McIlwain v Commissioner of Police
[2015] QDC 332
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- McIlwain v Commissioner of Police[2015] QDC 332
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McIlwain v Commissioner of Police[2015] QDC 332
McIlwain v Commissioner of Police[2015] QDC 332
DISTRICT COURT OF QUEENSLAND
CITATION: | McIlwain v Commissioner of Police [2015] QDC 332 |
PARTIES: | MARK ANDREW McILWAIN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 20 of 2015 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Maryborough |
DELIVERED ON: | 9 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 December 2015 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – sentencing principles – erroneous decision by magistrate – where three cumulative sentences imposed – where cumulative sentences totalled the maximum imprisonment for disqualified driving offence – whether cumulative sentences are excessive – totality principle |
COUNSEL: | S Bain for the appellant W Cloake for the respondent |
SOLICITORS: | Law Essentials for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant appeals against sentences imposed in the Magistrates Court at Maryborough on 11 June in relation to 17 separate offences. I shall outline those offences shortly. They include, however, 5 disqualified driving offences and an offence of failing to appear. He was sentenced to three cumulative 18 month sentences for the disqualified driving offences, and to a three month cumulative sentence for the offence against the provisions of the Bail Act.
- [2]The effect of the sentencing orders is that he is to serve a head sentence of four years and nine months. The learned magistrate set a parole eligibility date of 10 December 2016, that is, after serving 18 months in prison.
Background
- [3]The appellant has an extensive criminal history dating from 1982 when he was 15 years of age. It extends over 14 pages. Many of the convictions concern offences of dishonesty and drug offences. He has some 52 convictions of stealing property, breaking into homes, businesses or cars and stealing property or taking cars, and 32 convictions for offences under the Drugs Misuse Act. In addition, he has 21 convictions for offences against the Bail Act, 3 prior convictions for aggravated robbery, 3 prior convictions for failing to stop a motor vehicle and 2 prior convictions for dangerous driving while intoxicated. He has numerous other offences under the Police Powers and Responsibilities Act.
- [4]On 4 August 2011 he sentenced to five years imprisonment, suspended after 18 months with an operational period of five years, by the District Court at Mackay. He was there being dealt with for offences of break entering and stealing, armed robbery with personal violence and entering premises with intent. The offences the subject of this appeal were committed during the currency of that suspended sentence.
- [5]He was first sentenced to prison when he was 17. He has spent the majority of the last five years in custody.
- [6]He also has a very significant traffic history, including 12 prior convictions for unlicensed driving and 10 for disqualified driving. He has been sentenced to periods of imprisonment for disqualified driving offences on at least five occasions, in October 2000, October 2001, April 2003, March 2009 and November 2013. The sentences of imprisonment varied from six months to 15 months imprisonment.
- [7]The offences the subject of this appeal were committed while the appellant’s license was disqualified by a court order of 6 November 2013, sentencing him to 12 months imprisonment for disqualified driving and disqualifying him from driving until 5 November 2016.
The Offending
- [8]The circumstances of the offending in respect of which the appeal is brought are set out in paragraphs 5.1 to 5.8 of the outline of submissions of the respondent as follows:
“5.1 On 16 February 2015, the appellant’s home was searched. He was found in possession of 20.5 grams Cannabis and a water pipe (Possessing dangerous drugs, possessing utensil).
5.2 It appears as a result of the above offence, the appellant was required to appear in court on 28 April 2015. The appellant failed to do so (Fail to appear).
5.3 Sometime just before 3:15pm on 26 May 2015, the appellant was driving a blue Holden utility and crashed into a tree alongside the Bruce Highway, Duckinwilla. As police arrived, the appellant left the scene. A friend returned to the scene on behalf of the appellant to give a tow truck drive the key. The appellant had told this friend he had crashed the car. (Disqualified driving).
5.4 At 11.40pm on 28 May 2015, the appellant was driving along Pallas Street Maryborough. Police were behind the car. Police activated their lights to intercept it. The appellant accelerated quickly away from police. Police activated their siren. The appellant continued to drive away – driving in excess of 100km in a 60km zone. Police followed only a short distance and then stopped. The appellant drove away. (Fail to stop, Disqualified driving).
5.5 At about 1pm on 2 June 2015, the appellant was driving a car along Alice Street, Maryborough. The car had false number plates. Police were also driving along the road; saw the appellant and his car and attempted to intercept the appellant’s car. The police activated their lights and siren. They got within 30 metres of the appellant’s car. The appellant accelerated his car up to about 130 or 140 kph and over took the car in front and drove away. Police did not commence a chase. (Fail to stop, Disqualified driving).
5.6 Ten minutes later, at 1.10pm on 2 June 2015, the appellant was seen by police driving along the Bruce Highway in Duckinwilla. His speed was 129 kph in a 100 kph zone. Police activated their lights and sirens and attempted to intercept the appellant. The appellant accelerated away (Fail to stop, Disqualified driving).
5.7 At 7.25pm on 9 June 2015, police saw the appellant driving a car with new, false registration plates. The appellant was seen driving into a car park at McDonald’s. Police blocked his exit. The appellant attempted to put his car in drive and drive away. (Fail to stop, Disqualified driving). The appellant was unable to do so Police approached the car. The appellant was aggressive and abusive. He jumped out of the car and struggled with police. Police were required to administer a Taser; then handcuffed the appellant and placed him under arrest. The appellant apologised and said he was on “whiz.” (Obstructed police).
