Greggor v Commissioner of Police
[2006] QDC 244
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- Greggor v Commissioner of Police[2006] QDC 244
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Greggor v Commissioner of Police[2006] QDC 244
Greggor v Commissioner of Police[2006] QDC 244
DISTRICT COURT OF QUEENSLAND |
CITATION: Greggor v Commissioner of Police 2006 [ QDC] 244
PARTIES:
ANDREW LAURENCE GREGGOR | Appellant |
V
COMMISSIONER OF POLICE | Respondent |
FILE NO/S: Appeal 1/06
DIVISION:
PROCEEDING: Appeal
ORIGINATING COURT: Magistrates Court, Toowoomba
DELIVERED ON: 26 April 2006
DELIVERED AT: Toowoomba
HEARING DATE: 26 April 2006
JUDGE: McGill DCJ
ORDER: Appeal allowed, sentence set aside: substitute sentence of 6 months imprisonment to be served concurrently with activated suspended sentences except as required by Bail Act; disqualified from holding or obtaining a drivers licence for 5 years; declare 128 days time served.
CATCHWORDS:
CRIMINAL LAW - Sentence - suspended sentence activated - effect of Bail Act provisions misunderstood - effect on total considerations for breach offence.
Bail Act 1980 s 33(4)
COUNSEL: | S.A. Lynch for the appellant R. Crapnell for the respondent |
SOLICITORS: |
DISTRICT COURT | Appeal No 1 of 2006 |
APPELLATE JURISDICTION
JUDGE McGILL SC
ANDREW LAURENCE GREGGOR | Appellant |
and
COMMISSIONER OF POLICE (SNR CONST J M BURROWS) | Respondent |
TOOWOOMBA
..DATE 26/04/2006
JUDGMENT
HIS HONOUR: In this matter there has been a good deal of re-sentencing. Late last year the appellant was before the Magistrates Court in Toowoomba in relation to an offence of disqualified driving and a breach of the Bail Act offence. As a result of the commission of these offences it was appropriate for the Magistrate to consider activating some suspended terms of imprisonment which had been imposed by another Magistrate on the 17th of December 2004. That included some suspended terms of imprisonment imposed by way of re-sentencing in respect of offences which, it seems, had originally been committed in 1999 or 2000, so they were by then quite old offences. That re-sentencing was the fourth time that the appellant had been sentenced in respect of those offences, if I am following the history and the documentation correctly, and it is possible that I am not.
It seems that the story started when the appellant appeared in the Drug Court in Ipswich in respect of a number of offences. One of those was an earlier offence of disqualified driving but there were some other offences, including three offences of failing to appear under the Bail Act, that is a breach of section 33 of the Bail Act.
Under the Drug Rehabilitation Court Diversion Act 2000, the Magistrate made an Intensive Drug Rehabilitation Order in respect of all of those offences. That order was revoked by another Magistrate on the 5th of February 2003. It appears that at that time the other Magistrate sentenced the appellant for some further offences to a term of 12 months' imprisonment, suspended after 172 days, which was the amount of presentence custody, and in respect of the offences which were previously the subject of the Intensive Drug Rehabilitation Order, finally sentenced the appellant to a term of two years' probation, subject to some special conditions. Treating the Intensive Drug Rehabilitation Order was the first sentencing, that was the second.
It appears, however, that there was concern about the validity of that process because it involved at the same time the sentence of suspended imprisonment and the order for probation, and, accordingly, the sentence was re-opened on the 10th of September 2003. Although all I have in relation to this is the criminal history, it appears that what happened is that the sentence which had been passed on the 5th of February 2003 was revoked, and in lieu the appellant was admitted to probation for two years in respect of all of the offences.
The next step in the story appears to be that the appellant appeared on the 17th of December 2004 before another Magistrate in Beenleigh. On that occasion the Magistrate was sentencing him for a number of offences, including a number of offences of disqualified driving. Various terms of imprisonment were imposed in respect of those offences which included two offences of unlawful use of a motor vehicle and three offences of breaches of bail.
The practical effect seems to have been that relevantly the appellant served one month and 28 days in respect of the three breach of bail offences which had to be treated separately because of section 33(4) of the Bail Act 1980, and six months which covered the first half of a sentence of 12 months which was otherwise suspended for three years in respect of one offence of disqualified driving, and the first half of two sentences of 12 months for two offences of unlawful use of a motor vehicle, also suspended for three years, those sentences being all concurrent.
The Magistrate also re-sentenced for a number of the offences which had been the basis of the Intensive Drug Rehabilitation Order, although it seems to me that some of the offences identified in the schedule to that order have dropped off along the way. In any event, in respect of each of six offences, the Magistrate imposed the period of three months' imprisonment immediately suspended, with an operational period of two years. One of those was an offence of disqualified driving, and in respect of that offence there was a further order made disqualifying him from obtaining a driver's licence for a period.
