DISTRICT COURT OF QUEENSLAND

1. [1]
   On 9 June 2011 the appellant was sentenced in the Magistrates Court at Caloundra to six months’ imprisonment suspended after serving two months for an operational period of two years in respect of two offences to which he had pleaded guilty, being:

1. Driving a motor car on Cottonwood Street at Mudjimba on 12 September 2010 whilst under the influence of liquor and a drug; and

2. Driving a motor car on Cottonwood Street at Mudjimba on 12 September 2010 whilst not being the holder of a driver licence and being disqualified by a Court Order from holding or obtaining a driver licence.

2. [2]
   On each offence an order was made disqualifying the appellant’s driver licence for a period of two years and those orders were made cumulative, so that the total period of disqualification was four years.

3. [3]
   On 14 June 2001 the appellant lodged a Notice of Appeal pursuant to s 222 of the Justices Act 1886 on the ground that the sentence imposed upon him was excessive. He also lodged an application for bail pending the hearing of that appeal.

The circumstances

4. [4]
   The offences occurred at about 10.40 am on 12 September 2010 when the appellant (who was born on 17 October 1971 and is now 39 years old) was driving a black Ford utility, which he had borrowed from a friend, on Cottonwood Street, Mudjimba, when he collided with the rear of a silver Subaru Forester, parked outside the Mudjimba Caravan Park. The appellant contacted triple zero and sought the attendance of emergency services. Fortunately there was no occupant in the silver Subaru Forester and the appellant was not significantly injured.

5. [5]
   Subsequent analysis of the appellant’s blood specimen revealed a blood alcohol content of .179% and also the presence of amphetamine, methylamphetamine and morphine.

6. [6]
   When interviewed on 15 January 2001, after voluntarily attending at the Maroochydore Police Station for this purpose, the appellant admitted his offending. He explained that he had been fishing over the weekend with mates at Mudjimba and consuming alcohol. Then and after returning to a friend’s house for a few hours early on the morning of 12 January 2001, he left in the black Ford to return to his own residence at Mudjimba. He stated that he remembered driving down Cottonwood Street, Mudjimba but that he must have blacked out because the next thing he knew was that he had collided with the parked Subaru. The appellant also told the investigating police that he had not had a driver licence for over three years and had lost it for a drive under the influence of liquor offence about two years before. He refused to answer any questions in relation to the drugs found in his blood specimen.

7. [7]
   Accordingly and in addition to the offence of driving under the influence and the involvement in the collision with the parked car as a consequence of that, there was also the serious aspect of disqualified driving. That feature was present as a consequence of a long and concerning history of driving offences on the part of the appellant.

8. [8]
   In summary that history demonstrated that in a period between 12 June 1991 and 18 February 2010 the appellant had committed:

1. (a)
   Three offences of driving under the influence of liquor (with readings between .158 and .205);

2. (b)
   Five offences of driving with a prescribed blood alcohol content (with readings ranging from .077 to .148);

3. (c)
   Three offences of disqualified driving;

4. (d)
   Five offences of using an unregistered vehicle;

5. (e)
   Two offences of being an unlicensed driver;

6. (f)
   Two offences of failing to wear a seatbelt; and

7. (g)
   Two offences of speeding.

9. [9]
   For this offending the appellant had been:

1. (a)
   Fined sums between $240 and $2,500;

2. (b)
   Disqualified from holding or obtaining a driver’s licence 12 times; and

3. (c)
   Placed on probation once.

10. [10]
    Although the material before this Court indicated that the appellant had a single old entry on his criminal history, it is a matter which is conceded by the respondent to be of minimal, if any, relevance to this matter.

11. [11]
    However and as is apparent from what has been set out so far, the particularly concerning aspect of this serious combination of offending circumstances is that it not only occurred in the context of that history of driving offences but also less than seven months after the most recent entry resulting in the disqualification of the appellant’s driver licence, by court order.

