holding or obtaining a driver’s licence for 3 months – where a court diversion referral was made pursuant to section 163(1)(d)(i) of the Youth Justices Act 1992 (Qld) – whether the Court accepted the plea of guilty	
LEGISLATION:	Justices Act 1882 (Qld) s 222
Transport Operations (Road Use Management) Act 1995 
ss 79, 86
Youth Justice Act 1992 (Qld) ss 22, 24A, 163(1)(d)(i), 164, 175(1), 177, 192A, 192B, 254	
CASES:	Maxwell v The Queen (1996) 184 CLR 501
MK v DPP [2022] QChC 009
R. v. Tonks and Goss (1963) V.R. 121
R v Jerome and McMahon [1964] Qd R 595	
SOLICITORS:	C Lumme - Lumme Rynderman Legal for the appellant.
N Hamilton - Office of Director of Public Prosecutions (Qld) for the respondent.	

Introduction
[1]	The appellant was 17 years old when at about 3.05pm on 2 June 2022 he drove on the Nicklin Way in Bokarina with a relevant drug in his saliva.  He was intercepted by police having exceeded the speed limit in a school zone. At the time, he held a provisional P1 driver’s licence.  He was fined for the speeding offence and issued a Notice to Appear on the drug driving offence.
[2]	On 31 August 2022, the appellant pleaded guilty to the charge, pursuant to section 79(2AA) of the Transport Operations (Road Use Management) Act 1995.  The learned Magistrate refused an application to dismiss the charge under section 24A of the Youth Justice Act 1992 (Qld) (“YJA”) and to refer it for a restorative justice process.  His Honour instead made a court diversion referral pursuant to section 163(1)(d)(i) of the YJA and disqualified the appellant from holding or obtaining a driver’s licence for a period of 3 months.
[3]	This is an appeal from those orders, brought under s 222 of the Justices Act 1882 (Qld). On the notice of appeal, the grounds are
1.	That the sentence imposed was not in accordance with the law insofar as the learned Magistrate imposed a licence disqualification with a court diversion referral; and
2.	That the sentence is manifestly excessive.
[4]	As argued, the appellant’s submission was that the sentencing discretion miscarried by specific error, namely that the Magistrate imposed a sentence that was not in accordance with the law because the applicant was not “found guilty” and therefore an order disqualifying the applicant’s driver licence cannot be made.
Restorative justice process under the YJA
[5]	The restorative justice process is referred to in several places in the YJA. 
[6]	Part 2 – Special provisions about policing and children includes, in Division 3, referral for restorative justice process. Section 22 provides for a police officer referring the offence for a restorative justice process “instead of bringing the child before a court for the offence”. 
[7]	The police officer may make the referral only if the child indicates willingness to comply with the referral; and having regard to the deciding factors, the officer considers a caution is inappropriate; and a proceeding for the offence would be appropriate if the referral were not made; and the referral is a more appropriate way of dealing with the offence than starting a proceeding.
[8]	The deciding factors for referring an offence to the chief executive for a restorative justice process are – 
(a)	 the nature of the offence; and
(b)	the harm suffered by anyone because of the offence; and
(c)	whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.
[9]	Section 24A empowers a court before whom the child pleads guilty to dismiss the charge instead of accepting the plea, if satisfied, the offence should have been referred under section 22.  In dismissing the charge, the Court may refer the offence for a restorative justice process.
[10]	Part 3 of the Act – Restorative Justice Processes - has the stated object of providing for the use of a restorative justice process for a child who commits an offence. It applies if a police officer or a court makes the reference. The process is to be a conference but is to be an “alternative diversion program” if made under sections 22, 24A or 164 and a conference cannot be convened for certain reasons. 
[11]	Part 7 – Sentencing - includes restorative justice pre-sentence referrals and sentencing orders in the Court’s sentencing toolkit. Division 2 provides for the process before sentencing.
