Gatti v Pogan[2012] QDC 231

DISTRICT COURT OF QUEENSLAND

HER HONOUR:  This is an appeal against sentence.  On the 20th of March this year, in the Magistrates Court in Toowoomba, the appellant pleaded guilty and - or he pleaded guilty the day before, in fact, on the 19th of March, but on the 20th of March 2012 he was convicted and sentenced in relation to four offences: the first that on the 10th of October 2009 he drove under the influence of liquor with a blood alcohol reading of .173.  For that he was sentenced to nine months' imprisonment.  He was also charged with a related offence of disqualified driving which was committed on the same date, and for that he was sentenced to 18 months' imprisonment.  He was also convicted of failing to appear in Court in accordance with his bail undertaking in Chinchilla on the 31st of March 2010, for which he was sentenced to one month's imprisonment, which, under the Bail Act, must be served cumulatively.  He was also convicted of one charge of contravening a requirement which was committed on the 25th of February 2012, for which he was not further punished.

So the end result was that he was given a sentence of imprisonment of 19 months.  He had, however, been in presentence custody between the 26th of February 2012 and the 20th of March 2012, a total of 24 days, which was declared as imprisonment already served, and parole was set effectively at nine months with a parole release date of the 26th of November 2012.

The facts are as set out in the written submissions made on behalf of the appellant and accepted by the respondent as follows: that at approximately 12.20 a.m., at Miles, on the 10th of October 2009, police noted a vehicle pulled over to the left-hand side of the road.  The appellant was seen to get out of the vehicle and move items on the rear tray of the vehicle.  The police approached the appellant and detected a smell of liquor.  The appellant told police he was securing part of his load.  The appellant was apprehended and, at the police station, told police that he had consumed "three stubbies and a bit".  When questioned further, he told the police that the "bit" was that he had consumed some alcohol just prior to his being intercepted.  He told police that he had a lot of traffic history.  He was issued a notice to appear and later appeared in accordance with that notice and was released on bail to appear on the 31st of March 2010.  He failed to appear and a warrant was issued.

At 11 p.m. on the 25th of February 2012, the appellant was a passenger in a vehicle which was intercepted for a random breath test at Millmerran.  When asked his name and date of birth, he gave a false name and a false date of birth.  Those details did not show on a computer search and he again gave police the false name and date of birth.  The police saw a wallet in the door of the vehicle which the appellant claimed belonged to a friend but finally he admitted to his correct date of birth and name and advised that he'd given the false details because he knew that a warrant had issued for his arrest.

The appellant is 44 years of age.  He has what can only be described as an absolutely shocking traffic history.  Since 1982, he's been convicted some 20 times of disqualified driving.  He has a conviction for dangerous driving causing death or grievous bodily harm.  That was a conviction in 2005 in the Beenleigh District Court, for which he was sentenced to three years' imprisonment.  He has some 10 drink-driving offences and his criminal history includes offences of dishonesty, offences of violence and a number of previous convictions for breaching his bail undertakings.  Obviously both his criminal and traffic histories are highly relevant to sentence.

Very little could be said in mitigation when the appellant came to be sentenced, other than the fact that he'd entered pleas of guilty and that he had no offending, apart from the offences committed on the 10th of October 2009, since April 2010 when he was sentenced to 12 months' imprisonment for disqualified driving.  However, although the sentencing Magistrate referred to "timely pleas of guilty", the respondent concedes that there was an error in the exercise of the Magistrate's discretion because he failed to provide adequate reasons for the basis upon which the sentence imposed had been mitigated to reflect the appellant's pleas of guilty.

Clearly, the prosecution case was a strong one, but nevertheless section 13 of the Penalties and Sentences Act does require his plea of guilty to be taken into account and generally that some leniency in his sentence should have been given to reflect his pleas of guilty, whereas in fact the term of imprisonment imposed for the disqualified driving was in fact the maximum that could be imposed of 18 months.