Nothing was said about those sentences being cumulative or concurrent but the effect of what was said or not said, and section 33(4) of the Bail Act, is that they were all concurrent and concurrent with the sentences otherwise passed on that day, except for the three offences of breach of bail which were required by section 33(4) to be served cumulatively. Indeed, it seems to me that the effect of that provision is that regardless of what is said by the Magistrate, or the sentence purportedly imposed, where a sentence of imprisonment is imposed for breach of section 33, it takes effect as a cumulative sentence. Accordingly, what matters is what imprisonment was imposed in respect of those offences rather than the proper interpretation of the sentence imposed by the Magistrate.
I have not been able to identify any authority directly on point, but that seems to me to be the clear enough meaning of the words used in the section.
Apart from that, the question of whether sentence has to be served cumulatively or concurrently was a matter for the sentencing Magistrate, which relevantly means the Magistrate who was sentencing or resentencing on the 17th of February 2004. This I think, follows from the wording of section 155 and 156 where section 155 talks about the Court imposing imprisonment being able to order otherwise, and section 156 talks about a situation where an offender is sentenced to serve imprisonment for another offence.
The authorities indicate that that process, the process of imposing sentence or sentencing, is what occurs when a suspended sentence of imprisonment is imposed, and is not what occurs when that suspended sentence is activated under section 147, and that the only power that a Court activating a suspended sentence has is to make one of the orders permitted under section 147.
That follows, I think, from the decisions of the Court of Appeal in R v Waters [1998] 2 QdR 442, and R v Skinner, ex-parte Attorney-General [2001] 1 QdR 322.
The Magistrate on the 17th of December 2004 not having said that any of the sentences were cumulative, they take effect as concurrent sentences except to the extent that they are prevented from doing so by section 33 of the Bail Act. I would also note that when sentences are activated, under section 147, the operation of section 33 of the Bail Act is expressly preserved by section 148 of the Penalties and Sentences Act, though I suspect that that provision was actually unnecessary to achieve that result given the terms of section 33.
The practical effect therefore as a result of the orders made on the 17th of December 2004 is that, having served in total seven months and 28 days, part of which had been in the form of presentence custody, the appellant was left with three terms of partially suspended sentences, and six terms of wholly suspended sentences. The partially suspended sentences had six months to run and the wholly suspended sentences all had three months to run. However, three of those had to be served cumulatively so that the practical effect therefore of the orders made on the 17th of December 2004, it seems to me, was that the appellant was facing suspended terms of imprisonment totalling 15 months if all of those were activated.
It may be that the Magistrate did not quite intend this result and had overlooked the fact, when re-sentencing for the fourth time, in respect of offences that dated back to 1999 and 2000, that some of those offences were breaches of section 33 of the Bail Act, so that a sentence of three months' imprisonment for each operated as a cumulative sentence in respect of three of those offences.
The transcript suggests that all that she had in mind was a single term of three months' imprisonment, or at least a term which extended to no more than three months' imprisonment, in respect of all six offences, but that is not the effect of the sentence that was passed.
In any event there has been no appeal from the decision of the 17th of December 2004. When the matter came before the Magistrate in relation to the further offences in December 2005, the Magistrate heard some submissions on the 20th of December 2005 and struck out another offence in relation to breach of bail, and in relation to an offence of breach of bail conditions convicted the appellant but no penalty was imposed.
The appellant had pleaded guilty to that offence and to the offence of disqualified driving. He was on that day remanded in custody. On the following day, 21st of December, he was sentenced to a term of nine months imprisonment in respect of the new offence of driving while disqualified, and in addition, the suspended sentences imposed on the 17th of December 2004 were all activated.
The Magistrate, at that stage, thought that the effect of that was that there was nine months which had to be served in addition to the sentence of nine months which he was then imposing for the further offence. That was on the basis that there were two breach of bail offences which were cumulative on the other three month offences which had been wholly suspended, so that therefore there was a period of nine months in respect of those resentencing.
That, I think, overlooked the fact that what were thought then to be two breaches of bail offences were also cumulative on the other suspended sentences of six months, so that even if there had been only two breach of bail offences, they produced 12 months if they were all activated.
In any event, the order made was that the suspended sentences were activated and the period of nine months was ordered to be served cumulatively. The Magistrate took into account the approach in relation to cumulative sentences of the Queen v Williams, CA 362 of 1995.
The following day, the Magistrate reopened the sentencing on the basis that he had realised that there were three offences under section 33 in respect of which wholly suspended terms of imprisonment had been imposed on the 17th of December 2004 rather than two.
He thought that that meant that the effect of the sentence, which was otherwise appropriate, was to serve 21 months' imprisonment rather than 18.
