Buttigieg v Commissioner of Police
[2010] QDC 191
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- Buttigieg v Commissioner of Police[2010] QDC 191
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Buttigieg v Commissioner of Police[2010] QDC 191
Buttigieg v Commissioner of Police[2010] QDC 191
[2010] QDC 191
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RICHARDS
COMMISSIONER OF POLICERespondent(Plaintiff)
v.
BRUCE ANTHONY BUTTIGIEGAppellant(Defendant)
TOOWOOMBA
DATE 21/04/2010
JUDGMENT
HER HONOUR: On the 3rd of November 2009 the appellant, Bruce Anthony Buttigieg, was sentenced in the Toowoomba Magistrates Court to an effective sentence of 13 months' imprisonment with a Court-ordered parole release date fixed at the end of that sentence. The offences for which he was sentenced were drive whilst disqualified with a blood alcohol reading of .083 on the 6th of May 2007, driving whilst disqualified on the 8th of May 2007, and a failure to appear on the 20th of July 2007.
The sentence that was imposed was 12 months' imprisonment for each of the disqualified driving offences, and one month's imprisonment for the breach of bail undertaking which was cumulative on the 12 months' imprisonment. He was also sentenced to three months concurrent for the driving under the influence of alcohol.
The appellant had a bad traffic history, including 15 previous convictions for driving whilst disqualified, although those convictions dated back to 1986. And he was last before the Court on a disqualified driving on the 28th of June 2005. He had a history of drink driving as well, and it was acknowledged at sentence that he had at the time a significant drinking problem. The appellant pleaded guilty to the charges. He had given up alcohol and had not re-offended for two and a-half years, aside from failure to appear. The basis of the appeal is that the Magistrate, in imposing a sentence of 13 months' imprisonment with parole release date set at the end of that sentence, did not comply with the Court of Appeal's decision in the Queen v Kitson [2008] QCA 86. In that case the Court said at paragraph 17, "First, in a case such as this where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole date, which is significantly beyond the mid point of the head sentence, is very unusual (see R v Norton [2007] QCA 320 per Douglas J)."
So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it. As was said in the joint judgment of Markarian v Queen [2005] 228 CLR 357, [2005] HCA 25 at paragraph 39, "Accessible reasoning is necessary in the interest of victims, of the parties, appeal Courts and the public." Such an explanation might be quite brief in many cases, but here the reasons do not explain at all why the parole release date was postponed until after the midpoint of the sentence. There are decisions of this Court to the effect that a failure to give reasons that ought to have been given amounts to appellable error.
In this case the Crown concedes that the learned Magistrate did not pay heed to the principles in the Queen v Kitson, and that he should have made some allowance for the plea of guilty. The attempts at rehabilitation and the period of time between the offence and the sentence where some rehabilitation had been undertaken, at the very least it is conceded that the Magistrate should have called for submissions if he was intending to make a term of imprisonment without parole, or with late parole. That much was noted in paragraph 22 of Kitson where it was said, "In re Hamilton' In re Forest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that: "One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication." The rule applies to sentencing of course, as has been confirmed by decisions of this Court in cases such as R v Cunningham [2005] QCA 321 at [5] and R v McDougall & Collas [2006] QCA 365 at [19]."
In this case the appellant was 39 years of age. He had an alcohol problem of long standing, but had decided to address that problem by giving up alcohol all together, and had been alcohol free since 2007. He was in employment. References were tendered which indicated that he was a good worker and that he was assisting to look after the person with whom he was residing, and that he was alcohol free. In those circumstances, it was appropriate for a parole release date to be set, and that the parole release date should have been at a period of time earlier than the halfway point of the sentence.
Accordingly, the appeal is allowed. The original sentence is set aside to the extent that the parole release date is altered. If I give a parole release date today will he get released?
MR DAVIES: He'd be eligible, your Honour. There's a mechanism for that. Your Honour, he has a couple of outstanding matters for which he hasn't got bail, but actually which we'd attempt to have resolved tomorrow.
HER HONOUR: Okay.
MR DAVIES: Yes.
HER HONOUR: Well, I'll order that he be released on parole in relation to these matters on the 21st of April 2010. Are you seeking costs?
MR DAVIES: I'm not, your Honour, thank you.
HER HONOUR: Right. No order as to costs.