SUPREME COURT OF QUEENSLAND

1. MUIR JA:  I agree with the reasons of Chesterman JA and with the orders he proposes.

2. CHESTERMAN JA: On 9 June 2011 the applicant pleaded guilty to one count of the dangerous operation of a motor vehicle and two summary offences under the Weapons Act 1990 (Qld): one of possessing a .357 magnum revolver and a sawn-off 12 gauge shotgun and one of having in his possession without reasonable excuse a firearm (shotgun) that had been shortened.  The offences occurred five years earlier, on 26 June 2006.  The applicant was sentenced to three years’ imprisonment for the dangerous driving and 18 months’ imprisonment for each of the summary weapons offences.  The sentences were to be served concurrently but were made cumulative upon the activated balance of a suspended sentence imposed in the District Court at Roma on 30 April 2004.  The offences committed on 26 June 2006 breached the terms of the suspended sentence. 

3. The applicant seeks leave to appeal against the severity of the sentences. He complains about the accumulation and the fact that he was sentenced to the maximum penalty provided for by s 328A(1) of the Criminal Code 1899 (Qld).

4. On 31 August 2003 the applicant was a party, with two others, to the armed robbery of a hotel in Roma. More than $80,000 was stolen from the safe. The hotel manager was assaulted, bound and gagged, and left in his hotel when the robbers left. They were armed with sawn-off, or shortened, shotguns. The applicant was apprehended shortly after the robbery in possession of the firearms. He was sentenced to four and a half years’ imprisonment to be suspended after 18 months with an operational period of five years. He was released from prison in about March 2005. The offences, the subject of the present appeal, were committed 15 or 16 months later.

5. In the early hours of the morning on 26 June 2006 the applicant was driving a car at Springwood on a service road off the Pacific Highway.  The car was stopped by two police officers, Constable O'Neil and Sergeant Miles.  They asked the applicant for identification, which he produced.  There were three passengers in the car, a man called Abraham in the front seat and two other men in the back.  Mr Abraham had possession of a bag.  Constable Miles asked Abraham if the bag contained any identification.  The applicant said the bag was his and it contained tools.  Abraham was asked to pass the bag to Constable O'Neil, which he did.  The Constable opened the bag and saw it contained a silver coloured revolver and a sawn-off shotgun.  The shotgun was loaded.  Upon seeing the weapons Constable O'Neil shouted “gun, gun, gun” and both officers drew their weapons.  Constable O'Neil aimed his at Abraham.  Sergeant Miles stood next to the driver’s side mirror of the car and pointed his gun in the general direction of the vehicle.  He said to the applicant “Put your hands up. Show me your hands. Put your hands on your head.”  As he spoke he moved in front of the car.  The applicant drove off suddenly, accelerating rapidly towards Sergeant Miles who shouted “Stop the car”, and fired a shot which broke the driver’s side window.  He had to jump quickly and then roll out of the way to avoid being run over.  The applicant later abandoned the vehicle in the middle of an intersection.  The rear passenger door was left open.  The applicant fled but the next day at 2.00 pm he gave himself up at a local police station.  He refused to give any explanation for his possession of the guns, or of the purpose of his journey.

6. The applicant was 40 years of age when he committed the offences and 45 when sentenced. Apart from the conviction for the armed robbery in 2004 his criminal history was inconsequential.

7. The applicant was held in custody from his arrest on 28 June 2006 until granted bail on 8 August 2008, a period of 773 days. That time was declared to be time served under the sentences imposed on 9 June 2011. The very great delay between offences and sentence appears to be explained by the fact that the applicant was charged with a large number of offences, with other offenders, on two indictments. In the end the Crown proceeded only against the applicant on the count of dangerous driving. That result took five years to achieve.

8. In passing sentence the judge said:

“You then drove off so that the police could not catch you.  That is the episode of dangerous driving. 

Your car was found abandoned soon after.  The police knew who you were.  Later on you surrendered yourself, but you have given no explanation for either the guns or the journey you were taking with those other people. 

What is concerning is that context.  It was a short course of driving, but the context makes it very serious.  You were attempting to avoid apprehension … but worse was the very real threat that you posed to Sergeant Miles.  He was a police officer who was simply doing his job. 

…

Our community relies on police to keep us safe and police officers are entitled to the full protection of the law.  General deterrence is a very important aspect of this sentence.

