Freeman v Commissioner of Police
[2010] QDC 509
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- Freeman v Commissioner of Police[2010] QDC 509
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Freeman v Commissioner of Police[2010] QDC 509
Freeman v Commissioner of Police[2010] QDC 509
[2010] QDC 509
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DURWARD
Appeal No 3638 of 2009
STEVEN ALEXANDER FREEMAN | Appellant |
and |
|
COMMISSIONER OF POLICE | Respondent |
BRISBANE
DATE 29/10/2010
ORDER
HIS HONOUR: The appellant was convicted of a charge of common assault and two charges of driving whilst disqualified by a Court order in the Magistrates Court at Wynnum on 14 December 2009. He was sentence to two months' imprisonment for the common assault, three months' imprisonment for the first driving whilst disqualified, four months' imprisonment followed by 18 months' probation for the second driving whilst disqualified, and disqualified from holding or obtaining a driver's licence for two years on each of the disqualified driving charges.
The terms of imprisonment and the driving licence disqualification orders are concurrent. A disqualification order is a part of a sentence.
The appellant was granted bail pending appeal on 22nd December 2009, hence he has served eight days' imprisonment. He has observed the conditions of his bail. The appellant also reported to the probation office when he was released on bail. I adjourned the completion of the hearing of the appeal until today pending the provision of a report from the probation office. That report is now Exhibit 2 and I've had an opportunity to peruse it.
The ground of appeal was that the sentences imposed were manifestly excessive. The appellant was a truck driver by occupation. He has a poor traffic history and two prior criminal convictions, the more recent being one that, in the circumstances, is significant. The traffic history covers the period 1987 to 2007. The appellant's date of birth is 18 October 1972.
He has previous summary convictions for unlicensed driving and for numerous speeding offences, amongst others. He has previously been disqualified from holding or obtaining a driver's licence by Court order in respect of summary offences on two occasions. There are no prior offences of violence.
The criminal convictions include a dangerous driving dealt with in the Childrens Court in 1987, a mandatory six-month disqualification was imposed on that occasion; and a dangerous operation of a motor vehicle causing grievous bodily harm dealt with in the District Court on 19 November 2007. In respect of the latter charge the appellant was convicted and sentenced to two years' imprisonment with a parole release date fixed at 19 November 2007. He was disqualified from holding or obtaining a driver's licence for three years. His immediate release on parole meant that he served no actual term of imprisonment.
The driving whilst disqualified by a Court order offences that are the subject of this appeal were committed on a date between 13 and 15 December 2007 and on 2nd January 2008 respectively, that is, within one and two months respectively of the appellant's three-year disqualification and his immediate release on parole. No breach of parole was pursued and the parole period has now expired.
The history to which I have referred and the disregard for Court ordered disqualifications of driver's licence were a very significant issue for the Magistrate in determining an appropriate sentence.
Judge Rafter SC, when sentencing the appellant in this Court in November 2007, acted on an agreed factual scenario, namely, that the conduct of the appellant in driving his truck at an excessive speed through a road works area at night and colliding with a works truck severely injuring a workman was the result of momentary inattention to road works and speed limiting signage.
The circumstances of the offences the subject of the appeal can be summarised as follows: After his immediate release on parole the appellant bought a motor vehicle which he drove from the vendor's premises. The motor vehicle was purchased for the purpose of resale. That was the first charge of driving whilst disqualified by Court order.
A few weeks later he drove the same motor vehicle to a fuel service station. He did so because he has not been collected by a co-worker and taken to his place of employment and he was concerned that he might lose his job if he failed to turn up to work. That was the second charge of driving whilst disqualified by Court order. Whilst at the fuel service station he became involved in an altercation with another customer and struck the complainant with a single open-handed blow to the face.
It was submitted on behalf of the appellant that the Magistrate erred in making certain remarks during sentencing that were not proper to make. I will refer to these and, in doing so, refer to some of the submissions made by the respondents about them and make some observations, where necessary, myself.
The matters referred to on behalf of the appellant were listed by reference to letters of the alphabet from (a) through to (i). There was a further matter which I'll deal with separately. I will use the same references.
