Dempsey v Queensland Police Service
[2009] QDC 218
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- Dempsey v Queensland Police Service[2009] QDC 218
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Dempsey v Queensland Police Service[2009] QDC 218
Dempsey v Queensland Police Service[2009] QDC 218
DISTRICT COURT OF QUEENSLAND
CITATION: | Dempsey v Queensland Police Service [2009] QDC 218 |
PARTIES: | WAYNE GEORGE DEMPSEY (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 136 of 2009 |
DIVISION: | Trial Division |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 23 July 2009 |
DELIVERED AT: | Cairns (extempore) |
HEARING DATE: | 23 July 2009 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – APPEAL AGAINST SENTENCE – Whether sentence was manifestly excessive. SENTENCE – SENTENCING DISCRETION – whether Acting Magistrate erred in his discretion – where Acting Magistrate did not properly take into account the guilty plea and other mitigating factors. |
COUNSEL: | M Sumner-Potts Counsel for the Applicant/appellant N Crane for the respondent |
SOLICITORS: | The Law Office for the applicant/appellant Director of Public Prosecutions for the Respondent |
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE EVERSON
Appeal No 136 of 2009
WAYNE GEORGE DEMPSEY | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
CAIRNS
DATE 23/07/2009
JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 from the decision of an Acting Magistrate in the Magistrates Court at Cairns on 24 June 2009.
The learned Acting Magistrate convicted the appellant of two counts of disqualified driving on that occasion. In each instance the appellant was sentenced to 12 months' imprisonment concurrently, with a parole release date after six months on 23 December 2009. The learned Acting Magistrate further disqualified the appellant from obtaining a driver's licence for a further two years in respect of each count, resulting in a cumulative disqualification of four years inthis regard. Before me it is argued on behalf of the appellant that the sentence was manifestly excessive.
The approach to the hearing of such an appeal is set out in the Justices Act and was helpfully summarised in the recent decision of Peila v Queensland Police Service [2007] QDC 022 by his Honour Judge Tutt. His Honour observed at para 8 that the court's power in respect of an appeal in this regard is by way of rehearing on the evidence given in the proceedings below and that the Court has a wide discretion in the order it chooses to make pursuant to section 225. Section 225 (1) states that, "On the hearing of an appeal the Judge 'may confirm, set aside or vary the appeal order or make any other order in the matter the Judge considers just.'"
Significantly, his Honour also observed that the general principles upon which an appellate Court in these circumstances must operate are well established and were summarised in House v The King (1936) 55 CLR 499.
These principles are most instructive. At 504-505 Dixon, Everett and McTiernan JJ stated as follows:
"The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate Court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or erroneous matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so."
It is true that a number of matters were put before the learned Acting Magistrate. Of particular significance was the appellant's criminal history and appalling traffic history.
At the time he was sentenced by the learned Acting Magistrate he had already been convicted of eight counts of disqualified driving, although there had been a gap of approximately three years since his last conviction.
The learned Acting Magistrate took all of these matters into account and, in particular, made reference to the fact that there was no alcohol involved in the offending before him. In the course of this appeal Mr Sumner-Potts, who appears on behalf of the appellant, expressly makes reference to the fact that the appellant's traffic history does not contain any entries for drink-driving or reckless driving. These are obviously relevant considerations in the exercise of the sentencing discretion.
Material was also placed before the learned Acting Magistrate which disclosed that on each of the occasions of the offences before him, the appellant's de facto had been present in the vehicle and that she was a licensed driver. Evidence was placed before the learned Acting Magistrate that on the first occasion, the appellant's de facto was not driving because she was extremely upset and on the second occasion, she was not driving because she was extremely tired. Other matters were placed before the learned Acting Magistrate which included the impact of a term of imprisonment upon the appellant's young family. The learned Acting Magistrate appeared to take these matters into account because he expressly stated that in mitigation, he also took into account "the circumstances in respect of your spouse".
Regrettably, however, the learned Acting Magistrate did not expressly take into account the appellant's plea of guilty as is required pursuant to section 13 of the Penalties and Sentences Act 1992. The consequences of this were recently explored by the Court of Appeal in R v Woods [2004] QCA 204. The judgment of the Court emphasised that section 13 is a statutory expression of the common law principle which had recently been referred to by the High Court in Cameron v R(2002) 209 CLR 339, where the High Court observed that a plea of guilty is ordinarily a matter to be taken into account in mitigation, both because it is usually evidence of some remorse and also, on the pragmatic ground, that the community is spared the expense of a contested trial. The High Court further observed that the plea may also "indicate acceptance of responsibility and a willingness to facilitate the course of justice". (At pp 663-664 [22]).
