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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Robson v Commissioner of Police  QDC 178
CHRISTIAAN JOHN ROBSON
COMMISSIONER OF POLICE
Appeal against sentence
Magistrates Court at Southport
23 August 2019 ex tempore
Southport District Court
23 August 2019
RS Jones DCJ
Justices Act 1886 (Qld)
Penalties and Sentences Act 1992 (Qld)
Harris v R (1954) 90 CLR 652
House v R (1936) 55 CLR 499
Low v McConagle  QDC 109
Nguyen v Chand  QDC 227
Prew v Commissioner of Police  QDC 178
Ross v Commissioner of Police  QCA 96
Vickers v Timothy  QDC 255
CJ Rosser for the appellant
KE Thomas for the respondent
Donnelly Law for the appellant
- I am concerned here with an appeal pursuant to section 222 of the Justices Act 1886. Pursuant to section 222(2)(c):
“If a defendant pleads guilty or admits the truth of a complaint, a person may only may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
- Pursuant to section 223(1), unless leave is given to adduce further evidence, the appeal is by way of a re-hearing on the evidence given in the court below. That is the situation here. On 19 September 2018, the appellant pleaded guilty to one charge of disqualified driving and one charge of driving while a relevant drug was present in his blood. The maximum penalty for the first offence is 18 months imprisonment and licence disqualification for up to five years with a minimum disqualification period being two years. The maximum penalty for the second offence is three months imprisonment.
- In respect of the first offence, the appellant was sentenced to nine months imprisonment to be released on parole after serving three months. As to the second charge, he was fined $300. He was also disqualified from holding a driver’s licence for a period of four years. The grounds of appeal are limited to two. The first being that the sentence imposed was, in all the circumstances, manifestly excessive. The second, that the court failed to give sufficient weight to the principles set out in section 9(2)(a) of the Penalties and Sentences Act 1992. That, of course, is a reference to the fact of a term of custody being a sentence of last resort.
- The prosecuting sergeant described the detection and the offending in the following terms: that at about 11:50 on the 3rd of May 2018 the defendant was intercepted in a roadside test. When tested he provided a positive result. He also admitted that he was driving whilst disqualified. He went on to say that he was driving his partner who was feeling unwell at the time from the beach to their holiday accommodation which was nearby. Notwithstanding the reference to his partner feeling unwell, he did not suggest it was an emergent situation. He was described as being a male of 44 years of age. He had at that time not been in a long-term relationship but had a two year old child at the time. In fact, it would appear that he has two children. One now aged three years of age and the other nine years of age.
- Submissions were made on his behalf to the effect that he had full-time employment, and that he was the carer of a child who was only two years of age at that time and that he shared the care of that child, and it would appear also the other child, between himself and the mother of those children. It would also appear that these children would, from time to time, be cared for in childcare while he was at work.
- He has what could only be described as an unenviable traffic history. It is helpfully set out in the written submissions of Ms Thomas who appeared for the respondent. It dates back to 1992, has entries involving driving uninsured vehicles, driving unregistered vehicles, and driving after the licence had been cancelled. There is also an entry for exceeding the speed limit over 15 kilometres an hour but under 30 kilometres an hour.
- Of particular relevance was the fact that there had been seven previous entries for driving whilst disqualified from 24 January 1999 through to 5 September 2017. That last offence, of course, occurring not long before the offending for which he was dealt with in the court below. Of some significance, though, in my view, is that there are no entries involving dangerous driving or driving whilst under the influence of a drug or alcohol. There is, however, one reference to what is described as an aggravated burnout which might be indicative of some level of erratic if not dangerous driving.
- During proceedings Mr Rosser, the appellant’s lawyer, seemed prepared to accept that a head sentence of up to 18 months might be appropriate provided no actual custody was required. During oral submissions, Mr Rosser made submissions in the following terms. After referring to his antecedents including his unfortunate criminal history, he said:
“I would submit that what would be more appropriate than a short term of actual custody would be a longer sentence for a longer period of time held over his head and based on the fact that, as I said before, they are rather dated. His periods that he has had to go into custody. So the fact he’s got a child; the fact that he’s in employment, I’d say a deterrent would be a longer period of imprisonment hanging over his head because, generally speaking, what would the court impose on a person in this situation. Sending them to prison probably one month, two months would be about the normal tariff. So I’d say it’s maybe a sentence of 12 months suspended would be appropriate. I’m not sure what the maximum –.”
- And then the Bench intervened:
“Well the maximum penalty for this is 18 months imprisonment.”
- Mr Rosser went on:
“Eighteen months, yes. Well, your Honour can go to the 18 months based on his – on the history with a substantial period. Well, he’d be liable for the whole lot actually if he committed another offence of this nature.”