- (a)In a reference to the appellant's criminal and traffic history the Magistrate said: "But it sounds like you've got some lunatic on the road." The Magistrate used strong language, however, the appellant's criminal history was extensive and, more recently, very serious.
- (b)In a reference to the offences committed second in time the Magistrate said: "What the hell's he doing in the car in the first place?" It was submitted on behalf of the appellant that the statement was made only in respect of the common assault charge. I disagree. Both charges, that is, the common assault and the second driving whilst disqualified by Court order, were committed one after the other but in contemporaneous circumstances.
- (c)The Magistrate remarked: "But it sounds as if he has been driving a car around." That statement was followed by the appellant's lawyer clarifying in the Court below the fact that there were only two instances of driving. The Magistrate clearly acted on the facts as clarified.
- (d)The Magistrate said: "Because you're looking at 18 months' imprisonment for these offences." In my view, the Magistrate was simply emphasising the serious nature of the disqualified driving offences.
- (e)The Magistrate referred to a matter contained in a psychological report tendered on behalf of the appellant which it was said on behalf of the appellant was expressed in terms of it being an aggravating circumstance rather than a circumstance in mitigation. The relevant matter was a statement by the author of the report about an incident earlier in the appellant's life that she reasoned was the basis of a diagnosed post-traumatic stress disorder. However, the Magistrate in fact observed elsewhere in the course of the proceedings that he regarded the psychological report as providing factors in mitigation of sentence and I'm satisfied that he reflected that in the sentences imposed.
(f) and (g)
That the Magistrate incorrectly said: "Every time you turn and look at his history there's been some serious event where people have been injured." It is the reference to the plural expression "people" that it is said on behalf of the appellant is incorrect. It was submitted on behalf of the respondent that there may have been some confusion in the prosecution's submissions in the Court below about the number of people injured in the November 2007 incident. However, that incident had been dealt with and sentence made in this Court on the basis that there was one person who was seriously injured. I do not think there is any appellable error arising out of this point.
- (h)That the Magistrate said: "Why the hell would you buy a vehicle?" and "Why the hell would you be driving a car?" The statement was made in the context of the appellant having been told by Judge Rafter in November 2007 that he was being released into the community "on condition that you don't drive a vehicle." I'll have something to say further about those statements by the Magistrate shortly.
- (i)That the Magistrate incorrectly said: "Your behaviour is such that you are continuing to put yourself at risk; you are continuing to put members of the public at risk." It was submitted on behalf of the respondent that the Magistrate was referring to the appellant's psychological issues and the need for probation and that the statement was appropriate in that context.
I do not consider that any of the matters referred to as I've just described demonstrate error on the part of the Magistrate.
The statements made by the Magistrate were expressed in robust language. That is not a valid ground of appeal (see R v Broad and Prior [2010] QCA 53 particularly at paragraph 29). However, I do not consider that robust language requires the use of expressions more appropriately used in private communications. The Magistrate is an officer of the Court. Care should be taken to use language that is more in keeping with the Magistrate's judicial status.
The Magistrate did not state in open Court that the pleas of guilty were taken into account, contrary to the requirements of section 13(3) of the Penalties and Sentences Act. The respondent submitted that the sentences imposed, including the disqualification orders reflected mitigating circumstances that had been taken into account and that the pleas of guilty were one of those circumstances of mitigation.
Section 13(3) of the Penalties and Sentences Act provides that "When imposing the sentence the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed." The Magistrate did not comply with the requirement to state in open Court that he had taken into account the guilty pleas in determining the sentence imposed.
In R v Ridgley [1995] QCA 493 The Chief Justice said the following with respect to the judicial obligation imposed by section 13(3) of the Act: "The sentencing Judge expressed his attitude extremely briefly and it is unfortunate that he did not comply with his obligation under section 13(3) of the Penalties and Sentences Act with requires the Court to state in open Court at the time of imposing sentence that it has taken account of the guilty plea in determining the sentence imposed."
