Braund v Queensland Police[2006] QDC 501

[2006] QDC 501

APPELLATE JURISDICTION

JUDGE ROBERTSON

and

MAROOCHYDORE

DATE 21/04/2006

ORDER

HIS HONOUR: The appellant appeared in the Maroochydore Magistrates Court on the 16th of August 2005 before his Honour, Magistrate Taylor and pleaded guilty to two offences against the TORUM legislation, namely driving while under the influence of a liquor with a blood alcohol concentration of .063 and disqualified driving; both offences occurred on the 30th of July 2005.

He represented himself, despite Mr Taylor's efforts to have him seek legal representation and, despite his Honour making it clear that imprisonment was very much an option and that he should consider an adjournment to get legal advice. Mr Taylor made it very clear to the appellant that the consequences of proceeding without legal representation could be grave, yet despite this, he insisted on proceeding and representing himself.

He pleaded guilty. He was found driving a LandCruiser erratically along Aerodrome Road, Maroochydore at around 11.25 p.m. on Saturday on the 30th of July. His blood alcohol was measured at .063 as a percentage.

He was born on the 29th of March 1987, so he was 18 at the time of the commission of the offences. For such a young person, he had a bad antecedent traffic record, commencing soon after his 17th birthday, with a driving under the influence charge on the 23rd of May 2004 when he had a recorded blood alcohol reading of .076.

On the 9th of April 2005 he committed another drink driving offence and was disqualified for six months. He ignored this order and continued to drive and was convicted on the 25th of May 2005 of disqualified driving on the 1st of May 2005 and a further incident of disqualified driving on the 3rd of May 2005 for which he received an overall disqualification of three years.

It follows that the offences that were before Mr Taylor were committed only a few weeks into this lengthy disqualification and, in complete disregard for the force of the Court orders.

For the last offence of drink driving he had received a wholly suspended term of imprisonment of one month, with an operational period of two years, so, convictions for the offences before Mr Taylor constituted a breach of that suspended sentence order.

Despite Mr Taylor's warnings and suggestions, the appellant would not seek an adjournment and he said very little in mitigation. It is not surprising, therefore, that in these circumstances Mr Taylor activated the one-month term. He rightly referred to the appellant's contempt for Court orders and the need for personal and general deterrence. He took into account his youth and stated remorse and imposed concurrent four-month terms of imprisonment for the two offences - two fresh offences - to be served concurrently with the activated term.

It is from those sentences that he now appeals. He seeks 1 leave to rely on additional evidence which is before the Court in a form of a series of affidavits. There is an affidavit by the appellant in which he sets out fully his antecedents and present circumstances; affidavits by his parents and an affidavit by a clinical psychologist.

The respondent objects to the appellant being granted leave to adduce this new evidence so, it is necessary for me to consider section 223 of the Justices Act 1986:

There is very little authority on what constitutes “fresh additional or substituted evidence” for the purposes of section 223(2), however in Butterworth's Civil Procedure Queensland Volume 3, there is annotated to the section some old authority to the effect that the new evidence should be allowed if to refuse it would amount to an injustice to the party seeking to rely on it.

At common law in relation to appeals against conviction the rules relating to the admission of fresh evidence on appeal are quite restrictive, however the clear distinction here is that the section refers to a number of categories of new evidence, that is, fresh additional or substituted.

I also think that the authorities in the Court of Appeal of Queensland relating to the admission of fresh evidence on appeals against sentence under the Criminal Code, such as the R v. Maniadis [1997] 1 QdR 593 are also instructive in relation to the approach to such an application. The evidence of the father and the appellant in the affidavits is clearly additional and/or substituted evidence which could have been placed before Mr Taylor at the time. However, the evidence of the psychologist is clearly fresh as she did not see the appellant until after his release from the watchhouse on bail pending this appeal.

I do not intend to summarise the evidence; it is a clear case, in my view, in which the Court should grant leave to the appellant to adduce this new evidence in the interests of justice.