…

In the five years since the robbery, there has been no evidence of fresh offending.  References … describe you as a decent person who is kind to your friends and your family.  You have a good work record … .

Since your release on bail you have been subject to reporting conditions which … have placed some restrictions on your life.  There is evidence of progress towards rehabilitation, so the delay is a factor to be considered.  At the same time, rehabilitation may be of less weight in a case like this where the primary focus of sentencing ought to be general deterrence.”

9. The first ground of appeal taken by the applicant is that he was convicted and sentenced to 18 months’ imprisonment for an offence, resisting arrest, with which he had not been charged, on which he was not arraigned, and for which he was not convicted. The ground is made out by the facts. The learned judge commenced her remarks by saying to the applicant:

“You pleaded guilty to dangerous driving, resisting arrest and weapons offences.”

At the conclusion of the sentencing remarks her Honour said:

“For the dangerous driving offence, you are sentenced to imprisonment for three years.

For the summary offences of resisting arrest, you are sentenced to imprisonment for 18 months.

For the weapons charges you are sentenced to imprisonment for 18 months.”

10. The error was not detected by the prosecutor or defence counsel. Its origin is unclear. Count 7 on the second indictment was a charge of attempting to strike Sergeant Miles “with a motor vehicle”, “with intent to resist … lawful arrest”, but the prosecutor had entered a nolle prosequi for all counts save the last, count 9 on that indictment (the dangerous driving) and had withdrawn the other indictment.  Moreover the judge referred to a summary offence of resisting arrest.  The Bench Charge sheets before the judge did not mention an offence of resisting arrest.  The transcript makes it clear that the applicant was arraigned only on one indictable offence, dangerous driving, and was charged with the two summary Weapons Act offences. 

11. The respondent submits that the judge’s misapprehension had no consequence. The endorsements on the indictment and the Bench Charge sheets make it clear that the only convictions recorded were for the three offences to which he pleaded guilty, and the only punishments imposed were for those offences.

12. The applicant’s submission that the sentencing discretion miscarried should be accepted. Despite the lack of practical effect from the judge’s error it is apparent that her Honour was mistaken in one particular aspect about the total criminality of the applicant’s offending, and dealt with him for an additional, imaginary, offence by imposing the not insubstantial penalty of 18 months’ imprisonment. Justice may have been done but it must also appear to have been done, and the appearance of justice will be best maintained if the sentences are set aside and this Court re-exercises the sentencing discretion.

13. There is another difficulty with the sentences. It was very properly brought to the court’s attention by Mr Vasta who appeared for the respondent. The difficulty is that the offence of possessing the revolver and sawn-off shotgun could not properly be dealt with summarily in the District Court. Section 651 of the Criminal Code provides that a court before whom an indictment has been presented may also hear and decide summarily any charge of a summary offence made against the person.  A summary offence is defined to mean a simple or regulatory offence, some offences under the Drugs Misuse Act 1986 (Qld), and indictable offences against the Code if under s 552A the prosecution elects to have the charge dealt with summarily or under s 552BA the charge must be heard summarily.

14. Section 50(1)(c) of the Weapons Act 1990 (Qld) makes it an offence to unlawfully possess a Category H weapon.  The revolver and shotgun in question were Category H weapons.  The maximum penalty is seven years’ imprisonment.  Section 161(9) of the Weapons Act defines an indictable offence to mean an offence against the Weapons Act for which the maximum penalty of imprisonment is more than two years.  By s 161(3) a proceeding for an indictable offence punishable by not more than 10 years’ imprisonment may, at the election of the prosecution, be determined summarily or on indictment.

15. The consequence of these provisions is that a charge of possessing the two Category H weapons was an indictable offence. It could have been prosecuted summarily before a Magistrate pursuant to the power conferred by s 161(3) of the Weapons Act but it was not, for the purposes of s 651 of the Code, a summary offence. 

16. In order to remedy this error the applicant was given leave to file a Notice of Appeal against his conviction on that offence and time was extended to allow the appeal to be heard.

17. The second error, for which the judge was in no way responsible, affords another reason for granting leave to appeal and reconsidering the sentence. A consequence of the District Court’s lack of jurisdiction to deal with the charge of possessing the Category H weapons is that the applicant had not been held in custody only for the offences with which the court was dealing on 9 June 2011. The considerable time spent in custody could not be declared as time already served under s 159A of the Penalties and Sentences Act 1992 (Qld).  As a matter of practical justice it must somehow be taken into account in the applicant’s favour.

