Santillan v Queensland Police Service
[2008] QDC 33
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- Santillan v Queensland Police Service[2008] QDC 33
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Santillan v Queensland Police Service[2008] QDC 33
Santillan v Queensland Police Service[2008] QDC 33
![Santillan v Queensland Police Service [2008] QDC 33](/judgmentview/image?name=316991.001.png&id=316991)
DISTRICT COURT OF QUEENSLAND
CITATION: | Santillan v Queensland Police Service [2008] QDC 33 |
PARTIES: | LEIGH WILLIAM SANTILLAN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO.: | D20 of 2007 |
PROCEEDING: | Appeal from Magistrates Court |
DELIVERED ON: | 29 February 2008 |
DELIVERED AT: | Toowoomba |
HEARING DATE: | 29 February 2008 |
JUDGE: | Judge Brabazon QC |
ORDER: | Appeal allowed in part. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – Justices Act s 222 – where appellant sentenced to period of imprisonment and disqualification of drivers licence – where mandatory disqualification imposed – whether sentence manifestly excessive – whether breach of procedural justice Transport Operations (Road Use Management) Act 1995, s 78 Cases considered: R v Cunningham (2005) QCA 321 Sadler v Crossman (1988) SASR 331 Peart v Police (2003) SASC 274 R v Shirley (1969) 3 All ER 678 at 679 R v Burton (1990) 45 A Crim R 314 |
COUNSEL: | Mr D Burns, solicitor, for the appellant Mr I Munsie, solicitor, for the respondent |
SOLICITORS: | David Burns Lawyers for the appellant Director of Public Prosecutions for the respondent |
- [1]This matter is susceptible to an appeal for two reasons. First of all, it is a principle of procedural justice that any surprising result in a court should be raised with counsel while submissions are being made, or before judgment. An example of a case like the present is the decision of the Queensland Court of Appeal in R v Cunningham (2005) QCA 321. There, the crown prosecutor had made no submissions about licence disqualification. The magistrate did not raise it. In that case the range of disqualification was at large under section 187 of the Penalties and Sentences Act. In this case the law required the learned magistrate to disqualify Mr Santillan from driving for a further two years. That was according to section 78 of the TORUM legislation. The eventual disqualification was three and a-half years, which is a considerable difference. Secondly, it is my view that the combination of orders was manifestly excessive and should be reconsidered by this court on that ground.
- [2]The three offences of driving while disqualified resulted in 15 months imprisonment suspended after serving nine months, for an operational period of two years, and a further disqualification of three and a half years. It is necessary to keep in mind that the Penalties and Sentences Act and its principles apply to proceedings of this kind. A mandatory disqualification has two features, an order for the good of the public and also a punishment for the driver. Each of those factors may vary depending on the facts of the case. In this case, clearly enough, the order was designed to be largely a punishment.
- [3]I should say, as I raised with counsel, that I have been influenced by the South Australian approach to the combination of orders of imprisonment, which are there the usual punishment for driving while disqualified, and further disqualification (see Sadler v Crossman (1988) SASR 331 and Peart v Police (2003) SASC 274). The decision by Justice Von Doussa in the first case is instructive. It needs to be kept in mind, that while disqualification is mandatory in some cases in South Australia such as for drink driving, there does not appear to be a similar section to our section 78 of TORUM. Nonetheless, the basic observations in the case remain true, that is to say, punishments such as imprisonment and licence disqualifications are separate punishments, and they can amount to a double punishment for the same offence. Also, at the end of his reasons Justice Von Doussa made some remarks about how heavy a burden disqualification can be, particularly for young men. That is something that should be kept in mind here.
- [4]I am not the first judge to think that the impact on the driver should be kept in mind. It is helpful to refer to what was said in an English case in 1969. See R v Shirley (1969) 3 All ER 678 at 679:
“Long periods of disqualification from driving may prove a very serious handicap to a man when he comes out of prison and desire to pursue a different type of life to that which had led him into that prison. Such periods of disqualification may shut out a large sector of employment especially in certain areas. Moreover, if the length of disqualification is overlong and amounts to a period such as a decade, the position may well seem hopeless to the man and that of itself sows the seeds of an incentive to disregard the law on this point. However wrong such attitude may be, it springs from a human factor which it is wise to take into account.”