[12]	Section 162:
1.	If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child. 
2.	If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.
[13]	Division 4 of Part 7 sets out the orders a court may make upon a finding of guilt. These include, in Section 175(1):
(a)	if a restorative justice agreement is made as a consequence of a presentence referral relating to the child—order the child to perform his or her obligations under the agreement; or
(b)	order that the child participate in a restorative justice process as directed by the chief executive;
[14]	Division 6A of Part 7 – Restorative Justice Orders  - sets out the preconditions to making a restorative justice order and the requirements to be set out in a restorative justice order: sections 192A and 192B. The order can be made with any other sentencing order: section 177. 
[15]	Orders made under Part 7 Division 6A are sentencing orders as distinct from pre-sentence referrals.
[16]	Division 13 of Part 7 – Application of Transport Operations (Road Use Management) Act 1995 and Heavy Vehicle National Law (QLD) includes in section 254,
“(2) If— 
(a)	a child is found guilty of an offence under the … Transport Operations (Road Use Management) Act 1995 …,  and 
(b)	were the child convicted of the offence as an adult the child would be liable to be disqualified on the conviction …
the child is also liable to be disqualified to the same extent. 
(3) If— 
(a)	a child aged less than 17 years is found guilty of an offence under the … Transport Operations (Road Use Management) Act 1995 … and 
(b)	a conviction is recorded; and 
(c)	were the child convicted of the offence as an adult, the child would be disqualified by the conviction by operation of law; the child is also disqualified to the same extent. 
(4) If— 
(a)	a child aged at least 17 years is found guilty of an offence under the … Transport Operations (Road Use Management) Act 1995 … ; and 
(b)	were the child convicted of the offence as an adult, the child would be disqualified by the conviction by operation of law; the child is also disqualified to the same extent.”
[17]	The learned Magistrate and the parties considered that subsection 254(4) was the operative provision in the present case.  In my respectful opinion, it is not, although it might make no practical difference.  Section 254(4) applies where the child is found guilty of an offence for which an adult would be disqualified by operation of law.
[18]	The charge was brought under subsection 79(2AA) of the TORUM Act, which provide:
“Offence of driving etc. while relevant drug is present in blood or saliva 
Any person who, while a relevant drug is present in the person’s blood or saliva— 
(a)	drives a motor vehicle, tram, train or vessel; or 
(b) …; or …”
[19]	The disqualification is provided for by Section 86 –
“(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— 
(b)	under section 79(1F), (2), (2AA), (2A), (2B), (2D), (2J), (2K) or (2L);
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.
(2)	A person who is convicted of an offence in relation to a motor vehicle against section 79(1F), (2), (2AA), (2A), (2B), (2D), (2J), (2K) or (2L) must, if during the period of 5 years before conviction the person has not been previously convicted— 
(a)	under section 79(1F), (2), (2AA), (2A), (2B), (2D), (2J), (2K) or (2L); or 
(b)	under section 79(1); or
(c)	on indictment, of any offence in connection with or arising out of the driving of a motor vehicle by the person; or 
(d)	summarily of an offence against any provision of the Criminal Code, section 328A; 
be disqualified by such conviction— 
(e)	in a case where at the time of the commission of the offence the person convicted was, in respect of the motor vehicle, not the holder of a driver licence, was a section 79E driver or was the holder of a learner, probationary, provisional or restricted licence, if paragraph (ea) does not apply — for a period of not less than 3 months and not more than 9 months from the date of such conviction from holding or obtaining a Queensland driver licence; or 
…”
[20]	Conviction under subs. 79(1) brings a disqualification by operation of subs. 86(1).  That is, by operation of law.  It does not require a judicial act.  Conviction under subs. 79(2AA) engages subs. 86(2) which, although directing that a person must be “disqualified by such conviction”, requires a judicial act and exercise of discretion in deciding the length of disqualification in the range prescribed.  In my opinion, the combination of a statutory minimum sanction and the exercise of discretion does not produce a result “by operation of law”.  The discretion exercised is the sentencing discretion.  To make the order, the Court has embarked upon sentencing the person.   In that case, the Court may not proceed under s. 164 of the YJA.
[21]	If the above is correct, then it will be subsection 254(2) that applies to a finding of guilt of the charge brought under s. 79(2AA) of the TORUM Act.  The defendant child will be liable to be disqualified on the conviction as an adult would be.  In this case, the appellant was thereby liable to disqualification upon conviction of disqualification for 3 to 9 months.  The magistrate was compelled to sentence the appellant at least by ordering the disqualification, unless the magistrate refused to accept the plea of guilty and dismissed the charge.