12. [12]
    On 18 February 2010 the appellant was sentenced in the Magistrates Court at Caloundra to fines totalling $2,000 and had his licence disqualified for a period of two years for offences of driving under the influence (BAC: 0.156%) and disqualified driving. Those offences had occurred on 20 and 22 August 2009, respectively. Prior to that and on 14 January 2009, the appellant had been fined $1,000 and had his drivers licence disqualified for eight months, when he appeared in the Maroochydore Magistrates Court in respect of offences of driving with a blood alcohol concentration of 0.77% and driving an unregistered vehicle.

13. [13]
    As a result of those particular previous convictions and pursuant to s 79(1A) of the Transport Operations (Road Use Management) Act 1995 (“TORUM Act”) the maximum penalty applicable to the appellant’s offence of driving under the influence on this occasion, was 60 penalty units or 18 months imprisonment. The same maximum penalty applied to the offence of disqualified driving, pursuant to s 78(1)(a) of the TORUM Act.

14. [14]
    Also and because the appellant’s offence of disqualified driving was against s 78(1)(a), s 78(2) applied and that relevantly required that:

“… the Court, in deciding what penalty to impose on the person, must consider -

1. (a)
   all the circumstances of the case, including circumstances of aggravation or mitigation; and

2. (b)
   the public interest; and

3. (c)
   the person’s criminal history and traffic history; and

4. (d)
   any information before it relating to the person’s medical history, or the person’s mental or physical capacity, that the Court considers relevant; and

5. (e)
   whether the offence was committed in association with the commission or attempted commission of another offence and, if so, the nature of the other offence; and

6. (f)
   any other matters that the Court considers relevant.”

Further and pursuant to s 78(3)(a), the sentencing Magistrate was obliged to disqualify the appellant from holding or obtaining a drivers licence for a period of at least two but not more than, five years.

15. [15]
    Before the sentencing Magistrate and in this Court, the appellant has particularly pointed to the following matters:

1. (a)
   The principles embodied in s 9(2)(a) of the Penalties and Sentences Act 1992 (“PSA”) that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows an offender to stay in the community is preferable. Although and in circumstances which I will outline further below, it has to be noted that the emphasis before the sentencing Magistrate was upon the first aspect of this principle being that a sentence of imprisonment is a last resort;

2. (b)
   That notwithstanding the bad history of the appellant for similar offending, he was not within the purview of s 79(1C) of TORUM Act, whereby Parliament have mandated a sentence of imprisonment;

3. (c)
   The absence of any relevant criminal history;

4. (d)
   The submissions of the prosecutor at sentence which suggested sentencing options of probation or imprisonment with an immediate parole release date;

5. (e)
   There was a favourable pre-sentence report as to the suitability of the appellant for an intensive correction order (“ICO”);

6. (f)
   That during the adjournment of his sentencing proceedings the appellant had successfully completed an Alcohol Court Diversion Program, with the progress report from that program indicating that he had complied with all of the goals which had been formulated and that he had also sought the assistance of a program with DRUG-ARM for the purpose of addressing issues relating to his alcohol use and there was a report indicating that he had engaged well with that program;

7. (g)
   That there were some six favourable references attesting to the underlying worth and good character of the appellant; and

8. (h)
   That the appellant who had held a building services authority licence as a carpenter for some eight years had a provisional offer of an opportunity to work for a contractor providing buildings for mining companies in Exmouth in Western Australia, on a “fly-in, fly-out” basis, which was a proposal he wished to pursue in light of the patchy nature of building work available to him in the Sunshine Coast area. Otherwise the personal circumstances of the appellant were explained in terms that he was a single man but the father of a son out of a relationship which had ended some five years previously after continuing for a 10 year period. He had no access arrangements in relation to his son because that was not agreed to by his ex-partner.

