Hobson v Queensland Police Service
[2009] QDC 246
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- Unreported Judgment
- Hobson v Queensland Police Service[2009] QDC 246
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Hobson v Queensland Police Service[2009] QDC 246
Hobson v Queensland Police Service[2009] QDC 246
DISTRICT COURT OF QUEENSLAND
CITATION: | Hobson v Queensland Police Service [2009] QDC 246 |
PARTIES: | HOBSON, Gregory Wayne (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 55 of 2009 |
DIVISION: | Appellate jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Lockhart River |
DELIVERED ON: | 29 July 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 22 July 2009 |
JUDGE: | Bradley DCJ |
ORDER: | 1.That the orders of the Acting Magistrate regarding the following offences are set aside and the following penalties substituted: Date of offence 8/12/08 – Drive under influence of alcohol – 3 mths imprisonment; disqualified 18 mths. Date of offence: 8/12/08 – Disqualified driving – 6 mths imprisonment (concurrent); disqualified 2 yrs (cumulative) Date of offence: 18/12/08 – Breach of bail (failure to appear) – Released absolutely Date of offence: 24/12/08 – Disqualified driving – 6 mths imprisonment (cumulative); disqualified 2 yrs (cumulative) Date of offence: 25/12/08 – Disqualified driving – 1 yr imprisonment (concurrent); disqualified 2 yrs (concurrent) Date of offence: 25/12/08 – Disqualified driving – 6 mths imprisonment (cumulative); disqualified 2 yrs (cumulative) Date of offence: 25/12/08 – Drive under influence of alcohol – 3 mths imprisonment (concurrent); disqualified 9 mths (cumulative). 2.That the appellant be released on parole after serving six months i.e. on 18 August 2009. 3.The fines imposed by the Acting Magistrate with respect to the assault occasioning bodily harm committed on 20 December 2008 and the failure to stop committed on 25 December 2008 are confirmed. |
CATCHWORDS: | TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – ALCOHOL AND DRUG RELATED OFFENCES – QUEENSLAND – DRIVING WITH MORE THAN PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD – where the appellant pleaded guilty to a number of offences including: driving under the influence of alcohol; disqualified driving; and others – where the Acting Magistrate sentenced the appellant to 37 months imprisonment with a parole release date – whether the Acting Magistrate erred in amending the parole release date to a parole eligibility date “on the papers” – whether the Acting Magistrate erred in failing to state that the appellant’s guilty pleas had been taken into account and sentence reduced accordingly – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13(3), s 13(4) Transport Operations (Road Use Management) Act 1995 (Qld), s 90C, s 90D R v Harris [2008] QCA 141 R v Woods [2004] QCA 204 |
COUNSEL: | B Murray Counsel for the appellant N Crane Solicitor for the respondent |
SOLICITORS: | Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd Solicitors for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant was convicted of a number of offences in the Lockhart River Magistrates Court on 19 February 2009. As a result he received an effective head sentence of 37 months imprisonment and was given a parole eligibility date of 30 November 2009. He was fined a total of $700 and disqualified from holding or obtaining a driver’s licence for 10 years and 3 months. The appellant argues that the overall sentence is manifestly excessive.
- [2]The offences to which the appellant pleaded guilty are as follows:-
Date of Offence | Nature of offence | Penalty |
8/12/08 | Drive under the influence of alcohol | 3 mths imprisonment, disqualified 18 mths |
8/12/08 | Disqualified driving | 6 mths imprisonment (cumulative); disqualified 2 years (cumulative) |
18/12/08 | Breach of bail (failure to appear) | 1 month imprisonment (cumulative) |
20/12/08 | Assault occasioning bodily harm | Fine $500 (referred to SPER) |
24/12/08 | Disqualified driving | 6 months imprisonment (cumulative); disqualified 2 years (cumulative) |
25/12/08 | Disqualified driving | 1 year imprisonment (cumulative); disqualified 2 years (cumulative) |
25/12/08 | Disqualified driving | 6 mths imprisonment (cumulative); disqualified from driving 2 years (cumulative) |
25/12/08 | Failure to stop | Fine $200 |
25/12/08 | Drive under influence of alcohol | 3 mths imprisonment (cumulative); disqualified 9 mths (cumulative) |
Appellant’s criminal and traffic history
- [3]The appellant was born on 26 May 1976 and is presently 33 years of age. He has extensive criminal and traffic histories.
- [4]His criminal history includes offences for stealing and burglary which date back to 1994. Between 1994 and 2002, the appellant has been convicted of five counts of stealing, 10 counts of breaking and entering or attempting to break and enter and four counts of receiving. He has two previous convictions for failing to appear in accordance with a bail undertaking and has other offences for minor summary matters.
- [5]The appellant’s traffic history includes five convictions for unlicensed driving, three for disqualified driving and one for driving under the influence of liquor. The appellant has no previous convictions for offences of violence.
