Poetschka v QPS[2015] QDC 108

DISTRICT COURT OF QUEENSLAND

1. [1]
   HER HONOUR: This is for delivery of reasons. This is an appeal against sentences imposed on Mr Poetschka – my apologies to him if I’m mispronouncing his name – by his Honour Magistrate Smith on the 17th of September 2014 at Bundaberg. Mr Poetschka was being sentenced for offences committed on the 1st of May 2013 and on the 17th of September 2014. On both occasions, he committed three offences: driving whilst disqualified, driving an uninsured vehicle and driving an unregistered vehicle.

2. [2]
   The appeals relate only to the sentences imposed for the offences of driving whilst disqualified. They were: on the 1st of May 2013, six months imprisonment and three years disqualification and; on 17 September 2014, nine months imprisonment and three years disqualification. His Honour ordered the terms of imprisonment were to be served cumulatively.

3. [3]
   The effect of section 90A to section 90D of the Transport Operations (Road Use Management) Act 1995 is that the periods of disqualification are also cumulative. The effect of the sentence, then, is 15 months imprisonment and a six years disqualification period. His Honour fixed a parole release date after Mr Poetschka had served five months. After he had served about four months, he was granted bail pending the outcome of this appeal. The calculation of time on his term of imprisonment stopped upon bail being granted.

4. [4]
   The grounds for appeal relate to both the process of sentence and the sentence imposed. As to the process of sentence, Mr Poetschka argues he was denied procedural fairness as he was not given the opportunity to make submissions about cumulative sentences. On appeal, the Crown has conceded that procedural fairness would suggest that both the prosecutor and Mr Poetschka should have been given that opportunity. In this case, the learned Magistrate did not request submissions from either.

5. [5]
   Given the substantial consequences of cumulative rather than concurrent sentences, it was not fair to Mr Poetschka to proceed without hearing from him about the structure of the sentence before imposing it. Further, the transcript of the sentencing hearing discloses that his Honour did not raise the effect of the disqualification provisions of the Transport Operations (Road Use Management) Act until he passed sentence. So Mr Poetschka had no opportunity to make a submission about that either, not that he could do anything about the cumulative nature of the disqualifications. However, he may have wished to be heard about the disqualification periods had he known they would be cumulative.

6. [6]
   I pay due regard to the time and work pressures on a judicial officer sitting in a busy jurisdiction such as the Magistrates Court. The learned Magistrate did invite Mr Poetschka to make further submissions before he sentenced him. However, he was about to sentence a litigant in person and there were two unusual features about the sentence that it would have been proper for him to identify for Mr Poetschka. Firstly, that he was considering imposing a cumulative sentence and, secondly, the effect of the TORUM provisions on the overall disqualification period he would serve. These matters should have been explained to Mr Poetschka so that he was in a position, as a litigant in person, meaningfully respond to his Honour’s invitation to make submissions.

7. [7]
   Respectfully, I am satisfied that the learned Magistrate’s failure to do so denied Mr Poetschka procedural fairness, an error of law on which the appeal will be allowed. Although I could remit the matter back to the Magistrates Court for rehearing, I consider that would cause unnecessary delay and expense so I will re-sentence Mr Poetschka.

8. [8]
   The sentences imposed by his Honour on 17^th September 2014 in relation to the offences of driving whilst disqualified on the 1^st of May 2013 and 17 September 2014 are set aside.  In lieu, I impose the following sentences.  On each count, concurrent terms of imprisonment of four months with Mr Poetschka to be released to parole today, 20^th of February 2015.  Mr Poetschka must report by 4 pm on Monday, 23 February 2015 – to Bundaberg, Ms McMahon?

9. [9]
   MS McMAHON: Yes. Yes. Bundaberg.

10. [10]
    HER HONOUR: All right. To Bundaberg to commence parole, otherwise he will be unlawfully at large and in breach of parole. And I’ll be indebted to you, Ms McMahon, if you can arrange to convey that to Mr Poetschka through his solicitor. On each count, he is disqualified from holding or obtaining a driver’s licence for a period of two years, an effective period of four years, upon any unexpired disqualification period that he is already serving.

11. [11]
    The reasons for those sentences are these. Firstly, it’s necessary to take into account that Mr Poetschka has already served about four months in custody in relation to these offences. Secondly, given the circumstances of the offending and the period between the two offences, which is about 16 months, cumulative terms were open and, were I sentencing at first instance, respectfully, I would have adopted the same course that his Honour did and I would have imposed cumulative terms. However, on appeal, it would unnecessarily complicate matters to impose cumulative terms and I have, therefore, imposed concurrent ones.