On the face of it, therefore, no such leniency was shown by the sentencing Magistrate and, contrary to section 13 of the Penalties and Sentences Act, there was a failure here by the sentencing Magistrate to give reasons for not allowing the appellant such leniency.  These principles have been outlined by Courts of Appeal including the High Court in Siganto and The Queen (1998) 194 CLR 656; R v. Byrnes; ex parte A-G (Qld) [2011] QCA 040 and R v. Ungvari [2010] QCA 134.  The principles enunciated in those and other authorities lead to the assumption that generally a defendant is entitled to a reduction in his sentence if he pleads guilty, and where such reduction is not apparent, then the sentencing judicial officer must give an explanation as to why not.

The respondent argues that such leniency should be reflected either in a reduction of the head sentence and a parole release date allowed at half or that the sentence should remain as is, with a parole release date after serving one-third.  The result of that would be that the appellant be sentenced to 19 months, as was done by the sentencing Magistrate, but that he be released on parole after serving a third, which would amount to six months and 10 days, leading to a parole release date of the 5th of September 2012.

On the other hand, the appellant argues that the appropriate head sentence should be one of 15 months' imprisonment rather than the total of 19 months and that parole should be allowed at one-third, being five months and 10 days.  In my view, that is the appropriate order that should be made in the circumstances.  The sentence for the disqualified driving should be one of 15 months' imprisonment which is the maximum of 18 months less three months to reflect the plea of guilty, which would make a head sentence, when the one month for the failing to appear is added, of 16 months' imprisonment.  The appellant should be entitled, therefore, to parole after serving a third of the 16 months, which is five months and 10 days.

I will therefore allow the appeal.  I set aside the order that was made in relation to the disqualified driving conviction on the 20th of March 2012 and order instead that the appellant, with respect to that offence, be sentenced to 15 months' imprisonment and that he should be released after serving five months and 10 days, which on my calculation actually comes to the 5th of August 2012 rather than the 3rd of August 2012 submitted for by the appellant.  So I'll order release on parole on the 5th of August 2012.

Now, Mr Lynch yesterday did ask that costs follow the event.  Do you have anything to say about that, Ms Helsdon?

MS HELSDON:  No, your Honour.  Only that costs should be on the standard basis as per the schedule, which I believe is about $1800.

HER HONOUR:  Eighteen hundred, yes.  That's all you're seeking?

MR BOUCHIER:  Yes.  Perhaps under the scale, there is an item that can be allowed for the further mention today, the first hearing, delivery of the judgment.  I think it's up to 250 under the scale.  It's a matter for your Honour in relation to that.  There were some earlier mentions but I don't think they need to be sought really.

HER HONOUR:  Okay.  Do you have anything to say about that, Ms Helsdon?

MS HELSDON:  It's certainly just a matter for your Honour as to whether you think, in the circumstances, that's just.

HER HONOUR:  Look, I think I'll leave it at the standard of 1800. 

So I'll make an order that the respondent pay the appellant's costs fixed at $1800.

…

MR BOUCHIER:  If I could just go back to that matter of Gatti, your Honour‑‑‑‑‑

HER HONOUR:  Yes.

MR BOUCHIER:  With respect to the order for costs, under the Act, your Honour is required to set a time for the payment of those costs.

HER HONOUR:  Oh, right.  Thirty days?

MR BOUCHIER:  Yes‑‑‑‑‑ 

HER HONOUR:  Yes.

MR BOUCHIER:  ‑‑‑‑‑I understand the Queensland Police Service normally seeks two months, your Honour‑‑‑‑‑

HER HONOUR:  Two months.

MR BOUCHIER:  ‑‑‑‑‑and there's no objection to that.

HER HONOUR:  Okay.  Well I'll make it 60 days then. 

So that amount is to be paid within 60 days.

MR BOUCHIER:  Thank you, your Honour.