When a Court does not comply with that statutory obligation it places in jeopardy the sentence which is imposed and certainly will cause the Appeal Court to look closely at it. In a number of cases it is extremely likely that it will result in the appeal being allowed, that is, because the review Court would not be satisfied that the guilty plea has been properly taken into account. Fundamentally, it will have difficulty in being so satisfied in cases where that statutory obligation is not complied with.
The President said the following in the same case: "His Honour failed in his judicial duty to give reasons for his decision and failed to perform his statutory duty under section 13(3) of the Penalties and Sentences Act 1992. It is not appropriate in such circumstances to assume that he appropriately took into account the cooperation of the applicant and pleas of guilty, which are almost always significant factors in sentencing, without considering not only whether the sentences are manifestly excessive but whether they are appropriate. It is because I am satisfied that they are that I join in the order proposed."
The order with respect to which her Honour agreed was as follows: "Notwithstanding the concern caused by the failure to comply with section 13 the penalties imposed are not manifestly excessive." The application was refused.
In R v Mallon [1997] QCA 58 the Court of Appeal again had occasion to consider failure to comply with the statutory obligation imposed under the Act. In a joint judgment, the Court made the following statement: "At the hearing of this appeal the point was made that the sentencing Judge in breach of his obligation under section 13(3) of the Penalties and Sentences Act 1992 failed to state in open Court that he took account of the guilty plea in arriving at the sentence imposed. This Court has had occasion before to remark upon the effect that should follow the sentence and the Court's failure to make that necessary statement (see R v Ridgley and Wainwright v Reibelt CA128 of 1993, unreported 19 August 1993). One result will be that the failure to comply with the statutory obligation will place the imposed sentenced in jeopardy. It will cause the Appeal Court to examine it closely since it will not clearly appear that the Court has in fact taken the plea into account. There are peculiarities in the drafting of section 13 and in particular it may be noticed that while a failure to take subsection (4) into account is expressly stated to be a matter which will not invalidate the sentence imposed, a failure to comply with subsection (3) does not receive the same level of express statutory protection. There is no need in the present case to devote further attention to the general effect of a failure to state in open Court that a guilty plea has been taken into account or to take the matter any further than the observations made in the two cases referred to above."
I do not think the pleas of guilty were overlooked or not taken into account in this case. The sentences imposed were moderate and I do not consider that the failure of the Magistrate to state in open Court that he took into account the pleas of guilty in determining the sentences imposed is fatal in the circumstances of this case. Accordingly, there is no appellable error in that regard.
The appellant committed the offences in what might be termed contumelious disregard for the order made by Judge Rafter SC. He was dealt with, in my view, very leniently in a serious case of dangerous operation of a motor vehicle, although his Honour was constrained by the agreement made between the prosecution and the defence as to the critical fact, that is, momentary inattention.
The disqualified driving offences were committed within two months of the disqualification being imposed by Judge Rafter SC. The appellant was on parole, he had a significant and serious criminal and traffic history. He is aged 37 years. He lives with his partner. He has financial responsibility for her and her three children aged between 7 and 12 years, and financial responsibility to his two children aged 9 to 12 years whom he has some formal contact with.
He expressed remorse through his pleas of guilty. After being sentenced, he had lost his job because he had been imprisoned. He's said not to be bankrupt. However, he now works in another job.
I was asked to consider the fact that he has been reporting to the Probation Service since being released on bail as being a relevant factor on the appeal. That, of course, depends upon what I do about the ground of appeal that is relied on. Nevertheless, a report was obtained and I have read it. The report is fairly short and, so far as is relevant, under the heading "Response to Supervision” the following is expressed:
"Mr Freeman made contact with this office upon his release from custody on 23 December 2009 when he advised that he'd been released on bail pending the outcome of an appeal of his sentence and that he had been advised by a solicitor to contact Probation and Parole.
In accordance with section 134 of the Penalties and Sentences Act 1992 Mr Freeman has continued to cooperate with the reporting requirement of the probation order to date, awaiting finalisation of the appeal process.
During the initial assessment process Mental Health issues were identified as a planning need for Mr Freeman in relation to risk of further similar offending. This assessment referred to a psychological report conducted in August 2009 at his solicitor's request and provided by Mr Freeman which recommenced psychotherapy in relation to his offending.
