DISTRICT COURT OF QUEENSLAND

1. [1]
   On 2 May 2013, the respondent was convicted, in the Magistrates Court at Maroochydore, on his guilty plea to the following offences, each committed on 2 February 2013:

• Driving a motor vehicle whilst under the influence of liquor (contrary to s79(1) of the Transport Operations (Road Use Management) Act– “TORUM Act”; and

• Driving a motor vehicle whilst disqualified by court order (contrary to s78(1) and (3) of the TORUM Act.

2. [2]
   He was sentenced respectively to:

• Six months’ imprisonment with an immediate parole release; and

• Six months’ imprisonment, wholly suspended for an operational period of three years.

In addition there was a period of two years’ license disqualification ordered for each offence, ordered to operate cumulatively, so as to make a total period of four years license disqualification. However that order simply reflected the statutory effect of s 90C(3) of the TORUM Act. Although, it can also be noted that such periods, which were the minimum periods of disqualification allowed in each instance (pursuant to s 86(1B) and s 78(3)(a), respectively), would also, pursuant to s 90C(5), operate cumulatively on the total period of disqualification of 4 years effected by earlier orders made on 16 October 2012.

3. [3]
   Because these offences were committed in breach of a suspended sentence of six months imprisonment, imposed on 16 October 2012, as part of an overall sentence for similar offending conduct which had occurred on 20 July 2012, an order was also made that the respondent serve all of the suspended imprisonment, concurrently with the other terms imposed, again with an immediate parole release. That was achieved by the fixing of 2 May 2013 as the respondent’s parole release date for the total period of six months’ imprisonment which was imposed, leaving aside the wholly suspended term of imprisonment.

4. [4]
   As the sentence imposed on the respondent on 16 October 2012 tends to indicate, the respondent had a significant prior history of similar offending, summarised as follows:

5. [5]
   In addition, it may be noted that each of the probation orders made for the respondent, had also been the subject of breach proceedings for which the respondent had been fined and there was also an older offence of failing to supply a breath specimen, in May 1987.

6. [6]
   On 21 May 2013 a notice of appeal was lodged by the complainant in the Magistrates Court proceedings, appealing, pursuant to s222 of the Justices Act 1886, against the sentence imposed on the respondent, on the ground of manifest inadequacy.

7. [7]
   Pursuant to s223 of the Justices Act 1886, such an appeal is by way of rehearing on the evidence that was before the sentencing Magistrate, in the absence of leave being granted to adduce new evidence.

8. [8]
   In respect of such an appeal and notwithstanding an obligation to conduct a review of the conduct of the proceedings below, the purpose of such an appeal remains for the identification and correction of error in such proceedings, whether legal, factual or discretionary.^[1]Such an approach may be of particular importance in recognising that the appeal here is brought in respect of an exercise of sentencing discretion and appears to be expressly reflected in s 222(2)(c) of the Justices Act 1886. As discussed in Lacey v Attorney-General (Qld)^[2], demonstration of manifest inadequacy or manifest excessiveness of sentence involves a conclusion or inference of error or misapplication of principle, in the absence of ability to discern any particular or specific error.

9. [9]
   Accordingly and in written submissions, the appellant contended for findings of both specifically identified errors in the Magistrate’s dealing with the facts of the matter and also the more general or unspecified conclusion of error, on the basis of manifest inadequacy of the sentence.

10. [10]
    It is unnecessary to dwell on those contentions as to specific error, because on the hearing of the appeal, it was accepted that there had been legal error in the sentence imposed, in that it was not open to the Magistrate to fix a parole release date for the respondent. This was because the effect of the respondent’s reoffending in breach of the immediate parole release, granted on 16 October 2012, was not apparently appreciated below.

11. [11]
    Once the respondent was convicted of an offence committed whilst on parole and sentenced, for any such offence, to a term of imprisonment of any kind not referred to in s209(3) of the Corrective Services Act 2006, s209(1) operated to effect an automatic cancellation of his parole, with a consequence, pursuant to ss 210 and 211, of liability to actually serve the unexpired portion of that term of imprisonment. Here that was a period of 2 months and 13 days.