The hearing before the magistrate
[22]	The prosecutor told the magistrate the appellant child submitted to a roadside drug test which was positive.  He was detained and conveyed to an analysis instrument which indicated presence of a drug, later identified as THC.  The magistrate was also told the appellant was unremorseful for his actions and ‘anti-police’ throughout the matter.  The police had given reasons for not diverting the case: the appellant showed no remorse, was uncooperative and indicated he would continue to use drugs and drive.
[23]	The prosecutor submitted the offending was prevalent behaviour, informed the court that the appellant had already paid the fines and submitted the magistrate could reprimand him and disqualify him for the minimum period.
[24]	The appellant’s solicitor referred to a letter from the appellant’s employer which stated the appellant would lose his job if he lost his licence.  The solicitor said he had the employer’s direct mobile phone number if the Court wished to confirm its contents.  The learned magistrate said: No, I don’t need to.  I’ll just run off the face of that reference.  
[25]	A letter from Releaf informed the Court that the treatment plan was to ween the appellant “in the short term” off the THC based medication.  So, it was submitted, he would not be using the medicinal cannabis much longer.  The appellant, his solicitor said, explained his apparent lack of cooperation with police as anger with himself for finding himself in the situation and his oppositional defiant disorder.  The appellant had turned onto Nicklin Way, accelerated to get to 70 kph, which he understood to be the limit, then saw the school zone, travelling at 55 kph, slowed down but the police had already noticed him.  The appellant had completed the QTOP exercise, evidenced by exhibit 3, demonstrating a high level of insight into the consequences of his driving.
The decision below
[26]	The learned magistrate commenced his reasons by stating that should the application for dismissal of the charge under s. 24A of the YJA be granted, that “would result in the mandatory disqualification required under section 253-254 ... be voided by the applicant.”  If by that the learned magistrate meant that the provisions of Part 7 Division 13 Precluded the exercise of discretion under YJA ss. 22 and 24A, that would be an error.  In MK v DPP, Richards P. said at [8]:
“[8]	It is not apparent why the Magistrate thought that these provisions override all the other provisions of the Youth Justice Act including the Youth Justice principles. There is no apparent intention from an analysis of the Act that supports that position and there is no reason why that should be the case. …
[9]	The sentencing regime in relation to children is very different from that which an adult may face. The scheme of the Act acknowledges that children do not have the same maturity as adults and that they are more likely to benefit from sentences that assist them to properly understand the wider effects on the community of their actions, develop alternative ways to act and to empathise with the possible victims of their crimes. The addition of division 13 in the Youth Justice Act is simply a mechanism that will be applied in cases where diversion is not appropriate. That does not mean it applies to every case or that diversion or dismissal is never appropriate.’
[27]	The learned magistrate set out sections 22and 24A of the YJA and referred to the Releaf letter.  As to the interests of the community and the child, his honour referred to that the community’s concern about drink and drug driving, the risk of death and injury, that drink driving is one of the fatal five risk factors in fatal car accidents, and the degree of public expenditure on reducing accidents and drink driving.  Some of these were relevant considerations and no point is taken on the appeal with this part of the reasons.
[28]	The learned magistrate concluded that there was no suggestion that the police officer erred in the exercise of discretion and that the police officer “simply exercised his discretion to not refer the defendant to a restorative justice process.”  The task, of course, is to decide whether the offence should have been referred.  Overall, on its face, after setting out at some length extraneous materials designed to confirm the clear legislative intent that the provisions of, relevantly, the disqualification provisions of the TORUM Act applied to children convicted of certain offences, the learned magistrate did consider the deciding factors and reach a conclusion that the case was not appropriate for referral by the police officer.
[29]	His honour then decided to act, apparently under ss. 163 and 164, to make a court diversion order.  His honour said, “having regard to the deciding factors, that you are court diverted, without making any further sentencing order.”
