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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
McMahon v Commissioner of Police  QDC 323
JOHN PETER McMAHON
COMMISSIONER OF POLICE
Section 222 appeal
25 September 2020
District Court at Brisbane
25 September 2020
Cash QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where appellant convicted of various summary offences and sentenced to 16 months’ imprisonment, to be released on parole after serving 3 months – where appellant alleges that the sentence was excessive and that the Magistrate erred in: not affording him procedural fairness; not having regard to the principle of imprisonment as a sentence of last resort; and not preferring orders permitting a person to remain in the community for the purpose of rehabilitation – whether the sentence imposed was excessive
Justices Act 1886 (Qld), s 222
R v Clemments  QCA 38
House v The King (1936) 55 CLR 499
R v Nagy  1 Qd R 63
B Bullock for the applicant
D J Sampey for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: This is an appeal against sentence by John Peter McMahon relating to proceedings before a Magistrate in March of this year. From June of 2019 to February of this year, the appellant committed a number of offences. These started with driving while he was unlicensed and continued with him being found driving with cannabis and methylamphetamine in his body. Soon after, he drove while disqualified by a court order, then failed to go to the police station to give his particulars. In late October 2019, he failed to appear at Court as required, and when arrested in relation to that in mid-November 2019, police found in his possession a small amount of cannabis, methylamphetamine, a pipe and a straw.
- Mr McMahon was bailed but failed to appear again. When seen by the police in January of 2020, he first attempted to run away, and when he was arrested, was again in possession of a small amount of cannabis and methylamphetamine. Again, the appellant was released on bail. First, he failed to report as required, and then he failed to appear in Court, before his final arrest in March of 2020. The next day he appeared before the Magistrate, he pleaded guilty and was sentenced. When sentenced, the appellant was also dealt with for breaching a probation order that had been made in July of 2019. He was resentenced in March of this year in respect of the original offending that had resulted in the probation order.
- In the result, the sentences imposed and with which I am concerned had the effect of exposing the appellant to a period of imprisonment of 16 months, with a parole release in June of this year – that is, after he had served three months in jail. The appellant claims the sentence imposed was excessive and also that the Magistrate erred in not affording the appellant – who was representing himself – procedural fairness. It is further claimed the Magistrate erred by not having regard to the statutory principle that imprisonment is to be a sentence of last resort, and orders that permit a person to remain in the community for the purpose of their rehabilitation are to be preferred.
- The appellant appeals pursuant to section 222 of the Justices Act. As the appellant pled guilty before the Magistrate, the only avenue of appeal is a complaint against the severity of the sentence on the basis that it is excessive. The principles in House v The King apply, and it is for the appellant to show that the sentence imposed was as the result of some error. It is helpful to commence with the consideration of the appellant’s antecedents in the proceedings below. The appellant was 43 when he was sentenced. He was 42 when he committed the offences in June of 2019, and 43 by the time of the later offences. He had a significant and a relevant criminal history.
- When he was in his twenties, the appellant committed a few offences that might be described as public nuisance offences, for which he was fined. There was then a gap of about 10 years when the appellant committed no offences, before he was then convicted of contravening domestic violence orders, some drug offences, failing to appear, and dishonesty offences. There followed relatively persistent offending, which seems to be characteristic of someone who had, at least at that stage in his life, acquired a drug habit. This conclusion draws support from the defendant’s traffic record, which shows a conviction in 2016 for what is sometimes called drug-driving.
- Of present relevance is the appearance before a Magistrate at Holland Park on the 15th of July 2019. On that occasion, the appellant was convicted of unlawful use of a motor vehicle, stealing, three offences of contravening a police direction, and one offence of contravening a Domestic Violence Protection Order, as well as some traffic matters. Relevantly, the result on that occasion was that the appellant was placed on probation for nine months. The offending that I have outlined that occurred throughout the latter part of 2019 and early this year occurred in contravention of the probation order. Thus, in March of this year, the Magistrate came to be sentencing the appellant not just for the disqualified driving and other summary matters that I have earlier mentioned, but also resentencing for the earlier offences, including unlawful use of a motor vehicle and stealing.
