Rogers v Harding[2007] QDC 112

DISTRICT COURT OF QUEENSLAND

1. [1]
   This appeal was heard in Toowoomba on 14 and 15 June 2007 and allowed to the extent that a sentence previously imposed on 13 March 2007 was, it was indicated to the parties, one which would be varied. I promised to deliver reasons for that decision, and these are those reasons. The matter was adjourned also for reasons to do with s 160(H) of the Penalties and Sentences Act 1992. Today (19 June 2007) the final orders containing the sentence, consequent upon the success of the appeal, are to be made.

2. [2]
   The appeal is against two sentences imposed upon the appellant in the Toowoomba Magistrates Court on 13March 2007. On that day Mr Rogers pleaded guilty to two counts of driving a motor vehicle while disqualified and on those counts he was sentenced to four months’ imprisonment. He also pleaded guilty to offences under the Bail Act for which he was sentenced to one month’s imprisonment, to be served concurrently. He was also disqualified from driving for two years.

3. [3]
   He was born on 1 January 1988 and was aged 19 when sentenced. He had previous convictions, as a minor, for unlicensed driving and other motor vehicle offences in December 2002 and March 2004. On 31 August 2006 his driving licence was suspended for an accumulation of demerit points. He was disqualified on 19 October 2006 in the Ayr Magistrates Court from holding or obtaining a drivers licence for six months after, pleading guilty to a charge of unlicensed driving.

4. [4]
   Just over two months after that disqualification, on the afternoon of 27 December 2006, he was found driving a motor vehicle at Toowoomba. He frankly admitted he was disqualified and was given a notice to appear in court at a later date. A fortnight later he was again intercepted, on the evening of 11 January 2007, driving in Ruthven Street, Toowoomba. He, again, admitted he was disqualified and was once more issued with a notice to appear. On 30 January 2007 he appeared in Toowoomba Magistrates Court and was granted bail with reporting conditions each Monday and Friday. He failed to report between 25 February and 5 March 2007.

5. [5]
   On 13 March 2007 he appeared before a Magistrate in Toowoomba, represented by a duty solicitor, and pleaded guilty and the earlier mentioned sentences were imposed. Three days later he was granted bail pending this appeal. It is said the sentences were manifestly excessive and, in particular, should not have involved actual imprisonment.

6. [6]
   He is trained as a boilermaker and was employed at the time of these offences. I was informed he is in employment now and residing his father, where he has lived since the grant of bail.

7. [7]
   The first two entries in his driving history relate to offences committed while he was a juvenile, the first when he was just 14 years old. The two offences of disqualified driving occurred, it was submitted, in close proximity, representing in effect a circumstance of aggravation. Neither occasion led, however, to an immediate court appearance and the appellant had not been before the court on the first count when the second offence occurred.

8. [8]
   It is plain from the sentencing remarks of the learned Magistrate that the decision to impose an actual term of imprisonment was founded on the presumption that the appellant’s conduct evinced “…no respect for the traffic laws of this State … sheer contempt for the court orders, when the court tells you, you are not to drive”. Otherwise, the sentencing remarks show the court properly took into account all other relevant factors and, indeed, considered wholly or partly suspending the imprisonment.

9. [9]
   The latter option was refused, however, for reasons expressed in these terms: “…You have demonstrated not only will you continue to drive, when you are disqualified, not only on the one occasion when you were picked up, but then you continue on a second occasion, on 11 January, and I find you an inappropriate (person) to make any orders to suspend that sentence”.

10. [10]
    I was referred to several other decisions of this court, on appeal from the Magistrates Court, said to support the proposition that a sentence of imprisonment, in the circumstances arising here, was excessive and outside the norm and the usual range of sentences for this kind of offence. The first, the decision of Dearden DCJ in Petrilli v Buchanan [2006] QDC 192, turned very much on its own facts which involved an error, during the original sentence, in construing documents from Victoria about the appellant’s criminal history.

