Gray v Eustace[2010] QDC 377

HIS HONOUR:  On the 1st of June 2010 in the Magistrates Court at Wynnum the appellant pleaded guilty to the following offences:  driving without a driver licence while disqualified by Court order, possession of anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986 and two charges of failing to comply with the duties of a driver involved in a crash.

He was also dealt with for breaching a probation order made in the Magistrates Court at Beenleigh on the 7th of August 2009 in respect of charges of possessing dangerous drugs, possessing anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986, possession of utensils or pipes that had been used, and failing to properly dispose of a needle and syringe.  Those charges all occurred on 14 April 2009.

There is a discrepancy between the Court orders issued by the Magistrates Court at Wynnum and the Magistrate's sentencing remarks.  The parties have not listened to the recording of proceedings in the Magistrates Court at Wynnum so it is not known whether there is a transcription error or whether the Magistrate actually made an error when passing sentence.

In respect of the charge of disqualified driving the Magistrate is recorded in the transcript of having said:  "You'll be convicted and sentenced to 18 months imprisonment.  So, in effect, you will be serving out the 6 months, that's to reflect the disqualified driving and the damage that was done in that regard."  It seems apparent from the Magistrate's sentencing remarks that it was clearly his Honour's intention to sentence the appellant to 6 months imprisonment and to enable him to continue to remain on probation.

The Court orders that have been issued by the Magistrates Court at Wynnum contain the following sentences:  In respect of the driving without a driver licence whilst disqualified by a Court order, 6 months imprisonment and 18 months probation; in respect of the charge of possession of anything used in the commission of a crime, one month imprisonment; in respect of the two charges of failing to comply with the duties of a driver involved in a crash, the defendant was convicted and not punished.  And in respect of the offences for which he was resentenced consequent upon the breach of probation he was sentenced to 6 months imprisonment and 18 months probation.

This appeal challenges the sentences of 6 months imprisonment and 18 months probation.

The appellant has remained in custody since sentence was pronounced on 1 June 2010, so he has served the one month sentence for possession of anything used in the commission of a crime and, of course, there is no challenge to the orders that he be convicted and not punished for failing to comply with the duties of a driver involved in a crash.

The facts in relation to the offences to which he pleaded guilty are as follows:  On 21 November 2009 the appellant drove his vehicle at Wynnum whilst he was disqualified by Court order.  In the course of driving, he collided with a parked vehicle and caused damage to the side mirror of that car.  He then left the scene without providing any of his details.  Shortly after that, he collided with a power pole and failed to provide the necessary details to the Brisbane City Council and Energex.  The police attended the scene and apprehended him.  He was dazed.  When his vehicle was searched a container with hydrochloric acid was found.

The appellant is 32 years old.  He has a fairly extensive criminal history and traffic history.  In respect of the criminal history, it is mainly drug-related and spans the period between 1997 and 2009.  This history shows that he has been afforded opportunities in the past by way of intensive correction orders and intensive drug rehabilitation orders.

The most serious matters on his criminal history seem to be those for which he was sentenced in the Supreme Court at Brisbane on the 16th of December 2004:  producing dangerous drugs and possession of dangerous drugs and related offences.  He was sentenced to 12 months imprisonment to be served by an intensive correction order.

He was sentenced in the Ipswich Drug Court on the 5th of April 2007 for producing dangerous drugs and on that occasion he was sentenced to an intensive drug rehabilitation order for 2 years.

His traffic history is reasonably extensive.  There are two disqualified driving offences which were dealt with in the Supreme Court on 16 December 2004 when he was sentenced for the drug offences I have already mentioned.  Those offences were committed on 26 August 2002 and 18 September 2002.  There is also a disqualified driving offence committed on 13 August 2006 for which the appellant was sentenced to a 3 month wholly suspended sentence of imprisonment on 5 April 2007.

Ms Wardle for the appellant made a number of criticisms of observations made by the Magistrate during the sentencing proceeding.  Viewed in their context, my interpretation of what his Honour said is that the remarks were designed to assist the appellant in overcoming what the Magistrate saw as a drug problem that he had experienced in the past and to bring home to him the problems that he would face if he didn't overcome his drug addiction.  In other words, my view is that the Magistrate’s remarks were intended to assist the appellant.

There are, however, a number of errors in the sentencing process.  The first and most significant is that the Magistrate did not state, as required by section 13(1) of the Penalties and Sentences Act 1992, that the pleas of guilty were taken into account.  The appellant entered early pleas of guilty and was entitled to credit for that.  The failure to state that a plea of guilty has been taken into account is a significant error and requires this Court to exercise the sentencing discretion afresh.