- In my respectful submission, to suggest that the imposition of the maximum penalty of 18 months was an appropriate starting point was, at best an ill-advised submission. It would appear from my reading of the record that the prosecutor made no actual submissions as to sentence. In any event, in imposing the sentence that he did, the following exchange took place between his Honour and the appellant. His Honour:
“The cost of any further proceedings – so that’s one benefit for you. The other benefit is that it shows that you are taking personal responsibility here today. I take into account your personal circumstances that you are 44, now single and that you have shared care of the two year old child. You’ve got a good reference from your employer. Mr Rosser has submitted on your behalf that I should impose a lengthy term of imprisonment to act as a proper deterrent to you and to let that hang over you, as it were, by suspending the whole sentence. I’m thoroughly and utterly convinced from your track record that you are not likely to comply with such an order and that that would be setting you up to fail.”
- At this stage the defendant intervened and said:
“At the moment, your Honour, like, I’ve got my life on track except for what happened while – while I was up here. I’ve just got my kid and I’ve just been working, like, I know – I know myself I wouldn’t do it now. And I’ve been told in Sydney I could have, like, with the RCA, I could get my licence back.”
- His Honour then continued:
“Your last appearance in New South Wales was in around September/October last year. This offence occurs in May this year. So it appears highly unlikely, most unlikely that you would comply with any further court orders.”
- Again the defendant interjected:
“I’ve got my son now and I know I would comply with the orders. Yes, you’ve had that child for two years. So today you are convicted for each offence and for the charge for the offence of disqualified driving you are disqualified from holding or obtaining a driving licence for four years. You’re sentenced to a term of nine months imprisonment.”
- His Honour made no reference to any of the matters raised by the appellant in his defence. A parole release date was set at 18 December 2018. It can be immediately observed that no reference was made to section 9(2)(a) of the Penalties and Sentences Act in that prison was a last resort and nor was there any reference made to any comparable cases. That of itself is not particularly surprising as his Honour was not referred to either that Act or to any cases. Of course, his Honour would have been fully aware of the relevant provisions of the Penalties and Sentences Act. Those circumstances can be contrasted with the proceeding before me where I have been referred not only to the relevant provisions of the Penalties and Sentences Act but also to no less than four cases said to be comparable.
- It is appropriate at this stage to refer briefly to some relevant principles concerning appeals such as this. The respondent referred to the well-known passage from the decision of House v R (1936) 55 CLR 499 at 505 where it was said:
“It must appear that some error has been made in exercising the discretion if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
- On behalf of the appellant reference was made to Harris v R (1954) 90 CLR 652 at 656 where similar principles were enunciated by the then members of the High Court. Much more recently, the Court of Appeal in Ross v Commissioner of Police  QCA 96 in paragraphs 55 and 56 said:
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
The result of the impugned sentence must be “unreasonable or plainly unjust” and the appellate court must infer “that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance”. That discretion is governed by the application of relevant legal principles to the facts of the case.”
- It is submitted on behalf of the appellant that the Court below erred because, at least as I understood the submission, on its face the sentence was manifestly excessive. I have some difficulty with such a bold assertion, I must say. By way of reference to the sentencing remarks of his Honour, it would seem tolerably clear that the reason for imposing a sentence that required the appellant to serve three months in custody was because he considered that the appellant’s track record left him convinced that he would simply reoffend and thereby breach or not comply with any form of orders the court might otherwise have made. That would appear to be a reference to either a suspended sentence or immediate parole.
- It is true that the appellant has an unenviable traffic history, particularly in respect of driving whilst disqualified. Prior to this offence, he had seven previous entries, spanning the best part of 18 years. Accordingly, he deserved a sentence that took that aberrant conduct into account. The issue raised on appeal, though is, bearing in mind all of the circumstances surrounding the subject offending and his antecedents, was the sentence imposed manifestly excessive? In this context, one must also bear in mind the aggravating feature of the presence of the drug.
- There are a number of matters of concern when the sentencing remarks of his Honour below are considered. First, it would appear that very little weight was given to the fact that the appellant was a part-time carer of a very young child. His Honour seemed to have passed over that by simply referring to the fact that he had had that child for some two years, as at the time of the sentence.
- It would also appear that, in the same context, he failed to give sufficient weight to the fact that the appellant resided in New South Wales. and that was where he was employed. Clearly, a custodial sentence would have had a negative impact, not only on the ability of the appellant to earn an income whilst incarcerated, but also a negative impact on the ability to care for that child.
- That problem would, of course, be exacerbated by the fact that the appellant would be in custody in Queensland while the child resided in New South Wales, as would his partner. It would also appear that little weight was given to the potential negative impact that a substantial custodial sentence might have had on the appellant’s employment and future employment, including, in this context of course, the ability to financially assist in the support of the child.
