Hakas v Commissioner of Police
[2014] QDC 230
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- Unreported Judgment
- Hakas v Commissioner of Police[2014] QDC 230
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Hakas v Commissioner of Police[2014] QDC 230
Hakas v Commissioner of Police[2014] QDC 230
DISTRICT COURT OF QUEENSLAND
CITATION: | Hakas v Commissioner of Police [2014] QDC 230 |
PARTIES: | KAROLIS HAKAS (Appellant) v B. BROWNE (Respondent) |
FILE NO/S: | 1050/14 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Wynnum |
DELIVERED ON: | Ex tempore reasons delivered 26 September 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 September 2014 |
JUDGE: | Smith DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW- APPEAL- Whether sentence excessive- whether errors Justices Act 1886 (Q) ss 222, 223 and 225 Penalties and Sentences Act 1992 (Q) ss 9, 159A Police Powers and Responsibilities Ac 2000 (Q). ss790, 791 Transport Operation (Road Use Management) Act 1995 (Q) s78 Low v McMonagle [2011] QDC 109 Petrilli v Buchanan [2006] QDC 192 Santillan v QPS [2008] QDC 33 Souvlis v Commissioner of Police [2011] QDC 274 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | Mr Harrison for the Appellant Mr Ashen for the Respondent |
SOLICITORS: | Smith & Associates for the Appellant Director of Public Prosecutions for the Respondent |
- [1]This is an appeal pursuant to s222 of the Justices Act 1986 (Q) against sentences imposed in the Wynnum Magistrates Court on 25 March 2014. When the Court is concerned with an appeal against sentence, the provisions of s222(2)(c) of the Justices Act apply, that is:
“… if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a … punishment was excessive or inadequate.”
- [2]Section 223(1) of the Justices Act provides that the appeal is to be by way of rehearing on the evidence given before the Justices, although in some circumstances new evidence may be admitted if there are special grounds for the Court to give leave. I also note s225(1) of the Justices Act provides:
“On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”
- [3]Further, in Teelow v Commissioner of Police [2009] 2 QdR 489, MuirJA held at [4], quote:
“It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ....’”
- [4]I apply those principles in reaching my decision here.
- [5]Now, in this matter, the Appellant pleaded guilty to three charges in the Wynnum Magistrates Court. The first charge was an offence contrary to s78(1) and (3A) of the Transport Operations (Road Use Management) Act 1995 (Q) i.e. driving of a motor vehicle without a driver licence disqualified by Court order. The particulars of the charge were that on 3 March 2014 at Wynnum West, the Defendant drove a motor vehicle along Wynnum Road, Wynnum West when he was not the holder of a driver licence authorising him to drive that vehicle. The second charge was one of contravening a direction or requirement contrary to s791(2) of the Police Powers and Responsibilities Act 2000 (Q), and the third charge was assaulting or obstructing a police officer contrary to s790(1) of the Police Powers and Responsibilities Act 2000 (Q).
- [6]The Appellant, with respect to the first charge of disqualified driving, received a sentence of six months imprisonment with a parole release date fixed as at the 25 April 2014 and was disqualified from holding or obtaining a driver licence for two years. On charges 2 and 3, he was convicted and not further punished.
- [7]The appeal only relates to the sentence in so far as imprisonment is concerned on the first charge. There is no challenge to the disqualification period.
- [8]The ground of the appeal is that the sentence was excessive. In argument, two further grounds were relied upon. Firstly, that the Magistrate erred in failing to accept references, and secondly, the Magistrate erred in failing to refer to s9(2)(a) of the Penalties and Sentences Act 1992 (Q).
- [9]Turning to the facts of the case, the Appellant was disqualified from driving on 24 February 2014 for a period of 12 months. Eight days later the police intercepted the Appellant driving, which is the subject of the disqualified driving charge. He provided the police with a false name, and an elaborate false story that he was visiting Australia temporarily from Latvia. He provided the police with Latvian driver’s licence to support this false story and fake alias. Police wasted an hour and a‑half investigating this false information. He was clearly going to be caught because it contained numerous inconsistencies. The Appellant even went to the extent of telephoning his girlfriend and requested she lie for him. Eventually, the Appellant admitted to the police his true identity and that he was lying; that he was scared of going to jail for disqualified driving. So that, in essence, summarises the charges here.