The Court of Appeal went on to observe that "The necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process." (R v Woods at para10).
On behalf of the respondent Mr Crane submits that, although not expressly mentioned, the plea of guilty was taken into account in the moderation of the head sentences imposed by the learned Magistrate. Section 78 of the Transport Operations (Road Use Management) Act 1995 prescribes a maximum penalty of 60 units, or 18 months' imprisonment, for this offence. Mr Crane submits that in deciding to impose concurrent sentences of 12 months in circumstances where the appellant had already been convicted of disqualified driving on eight previous occasions, the Magistrate was moderating the head sentence, having regard to the pleas of guilty.
It is true that pursuant to section 13(5) of the Penalties and Sentences Act, a sentence is not invalid merely because of the failure of the Court to state that it has not reduced a sentence for a plea of guilty and it therefore appears that it is open to an appellate Court to infer that a plea of guilty was nonetheless taken into account. The difficulty in this regard, however, is that whilst the offending of the appellant demonstrated something of a contempt for previous penalties imposed in respect of disqualified driving, which included terms of imprisonment, the disqualified driving of itself had not occurred in circumstances where anyone had been placed at risk of injury, or where alcohol or drugs had been consumed. And these are powerful mitigating factors which of themselves warranted moderation of the head sentences.
The other aspect of the learned Acting Magistrate's sentencing which causes concern is the cumulative period of disqualification in circumstances where this was clearly not mandatory.
The error on the part of the learned Acting Magistrate in not expressly taking the pleas of guilty into account requires this Court to re-exercise the sentencing discretion. The disqualification from holding or obtaining a driver's licence is properly to be regarded as part of the penalty (see Santillan v Queensland Police Service [2008] QDC 33) and this must be viewed as moderating the sentence that may other wise have been imposed.
On behalf of the appellant, Mr Sumner-Potts does not submit that the learned Acting Magistrate was in error in imposing head sentences of 12 months' imprisonment, to be served concurrently. He does, however, submit that an earlier parole release date was appropriate.
In respect of the period of disqualification from holding or obtaining a driver's licence, both Mr Crane and Mr Sumner-Potts submit that the cumulative period of four years is oppressive and manifestly excessive in the circumstances, and a more appropriate period of disqualification is a total of two years. Mr Crane submits that this can be achieved through making the period of disqualification in respect of each offence concurrent with the other.
A period of actual imprisonment is clearly an appropriate sentence, having regard to the circumstances before me and having regard to comparative authorities; see, for example, Appleton v Commissioner of Police [2004] QDC 465.
Taking into account the appellant's plea of guilty, his criminal history and his traffic history containing, as it does, not only eight prior convictions for disqualified driving but also two prior convictions for unlicensed driving, taking into account the gap in the pattern of his offending whereby for approximately three years he did not commit any traffic offences, taking into account the extenuating circumstances put before the learned Acting Magistrate, including his family responsibilities as the father of a young child and the breadwinner for his de facto and dependents, taking into account the fact that evidence has been put before the Court of certain limited extenuating circumstances concerning why his de facto was not driving on each occasion giving rise to each count, I am of the view that an appropriate head sentence of 12 months remains appropriate. However, when the mitigating circumstances set out above are taken into account, it is appropriate that a parole release date after four months be set. This is to be coupled with a period of disqualification pursuant to section 78(3)(a) of the Transport Operations (Road Use Management) Act of two years in each instance, concurrent with the other.
Accordingly, pursuant to section 225 of the Justices Act the orders of the Court are as follows:
(1)The appeal is allowed and the sentence imposed by the learned Acting Magistrate on 24 June 2009 be set aside;
(2)The appellant is convicted on each count of disqualified driving and sentenced to a term of imprisonment of 12 months on each count, with each being concurrent with the other; 2009 be set aside;
(3)The appellant is further disqualified from holding or obtaining a driver's licence for a period of two years in respect of each count, with each disqualification being concurrent with the other;
I set a parole release date of 24 October 2009.