- Finally, while clearly of far less significance, no reference was made to the circumstances as to why the appellant was driving on the subject occasion. This was not an occasion where he was intercepted for speeding or otherwise breaching any traffic rules. The uncontested evidence was that he was driving a short distance to he and his partner’s holiday accommodation because his partner had felt unwell at the time. This consideration, of course, has to be seen in the context that the appellant himself accepted that it was not an emergent situation, and that his partner did not require any medical treatment.
- Overall, though, on balance it is tolerably clear to me that, based on the appellant’s prior traffic history, his Honour’s focus was only on the need to punish the appellant by imposing a substantial term of actual custody, without any due regard to any of the matters that might have militated against imposing such a sentence. Indeed, in this context, Ms Thomas, who appeared for the respondent, quite candidly and reasonably, in my respectful view, conceded that his Honour appeared to have failed to give equal attention or weight to matters that might have militated against the imposition of a sentence requiring three months of actual custody.
- The culmination of these issues, or matters, has led me to the view that there has been an error made in the exercise of the sentencing discretion by the court below, resulting in a sentence outside a permissible range. That being the case, it falls to this court to exercise the sentencing discretion.
- As I have said, I have been referred to a number of cases, which I will not go into in any great detail, but will put on the record. The respondent, in particular, relied on the decision of Nguyen v Chand  QDC 227. That case involved a 26 year old who was sentenced initially to nine months imprisonment to be released on parole after three months on the charge of driving whilst disqualified. It was his fourth offence of driving whilst disqualified. And it was also recorded that the original disqualifying offence was drink driving, where he was disqualified from driving for a period of four months.
- By the time the appeal had been heard, he had been incarcerated for a period of one month. The appeal was allowed, and he was re-sentenced to five months imprisonment with an immediate parole release date. That is, after a period of one month, which was dealt with as time declared. It is submitted that that case, bearing in mind the traffic history of the appellant here, supports the sentence imposed. Whilst I can agree that this case supports a significant head sentence, I do not accept for the reasons already discussed and, as I have said, candidly accepted by Ms Thomas, that when all of the militating factors are taken into account, it was necessary for the appellant to serve three months in custody.
- On behalf of the appellant, three cases were referred to. The first being Vickers v Timothy  QDC 255. Then Prew v Commissioner of Police  QDC 178. The next case was Low v McMonagle  QDC 109. I would note that in both Prew and McMonagle the sentences below were set aside, and in each of the cases the appellant’s period of actual custody was limited to the time actually served. In the case of Prew, imprisonment was suspended after serving seven days, which was time already served. In the case of McMonagle, the appeal was upheld and the appellant was re-sentenced to six months’ imprisonment suspended after 14 days – again, being time already served.
- It seems tolerably clear to me, that in respect of both Prew and McMonagle, it would have been entirely open and more likely than not that wholly suspended sentences would have been seen as appropriate by the appellate courts. In Prew it was noted that a period of only one month’s custody is a significant period of incarceration. That, of course, always depends on the nature of the offending that the sentencing court is dealing with.
- Given the appellant’s extensive and relevant traffic history and the aggravating feature to which I have referred, Mr Rosser conceded that a head sentence of up to nine months was within range. I agree. However, given the matters to which I have referred and will only touch on briefly again; the fact that the appellant was, at the time, living and working in New South Wales and had a three year old and a nine year old child which he cared and provided for, incarceration would not only impact on his earning capacity and his capacity to care for his children, but would also have the significant and deleterious effect of isolating him from his family. Not just because of the fact that he would be in custody, but also because of the tyranny of distance. The appellant had served only two days imprisonment, being released on bail pending appeal on the 21st of September. To require him to to be uprooted and returned to Queensland to resume a period of actual custody is a further circumstance that needs to be brought into account in my view.
- For the reasons given, the orders of the court will be as follows. The appeal is allowed. The sentence imposed by the court below is to be set aside, but only to the extent that the appellant be sentenced in respect of the driving whilst disqualified to a period of nine months’ imprisonment. That sentence is to be suspended from the 21st of September 2018 with an operational period of two years. The orders of the court below will not otherwise be disturbed.
- After hearing from Ms Thomas, I will also order that the respondent is to pay the appellant’s cost of the appeal. There was no appearance by Mr Rosser when I gave my reasons ex-tempore.
- While the following was not said by me when disposing of this appeal, I consider it appropriate to place these observations on the record. That the appeal has been allowed to the extent explained above should not be seen as a criticism of the Court below. The extreme workload of the Magistrates Courts, particularly in Southport, is well known. Magistrates have a heavy workload with only limited time to hear and determine matters. That situation is of itself difficult enough but that difficulty is exacerbated when the Court gets little, if any, meaningful assistance from defence counsel. That was the situation before His Honour here.
- Published Case Name:
Christiaan John Robson v Commissioner of Police
- Shortened Case Name:
Robson v Commissioner of Police
 QDC 178
23 Aug 2019