Facts of offences
- [6]The following facts are taken from the appellant’s Outline of Submissions and are accepted by the respondent. At 6.50 am on 8 December 2008, police saw the appellant driving a Hyundai vehicle through the Lockhart River community. Upon intercepting the vehicle they noticed the appellant had bloodshot eyes and slurred his speech. They saw a can of XXXX Gold beer between the driver and passenger seats. A roadside test revealed the appellant’s blood alcohol concentration to be 0.228. He had previously been disqualified from holding a driver’s licence.
- [7]On 8 December 2008 the appellant signed a bail undertaking pursuant to which he was required to appear before the Lockhart River Magistrate’s Court on 18 December 2008. He failed to appear on that date and a warrant was issued for his arrest. On 22 January 2009 the appellant attended the Lockhart River Police Station and the warrant was executed. He stated that he had attended court on 18 December but had been told by an employee of ATSILS that his name was not on the list so he departed. Later that day he learnt that the police were looking for him and he returned to court. By this time the court had completed its business and was closed.
- [8]On 19 December 2008 the appellant and another 20 year old male who was known to him travelled with other community members to the Archer River. During the morning of 20 December the appellant and the complainant were drinking with other community members in the river bed. At 8.30 am an argument began between two female members of the group. The complainant intervened and became involved in an argument with one of the women. This escalated into a fight in which both shaped up to each other. Another man tried to move the complainant away from the woman in the course of which both men fell to the ground. As the complainant attempted to sit up, without warning the appellant punched him once to the mouth. The complainant then stood up and began to argue with the appellant before walking away. As a result of the punch the complainant lost part of a front tooth. The appellant was spoken to by police on 25 December 2008. He admitted having been at the Archer River but declined to comment further.
- [9]At 4.30 pm on 24 December 2008, police at Coen saw a Toyota Hilux with the appellant seated in the driver’s seat. The appellant told police that he had driven to Coen from Lockhart River to buy alcohol. He stated that he did not have a licence. Checks revealed that the appellant had been disqualified from holding a driver’s licence.
- [10]At 1.15 am on 25 December 2008, police saw a vehicle being driven by the appellant towards the Lockhart River community. Police tried to intercept the vehicle and called upon the driver to stop and activated their sirens. The police attempts to intercept were unsuccessful. The appellant drove a further 300 metres before getting out of the vehicle and running into bushland. Later that day the appellant was again seen driving the same vehicle. He was arrested. The appellant told police that he did not stop when called upon to do so earlier in the day because he knew he shouldn’t be driving. The appellant smelt strongly of liquor, was unsteady on his feet, was unable to hold a conversation and was charged with driving under the influence of alcohol on the basis of those indicia.
Sentencing remarks
- [11]The Acting Magistrate’s sentencing remarks were brief in the extreme and effectively were as follows:-
“OK, stand up. I must take into account – I’ve got to take into account the criminal history and in particular the traffic history which is appalling, absolutely appalling. I start – I start with the 25th December and name that as the head sentence because there’s just – just increases up to that date.”
- [12]Following the above the Acting Magistrate simply outlines the penalties for each offence. He did not however, when sentencing the appellant, calculate the total period of imprisonment. The Acting Magistrate set a parole release date of 30 November 2009. The total period of imprisonment imposed was, in fact, 37 months. As that was a term of over three years, only a parole eligibility date rather than a parole release date, could be set.
- [13]The Magistrates Court file reveals that the parole release date was questioned by the Sentence Management Unit at Lotus Glen Correctional Centre and as a result of a letter forwarded by that Unit to the Magistrates Court, the sentence was re-opened on 9 March 2009 and the Acting Magistrate amended the parole release date to a parole eligibility date.
- [14]It appears from the file that the re-opening of the sentence on 9 March 2009 was effectively done “on the papers” with no appearance for either the prosecution or defence noted on the court file. This is an inappropriate way of dealing with an order that was contrary to law. An alteration of a parole release date to a parole eligibility date has adverse consequences to a defendant and a court should always allow both the prosecution and defence the opportunity to make submissions regarding such a change.
Effect of pleas of guilty
- [15]The appellant argues that the Acting Magistrate failed to state that he had taken the appellant’s pleas of guilty into account and that he had accordingly reduced the sentence which might otherwise have been imposed as required by s 13(3) of the Penalties and Sentences Act and that this amounts to an error of principle.
- [16]Subsection 13(3) of the Penalties and Sentences Act provides:-
“When imposing the sentence the court must state in open court that it took into account the guilty plea in determining the sentence imposed.”
Subsection (4) of that section provides:-
“A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court–
- (a)that fact; and
- (b)its reasons for not reducing the sentence.”
- [17]
“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.”