- [10]Now, I have had regard to the outlines of argument from both parties, the submissions made before the Magistrate and the reasons of the Magistrate.
- [11]The first matter with which I will deal is the s9(2)(a) point. As at 25 March 2014 s9(2)(a) of the Penalties and Sentences Act provided that a sentence of imprisonment was one of last resort and a sentence allowing the offender to stay in the community is preferable. The learned Magistrate did not refer to such a sentencing principle in this case. I consider that to be an important error, particularly considering the Appellant had never previously been convicted of disqualified driving. Even though the law was changed on 28 March 2014 by removing that provision, that still does not alter the characteristic of an erroneous sentence occurring. In the circumstances, I will re-sentence the Appellant in this case.
- [12]The next point relied upon was the issue of the documents to be relied upon. Now, in this regard, I turn to the transcript. Now, it seems that the defence solicitor had possession of a number of documents. At p6 the defence solicitor submitted:
“I have several letters. One of them is under the hand of his mother who was very ill at the time. He told the police that he was going to visit her and that’s correct. I’ve also got a letter under the hand of Ekaterina Schamaleuk who is a co-worker with his mother. His mother was very ill on the – on that day and she was taken off to hospital, I understand, with a heart condition. Yes. So she was taken off to the Princess Alexander, or Greenslopes, sorry.”
Bench: “What weight does the Court put on those documents [indistinct].”
Answer: “Pardon, your Honour.”
Bench: “What weight does the Court put on those documents where part of the facts outlined to the Court suggests that your client had attempted to procure another to pervert the course of justice, and perpetrate and continue to perpetuate the lie.”
Answer: “Well, your Honour, these are under the hand of third parties, so under the hand of his---”
Bench: “I mean, it will carry. It will have the appropriate weight attached.”
Answer: “Yes, your Honour, and I simply have those letters so that your Honour can take heed of what I’m saying and see that it’s not blind instructions from Mr Hakas. There is some kind of confirmation that his mother had been sick.”
Bench: “But if he was lying then, how do I know he’s not lying now? That is the dilemma when you tell lies.”
Answer: “Yes, your Honour, and I can’t take that any further.” Bench: “His credibility is shot.”
Answer: “Yes. That is so, your Honour.”
Bench: “How long did the police spend with him unravelling the lie? One hour? The police officers said one and a half hours.”
- [13]Then later:
Bench: “So he’s aware of the ramifications as well? I’ll hear at your instructions, Ms Fuller.”
Ms Fuller: “Thank you, your Honour. So I do have those letters if your Honour wanted to see them or not. I can’t take it any further than that except to proffer that although he shouldn’t have done it, there was some sense of urgency in terms of his mother being unwell, and that is referred to in – those are this from both his mother and her co-worker.”
Bench: “Well, even if there’s a sense of urgency, wouldn’t that be something he would have raised with the police? Look, my name is Karolis. I know I shouldn’t be driving but I’m acting in an extreme emergency. My mother is unwell. I’m racing to her assistance to assist her.”
Ms Fuller: “In hindsight yes, your Honour. He should have. He did raise it with them in the end when he came clean about it – who he was.”
Bench: “Well, he had no option, I guess.”
- [14]Further, there were submissions made about his circumstances and Ms Fuller continued:
“I’ve got a letter under the hand of John Callahan who was the Brisbane Sports president who speaks of his act of involvement and his positive influence, in particular in young people’s lives.”
and further:
“I also have a letter from a team mate who speaks of his active involvement and assistance to the club.”
- [15]Now, Mr Harrison informed me that the documents were actually handed to the Court. I have inspected the Court file and there does not seem to be any copy of these documents on the Court file. The problem which has arisen here is that if they were handed to the Court, they ought to have been marked as an exhibit. That was not done. There appears to be no dispute to the submission made by MrHarrison that they were handed to the Court although, of course, the Crown is probably in a difficult position in the sense that it is difficult to fully investigate this point today. My approach to it is that the Magistrate ought to have received the letters. My impression is that he dissuaded the Appellant’s solicitor from relying on them. They were, potentially, important documents because they did give some reason for the driving and provided some mitigation. In the circumstances, I consider there was an error in not marking the documents as an exhibit, but even if I am wrong about that, it does not affect my ultimate view about this case in light of the s9(2)(a) point, and in light of my further determination about excessiveness.
