Petrilli v Buchanan[2006] QDC 192

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an appeal against sentences imposed on the appellant in the Southport Magistrate's Court on 28 September 2005 arising out of matters which occurred at the Gold Coast on 6 March 2005 (with the exception of the cheating charge(not the subject of this appeal), which apparently occurred on 4 March 2005)).

The appellant pleaded guilty to five offences on 28 September 2005 and the offences and the penalties imposed are as follows:-

1. Disqualified driving: Convicted and sentenced to five months' imprisonment, suspended after two months, with an operational period of 18 months.  Disqualified from holding or obtaining a driver's licence for three years.
2. Unlawful possession of driver's licence: Convicted and sentenced to 21 days' imprisonment.
3. Possession of a dangerous drug: Convicted and sentenced to 14 days' imprisonment.
4. Possession of a utensil: No punishment imposed.
5. Cheating (Casino Control Act): Convicted and fined $200 plus $25 restitution, in default 10 days' imprisonment, three months to pay.

The appellant appeals only in respect of the sentences imposed on the charges of disqualified driving, unlawful possession of a licence and possession of a dangerous drug (i.e. items (a)-(c) above), submitting in each case that the sentence is manifestly excessive.

The appellant has no criminal or traffic history in Queensland but does have relevant criminal history (Exhibit NLL1, affidavit of Natalie Lima sworn 23 December 2005) and traffic history (Exhibit NLL2, affidavit of Natalie Lima sworn 23 December 2005) in Victoria.  Both the Victorian criminal and traffic histories were tendered on the sentence before the learned sentencing Magistrate. 

Critically, it was the "remarkable...number of disqualified driving charges...accumulated by [the appellant] in Victoria" (see P. 2, Exhibit NLL4, affidavit of Natalie Lima sworn 23 December 2005), together with the learned Magistrate's finding that "the only reasonable and logical conclusion that can be drawn [for the possession of a false licence] was that it was for the intention of deceiving people into believing that [the appellant was] entitled to drive a vehicle as a learner" (see P. 2, Exhibit NLL4, affidavit of Natalie Lima sworn 23 December 2005), that resulted in a defendant, who was otherwise a first time offender in Queensland, receiving substantial actual custodial penalties.

In fact, a careful analysis of the appellant's traffic history (Exhibit NLL2, affidavit of Natalie Lima sworn 23 December 2005) indicates that the appellant has been only twice convicted for disqualified driving; in Preston Magistrate's Court on 6 March 2002 (re an offence on 13 July 2001, subject to an appeal to the Melbourne County Court, decided 1 November 2002), and Heidelberg Magistrate's Court on 27 September 1999 (re an offence on 21 January 1999), once previously in respect of an offence titled "Driving while authorisation is cancelled", in Ringwood Magistrate's Court on 9 March 1999 (re an offence on 30 November 1998) and once in respect of unlicensed driving in the Melbourne Children's Court on 29 June 1998 (re an offence on 21 January 1998).  Given that the defendant was born, according to the Bench charge sheets, on 18 October 1981, he was (relevantly) 19, 17, 17 and 16 when each of these offences were committed.  On the face of it, he was only an adult in Victorian criminal law terms when the most recent of the four offences was committed.

The appellant's traffic history in Victoria is not, on any view of it, an enviable one, but much of it had occurred before the defendant had turned 18, and his most recent disqualified driving offence occurred in Victoria some three years and seven and a-half months prior to his only Queensland offence of disqualified driving.  In fact, it appears that the appellant's Victorian disqualification was due to expire on 1 November 2005, just a little under eight months after the offence, the subject of this appeal, occurred.

It appears to me that, no doubt by combination of the pressures placed on a busy sentencing Magistrate and a misreading of the very confusing Victorian traffic and Victorian histories, the learned Magistrate's sentencing discretion has miscarried (see P. 6, Exhibit NLL3, affidavit of Natalie Lima sworn 23 December 2005).  In particular, the learned Magistrate has misread the traffic history and concluded that there were two disqualified driving convictions in 2002, when in fact it was the same matter, but on appeal to the County Court; and further, referring to "possessing cannabis in 2003 and driving in a manner in 2003 which was dangerous while exceeding the PCA" (see P. 6, Exhibit NLL3, affidavit of Natalie Lima sworn 23 December 2005), which is actually a Melbourne County Court appearance relating to a breach of a community based order imposed by the Melbourne County Court on 13 June 2001 and relating to offences occurring, it appears, on 8 December 2000, the sentencing Magistrate fell (it seems) further into error. 

In my view then, all sentences appealed against are manifestly excessive.  The imposition of gaol sentences in respect of the unlawful possession of a licence charge and the possession of a dangerous drug charge appear only to be explicable, in my view, in the total context of the actual custodial sentence imposed in respect of the disqualified driving charge.

In all of the circumstances, given that the appellant's disqualified driving in Queensland occurred while he was the subject of a three-year disqualification (effective 1 November 2002 from the Melbourne County Court) but outside the operation of the two year operational period of the four month fully suspended sentence imposed by the Melbourne County Court on 1 November 2002, it seems to me that the appropriate penalty is a substantial financial penalty. 

In respect of the charge of disqualified driving, having concluded that the Magistrate's sentencing discretion has miscarried, I set aside the sentence of imprisonment which was imposed and instead, re-sentence the appellant on that charge.  The appellant is convicted and fined $1,500 to be paid by 11 October 2006, in default referral to the Registrar of the State Penalties Enforcement Registry.  Although no point has been made either by the appellant or the respondent, it seems to me that the disqualification period imposed is also, in context, manifestly excessive.  I set aside the disqualification period and instead, substitute a disqualification from holding or obtaining a driver's licence in Queensland for a period of two years.

The charge of unlawful possession of a licence, in context, is nowhere near as serious as the learned Magistrate considered it to be, but having said that, the possession of a false licence remains disturbing and requires a substantial and condign penalty.  In respect of that charge, I set aside the penalty of imprisonment and the appellant is convicted and fined $500, payable by 11 October 2006, in default referral to the Registrar of the State Penalties Enforcement Registry.

The offence of possession of a dangerous drug needs to be dealt with on the basis that the drug was accepted to be cocaine, the weight of which was "less than a gram" (P. 3, Exhibit NLL3, affidavit of Natalie Lima sworn 23 December 2005), but no certificate as to purity or net pure weight was put before the learned sentencing Magistrate; and the appellant does have previous drug convictions for possession of cannabis (Melbourne County Court 13 June 2001 and Preston Childrens Court 8 October 1999).  In all of these circumstances, it seems to me that the offence of imprisonment should be set aside and the appellant re-sentenced.  The appellant is convicted and fined $500, payable by 11 October 2006, in default referral to the Registrar of the State Penalties Enforcement Registry.

...

HIS HONOUR:  In respect of costs, this is an application for costs by Mr Cash who appears on behalf of the successful appellant.  My decision in this matter has made it clear, as Ms Currie has correctly pointed out, that the sentencing Magistrate clearly, on an examination of the transcript, has misread, and substantially misread, the criminal and traffic histories of the appellant and this has led him into sentencing error.  That was, unfortunately, not corrected either by the Prosecutor or defence counsel at the original sentence, but of course, they may well have been led into similar error, and were subject to the same pressures.  The usual rule is that costs follow the event, and although Ms Currie points out that the substantial basis on which the appeal has succeeded was not raised in the appellant's original outline, it was at least very briefly raised in the appellant's supplementary outline and in any event, the appellant has been successful in the appeal.  In all of the circumstances, it seems appropriate to me to make an order for costs.  I order that the respondents pay the appellant's costs, fixed at a sum of $1,800.