R v Harris[2008] QCA 141

COURT OF APPEAL

HOLMES JA

FRASER JA

DAUBNEY J

CA No 32 of 2008

THE QUEEN

v.

 JAMIE ALLAN HARRISApplicant

BRISBANE 

DATE 05/06/2008

JUDGMENT

MR A MOYNIHAN (instructed by Legal Aid Queensland) for the applicant

MR R G MARTIN (instructed by Director of Public Prosecutions (Queensland)) for the respondent

DAUBNEY J:  On 7 February 2008, the applicant was convicted on his own plea of the following offences, and was sentenced to the following respective terms of imprisonment to be served concurrently:

(a)driving a motor vehicle while disqualified - 18 months imprisonment, with a fixed parole release date of 7 November 2008 (that is, after 9 months incarceration);

(b)dangerous operation of a vehicle - 12 months imprisonment with a fixed parole release date of 7 November 2008; and

(c)failing to stop at the scene of an accident - 3 months imprisonment.

The applicant seeks leave to appeal against these sentences, contending that they were manifestly excessive.

The offences were committed on 25 March 2007.  The applicant, who had been disqualified from driving in June 2006, drove half a kilometre to his local shops to buy milk.  It had been raining that day and he did not want to ride his bicycle.  According to witness statements taken by police, the applicant engaged in some aggressive driving on the way to the shops.  He was seen accelerating away from the shops in an aggressive manner, lost control of the vehicle, mounted the footpath and drove into a house fence causing extensive damage to it.  He then fled the scene.

When interviewed by police, the applicant admitted accelerating from the shops in a hurry, and losing control of the vehicle after he changed gears.  It was not in issue that he had caused quite extensive damage to the front metal fence of the house and had knocked over a street sign, nor was it in issue that he had fled the scene.  The applicant has an appalling driving history.  Between 1990 and 2006 he was convicted of unlicensed driving 7 times and twice for driving while disqualified.  He also has several convictions for drink-driving.  His criminal record is also less than inspiring, consisting principally, as it does, of a catalogue of property and drug offences dating back to 1990.  He has been imprisoned on several occasions – 3 months imprisonment ordered in November 1991 for the offence of unlawful use of a motor vehicle - 4 months imprisonment ordered in 1999 for breach of bail undertakings and breach of domestic violence orders, 4 months imprisonment ordered on 7 February 2002 for breach of bail undertakings, and 3 months imprisonment (wholly suspended for 18 months) on drugs and stealing charges on 13 February 2002.

The applicant is now 34 years old.  His counsel below quite properly conceded that the applicant could not sensibly claim an excuse of this incident being a youthful indiscretion.

The learned sentencing judge treated the disqualified driving offence as the most serious of those under consideration.  In view of the applicant's history of repeated offences of that nature, this approach was quite understandable, even though the charge which carried the greatest penalty was the offence of dangerous operation of a vehicle, being the offence under section 328A of the Criminal Code for which the indictment against the applicant was presented.  The offence under section 328A(1) carries a maximum penalty of 200 penalty units or 3 years imprisonment.  The offence of driving while disqualified is sourced in section 78(1) of the Transport Operations (Road Use) Management Act 1995, and carries a maximum penalty of 60 penalty units or 18 months imprisonment.  The failure to stop at the scene of an accident is a contravention of section 92 of the Transport Operations (Road Use) Management Act 1995 which carries a maximum penalty of 10 penalty units or 6 months' imprisonment in circumstances such as the present.

It appears, however, that His Honour below was misinformed as to the maximum penalty for the disqualified driving offence, being told that it was 2 years imprisonment, and that he formulated the head sentence of 18 months imprisonment on the basis of that misinformation.