- When the sentence happened in March, the appellant represented himself. He did so despite being given the opportunity to engage a lawyer and after the Magistrate had made it clear that the circumstances were such that there was the prospect of a “fairly serious term of imprisonment”. The appellant explained to the Magistrate that he suffered depression and anxiety, seemingly related to the unfortunate death of his infant son some years prior. The defendant also explained that he had been homeless for a time, which contributed to his failures to report, failure to attend court, and failure to comply with probation. Indeed, it is the case that when placed on probation in July 2019, the appellant did not report at all to the probation office.
- The appellant was given an opportunity to address the Magistrate. As noted, one complaint is said to be a denial of procedural fairness. And I will return to some of the exchanges between the appellant and the Magistrate in due course. The Magistrate was thus required to sentence the defendant – a mature man with a relevant criminal history – for a series of offences that showed continuing disregard for court orders. This is evidenced at least by the appellant driving whilst suspended, driving while disqualified, failing to report in relation to bail, failing to appear, and not reporting when he was released on probation in July 2019. As noted, the Magistrate, because of the breach of probation, was sentencing for offences that included unlawful use and stealing and contravening a domestic violence Order.
- Having regard to the overall offending being dealt with by the Magistrate, a sentence that exposed the appellant to a potential period of imprisonment of 16 months, while not a lenient sentence, does not, in my view, indicate error. The sentence could have been approached in a number of different ways. The Magistrate chose to attach the most significant penalty to the offence of dangerous driving. While the result might be a longer sentence than would otherwise have been the case for a single offence of disqualified driving, such an approach, in my view, is permissible (see R v Nagy  1 Qd R 63). The Magistrate then fixed parole release after three months, which is less than a quarter of the head sentence that was imposed.
- That, in my view, properly balanced the need for a sentence that deterred the defendant with one that promoted his rehabilitation by seeing him on parole for a relatively long period. Having regard to the comparable authorities to which reference has been made, the sentences imposed were not, in my view, excessive. It is true that the Magistrate did not specifically refer to the principles contained in section 9(2)(a) of the Penalties and Sentences Act. The failure specifically to refer to these principles will not in every case amount to an error (see, for example, R v Clemments  QCA 38). It is apparent here, when one looks at all of his Honour’s comments and remarks, that the Magistrate considered imprisonment to be the only appropriate sentence in the circumstances.
- Such emerges, for example, from exchanges with the appellant where the Magistrate takes care to explain the seriousness of his offending. And it can be seen in passages where the Magistrate expressed the need for deterrence, the dangers of drug-driving, and the seriousness of ignoring court orders. It is also to be borne in mind that the Magistrate was talking directly to an unrepresented defendant. It is clear to me that he was attempting to talk in terms that could be readily understood by the appellant. The appellant’s participation in, and understanding of, the process was unlikely to be assisted by the Magistrate engaging in a bland recitation of statutory provision.
- The claim that the appellant was denied procedural fairness also, in my view, cannot be sustained. The Magistrate was careful to explain the proceedings to the appellant. The examples selected by the appellant when he says he was interrupted are not, in my view, representative of the entire exchange between he and the Magistrate. There were occasions when the Magistrate appeared to be acting under a misapprehension and was corrected by the appellant. And there is also significance, in my view, in the passage toward the end of the decision where the Magistrate asked the appellant:
Is there anything else you want to say?
To which the appellant replied:
No, your Honour. That I am sorry, the severity has sunk in, and I understand now.
- There is, as well, another matter not identified as a ground of appeal as such, but relating to the description attached by the Magistrate to previous sentence orders. As I understand the submission, it is to the effect that the Magistrate erred because he thought previous penalties were too light and that a harsher sentence was to be imposed on this occasion to make up for the deficiency. That is not how I read the Magistrate’s remarks. What was being said was that earlier orders that were obviously intended to deter the defendant and to rehabilitate him had not had that effect, and in the circumstances to repeat such orders would also be likely to be ineffectual. In the circumstances, I am not persuaded that there was any error in the proceedings below, and for these reasons the appeal will be dismissed.
- Published Case Name:
McMahon v Commissioner of Police
- Shortened Case Name:
McMahon v Commissioner of Police
 QDC 323
Cash QC DCJ
25 Sep 2020