5.8 In the car, police found three large throwing knifes, a set of electronic scales, two mobile phones, 13 tables of morphine, 83.76 grams cannabis (in 12 clip sealed bags). In the appellant’s jean pockets, he had 5 clips sealed bags containing in total approximately 2 grams of substance – some of which was methylamphetamine. (Possessing knives in public, Possessing item used in connection with supplying dangerous drugs, 3 x Possessing dangerous drugs).”
- [9]It can be seen that the whole of the offending occupies the period only from 16 February 2015 to 9 June 2015 and that the vast bulk of the offending, indeed all but the first three charges and thus all of the disqualified driving offences occurred between 26 May 2015 and 9 June 2015, a period of only two weeks. It is also noteworthy that although some of his driving involved moderately high speeds, there is no suggestion his conduct involved injury or violence towards others.
- [10]One of the sentences, for the offence of failing to appear on 28 April 2015, necessarily carries a cumulative sentence because of the provisions of the Bail Act. The salient orders appear to be these:
- (i)18 months imprisonment imposed for the offences of disqualified driving committed on 26 May 2015 and 2 June 2015 (and 12 months for that of 28 May). Those sentences are to be served concurrently;
- (ii)a cumulative sentence of 18 months imposed for the second disqualified driving offence committed on 2 June 2015;
- (iii)a cumulative 18 month sentence imposed for disqualified driving on 9 June 2015;
- (iv)a cumulative sentence of 3 months imprisonment imposed for the offence against the Bail Act which occurred on 28 April 2015, and which is required, by reason of the statute, to be served cumulatively upon any other sentence.
Consideration
- [11]The appellant’s counsel conceded that the appellant has an extremely poor traffic history and an unenviable criminal history. Prior to the subject offending however the appellant’s last disqualified driving offence was committed on 17 August 2003. On that occasion he was sentenced to 12 months imprisonment. She also submitted it was important to recognise that all the driving offences occurred over a two week period.
- [12]The maximum penalty for disqualified driving is 18 months imprisonment. The learned magistrate therefore imposed the maximum penalty on four of the five disqualified driving charges, and made two of them cumulative on the other sentences. The appellant’s counsel concedes that it is difficult to argue that it was excessive to sentence the appellant to the maximum penalty, given the circumstance of the offending and his previous traffic and criminal history but submits that to order those cumulative sentences rendered the overall sentence excessive and indicates that the court had no regard to the totality principle. The appellant’s counsel also conceded that his conduct warranted a severe sentence having regard to his previous criminal and traffic history. The fact that he was subject to a suspended sentence at the relevant time and the fact that the disqualified driving offences were accompanied by purposeful and ultimately successful attempts to evade police were also features of his offending.
- [13]In my view issues of totality and of natural justice arise for consideration. To impose three cumulative sentences of 18 months, the maximum penalty for disqualified driving being 18 months, was an unusually heavy sentence. The record does not disclose the magistrate alerted the appellant’s legal representatives to his intention to do so.
- [14]In R v Kitson [2008] QCA 86 the court indicated that an unusually heavy sentence (in that case setting a parole release date significantly beyond the mid-point of the sentence imposed) should not be imposed without the sentencing judge alerting them to it and giving the party an opportunity to be heard. Fraser JA (with whom Fryberg and Lyons JJ agreed said at [22]:
“In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:
‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit.’”
- [15]In this case, it is my view the appellant’s legal representative ought have been informed of the intention to impose the sentence and given a clear opportunity to make specific submissions about it. I also think the sentence offending against the totality principle.
- [16]When sentences are imposed for numerous offences the sentencing judge should “stand back” and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose – see R v Creed (1985) 37 SASR at 566 per King CJ at 568. Similarly in Postiglione v The Queen (1997) 189 CLR 295 Kirby J at 341 said that a sentence:
“may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not “just and appropriate”. The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be “crushing” and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.”
- [17]In this case the prospects of rehabilitation and reform seem remote having regard to the appellant’s age and prior criminal and traffic history. Nevertheless, in my view the sentence imposed is excessive and would very probably crush any remaining hope of rehabilitation. Leaving aside the three months’ imprisonment for failing to appear, the offender has effectively been sentenced to four and half years imprisonment, for five disqualified driving offences over a period of two weeks, and for other less serious though still significant offending, all of which were committed in breach of a previous suspended sentence.
- [18]In my view the magistrate failed to take into account that the offending occurred primarily over only that two week period, that the offender was a drug addict, that he was likely to have been significantly affected by drugs throughout that two week period, and that no person suffered injury or was threatened injury as a result of the driving, although that is not to say that there were not dangerous elements associated with his driving, for example, at 130 to 140kms per hour.
Appropriate Sentence
- [19]Having so concluded, I must sentence the appellant myself.
- [20]Having regard to his prior criminal history, including his flagrant disregard for court orders, it is my view appropriate that his sentence be significant and overall in excess of the 18 months maximum for any one offence of dangerous driving. In my view the totality of his criminality, including the failure to appear, would justify a head sentence of three years’ imprisonment.
- [21]An appropriate head sentence can therefore be achieved by reducing the sentences of 18 months’ imprisonment imposed for disqualified driving of 2 June and 9 June, to sentences of 15 months and ordering they be served concurrently with one another but cumulative on all other sentences.
- [22]The sentence of three months’ imprisonment for the offence of failing to appear on 28 April 2015 to be served cumulatively on all other sentences is not disturbed. All other sentences imposed by the magistrate are unchanged and are to be served concurrently with one another.
- [23]In my view it is appropriate that he be given a parole release date after serving 12 months of actual imprisonment i.e. on 10 June 2016.
- [24]I so order.