- [16]So I then turn to the issue about whether the sentence is excessive. Now, the Appellant was born on the 21 June 1985. He was 28 years of age at the time of sentence. Exhibit 3 in these proceedings is a copy of his traffic history.
- [17]He does not have an enviable traffic history. He was dealt with in the Magistrate’s Court on 20 October 2009 for a .02 BAC offence, and was disqualified for two months and fined $200. On 29 July 2011, he was dealt with for .069 BAC offence, was disqualified for a month and fined $300. Then on 24 February 2014, he committed an under the influence of liquor offence at .174 per cent. He was fined $1,500 and disqualified for 12 months. The present offences occurred about eight days after the disqualification on that instance which was a matter the learned Magistrate relied upon. There are also some other entries for driving on a learner’s without an open licence driver being with him. Having said all that, he had never previously been convicted of disqualified driving which I think is an important feature of this case. Also, the Appellant had never previously had the benefit, as I understand his history, of a community based order, an immediate parole order, a suspended sentence, or an intensive correction order. There were some antecedents placed before the learned Magistrate. He was a man who was born in Lithuania and came to Australia in 2012. He was studying at QUT: I.T and Business, and had a year to go. He went to year 12 at Toowong College, he played A-grade baseball and he had been undertaking a driver’s course. He also did some coaching. I was informed today, without objection, that he had lost his job as a hotel manager at the Waterloo Hotel at Cleveland as a result of this offending. That is a significant factor to be taken into account here on the resentence.
- [18]Now, a number of comparable decisions have been relied upon. The first is Souvlis v Commissioner of Police [2011] QDC 274. In that particular case, the Appellant ultimately received nine months’ imprisonment to serve 11 days. That was a worse case than this because paragraph [10] sets out the man’s history and he had previously, indeed, been given an immediate parole release date. I regard that as a worse case than the instant one.
- [19]In Petrilli v Buchanan [2006] QDC 192 the Appellant originally received five months’ imprisonment suspended after two months. He had a number of disqualified driving charges in Victoria albeit quite some time prior. The appeal was allowed and he was fined $1500.
- [20]In Santillan v Queensland Police Service [2008] QDC 33 the Appellant originally he received 15 months’ imprisonment suspended after nine months. That was reduced to eight months with an immediate parole release date. He had a very bad traffic history, according to the judgment, but he had no history of dangerous, careless, or reckless driving apart from speeding offences. He had a good work history. He was caught for three offences of disqualified driving which is more serious than the instant case.
- [21]In Low v McMonagle [2011] QDC 109 the appellant was sentenced on appeal to six months’ imprisonment suspended after 14 days. He was actually caught with alcohol and drugs in his system and he had a very bad history (paragraph [8]) including previous offences of disqualified driving. So those cases give me some guidance as to what is the appropriate penalty in this case.
- [22]The other matter I will take into account is that the Appellant remained in custody, as I understand the situation, for a period of eight days before he was granted appeal bail. The dates are between the 23 March 2014 and 31 March 2014.
- [23]The aggravating feature, of course, is the offences occurred only about eight days after he was disqualified and he did give that false version to the police which I have mentioned. So one can understand how a prison term was within the appropriate sentencing range. However, on the resentence, taking into account the eight days of presentence custody, taking into account there were no previous offences of disqualified driving, and taking into account the effect of the penalty i.e. the loss of employment, it is my determination that a sufficient custodial portion has been served, and I propose to allow the appeal.
- [24]So my orders will be as follows:
- The appeal against the sentence is allowed.
- On the charge of disqualified driving the sentence is varied to one of three months imprisonment.
- I order that the term of imprisonment be suspended after the Appellant has served eight days imprisonment, and the Appellant must not commit another offence punishable by imprisonment within a period of 12 months if he is to avoid being dealt with for the suspended term of imprisonment.
- I declare that the Appellant has served eight days in presentence custody pursuant to s159A of the Penalties and Sentences Act. I state the dates are between 24 March 2014 and 31 March 2014 and I declare that as time already served under the sentence.
- I otherwise dismiss the appeal against sentence.