[30]	In setting the period of disqualification, the learned magistrate took into account the appellant’s reported uncooperative attitude with the police, the problem with the appellant’s job, although his honour expressed doubts about the reliability of the assertion that the appellant would lose his job, the appellant’s problem travelling without a licence - but commented that all who lose their licence face the same problem.
Consideration
[31]	The learned magistrate’s use of the term ‘further sentencing order’ reveals the reality of the situation.  By imposing the disqualification, the Court was imposing a sentence.  It was no less a sentencing act than any other mandatory sentence order.]
[32]	The appellant’s submission, that he was not “found guilty” and therefore the order disqualifying him could not be made cannot be accepted.  “Finding of guilt” is defined in Schedule 4 of the YJA:
“Finding of guilt means a finding of guilt, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.
[33]	The appellant submits a plea is not accepted when a court diversion referral is made.  It is clear that the court diversion referral is made “without making a sentence order” (Subs. 163(1)(d)(i)).  But a plea and a court’s acceptance of a plea are acts separate from and precedent to imposing sentence.  The court’s acceptance of a plea may show in the calling on a person who has pleaded guilty to say why sentence should not be passed or in some other action upon the plea.  For the purposes of Part 7 Division 2, the plea of guilty, and necessarily the Court’s acceptance of the plea, are preconditions to the act of referral for court diversion.  This understanding of the term “acceptance of a plea” is consistent with the common law understanding of conviction.  In R v Jerome and McMahon [1964] Qd R 595, Gibbs J agreed with the statement of the Full Court of the Supreme Court of Victoria in R. v. Tonks and Goss (1963) V.R. 121 that:
“ …. a plea of guilty does not of its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment; but there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt.”
[34]	Later, Gibbs J said:
“In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons.”
[35]	This understanding of the term “acceptance of a plea” is also consistent with the scheme of the YJA.  Section 24A expressly provides that the court may dismiss the charge instead of accepting the plea.  Part 7 Division 2 does not, expressly or by implication. 
[36]	In the result, the appellant was found guilty by the court’s acceptance of the plea and thereupon referring the offence to court diversion.  If the charge were under subs. 79(1) of the TORUM Act, s.86(1) of that Act and subs. 254(4) of the YJA would be engaged, and the legislated disqualification would follow.  It follows that the finding of guilt, of the charge under subs. 79(2AA) of the TORUM Act, which engages subsection 86(2) of that Act and subs. 254(2) of the YJA, leads to the result that, while otherwise not proceeding to sentence, the Court must order the minimum disqualification.  
[37]	Section 254 of the YHA provides the only power in the Act to order a licence disqualification.  That section is not included in the definition of sentence order in the dictionary in Schedule 4.  To make the order is not, therefore, a sentence order.  It is open to the court, therefore, to refer a matter under s. 163 while disqualifying the child as the court must under s. 186 of the TORUM Act.
[38]	The learned magistrate did not err by imposing a licence disqualification with a court diversion referral.

Manifest excess
[39]	The appellant having pleaded guilty, the ground of appeal is that the punishment was excessive.  But for proceeding under s. 24A of the YJA, the disqualification was mandatory.    I am not satisfied the learned magistrate was wrong to refuse to proceed under s. 24A.  I have said that if his Honour did not do so only because of a view that it was not available having regard to the statutory purpose in s. 86 of the TORUM and s. 254 of the YHA, that would have been wrong.  It was not wrong to decline to act under s. 24A because the deciding factors did not require it.  The nature of the offence was such that it created a risk to road users including the appellant.  No harm was suffered but the interests of the community required that the appellant be stopped from driving.  His intention was to continue driving while using the medicinal cannabis.  That information is consistent with the Releaf letter that there was in place a course of medicinal cannabis with a view to weening the appellant off the drug.   To factor this into the nature of the offence and the interests of the community is not to take into account the opinion of the police that the appellant was ‘anti-police’, whatever that might have meant.
[40]	The only matter left to consider is whether the referral to a court diversion order was necessary given the appellant’s completion of the QTOP program.  Quite possibly, it was not, and a reprimand would have been sufficient.  However, the submission for referral was made by the appellant’s solicitor below and is not the basis of the claim on appeal that the order was excessive.
[41]	In the result, the appeal must fail.