As I have indicated, the effect of the suspended sentences imposed on the 17th of December 2004, if wholly activated, was to serve 15 months' imprisonment, and if the nine month imprisonment for the new offence is added to it, then that makes a period of 24 months' imprisonment.
That was not what the Magistrate intended. It also appears that the Magistrate did not, on the 22nd of December, give some consideration to whether the fact that there was this additional three months meant that either the question of the length of the cumulative sentence for the new offence should be reconsidered or indeed the question of whether it was cumulative and with what, or whether all of the cumulative terms of imprisonment be activated should be reconsidered.
The Magistrate did comment in the course of submissions that considerations of totality had impacted on the nine month sentence that was imposed for the new offence, and that otherwise, in view of his history, he would have got a lot more than that.
That is understandable, because the appellant has a very bad history in terms of driving while disqualified. The offence for which the Magistrate sentenced him in December 2005 was his tenth offence for driving while disqualified, and he also had, before his first disqualification, accumulated five offences of unlicensed driving.
The most recent penalty imposed for disqualified driving on the 17th of December 2004 was 12 months' imprisonment suspended after six months, and the further offence was committed during the operational period of that suspended term of imprisonment.
Apart from that, he had a significant criminal history, although mostly for relatively minor offences, though he had been sentenced to terms of imprisonment in the 1990s, and he had a number of other traffic offences on his record, although mostly dating back some time. A lot of them date back to the 1990s or, in any event, before 2004.
So it does appear that the Magistrate had imposed the sentence of nine months' cumulative, bearing in mind considerations of totality, and that was appropriate. The difficulty is that he misunderstood the effect of activating all of the suspended terms of imprisonment. The effect of activating all of the suspended terms of imprisonment was, as I have indicated, in my opinion, that the appellant has to serve 15 months' imprisonment. The effect of imposing a nine month term of imprisonment cumulative on that is, in my opinion, to produce a total amount of imprisonment which is not warranted in all the circumstances.
Notwithstanding his poor record, the appellant cooperated with the police to the extent that he could in relation to this further offence, and there are references provided which suggest that since the time that offence was committed the appellant has taken steps to rehabilitate himself. The appellant moved to a country town near his parents, and has been applying himself to fitting into the community, and references have been provided not only by his parents, but also two other residents in the area, which speak well of his efforts at rehabilitation. During 2005 they were before the Magistrate, and I think the Magistrate indicated in the course of the hearing that he had taken these into account, and I think it is appropriate to take them into account.
Nevertheless, in all the circumstances a term of imprisonment was certainly warranted, and I think that it would not be appropriate for the various suspended terms to be put off any longer. As I say, by the time the Magistrate activated the terms of imprisonment for the offences which had originally been part of the intensive drug rehabilitation order this was, if not the fifth resentencing, at least the fifth occasion on which the Court had made a sentence or some other order associated with a sentence in respect of those offences, and I think it would be undesirable to let them drag on any longer. There is also a risk that that could produce even more confusion and misunderstanding as to the effect of everything.
I think it would be a good idea if all of these sentences were rounded off. But if that is done then that would mean that he would serve a period of 15 months. I should add that because of the fact that 15 months is made up of various bits and pieces, it might well be more onerous to the appellant than a straight sentence of 15 months' imprisonment.
In the circumstances therefore, I think nine months' sentence cumulative on that, bearing in mind the factors that I have referred to, was excessive, and really came about because of a misunderstanding on the part of the Magistrate of the effect of the orders.
In those circumstances it is appropriate to allow the appeal.
I will not interfere with the activation of the suspended terms of imprisonment. As I say, I think they ought to be all served. But in respect of the further offence I will resentence.
A conviction is recorded.
I sentence the appellant to six months' imprisonment to be served concurrently with the activated terms of imprisonment except those to which section 33(4) applies.
In addition, there was a disqualification from holding or obtaining a driver's licence for a period of five years from the 21st of December 2005. I will not interfere with that part of the sentence, so I will again, in respect of that offence, disqualify him from holding or obtaining a driver's licence for a period of five years from the 21st of December 2005.
The end result, I accept, is a somewhat unusual sentence in all the circumstances, but I think it is desirable to clear up all of the previously suspended terms of imprisonment, and to produce a sentence which will not leave anything else hanging over the appellant's head. That does mean that the actual separate penalty for the further offence of disqualified driving is fairly minor, but it might be thought that apart from the consideration of the appellant's history this was a relatively minor offence of disqualified driving anyway. It does not look as though he drove any great distance before he was pulled up by police. But in all the circumstances I think that is the appropriate outcome.
...
HIS HONOUR: I order that the respondent pay the appellant's costs to be assessed but not exceeding $1800.
...
HIS HONOUR: I declare that 128 days in custody from the 20th of December 2006 to today inclusive be imprisonment already served under the sentences.
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HIS HONOUR: I direct the registrar to inform the Commission of this declaration.
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