16. [16]
    On 16 June 2011 the matter of the appellant’s application for bail came before me. In the course of hearing that application and because of the nature of the sentence imposed upon the appellant and the obvious prospect that he would serve at least a substantial part of it before an appeal would be heard in the ordinary course of events, it became clear that the key consideration in the application for bail was an assessment of the prospects of the appellant successfully appealing against his sentence.^[1]

17. [17]
    For this reason and because it also became clear that in order to assess those prospects the parties had to effectively make submissions as if it were an appeal, it was the parties desire that, if possible, the matter be heard as the appeal. Further and although no transcript of the proceedings before the sentencing Magistrate had been prepared, a copy of the recording of those proceedings had been obtained and the CD containing that recording was marked as Exhibit 1 in the proceedings before me. Accordingly and in these circumstances the hearing of the matter was adjourned to 20 June 2011 to enable the respondent in particular to provide further materials for the purpose of hearing the appeal and on that date, I directed that compliance with the requirements of the practice direction relating to the hearing of s 222 appeals be waived and accordingly will proceed to decide this matter as an appeal.

Establishing Error

18. [18]
    The appellant correctly accepts that it is necessary for him to satisfy this Court of error on the part of the sentencing Magistrate^[2]and as I have noted above, the Notice of Appeal asserts the single error in the nature of excessiveness of sentence. Although the appellant did not abandon that general assertion, his contentions in this court also focussed upon the suggestion of two specific errors on the part of the sentencing Magistrate. First it was contended that Her Honour had failed to give any or any appropriate weight to the considerations in s 9(2) of the PSA and secondly it was contended that there had been a failure to afford procedural fairness, in that the sentencing Magistrate had not indicated that she was contemplating a sentence involving an actual term of imprisonment.

19. [19]
    It is important to understand that the second of these contentions is made in the context that:

1. (a)
   The submission of the Crown Prosecutor at sentence had been for a penalty that might extend only as far as a period of imprisonment with an immediate parole release date or a wholly suspended sentence;

2. (b)
   The proceedings in the Magistrates Court had been adjourned not only to allow the appellant to satisfactorily complete an Alcohol Court Diversion Program but also to allow for the assessment of his suitability for a community based order in the nature of an ICO; and

3. (c)
   The record does not include any express indication by the sentencing Magistrate that she was contemplating imposing a period of actual imprisonment.

20. [20]
    The difficulty confronting the appellant as to establishing error in the nature of excessiveness of sentence, is that such an error must be demonstrated to be manifest. It is not sufficient that a sentence only be demonstrated to be a severe one, as the sentence imposed here obviously is, or even unusual as a response to the general type of offending involved. The relevant principle is explained in Wong v R^[3], as follows:

“If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King and the discussion of when an Appellate Court may conclude that a trial judge’s exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have imposed in other cases. Intervention is warranted only where the difference is such that, in all circumstances, the Appellate Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

21. [21]
    The seriousness of the appellant’s offending is self evident. It extends beyond the manifestation of an underlying drug and alcohol addiction, by repeated offences of driving whilst affected by such substances and includes the manifestation through the collision which occurred, of the high level of danger to the community which was inherent in his conduct. It also includes his flagrant disregard of the authority of the court order in respect of his disqualification.

22. [22]
    Confronted with the difficulty, in these circumstances, of demonstrating manifest excessiveness of the sentence imposed, the appellant pressed the specific errors of principle which have been set out above.

23. [23]
    To an extent, the contention that the sentencing Magistrate failed to give appropriate weight to the provisions of s 9(2)(a) of the PSA echoes the submission as to excessiveness of sentence. This is because and apart from pointing to the absence of any expressed reference to these principles in the sentencing Magistrate’s sentencing remarks or reasons, the appellant contends that this error is to be discerned from the imposition of a period of actual imprisonment in circumstances where there had been no previous instances of any sentence of imprisonment, without a requirement of actual custody in the appellant’s history.

24. [24]
    The appellant, correctly, does not go as far as to contend that, as a matter of principle, the available sentencing options must be gone through, in ascending order of severity, before a sentence of actual imprisonment may be imposed. The appellant concedes that the level of seriousness of offending will be a matter that necessarily influences sentencing options and sought to exemplify the point by suggesting that the sentence imposed might have been justified had there been another person injured in the collision that occurred. However and apart from observing that had that been a particular circumstance, then a different charge may have resulted, this contention also fails to adequately grasp the inherent danger in the appellant’s conduct, as charged and the fortuity that the postulated outcome was not a result of that conduct.