Mr Courtney did submit in his written submission that Mr Taylor had made a factual error in the hearing relating to whether or not the appellant had served time before, but he properly recognises today in oral submissions that when Mr Taylor came to sentence the defendant, he was clearly aware of the true situations and that no error was made.

As I said in the oral argument, I think the emphasis in both submissions on the role of a Court in dealing with an unrepresented offender in the context of this case is misguided. Mr Taylor did all he could to get this young man to see sense and get legal representation. The central issue is whether or not, had he been aware of the new evidence that is now before me, would he have imposed a less severe sentence and I am quite certain that he would have.

The whole picture I now have shows a very immature young man with difficulties in dealing with important relationships in his life; acting out in an impulsive, unlawful and dangerous manner without regard to the consequences. It also shows that the experience of two days in a watchhouse has brought home to him - as nothing previously had done - that he cannot drive and that holding a driver's licence is an important privilege and that the responsibility for his own decisions is his alone. The material also shows that he is genuinely remorseful and, that he has real prospects of rehabilitation.

In those circumstances, except regarding the disqualification orders made by Mr Taylor, which will stand, I will set aside the other orders.

In relation to the suspended sentence, I find that he has breached the suspended sentence and he has satisfied me that it would be unjust to serve a whole or part of that term and, in lieu thereof, I will extend the operational period of that order for a further period of six months.

In lieu of the four month terms of imprisonment, I intend to impose an intensive correction order. Mr Brown, could you come around and stand up behind your barrister, please?

I intend, subject to your consent, imposing an order called an intensive correction order, which you have no doubt discussed with Mr Boyce and Mr Courtney. This is a very significant order, because it is actually a term of imprisonment so, you will actually have a conviction recorded. But, it is a term of imprisonment that is served in the community, subject to strict conditions.

I have read your affidavit and I have read the very helpful and supportive affidavits from your parents. You are very lucky to have them. The responsibility, as I said in my reasons, is now yours. If you drive a car, you are going to gaol. And, you are likely to go to gaol for a long period of time and, given your personality, about which I have got some insight having read the psychologist's report and read your parents' notes and your affidavit, you would find prison extremely challenging and, I think, damaging. I do not think you would come out a better person. So, you have got to take responsibility for your own actions. I hope you realise that now, and when someone rings you up and says there is a party, you have got no right to get into a car and drive; do you understand all that?

PRISONER: Yes, your Honour.

HIS HONOUR: I want you to listen to the requirements of this order. It will be for four months.

Do you understand all those requirements, Mr Brown?

PRISONER: Yes, your Honour.

HIS HONOUR: And do you consent to me making those orders? You realise, if you breach them either by committing offences or not complying, you can be brought back before me and it is a gaol term; I can activate it immediately; do you understand that?

PRISONER: Yes, your Honour.

HIS HONOUR: All right. I will make those orders with your consent. That covers it all, Mr-----

MR COURTNEY: Yes. Just one last - if I can raise it. I accept this has been an unusual matter, given my client appeared unrepresented before Mr Taylor and your Honour has indicated that Mr Taylor at that stage did all he could to make my client see sense. Nonetheless, I raise the issue of costs, whether your Honour would consider an order?

. . .

HIS HONOUR: That relates to dismissal of a complaint though, does it not? I am not certain - and I know I have looked at this in the past, but I cannot remember the - I am not certain that I actually have power in relation to a plea of guilty in an appeal against sentence.

MR COURTNEY: I must say I understood it was contained in that 232.

HIS HONOUR: That is all to do with what happens when - see, the basis rule is there are no costs in criminal proceedings.

MR COURTNEY: Yes, of course. Yes, look, I must say I didn't think it through before I came along to Court.

HIS HONOUR: Yes, I think that is right.

MR COURTNEY: So, I am not in a position to press my argument any further if I can put it that way.

HIS HONOUR: All right.