12. [12]
    Moreover and pursuant to s160B of the Penalties and Sentences Act 1992, the Magistrate was then precluded from fixing a parole release date and was required to fix a parole eligibility date. This was because that cancellation of parole must necessarily have occurred during the period of imprisonment to which the fixing of any such date must necessarily relate and which is specifically defined in s160, to be that period which includes the terms of imprisonment then imposed by the Magistrate.

13. [13]
    That conclusion means that it is unnecessary to consider and deal with the appellant’s arguments as to other specific error on the part of the sentencing magistrate. However, I should record my conclusion that quite apart from the need to intervene in this matter, because of the identified legal error, it would have otherwise been necessary to do so, at least on the basis of the manifest inadequacy of the sentence imposed.

14. [14]
    The circumstances as to which the respondent was sentenced were that at about 4:00 pm on Saturday 2 February 2013 and whilst under the influence of liquor and disqualified from driving, the respondent drove his Ford Econovan from his residence at a unit block, to a local alcohol bottle shop and back again. Consequently to information being received from the public regarding the respondent’s driving, police attended at his residence and found him in possession of the keys to that vehicle. After initially denying driving and blaming a male friend for driving, the respondent admitted he had driven the vehicle. The certificate of analysis of a breath test subsequently taken disclosed a breath alcohol concentration reading of 0.23.^[3]

15. [15]
    For the respondent, material was placed before the sentencing magistrate to the effect that :

1. (a)
   His offending was a manifestation of his struggle with alcoholism and, on this occasion, occurred in reaction to aggressive and threatening behaviour by a recently released prisoner (who had been sentenced in respect of violent offending) and who had been taken in and supported by the respondent, as a flat mate;

2. (b)
   Despite his difficulties with alcoholism, the respondent had been actively involved in various community programs and was very well regarded by many referees, for that involvement and his other positive contributions in his local community. This had included his making the vehicle which he drove in committing the subject offences, available to community organisations and that, as a consequence of these offences, that vehicle had gone from the control of the respondent to a community organisation, where it was able to be used; and

3. (c)
   At the time of sentence he was the sole parent of a 17 year old son and he had some part-time employment.

16. [16]
    Notwithstanding that s 9(2) of the Penalties and Sentences Act 1992 applied, the respondents position was also caught by s 79(1C) of the TORUM Act in that his previous convictions^[4]operated not only to increase the maximum penalty for his offence under s 79(1) from nine to 18 months imprisonment, but also to require imprisonment as a whole or part of the punishment for that offence.

17. [17]
    Although that consideration did not itself require any actual custodial component to the respondent’s sentence, the offending here stands apart from any of the other cases relied upon for the respondent^[5]in additionally involving offending in breach of both the suspended sentence imposed and parole order made, on 16 October 2012.

18. [18]
    The mitigating circumstances of the respondent’s personal circumstances were not such as to materially detract from the need to recognise the extent to which the respondents offending had to be regarded seriously and was deserving of a response which reflected the needs of personal and general deterrence. This was particularly because of the recidivism involved and the element of disregard, if not contempt for, court orders. Neither do the suggested extenuating circumstances detract in any material way from these considerations. Against the background of his history and when he was severely constrained by court orders, the respondent elected to drive his motor vehicle in order to obtain more alcohol for himself and his flat mate. That may have occurred under some pressure from that flatmate but it is clear that there must have been other alternatives to that being the critical issue, not the least of which was reflected in the materials provided by the respondent and which indicated that police had, earlier on the same day, attended upon a complaint by others, as to the behaviour of that person.