25. [25]
    It needs to be borne in mind that the principles in s 9(2)(a) of the PSA are to be viewed and applied in the context of and as part of the overall statement of sentencing principles set out in s 9 of the PSA and also, in respect of the appellant’s offence of disqualified driving, in the further context of the legislative statement of principle as set out in s 78(3) of the TORUM Act.

26. [26]
    Further, it is apparent from the recording of the proceedings below (Exhibit 1) that the appellant’s counsel expressly pressed the sentencing Magistrate as to the principle that imprisonment is a sentence of last resort and it can be observed that this consideration could hardly have escaped Her Honour. That submission was, however, made in the context that once the sentencing Magistrate expressly ruled out the prosecutor’s suggestion of a probation order, as an inadequate response to the level of seriousness of the appellant’s offending, the appellant through his counsel pressed for the sentencing options of an ICO or a wholly suspended term of imprisonment.

27. [27]
    Ultimately and after seeking and obtaining the sentencing Magistrate’s direction that a pre-sentence report be obtained as to the appellant’s suitability for an ICO and it became apparent that this option would present a considerable obstacle to the appellant’s objective of pursuing the Western Australian employment opportunity, the appellant pressed for the option of a wholly suspended sentence.

28. [28]
    What was not the subject of any express reference below but perhaps assumed greater prominence in the submissions made in this Court, was the principle in section 9(2)(a)(ii) of the PSA, that a sentence which allows an offender to stay in the community is preferable. Perhaps in the context of how matters developed below, that is what was contemplated by the appellant’s reference to imprisonment being a last resort, as it must be acknowledged that the options of an ICO and a wholly suspended term of imprisonment involve sentences of imprisonment^[4], but this was not made clear.

29. [29]
    However, it should also be noted that the appellant’s history does disclose that the only sentencing option other than fining him and ordering disqualification of his driver licence, which had previously been adopted, was an order for a period of two years probation made on 4 October 2004 in conjunction with a driver licence disqualification period of 30 months. This was also for offences of driving under the influence (BAC 0.205%) and disqualified driving. It is noteworthy that the next offence in the history and which related to the use of an unregistered motor vehicle, did not occur until 5 October 2007 and therefore outside the period covered by those orders.

30. [30]
    In this context, there is some more substance to the appellant’s contention on the procedural fairness point. Whilst it must have been clear, in a broad sense, that a sentence involving actual custody was potentially open, in the circumstances of this case, it was never made expressly clear to the appellant that he had to deal with this as an option under contemplation.

31. [31]
    As I have already noted, the prosecutor did not submit for such an outcome, the appellant’s submissions were directed at the options of an ICO and ultimately a wholly suspended sentence and the appellant was not expressly put on notice that the sentencing Magistrate was contemplating a period of actual custody. On a review of the recording of the sentencing proceedings, the nearest the sentencing Magistrate came to disclosing what she was contemplating was her response to the appellants counsel, when he requested the direction for the assessment as to the suitability for an ICO. When he entreated Her Honour as to whether she was “with him” in respect of that type of order, the sentencing Magistrate responded, in the less that encouraging terms: “that is an approach” and contextually coupled that with an observation that she would allow the assessment being sought but also took the opportunity to point out the restriction that such an option would present to the prospect of pursuing the Western Australian employment.

32. [32]
    The principle of procedural fairness that applies in this context is encapsulated in the following statement taken from the judgment of Fraser JA in R v Kitson [2008] QCA 86:

“[20] Secondly, the applicant also contends for error in that the possibility of postponement of the parole release date beyond the mid-point of the sentence was not mentioned in submissions or by the learned sentencing judge at the sentence hearing.

[21]  In my opinion, that contention must be accepted. Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.

[22]  In re Hamilton; In re Forrest [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.’

[23]  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].

