Today we argued that s 90B of the Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) does not mandate that two separate drink driving offences committed within a short period of each other must lead to cumulative disqualifications. Magistrate Carmody agreed and concluded that the sentencing function of the Magistrate is discretionary, and therefore the totality principle should be applied.
In this case the first minor drink driving offence (over the general and under the medium limit) took place while the defendant was not the holder of a driver license, and the second took place within a few hours when the defendant attempted to move their car.
A Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) s 79(2) offence carries a mandatory minimum of a three month disqualification by virtue of s 86 (2) (e). The first offence of driving while unlicensed does not carry a mandatory disqualification period. The second offending just after the defendant had been released by the police, resulted in him being charged with another unlicensed offence, and a drink driving offence over the 0.00 limit (due to the defendant being unlicensed they were required to be 0.00). The defendant’s licence had expired two weeks previously.
We argued that the drink driving disqualifications should be served concurrently, applying the totality principle. R v. Kendrick  QCA 27 discusses the principal of totality, and while the application was in relation to much more serious offences, it is helpful here. At paragraph 31 his Honour Morrison JA said of the Totality Principal:
That principle was explained in Mill v The Queen when the High Court approved this statement from Thomas, Principles of Sentencing “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”
At paragraph 39, quoting Azzopardi v The Queen, his Honour noted that there are two ways to apply the principal, either by “….making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred”.
Section 90B creates confusion, but has been relied upon by Police and Qld Transport (using the so called ‘Dummies Guide’ to the TORUM) to submit that cumulative disqualifications would apply in such a case.
Section 90 B states:
90B Cumulative periods of disqualification for offences committed at different times
(1) This section applies if—
(a) a person is disqualified (the initiating disqualification)—
(i) under a relevant disqualifying provision for a drink driving offence; or
(ii) under a section 89 disqualification; or
(iii) under a section 90 disqualification; and
(b) before the period of disqualification for the initiating disqualification ends, the person is disqualified again on 1 or more occasions (a later disqualification) as mentioned in paragraph (a).
(2) However, this section does not apply if section 90C applies.
(3) Each period of disqualification whether for an initiating disqualification or later disqualification takes effect cumulatively with each other period of disqualification.
1 D is charged with a drink driving offence. Before the court hears that charge D is charged again with a drink driving offence. The court convicts D of both offences and disqualifies D for a period of 2 months for 1 offence and a period of 4 months for the other offence. The total period of disqualification is 6 months.
2 D commits a drink driving offence on 25 December 2008 and commits another drink driving offence on 1 January 2009. A court convicts D of the 1 January offence on 2 January 2009 and disqualifies D for a period of 2 months. On 1 February, the court convicts D of the 25 December offence and disqualifies D for a period of 4 months. The total period of disqualification is 6 months.
Kumar v Garvey discusses s 90 B. In obiter McGill DCJ, who allowed an appeal in that case on other issues said: “I should also refer to s 90B of the Act. The effect of this provision appears to be that the two periods of disqualification imposed by the magistrate were cumulative. I say “appears to be” because the section is strangely worded, and to me produces that result only if one assumes that a person is disqualified at the time the offence is committed, rather than at the time when an order is made under the Act imposing the disqualification, or by the terms of the Act, a disqualification is imposed. That it would apply to the present case is consistent with example 1, which is part of the section, though it seems to me that otherwise it would be difficult to tease that outcome out of the words used by the legislature”.
When dealing with mandatory minimums, it is appropriate to consider the combined effect of all the disqualification periods, and consider whether the aggregate is ‘just and appropriate’.
In this case the defendant had only a very minor traffic history, and no drink driving offences in the defendant’s past. If two mandatory disqualifications of three months had been ordered to be served cumulatively, the impact would have been unjust and harsh, and would not be appropriate given the level of the defendant’s culpability.
While a minor piece of advocacy in the greater scheme of things, in our view the TORUM is a legislative nightmare for practitioners and defendants alike, and it is appropriate that it be carefully considered. As McGill DCJ stated (para 22) “Mandatory sentencing provisions are frequently the subject of judicial and academic condemnation whenever they appear. Generally, Queensland is mercifully free from some of the worst excesses in this area which may be found in other states, but ss 78, 79, and 86 of the Act contain detailed and complex mandatory sentencing provisions which deserve all the principled criticism directed at mandatory sentencing. The sections have been much amended over the years, in what appears to be a process of populism”.