That passage was influential in the decision of Williams J of the Supreme Court in R v Burton (1990) 45 A Crim R 314.
- [5]In saying those things, I have not overlooked Mr Santillan’s very bad traffic history. It extends to five and a half pages for a man who is still only 22 years of age. However, some critical attention needs to be paid to the sort of offences for which he was convicted. There are no offences of drink driving or of reckless driving. That is consistent with the fact that is not contested here, that he is a man who does not drink. He speeds, he drives without his licence and he does things such as making a noise and creating smoke with his rear tyres. As the references indicate, he is a young man with a great interest in cars and also, as the learned magistrate knew, he used his car to earn a living as a painter. That is what he was doing when caught for the three offences of disqualified driving which bring him to this court. He had lost his licence, as I observed here, on earlier occasions, first of all on the 11th of October 2004 for six months and then again on the 17th of January 2006 for two years. After that time he was always disqualified. It will also be appreciated that a two-year mandatory disqualification follows when convicted of driving disqualified under the order of a court.
- [6]The circumstances of his recent charges are not admirable. He decided to get a false licence in the name of a friend. He got his friend’s birth certificate and pretended that he was the other person and was given a licence in the friend’s name. He showed that licence to police on more than one occasion, three occasions in fact. As the outline of facts in the prosecutor’s submissions shows, a police officer became suspicious about him and was investigating the true position. It seems most likely that he would have been apprehended in due course. Perhaps with that knowledge, he went to the police and owned up and was cooperative about what had happened.
- [7]It is also necessary to take into account the matters set out in the outline of argument filed here by Mr Burns who appears on his behalf. That is to say, Mr Santillan was aged 21 at the time of the offences and 22 at the time of sentence, had not previously been imprisoned, had entered early pleas of guilty, had made admissions and cooperated with police when necessary, showed remorse for these things, had no history for offences of violence or otherwise and had only a slight criminal history for some other matters. He had no history of dangerous, careless or reckless driving apart from his speeding offences. He had a good work history and was said by those giving him references to be of good character. The fact was that he largely used the vehicle to drive for employment and also for recreation.
- [8]So, it is necessary to consider the offence that the magistrate was considering. That is to say, there were calculated offences of driving while disqualified, and the deception. He pleaded guilty before the magistrate to the charges of obtaining the false licence. They were charges which did not carry periods of imprisonment. He was fined, given no time to pay, and sentenced to short periods of imprisonment which he has now served.
- [9]Overall, in my respectful opinion, this case shows that insufficient attention was paid to the degree of criminality shown by this young man. In truth, many of the things he was doing represented a social rather than a criminal problem. He was not demonstrated to be a risk to others on the road apart, perhaps, from his habit of speeding. He otherwise was carrying on a useful life.
- [10]The sentences were impermissibly high and have to be reduced. In my view, it would be helpful in future because of the mandatory imposition of periods of disqualification to keep the periods of actual imprisonment or other punishment for driving while disqualified at a very moderate level. In fact, as South Australian cases demonstrate, it would be better not to have the mandatory disqualification so that attention can be paid to the appropriate punishment for the offence of disqualified driving that would usually amount to imprisonment.
- [11]To give effect to these reasons then, these will be the orders:
1. The appeals are allowed in part.
2. Order that -
(a) the suspended term of four months' imprisonment imposed on the 30th of October 2006 be now served; fix the parole release date today, 29th of February 2008.
(b) with respect to the offence of the 24th of February 2007, reduce the three years' disqualification to two years; fix the parole release date at today.
(c) with respect to the offence of the 17th of May 2007, reduce the period of imprisonment to eight months; fix the parole release date at today; reduce the disqualification to two years.
(d) with respect to the offence of the 5th of July 2007, reduce the period of imprisonment to eight months; fix today as the parole release date; reduce the disqualification to a period of two years.