11. [11]
    In Noon v Wilson [2006] QDC 168 the appellant was 47 and had been sentenced to one month’s imprisonment in respect of an offence of disqualified driving, associated with driving with a blood alcohol concentration of 0.22. The appellant had two prior convictions for driving under the influence. Noting the maximum penalty was 18 months’ imprisonment, Robin QC, DCJ said at p 4:

I would venture to say that it is unusual for a first offender to be sentenced to imprisonment.

12. [12]
    Later, at p 7, his Honour said:

It is the first instance of disobedience of a court’s order … it simply cannot be said, on the basis of that single incident, that he is a person inclined to ignore court orders and therefore require punishment.

And, at p 8:

I think the sentence was out of range and manifestly excessive in involving actual incarceration of a person whose record is like the appellant’s for a first offence of disqualified driving.

13. [13]
    In McIvor v Rourke [2007] QDC 095 the appellant also pleaded guilty to driving whilst disqualified, and with a blood alcohol concentration exceeding the legal limit. He was sentenced to two months’ imprisonment on the first charge, suspended after seven days. Rackemann DCJ embarked upon a careful and, with respect, helpful analysis of the decisions touching appropriate sentences for driving by persons who are disqualified. In the case before him, his Honour noted that it featured only two previous offences of driving with a blood alcohol concentration above the prescribed limit and, importantly, the first occasion on which the appellant had been convicted for disqualified driving. The decision seems to me, again with respect, to support the proposition advanced, albeit obiter, by Robin QC,DCJ in Noon that it is unusual to sentence a person to actual imprisonment on the occasion of a first charge of disqualified driving. That is not to say a sentence with that effect is necessarily or always outside what may be the appropriate range.

14. [14]
    While it is true that the appellant’s conduct had been disappointing and, in a sense, provocative, the fact that he was very young, had employment, frankly admitted each offence, pleaded guilty and had not appeared in a court between the first and second offences, and that this was the first occasion on which he had appeared to face a charge of driving whilst disqualified, are persuasive that the imposition of four months’ actual imprisonment was, in the circumstances, unusual. Indeed, it is unavoidable that these elements outweigh the seriousness of the circumstances of offending; while troubling, they were not sufficiently heinous to attract or warrant imprisonment for four months.

15. [15]
    Insofar as an error occurred in the exercise of the sentencing discretion, then, it arose by reason of the focus placed (not surprisingly) on the circumstances of the illegal driving, but without sufficient weight being given to the many countervailing factors which meant the matter did not, in the balance, fall so far outside the norm as to necessitate, or justify, a custodial sentence.

16. [16]
    The breaches of the Bail Act occurred over a short period and in circumstances where he was obviously without a motor vehicle for transport and, otherwise, had been compliant. Again, in those circumstances, the imposition of a period of one month’s actual imprisonment (albeit to be served concurrently with the longer term) might also fairly be described as excessive.

17. [17]
    In Noon the term of one month’s imprisonment was varied, on appeal, by its immediate suspension. In McIvor the sentence of actual imprisonment was also wholly lifted, albeit replaced with probation. Leaving the sentences imposed here in place but ordering that an immediate parole order come into effect has the advantage of ensuring the appellant is subject to supervision for a period of four months from the date of hearing of the appeal. In circumstances where he has already had a sharp, although quite short, shock in the sense that he has served three days actual imprisonment, varying the sentence in that way (as I indicated I was prepared to do at the conclusion of the appeal hearing on 14 June) but otherwise leaving his term of disqualification for two years in place carries all of these advantages – ie, the shock of a short term of imprisonment which he has already undergone; supervision for the next four months, reinforced by the risk of having to serve some part of the actual term imposed; and, a lengthy disqualification.

18. [18]
    Section 160H applies in the circumstances just outlined, and requires that the defendant be informed of certain matters touching his immediate parole. He was not present at the appeal hearing on 14 June, nor on the following day when the matter was mentioned again. His non-appearance does not, however, appear to involve any fault on his part – his legal representative made it clear that he had not foreseen that necessity and, on attempting to contact his client after the hearing of the appeal on 14 June, discovered he was in a remote place. By consent, the matter was adjourned to Brisbane on 19 June for delivery of these reasons and the making of the orders which flow from it.