The other difficulty is that in resentencing for the offences dealt with in the Beenleigh Magistrates Court on 7 August 2009 the Magistrate made a single order.  While a single probation order is permissible by section 97 of the Penalties and Sentences Act 1992 a sentence of imprisonment must be imposed in respect of each count if a sentence of imprisonment is being imposed (see R v Parker [2007] QCA 22).

Having regard to those matters, I must sentence afresh.

The appellant has been in custody now for approximately three and a-half months.  I would propose to sentence him to a period of 12 months probation.  However, I can't make a probation order unless the appellant consents.  I will therefore explain the requirements of probation to him and ascertain whether or not the appellant consents to the probation order and, if he does, I will make formal orders accordingly.  These are the general requirements of probation:

1. You must not commit another offence during the period of the order, which will be 12 months;

2. You must report to an authorised Corrective Services officer at Brisbane within 24 hours;

3. You must report to and receive visits from an authorised Corrective Services officer as directed by the officer;

4. You must take part in counselling and satisfactorily attend other programs as directed by the authorised Corrective Services officer during the period of the order;

5. You must notify an authorised Corrective Services officer of every change of your place of residence or employment within two business days after the change happens;

6. You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer; and

7. You must comply with every reasonable direction of an authorised Corrective Services officer.

I propose to add an additional requirement, namely, that you undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice as may reasonably be required by an authorised Corrective Services officer.

The purpose of the probation order is to enable you to be supervised in the community.

If you breach any of the requirements of the probation order, you can be resentenced and you can be punished for that.  Also the probation order can be amended or revoked on application by you or the authorised Corrective Services officer or the Director of Public Prosecutions.

Ryan Gray, do you understand the requirements of probation?

DEFENDANT:  Yes.

HIS HONOUR:  Do you consent to a probation order for 12 months on those conditions?

DEFENDANT:  Yes.

HIS HONOUR:  In that case, the orders of the Court are as follows:

1. Appeal allowed;

2. Set aside the sentence imposed in the Magistrates Court at Wynnum on 1 June 2010 in respect of the offences of driving without a licence disqualified by Court order on 21 November 2009; possession of dangerous drugs on 14 April 2009; possession of anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986 on 14 April 20090; possession of utensils or pipes that had been used committed on 14 April 2009; and failing to properly dispose of needle and syringe committed on 14 April 2009;

3. Instead, order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and comply with the requirements set out in section 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours to an authorised Corrective Services officer at Brisbane with the special condition that the appellant undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice as my reasonably be required by an authorised Corrective Services officer. 

Convictions are recorded in respect of those charges.

Ms Wardle, is there anything further?

MS WARDLE:  No, your Honour.

HIS HONOUR:  Ms Shaw?

MS SHAW:  Does your Honour formally have to make a finding that the breach was proven?

HIS HONOUR:  Well, that's already been made in the Magistrates Court.

MS SHAW:  Thank you, your Honour.

MS WARDLE:  I've got no‑‑‑‑‑

HIS HONOUR:  There was no suggestion to the contrary.

MS WARDLE:  There is no suggestion that the breach is not proven, your Honour.

MS SHAW:  Thank you, your Honour.  Nothing‑‑‑‑‑

HIS HONOUR:  I don't want to make this even more convoluted than it already has been.

MS WARDLE:  Your Honour, the only issue is do you need to - because you vacated the order, do you need to actually state the two years' disqualification?  I know that's not in dispute but I just wondered if you vacated the order on the disqualification - in relation to the disqualified drive, just to make it clear on the record.

HIS HONOUR:  Thanks for that.  I mean, I set aside the sentence.  I suppose it's possible that that could be interpreted as setting aside the whole of the sentence, so thanks for indicating that.

MS WARDLE:  Yes.

HIS HONOUR:  So that attaches to the disqualified driving; is that right?

MS WARDLE:  It could be interpreted that way and it's not our intention that he should've be disqualified‑‑‑‑‑

HIS HONOUR:  Actually, the better thing to do might be to - rather than me formally make that order which would be taken as running from now, he's entitled to have that run from when the Magistrate made the order.

I'll simply add a further order confirming the disqualification order for two years, so the intent is that it date from the date it was made.

MS WARDLE:  Thank  you.

HIS HONOUR:  Is that suitable?

MS SHAW:  Yes, thank you, your Honour, otherwise it's just setting aside the order so far as it applies to the imprisonment probation and confirming that disqualification stands.

HIS HONOUR:  All right.  Well, order 2 I will make in these terms:

Set aside the sentences of imprisonment for the offences that I outlined, and I'll add a further order, order 4, otherwise confirm the orders made by the Magistrates Court at Wynnum on 1 June 2010.

MS WARDLE:  Your Honour, I'm sorry.  Should it be imprisonment and probation - set aside the imprisonment and probation orders made by the Magistrate, just to be very clear?

HIS HONOUR:  All right.  Set aside the sentences of imprisonment and probation.