When sentencing the applicant, the learned sentencing judge accepted a submission that the applicant's conduct showed contempt, and indeed growing contempt, for Court orders which have been made against him in the past.  The applicant has previously been imprisoned as a consequence of his contumelious disregard of Court orders and bail conditions.  His driving history demonstrates that he is a flagrant recidivist, prepared to drive on whim and regardless of whether he is unlicensed or disqualified from driving.  To adapt the words of Justice Williams in R v Serbanoiu [2007] QCA 257 at paragraph 22, given the applicant's total disregard for traffic laws displayed by the applicant, and the fact that he continued driving after his licence was disqualified, a significant sentence of imprisonment was called for.

It is clear to me, however, that his Honour's sentencing discretion miscarried in two respects:

(a)formulating the head sentence of 18 months on a misapprehension as to the maximum sentence available; and

(b)failing to apply section 13 of the Penalties and Sentences Act 1992.

As to the second of these matters section 13 provides:

"13 Guilty plea to be taken into account

(1)In imposing a sentence on an offender who has pleaded guilty to an offence, a Court -

(a)must take the guilty plea into account; and

(b)may reduce the sentence that it would have imposed had the offender not pleaded guilty.

(2)A reduction under subsection (1)(b) may be made having regard to the time at which the offender -

(a)pleaded guilty; or

(b)informed the relevant law enforcement agency of his or her intention to plead guilty.

(3)When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed;

(4)A Court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open Court -

(a)that fact; and

(b)its reasons for not reducing the sentence.

(5)A sentence is not invalid merely because of the failure of the Court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal Court if an appeal against sentence is made."

There is nothing in the sentencing judge's reasons to suggest that he took the applicant's plea of guilty into account, nor any indication that he reduced the sentence that otherwise would have been imposed.  Indeed, it appears clear that the sentencing judge set a head sentence towards the top end of what he perceived to be the range and that there was no reduction either to the head sentence or by way of earlier than usual release on parole.  His Honour did not, with respect, observe the requirements of section 13(3) by stating that he took account of the guilty plea in determining the sentence imposed, nor did he give reasons for not reducing the sentence, as required by section 13(4).

Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State.  It self-evidently provides for an accused to receive appropriate and tangible recognition in the sentencing process for the savings in time and cost to the Courts, the prosecuting authorities, and to publicly funded or community-based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why such recognition is not being given in a particular case.  The purposes of the Penalties and Sentences Act include the promotion of consistency of approach in sentencing offenders (see section 13(c)), providing sentencing principles that are to be applied by the Court (section 3(e)), and promoting public understanding of sentencing practices and procedures (section 3(g)).  It is important for public confidence in the achievement of these purposes that the provisions of section 13 not be overlooked in the sentencing process.

These miscarriages of the sentencing discretion compel a conclusion, in my view, that the application for leave to appeal against the sentence should be allowed.

The question then is as to an appropriate sentence, having regard to the applicant's record of default and recidivism, and also properly taking into account such mitigating factors as should be accorded weight in his factor.  Those mitigating factors include the fact of his plea of guilty to the charges.

At the time he was convicted he was living in a de facto relationship with a young family and had been employed at the local meatworks for some years.  The applicant's lengthy criminal record was explained in part at least by a history of drug and alcohol problems.

Having regard to the applicant's history I would agree with the approach of treating the offence of driving while disqualified most seriously.  I consider a proper and appropriate sentence on that count in this case would be 12 months' imprisonment.  I take the applicant's plea of guilty into account by fixing an earlier parole release date than would otherwise have been appropriate for him.  The applicant has now been in custody for just short of 4 months since being sentenced.  I would make allowance for the mitigating factors, particularly the plea of guilty by fixing his parole release date as today, 5 June 2008.

In relation to the dangerous driving, I would respectfully affirm the sentence below of 12 months imprisonment but would vary the parole release date to today, 5 June 2008.

On the count of failing to stop I would not disturb the sentence of 3 months imposed below.

HOLMES JA:  I agree.

FRASER JA:  I agree.

HOLMES JA:  The orders will be as Justice Daubney has indicated.