18. The applicant’s other grounds can be considered together and as an address to this Court’s determination of the appropriate penalty.

19. The argument is that the sentence for dangerous driving was manifestly excessive. The maximum penalty was imposed. The driving was said not to be within the worst category of case. As well, it was said that to impose a substantial sentence cumulatively upon the activation of the whole of the suspended sentence offended the totality principle, and made the sentence oppressive. It gave, the submission continued, insufficient weight to the plea of guilty, the long delay in being dealt with during which he had not re-offended and the signs of rehabilitation which the primary judge had noticed. It was also argued that the sentence gave undue weight to the presumed preparation for violent illegal activity suggested by the applicant’s company, weapons and the hour of his apprehension.

20. The prosecutor submitted before the primary judge that an appropriate sentence for the dangerous driving and possession of weapons (though only the second possession charge can now be considered) was one of two and a half years’ imprisonment. He submitted that the suspended sentence should be fully activated. The learned primary judge thought the offending sufficiently serious to warrant the imposition of the maximum penalty of three years.

21. I respectfully agree with the judge that this was a serious case. The driving may have been of short duration but it endangered the life of a police officer who was performing his duty of investigating apparent unlawful activity and/or apprehending criminal perpetrators. Sergeant Miles was obliged to fire his gun in an attempt to avoid being seriously hurt or even killed, and jump out of the way of the car.

22. The presence of the two guns, one loaded, in the car is particularly serious given the applicant’s prior conviction for armed robbery in which sawn-off shotguns were utilised.

23. The circumstances gave rise to a clear apprehension that the applicant was about to engage in serious criminal activity, and that his dangerous driving was an attempt to avoid arrest and punishment. In escaping he endangered the life of a police officer.

24. These factors called, as the learned judge recognised, for a substantial sentence to act as a general deterrent. They outweighed the factors of mitigation: the plea of guilty, good behaviour in the period leading up to sentence indicating prospects of rehabilitation, good references and a good work history.

25. The offending was a serious contravention of the suspended sentence. It was not unjust that the sentence be activated and the applicant be required to serve the balance of three years. It is also right that the later offence should be visited with a cumulative sentence.  They were, as the judge noted, “separate and substantive criminal episodes”.

26. However, because the prosecutor asked for a sentence of two and a half years, and because there should be some moderation of the sentences made cumulative upon the suspended sentence, I would substitute a term of imprisonment of two years and six months for that of three years imposed at first instance. The applicant has served two years and 43 days in pre-sentence custody. That time cannot be declared only because of the oversight concerning the prosecution of the first of the Weapons Act offences.  To give the applicant the full benefit of that incarceration, to which he is entitled, the sentence for dangerous driving should be four months.  That is an effective term of two and a half years.  I fix that term by subtracting from the term of two and a half years the two years and almost two months which the applicant has served in custody and which cannot be declared.

27. The primary judge fixed the date of sentence, 9 June 2011, as the date on which the applicant should become eligible for parole. That date has come and gone. The parole eligibility date should be that on which judgment in this appeal is pronounced.

28. The applicant will have to be dealt with for the outstanding offence of possession of Category H weapons. I indicate that in my opinion the present sentences are sufficient punishment for the whole of the applicant’s offending on 26 June 2006.

29. I propose the following orders:

In CA No 288 of 2011

1. Extend the time by which the applicant might appeal against the conviction of unlawfully possessing a .357 magnum revolver and a sawn-off 12 gauge shotgun, both being Category H weapons for the purposes of the Weapons Act 1990 (Qld).

2. Allow the appeal and set aside the conviction for possessing those weapons.

In CA No 194 of 2011

1. Grant the applicant leave to appeal against the sentences imposed in the District Court on 9 June 2011.

2. Allow the appeal and vary the sentences imposed on that date by (i) substituting a sentence of four months for dangerous driving and (ii) ordering that the sentence of 18 months for possessing a shortened firearm without reasonable excuse be served concurrently with the activated suspended sentence.

3. Order that the sentence of four months be served cumulatively upon the activated balance of the suspended sentence.

4. Fix the parole eligibility date as 11 November 2011.

5. Otherwise confirm the orders made by the District Court.

30. MARGARET WILSON AJA:  I agree with the orders proposed by Chesterman JA and with his Honour's reasons for judgment.