In R v Harris[2]Daubney J said:-
“Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this state. It self evidently provides for an accused to receive an appropriate and tangible recognition in the sentencing process for the saving in time and cost to the courts, the prosecuting authorities, and to publicly funded or community based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why recognition is not being given in a particular case. The purposes of the Penalties and Sentences Act include the promotion of consistency of approach in sentencing offenders (see s 13(c) [sic]) providing sentencing principles that are to be applied by the court (s 3(e)), and promoting public understanding of sentencing practices and procedures (s 3(g)). It is important for public confidence in the achievement of these purposes that the provisions of s 13 not be overlooked in the sentencing process.”
- [18]It is quite clear from the brief sentencing remarks I have quoted that the Acting Magistrate did not state in open court that he had taken into account the appellant’s guilty pleas in determining the sentence or that he had reduced the sentenced imposed upon him because of the pleas of guilty. The sentencing discretion did therefore miscarry and it is necessary to consider again the appropriate sentence to be imposed in the circumstances.
Totality
- [19]It is reasonably obvious from the Acting Magistrate’s sentencing remarks and his attempt to order a parole release date that he did not turn his mind to the total period of imprisonment that the appellant must serve as a result of his orders. Having regard to the nature of the offences, and particularly the fact that the offences which were committed on 24 and 25 December 2008, occurred within hours of each other, effectively over one journey from Lockhart River to Coen and return, the accumulation of the terms of imprisonment does offend against the principle of totality.
- [20]It is conceded on the part of the respondent that the total period of imprisonment imposed upon the appellant on 19 February 2009 is excessive and the submission on behalf of the respondent is that the total period of imprisonment should one of two years.
- [21]I accept the argument that the term of imprisonment of one month imposed for the failure to appear in court on 18 December 2008 is excessive in light of the explanation given by the appellant for his failure to appear that day, which explanation was not challenged by the police prosecutor. In those circumstances a sentence of imprisonment was not called for and the appellant should have been discharged absolutely.
- [22]Terms of imprisonment are the only appropriate penalties to be imposed upon the appellant for the offences of drinking driving and disqualified driving, given his history, and it is appropriate that cumulative terms should be imposed for the later offending. It would be unjust however to accumulate the terms of imprisonment for the offending which took place over a period of hours between 24 and 25 December 2008.
- [23]It is argued on behalf of the appellant that taking into account the nature of the offences, the circumstances of the offending and having regard to the principle of totality, the effective head sentence should fall within the range of 12 to 18 months imprisonment with a parole release date after the appellant has served six months. The respondent concedes that the effective head sentence of 37 months imprisonment is excessive but argues that the appropriate total effective sentence should be two years imprisonment.
- [24]Having regard to the nature of the offences, the appellant’s criminal and traffic history, his cooperation with authorities after apprehension and early pleas of guilty to all offences, and particularly the fact that although the appellant has a shocking history of driving without a licence and driving whilst disqualified he has only one previous conviction in July 2006 for driving under the influence of liquor, the appropriate head sentence should be one of 18 months imprisonment.
Disqualification period
- [25]The total term of disqualification was one of 10 years and 3 months. The effect of ss 90C and 90D of the Transport Operations (Road Use Management) Act 1995 that the periods of disqualification imposed for all of the driving offending, (except for the offence committed at about 1.15 am on 25 December 2008,) must be made cumulative upon all other periods of disqualification. As the first offence committed on 25 December 2008 was not accompanied by any sort of drink driving offence, there is no statutory requirement that any period of disqualification be cumulative. The respondent concedes that the two year disqualification imposed for that offence should have been concurrent rather than cumulative. The appellant does not argue that each period of disqualification is excessive and an accumulation of all of the periods of disqualification which must by law be made cumulative makes a total period of disqualification of eight years and three months.
Orders
- [26]The orders of the Acting Magistrate regarding the following offences are set aside and the following penalties substituted:-
Date of Offence | Nature of offence | Penalty |
8/12/08 | Drive under the influence of alcohol | 3 mths imprisonment, disqualified 18 mths |
8/12/08 | Disqualified driving | 6 mths imprisonment (concurrent); disqualified 2 years (cumulative) |
18/12/08 | Breach of bail (failure to appear) | Released absolutely |
24/12/08 | Disqualified driving | 6 months imprisonment (cumulative); disqualified 2 years (cumulative) |
25/12/08 | Disqualified driving | 1 year imprisonment (concurrent); disqualified 2 years (concurrent) |
25/12/08 | Disqualified driving | 6 mths imprisonment (cumulative); disqualified from driving 2 years (cumulative) |
25/12/08 | Drive under influence of alcohol | 3 mths imprisonment (concurrent); disqualified 9 mths (cumulative) |
- [27]I order that the appellant be released on parole after serving six months i.e. on 18 August 2009.
- [28]The fines imposed by the Acting Magistrate with respect to the assault occasioning bodily harm committed on 20 December 2008 and the failure to stop committed on 25 December 2008 are confirmed.