Oyat v Queensland Police Service
[2012] QDC 26
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- Oyat v Queensland Police Service[2012] QDC 26
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Oyat v Queensland Police Service[2012] QDC 26
Oyat v Queensland Police Service[2012] QDC 26
[2012] QDC 26
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DORNEY QC
No 84 of 2011
AMOS OCHAN OYAT | Appellant | |
and | ||
QUEENSLAND POLICE SERVICE | Respondent |
TOOWOOMBA
DATE 06/02/2012
JUDGMENT
HIS HONOUR: This proceeding involves an appeal to the District Court from a decision in the Magistrates Court held at Toowoomba. The notice of appeal was filed 4 November 2011. The appeal is against a sentence on the 7th of October 2011, following a conviction on the same day.
The offences in question are driving under the influence of liquor, driving a motor vehicle without a driver's licence disqualified by a Court order, assaulting or obstructing police, and wilful damage.
The sentences that were imposed were with respect to: each of driving under the influence and driving a motor vehicle without a driver's licence disqualified by a Court order, a sentence of 12 months and a disqualification of driving or obtaining a driver's licence for a period of 16 months and three years, respectively; and with respect to the obstructing police and wilful damage, a sentence of three months' imprisonment. A presentence custody declaration of 21 days was made and declared as time already served; and importantly for present purposes, a parole release date was fixed at 16 March 2012.
As has been pointed out in the written outline of submissions of the appellant, that parole release date was effectively six months of the 12 months' imprisonment that was imposed.
The major arguments presented on behalf of the appellant are: first, that the learned sentencing Magistrate erred in not referring at all to the requirements which are mandatory under section 13(3) of the Penalties and Sentences Act 1992 and that that led to an error in the exercise of the sentencing discretion; and, secondly, associated with that, or independently of that, looking at the totality of the reasons which were given by the Magistrate in question under the principles of House v The King, the sentencing exercise miscarried because it was an excessive imposition of a parole release date period in this particular case. It's obvious from the recent Court of Appeal decision of The Queen v Jones [2011] QCA 147 that the appellate Courts are particularly likely to be critical when a sentencing Court does not refer expressly to section 13(3). Its terms state that when imposing a sentence the Court must state in open Court that it took account of a guilty plea in determining the sentence imposed.
The reasons that it is important are set out in Jones in paragraph [13] in the following terms: the sentencing Judge is not bound to mitigate the sentence because of the plea of guilty; but if the Judge determines not to mitigate the sentence, then he or she is required to state that and give their reasons. Clearly enough, the starting point under section 13 is that a plea of guilty will attract favourable consideration by the Judge in the sentencing process and if there is to be a departure from that then the Judge needs to give an explanation. In paragraph [14], in the decision which in fact was spoken by Justice Daubney, but with whom Justices of Appeal Muir and White agreed, it was stated that "the failure to comply with that obligation will cause the Court of Appeal” - and necessarily this Court – “to examine the sentence more closely since it would not clearly appear that the sentencing Judge has in fact taken the plea into account”: in this case the sentencing Magistrate. It should be noted from paragraph [14] that several aspects are common between the case of Jones and the present case, although it should be mentioned, for what it is worth, that in Jones the Judge didn't even refer to the fact that the applicant had pleaded guilty.
Two other decisions to which I've been referred are therefore really of more general assistance because the principles I think are outlined sufficiently in Jones. In Dempsey v Queensland Police Service [2009] QDC 218 Judge Everson, at page 5, referred to a previous decision of The Queen v Woods [2004] QCA 204, noting that it observed the necessity to take a guilty plea into account, state that it has been done, and how it has been done, because they are essential parts of the transparency of the sentencing process. And, finally, I've been referred to the decision of Dynevor v Commissioner of Police [2009] QDC 192, a decision of Judge Robin QC of this Court, in particular to his reference at page 8 that in similar circumstances to this, even though reference had been made generally to the issues in question, the appellate Judge was unable to understand from the sentencing remarks exactly what way the guilty plea was taken into account, and therefore that it appeared to him that the discretion was somehow miscarried.
Now, the respondent has submitted orally to this Court that an opportunity was given to the legal representative of the present appellant to respond to the intimation that the learned Magistrate was not "with" (to use his word) the submission with respect to a parole release date of one-third. His Honour's reply was generally to the effect, "I'm not with you; more like a half." It would not appear that expressly that in fact was taken any further. But what I have to deal with at the end is the reasoning which was used by the learned Magistrate in the sentencing remarks that in fact he did use.
The outline by the respondent does also refer to an aspect of the sentencing remarks appearing at page 3 of that particular decision which were couched in the following terms: "After careful consideration of the sentencing guidelines and sentencing options that are open and available to me, I'm satisfied the sentence I'm about to impose is appropriate in all the circumstances and not more severe than necessary to achieve the purpose for which a sentence is imposed. I am mindful that imprisonment is a sentence of last resort. Taking all matters into consideration, I'm satisfied a custodial sentence is the only real option and must be imposed." Unfortunately, I don't think that addresses in any really substantive way the issue in question here.
The conclusion I reach, in line with the principles enunciated in Jones, is that the sentence which has been imposed does not reflect a proper consideration by the sentencing Court of the plea of guilty. I acknowledge particularly as set out in the outline of submissions on behalf of the respondent the circumstances of what occurred here, which are set out in section 2 of the outline of submissions, and the nature of the offences in question. I also take into account that the appellate was a young adult at the time and therefore obviously be seen to be somewhat perhaps more aggressive and stronger than a much older appellant might've been. Nevertheless, there has been a plea of guilty. I don't see that the issue which is mandated by subsection 3 of section 13 has been effectively addressed. Despite the matters which might go to justifying the sentence in question, I think that the relevant background in mitigation, particularly those issues set out in paragraph 15 of the appellant's outline of submissions, shows that, if properly taken into account, a parole release date should've been fixed in the order of one-third of the time of the head sentence.
Submissions have been made by both the appellant and the respondent as to the order that I would make if in fact I'm of this inclination. Since I am inclined that it is appropriate in the circumstances for the appeal to be allowed on the grounds that I have canvassed, I make the following orders: the appeal is allowed but with respect only to that part of the sentence that fixed the parole release date; all other aspects of the sentence are to remain in force. That includes, of course, the presentence custody declaration. Therefore, the only additional order I feel it is appropriate to make is that I fix the parole release date as at today, that is the 6th day of February 2012.
Are there any further orders that might need to be made,
Mr Needham?
MR NEEDHAM: No, your Honour. The remainder of the orders of the learned Magistrate stand, as stated, yes.
HIS HONOUR: Yes. Are there any further orders, Mr Davies?
MR DAVIES: No, thank you, your Honour, no.
HIS HONOUR: Okay. Thank you both very much.
MR NEEDHAM: Thank you, your Honour.