Prew v Commissioner of Police
[2012] QDC 178
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- Prew v Commissioner of Police[2012] QDC 178
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Prew v Commissioner of Police[2012] QDC 178
Prew v Commissioner of Police[2012] QDC 178
QDC [2012] 178
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RICHARDS
No 96 of 2011
KAILA JO-ANNE PREW | Applicant |
and |
|
COMMISSIONER OF POLICE | Respondent |
TOOWOOMBA
DATE 09/03/2012
JUDGMENT
HER HONOUR: This is an appeal by Kaila Prew who pleaded guilty on the 30th of November 2011 to one charge of driving a motor vehicle whilst disqualified on the 10th of September 2011. At that time she was also dealt with for a breach of community service order for a similar offence of driving whilst disqualified on the 18th of March 2011.
Her performance on community service was particularly bad, completing only 13 hours of the 70-hour order and failing to report on 14 separate occasions. The Magistrate sentenced her to one months' imprisonment in relation to that breach and three months' imprisonment in relation to the disqualified driving. The sentences were cumulative so that there was a total of four months' imprisonment and a parole release date was fixed after serving two months of that term. In addition, she was disqualified from holding or obtaining a drivers licence for two years from the date of sentence.
The sentence is appealed on the basis that it was manifestly excessive and that the Magistrate erred in law in relation to the totality principle.
The applicant has a very bad traffic history for one so young. The history is effectively three pages long and includes one charge of unlicensed driving. This is her third charge of disqualified driving, and she also has a conviction for drink driving. One would have thought that she would have learnt to refrain from driving after the second disqualified driving, but within only six months she was back disqualified driving again. At the time of sentence, she was 23 years of age. She is in employment, and she comes from a good background. She says that at the time of the offending she was living away from home, and that she was easily influenced by peer pressure, and I understand she's now living back at home. The Crown submits that the Magistrate took into account all the relevant matters, and that the sentence is within the sentencing range.
Mr Davies, on behalf of Ms Prew, submitted that the sentence was manifestly excessive, having regard to other sentences for similar offending, and that the sentence of four months - sorry, I'll start that again. The sentence of one month cumulative on the three months sentence did not take into account the totality principle, and as such it was a crushing sentence.
There's nothing to indicate that the Magistrate didn't take into account the fact that the total sentence was four months, rather than three months. And it seems to me it's difficult to say that a sentence of four months is crushing when a sentence of three months is not.
However, it does seem to me that the Magistrate didn't take into account the early plea of guilty in relation to this offence. A parole date was set at halfway through the sentence which is the normal time when parole would be expected. It was an early plea of guilty, and there should have been some recognition given by way of early parole, it seems to me, given her young age and the fact that she was working, and more importantly, the fact that it was an early plea of guilty.
It also seems to me that the Magistrate didn't take into account sufficiently the provisions of section 9 of the Penalties & Sentences Act when dealing with the young offender, and the fact that prison is to be regarded as a sentence of last resort. In this case, whilst certainly the Magistrate could have placed her in custody for a short period of time, in my view the sentencing discretion miscarried by not taking into account the plea of guilty.
The Crown was asked in what way it was demonstrated that a plea of guilty was taken into account, and Mr Leon could only say that the Magistrate mentioned it in his sentencing remarks and therefore must have taken it into account.
In my view, it's not self-evident that that was the case. So in my view, it falls for Ms Prew to be sentenced afresh, and given that she's spent seven days in custody now, seems to me that that is sufficient time in custody for this offence, given her age, and her work history and her background and her plea of guilty.
So the sentence is set aside, and in its stead, Ms Prew is sentenced as follows. a conviction is recorded. In relation to the disqualified driving, Ms Prew is sentenced to four months' imprisonment. In relation to the breach of community service, one months' imprisonment. Those sentences to be served concurrently. And I order that that period of imprisonment be suspended after serving seven days imprisonment. Pursuant to section 159A of the Penalties & Sentences Act it's declared that seven days spent in pre-sentence custody, from the 30th of November to the 7th of December 2011 be deemed time already served under the sentence.
You must not commit another offence punishable by imprisonment within the next two years if she is to avoid being dealt with for that suspended term of imprisonment. Ms Prew, you're up the back of the Court there, aren't you. If you drive in the next two years, because you're disqualified for the next two years, and you go before a Magistrate, they'll give you that four months, all right, and you probably won't get early parole. So you are now the master of your own destiny, okay.
Under no circumstances should you drive, because you will go to gaol next time you drive without a licence. Do you understand that?
APPLICANT: Yes.
HER HONOUR. Okay. A suspended sentence means that if you commit any other offence punishable by imprisonment you can also be dealt with for that suspended sentence, and you may go to gaol as well for that. But your history doesn't suggest that you do anything other than drive unlicensed. But as I say, another disqualified driving, you're probably looking at six or nine months in gaol. Okay?