Since commencing his recent episode of supervision Mr Freeman has displayed resistance to requests that he obtain a new medical or psychological assessment claiming that he no longer has symptoms of mental health concern. Mr Freeman reports that he has maintained stable employment and accommodation since released from custody."
In my view, the report does not particularly assist the appellant. In his affidavit filed in the appeal on 25th June 2010 he deposed in paragraph 10 to the following:
"I confirm the facts on which the psychologist's report of Meg Perkins dated 6 August 2009 is based as true and correct. I confirm that I never was aware of the fact that I suffered from post-traumatic stress disorder until the report. I have since attended for treatment at Meg Perkins and for the first time in many years I feel that I'm able to go forward in my life.
Meg Perkins has, in the meantime, ceased to practice and I'm in the process of making arrangements to see her partner, Dr Helmsley who is a psychiatrist and who will continue with my treatment."
I am satisfied that the Magistrate took into account the content of the psychological report by Ms Perkins and did so in mitigation of sentence. That is plainly evident on the record.
I've referred to the post-sentence matters but I do not find them to be relevant in determining the appeal for the reasons that follow. Both counsel referred me to sentences said to have been comparative. I have considered each of those authorities although I do not need to cite them in this judgment.
The significance of the extent of an offender's criminal and traffic history, the need for general deterrence in respect of offences of driving whilst disqualified by Court order, defiance of Court orders, the fact of the offences being committed whilst on parole, the absence of the mitigating factor of youth or naivety and the relevance of personal deterrence are all factors referred to in other sentences and all are relevant factors, I would have thought, in this case.
The principles applicable in appeals against the exercise of discretion are well established. In House -v- The King [1936] 55 CLR 499 at pages 504-505 the High Court wrote:
"The manner in which an appeal against an 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 relevant 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 may not appear how the primary Judge has reached the result embodied in his order but if upon the facts it is unreasonable or plainly unjust the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court at first instance."
Pursuant to section 225 of the Justices Act 1886 on hearing the appeal I may confirm, set aside or vary the appeal order or to make any other order I consider to be just. Unless the sentence is manifestly excessive or there were some circumstances that the Magistrate "acted under a misapprehension of fact or in some wrong principle in awarding sentence" the Appeal Court should not interfere with the exercise of the Magistrate's discretion. See also Hughes -v- Hopwood [1950] QWN 21.
The sentences imposed in this case by the Magistrate were within the applicable range. There was a balancing of the aggravating and mitigating circumstances. There was no factor that would have compelled any Court to not consider sentences involving actual imprisonment. I do not consider that the sentences imposed were manifestly excessive. The appeal should, therefore, be dismissed.
The order of the Court is that the appeal be dismissed. I will discuss with the parties the further orders that should follow.
...
HIS HONOUR: Well, the disposition of the matter will be that I order that a Bench warrant issue for the arrest of the appellant returnable to the District Court at Brisbane to lie in the Registry until 10 a.m. on Friday, 5th November 2010.
I direct that the appellant attend upon the officer-in-charge of the police station at Stafford during the operational hours of that station and surrender himself into custody.
...
HIS HONOUR: I order that the appellant pay the respondent's costs of and incidental to the appeal as agree or as assessed.
‑‑‑‑‑
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DURWARD SC
Appeal No 3638 of 2009
COMMISSIONER OF POLICE |
|
and |
|
STEVEN ALEXANDER FREEMAN | Appellant |
| . |
BRISBANE
DATE 05/11/2010
ORDER
HIS HONOUR: In the matter of Steven Alexander Freeman v the Commissioner of Police, the accused having been granted bail after serving a few days of his sentence of imprisonment imposed in the Magistrates Court, and having had his appeal to this Court determined by the appeal being dismissed, is now required to be returned to the Correctional Centre to serve the balance of the sentence imposed by the Magistrate.
I direct that a warrant for the arrest of the appellant issue in the standard format used in the District Court directing the police to take the appellant into custody and to deliver him to the correctional centre.
I revoke the bail of the appellant pursuant to the order made on the 22nd of December 2009. The bail having been revoked, the warrant for his arrest in the terms that I've described will now issue.
...