12. [12]
    Thirdly, Mr Poetschka has a lengthy history of similar offending. I note that includes an entry on the 2^nd of February 2007 for two offences of disqualified driving which resulted in concurrent terms of four months imprisonment, wholly suspended.  So this is not the first occasion upon which a term of imprisonment has been imposed, although, it seems, the first time he has served time in custody.

13. [13]
    He has been disqualified for dangerous driving on a number of occasions. The first time he was disqualified was on the 15^th of October 2006 for a period of six months.  After that, he was further disqualified for driving whilst disqualified on the 23^rd of December 2006 for two years, on the 26^th of December 2006 for three years, on the 23^rd of January 2007 for three years, on the 2^nd of February 2007 for three years – that was the occasion on which there were two offences – and on the 24^th of April 2012 for two years.  I note also that on the 6^th of October 2012, a period of six months disqualification was imposed for unlicensed driving.  Past sentences, including suspended terms of imprisonment, have not deterred Mr Poetschka from re-offending and a sentence requiring him to serve some time in custody is appropriate.

14. [14]
    The effect of the sentences on appeal on what has already transpired is that he will have served almost four months in custody, will have been subject to bail conditions for another four or five weeks or so and will be subject to parole for four months from today.

15. [15]
    Respectfully, I concur with the learned Magistrate that there are no ameliorating circumstances about Mr Poetschka’s driving on those days. I, too, reject his assertion that he did not know he was disqualified. For the May 2013 offences, he told the police that someone in the Department of Transport told him he was not disqualified. Even if that is true, Mr Poetschka was in the Court in November the year before and well knew what disqualification periods were imposed. If he was relying on something he was told, he was doing so opportunistically, seeking to take advantage of something he would have known was an error.

16. [16]
    For the September 2014 offence, he told the learned Magistrate that he had applied to the Department of Transport at Dalby for his licence and honestly thought he had it. Assuming it was an honest belief, there is no reasonable basis for it. I note that at the stage Mr Poetschka applied for his licence, he had failed to appear in relation to the May 2013 offences.

17. [17]
    Given the number of times Mr Poetschka has been dealt with for an unlicensed or disqualified driving offence and the number of Court orders he has disregarded, terms of imprisonment, as I said, are in order. Given the two acts here are distinct, it’s open to impose cumulative terms, but I’ve explained why I’ve not done so on appeal.

18. [18]
    Having regard to Mr Poetschka’s appalling history of driving whilst disqualified, personal deterrence does have special significance on his sentence. Had I been sentencing Mr Poetschka at first instance, I would have imposed an effective sentence of 12 months imprisonment and required him to serve a third to reflect his plea. So that would have been a sentence of five months for the first and a cumulative sentence of seven months for the second – so 12 months in all, with a requirement that he serve one-third of that in custody. He has already served about that time and has been on bail for a further six weeks or so, apparently complying with bail conditions and observing the law for that period, and I also take that into account in the sentences I’ve now imposed. Taking all of those factors into account and his pleas of guilty, I’ve reduced the period that he will be subject to supervision on parole. That is why the terms ultimately imposed are concurrent terms of four months imprisonment, with his release to parole today. I can do nothing about the period of disqualification that he has already served of his some four or five months. Nor can I affect whether his terms of disqualification are cumulative or not.Bearing that in mind, two years on each offence will be imposed. That’s a very lengthy period of disqualification. I’m mindful it could impact on Mr Poetschka’s ability to work. I hope it does not. However, a lesser period is not justified given his history.

19. [19]
    I should note that I was assisted by the cases that I was referred to by counsel. I found Whitney and Fairhurst to be more serious cases because of more serious driving incidents, including reckless are dangerous driving and driving whilst under the influence of alcohol. I thought Brumens was a less serious case and not so helpful. I thought the most helpful cases were the cases of Santillan (2008) QDC 33 and Dempsey, 23^rd of July 2009.  In Santillan, a sentence of 15 months suspended after nine months was reduced to eight months imprisonment.  That defendant was younger, at – aged 22 – but had a similarly bad history but no prior terms of imprisonment. In the case of Dempsey, a similarly bad history, although there were some ameliorating features; led to a term of imprisonment of 12 months suspended after four months which is, effectively, the approach to sentence underlying the terms that I’ve imposed on appeal.

20. [20]
    Convictions are recorded. For the offence on the 1^st of May 2013, a term of four months imprisonment.  The same term will be imposed for the offence on 17^th of September 2014.  Mr Poetschka is released to parole today and then he will serve two years disqualification for each of those offences.