[24]  For these reasons, my view is that the sentence imposed by the learned sentencing judge must be set aside and this Court is obliged to exercise the sentencing discretion afresh.”

33. [33]
    Whilst there is some weight in the respondent’s submission that the prospect of an actual custodial sentence might not be regarded as an unusual outcome in the circumstances of this case and the omission contended for here is not arguably as palpable as:

1. (a)
   The omission to take any submissions as to the issue of driver licence disqualification at all, as in Cunningham;

2. (b)
   An omission to provide an opportunity to be heard as to the making of a serious violent offence declaration would be, as discussed in McDougall and Collas; and

3. (c)
   The omission to notify an intention to postpone a parole release date beyond the mid-point of an imposed term of imprisonment, as in Kitson;

I am nevertheless satisfied that error in the sentencing process has been established in this case.

34. [34]
    Had the contemplation of an actual custodial sentence been expressly averted to, this would have provided the appellant with the opportunity to more particularly address the principle that a preferable sentence is one which allows an offender to remain in the community^[5]and to specifically address the issue as to what proportion of the imposed term should actually served in custody.

Re-sentencing

35. [35]
    Accordingly, the appellant must be re-sentenced.

36. [36]
    In recognition of this possibility, the respondent has provided two decisions in respect of appeals decided in this Court, being Hartwig v Cameron [2010] QDC 28 and Queensland Police Service v Gregory [2010] QDC 388 and maintains the submission that the sentence imposed below was appropriate and should be reimposed.

37. [37]
    Neither of these authorities were pressed as being directly comparable, because of distinguishing circumstances but were rather relied upon to provide general guidance and in that way to support the contention that a sentence with an actual custodial component of that magnitude was appropriate.

38. [38]
    For instance, in Hartwig the offending occurred during the operational period of a suspended sentence imposed for similar offending and this term was wholly activated as part of the period of imprisonment imposed. In Gregory, Irwin DCJ was concerned only with disqualified driving, as the relevant offending, but in respect of an offender who had been previously imprisoned for similar offending to that involved in the present matter. His Honour expressly examined the principles relating to the increased gravity of repetitive offending, such as might warrant an approach of increasing severity of penalty. However and as pointed out by the respondent, reference to that offender’s history was supportive of the contention that actual imprisonment was an appropriate response to the appellant’s offending.

39. [39]
    In my view and having regard to the seriousness of the appellant’s offending and the recalcitrant nature of it, a sentence of imprisonment was and is warranted and six months is an appropriate term.

40. [40]
    In the circumstances, the only question is as to when that term should be suspended. Whatever view may have been formed without the complication of the events that have transpired and as to whether any actual custody should be imposed, the view was and is, at least, open that some actual custody is warranted. It was obviously and correctly recognised by the sentencing Magistrate that a sentence reflecting aspects of both general and personal deterrence was called for.

41. [41]
    It is to be expected that the appellant’s experience over the last two weeks has already served to provide that example. Otherwise I am incline to the view that a requirement of serving as much as two months of that sentence does not adequately reflect the factors in the appellant’s favour, particularly and in addition to his guilty plea and co-operation in the investigation of this matter, his attempts at commencement of rehabilitation through his pursuit of the Alcohol Court Diversion Program and the program facilitated by DRUG-ARM.

42. [42]
    Accordingly, the most appropriate outcome, now, is for the sentence to be suspended with immediate effect. The disqualification period imposed by the Sentencing Magistrate does not require any alteration.

Orders

1. The application for bail pending appeal is dismissed.

2. The appeal is allowed.

3. The sentences imposed in the Magistrates Court at Caloundra on 9 June 2011 are varied as follows:

1. (a)
   In respect of the offence of driving under the influence, the appellant is sentenced to six months imprisonment. That term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

2. (b)
   In respect of the offence of disqualified driving, the appellant is sentenced to six months imprisonment and that term of imprisonment is suspended after the appellant has served 14 days for an operational period of two years.

3. (c)
   A declaration is made that the period of 14 days, from 9 June 2011 to 22 June 2011 is imprisonment already served in respect of these sentences.