Office of the Director of Public Prosecutions for the respondent
[2]
[1] This is an appeal, pursuant to section 222 of the Justices Act 1886 (Qld), from a sentence imposed on the 18th of December 2024 in the Magistrates Court at Brisbane. The offence for which the appellant was convicted was one of driving over the middle alcohol range on 2 November 2024, pursuant to section 79(1F) of the Transport Operations (Road Use Management) Act1995 (Qld). He was fined a sum of $750. He was disqualified from holding or obtaining a driver's licence for a period of seven months. That order was accompanied by an order that he be granted a restricted licence for work purposes, to run from Monday to Friday of each week for those seven months.
[2] The appellant has appealed the severity of the sentence in two respects, the seven-month disqualification period, and the recording of a conviction.
[3]
[3] As indicated to the legal representatives during the course of the hearing, I am of the view that an error has occurred in the calculation of the seven-month disqualification period. The appellant had been suspended from driving for a period of just over six weeks from the time of the commission of the offence until the date of his appearance in court, and that period of suspension was not taken into account by the learned magistrate when she arrived at the seven-month period. That information was before the court via the traffic history that was presented, but no mention was made of it in the course of submissions by either the prosecution or the defendant's legal representative, nor did the magistrate refer to that passage of time at any stage during the course of the hearing, or in sentencing remarks.
[4] The only inference which is open in those circumstances is that that passage of time was one which was overlooked in the course of determining that which might be considered to be the appropriate disqualification period. That was an error, ultimately, on the part of the learned magistrate, but, I am quick to point out, that she received no submissions about it whatsoever. It seems it was overlooked by all concerned.
[5] Taking that period of time into account ought to have had an impact on the disqualification period which was imposed, and, in my view, it should have resulted in a reduced disqualification period.
[6] The submission has been made, as well, that the disqualification of seven months was excessive in the circumstances. I disagree, though, with that submission. The minimum period was one of three months. The alcohol reading was 0.115 per cent. The circumstances were a little unusual in that the defendant had been drinking the night before and was caught driving at about midday the following day, but he still had that very high reading at the time of being pulled over. Of course, the predominant consideration on sentence, for a matter of this nature, is community protection, and it is well acknowledged that someone with an alcohol reading in that range is a much higher risk of accident than someone without alcohol in their system.
[7] It was accepted at the appearance at first instance that a disqualification, excluding the consideration of a restricted licence, of three to four months would have been appropriate. That was on behalf of the appellant. It was also accepted that the issue of a restricted licence would result in a longer period of restriction being ordered. The maximum penalty without the restricted licence was 12 months disqualification; with, it is 24 months. Ultimately, the magistrate decided that a period of seven months would be appropriate, and I can find no fault in the reasoning or the logic in arriving at that conclusion, with the exception that the aforementioned six-week period of suspension was not taken into account.
[8] There really has been no opposition to the approach which I have indicated I am going to adopt in this matter, and both legal representatives have agreed that detailed reasons are not required from me in the circumstances. It does seem to me to be appropriate that the order imposed by the magistrate disqualifying the defendant in respect of his driver licence for a period of seven months be varied to one of five months and 14 days, and I so order. To be clear, the order allowing him to have a restricted licence during that period of time remains in place.
[4]
[9] The appellant has also appealed against the recording of a conviction. That, of course, is a discretionary issue, and before the court could interfere in such a matter, error would need to be demonstrated on the part of the court below. The legal representative for the appellant really has not identified any particular error on the part of the magistrate.
[10] It seems to me that during the course of the hearing, and in the course of sentencing remarks, her Honour made reference to all relevant considerations, including that this was not a matter in which the exercise of discretion to not record a conviction ought be applied, for the reasons that she gave. In the absence of error on her part, I am of the view that this court ought not, and cannot, interfere with the order of the court below. There were good reasons before the court for the recording of the conviction, given the nature of the offending conduct, notwithstanding the appellant's lack of prior traffic history of relevance.
[11] But, taking all the matters into account, and, again, for the reasons that have been advanced during the course of submissions and discussion between the Bench and Bar table, the appeal in relation to the recording of a conviction is dismissed.
[12] In those circumstances, it is my view that an appropriate order is one that makes no order as to costs, so I will decline to make any order in that regard.