19. [19]
    The manifest inadequacy of the sentence imposed, in these circumstances is starkly disclosed in understanding that for the like repeated offending about three and a half months after terms of imprisonment were imposed but which were respectively wholly suspended and made subject to an immediate parole release order and notwithstanding the respondent also being dealt with for the breach of the suspended sentence, on the basis that it was not unjust to require that the whole of the six month suspended imprisonment be served and leaving aside the statutory effect of the lengthening of the licence disqualification period not withstanding the imposition of the minimum applicable orders of further disqualification, the result was the reimposition of the same effective sentence, except that the operational period of the suspended sentence was increased from two to three years.

20. [20]
    When this matter initially came on for hearing, on 11 October 2013 and upon the error as to the setting of a parole eligibility date being identified in the course of oral submissions, a decision in this matter was reserved with leave being granted to the parties for further written submissions as to the appropriate orders, upon clarification of the basis of what had been indicated to the court as to the respondent then being incarcerated.

21. [21]
    At that point, it can be noted that the appellant had abandoned some earlier written submissions^[6]and pressed only that the court consider the replacement of the parole release date fixed by the sentencing Magistrate with a parole eligibility date, fixed in accordance with the submission made by the police prosecutor below. That is, after the serving of a period of two months of the six months imprisonment imposed in the Magistrates Court for the offence of driving whilst under the influence of liquor and the breach of suspended sentence.^[7]However, the need to understand the respondent’s current position in terms of fixing a parole eligibility date, was also identified as justification for the additional information.

22. [22]
    Subsequently and at the request of the parties and in the light of the following further information, which was then received, without objection, as new evidence under s 223(2) of the Justices Act 1886, this matter was relisted for further hearing on 17 October 2013.

23. [23]
    The new evidence is in the form of a pre-sentence custody certificate, which discloses that the respondent has been in custody since 31 July 2013. Partly the reason for that is because he was, on 15 August 2013, remanded in custody in respect of further allegations that, after 2 May 2013, he again drove whilst disqualified and also whilst over the general but not the middle alcohol limit. However and before that and on 29 July 2013, the court ordered parole order made on 2 May 2013 was suspended, but the assertion in the certificate is that the respondent was returned to custody on that suspension on 31 July 2013. It appears that the suspension was related to the further charges. The new evidence does not disclose the date of the alleged commission of these further offences but does disclose a “full time discharge” date, as 3 November 2013.

24. [24]
    In simple terms and leaving aside the potentiality of further complication that may arise if and when the respondent is convicted and sentenced for the further alleged offending, he has from 31 July 2013 until 17 October 2013 served, on the suspension of parole, a total of two months and 18 days of the period of imprisonment ordered to be served on 2 May 2013. That is, leaving aside, as is required by s 160A of the Penalties and Sentences Act 1992, the term of imprisonment which was subject to the order that it be wholly suspended, for the offence of disqualified driving. In the outcome of these proceedings, there is no need to nor reason to, interfere with the orders effecting that suspended sentence.

25. [25]
    Whilst there was, in the sentencing proceedings below, an unrecognised liability that arose upon the automatic cancellation of the parole order made on 16 October 2012, of some two months and 13 days imprisonment and although there appears to have never been any action taken under s 210 of the Corrective Services Act 2006, in order to realise that liability, there has never been any suggestion raised in these proceedings, other than that such liability should have been regarded as a concurrent liability to that which should have been imposed at first instance.

26. [26]
    In the circumstances and quite apart from but also as confirmed by the new evidence, the most appropriate way of achieving an appropriate outcome, is by variation of the orders made below, rather than by exercise of any other power in s 225 of the Justices Act 1886.

27. [27]
    Accordingly, the appropriate determination of this appeal is to allow it and to order, that the orders of the sentencing Magistrate made on 2 May 2013 be varied by deleting the fixing of a parole release date on 2 May 2013 and substituting an order that, in respect of the period of six months imprisonment the respondent was to serve for the offence of driving whilst under the influence of liquor and the breach of the suspended sentence imposed on 16 October 2012, his parole eligibility date is fixed as the day after he has served two months imprisonment.