Skinner v The Commissioner of Police
[2016] QDC 138
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- Skinner v The Commissioner of Police[2016] QDC 138
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Skinner v The Commissioner of Police[2016] QDC 138
Skinner v The Commissioner of Police[2016] QDC 138
DISTRICT COURT OF QUEENSLAND
CITATION: | Skinner v The Commissioner of Police [2016] QDC 138 |
PARTIES: | JULIAN ANTHONY SKINNER (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | No 42 of 16 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 10 June 2016 |
DELIVERED AT: | Southport |
HEARING DATE: | 6 June 2016 |
JUDGE: | Kent QC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced by an Acting Magistrate on the following charges: (1) dangerous operation of a motor vehicle; (2) fail to stop motor vehicle; (3) exceed speed limit; and (4) wilful damage – where the appellant appeals, pursuant to s 222 of the Justices Act 1886 (Qld), against the sentences imposed in respect of charges 1, 2 and 4 – whether the sentences imposed in respect of charges 1, 2 and 4 were manifestly excessive – whether the Acting Magistrate erred in law by combining an order of a suspended sentence and a probation order – whether probation was an option for the appellant, including for the offence in contravention of s 754 of the Police Powers and Responsibilities Act 2000 (Qld) Criminal Code Act 1899 (Qld), s 328A(1), s 469(1); Justices Act 1886 (Qld), s 222; Penalties and Sentences Act 1992 (Qld), s 12, s 91, s 92(1)(b), s 92(5), s 159A; Police Powers and Responsibilities Act 2000 (Qld), s 754; Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), r 20 AB v R (1999) 198 CLR 111; [1999] HCA 46, cited; Forbes v Jingle [2014] QDC 204, cited; R v Hughes (1999) 1 Qd R 389, cited; Sbresni v Commissioner of Police [2016] QDC 018, cited |
COUNSEL: | Mr R.W. Frigo for the appellant Ms D. Darwen for the respondent |
SOLICITORS: | Potts Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
Nature of the appeal
- [1]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the order of an Acting Magistrate at the Magistrates Court, Southport on 18 February 2016 as to the sentences imposed, contending that in respect of three of the four charges, the sentence was manifestly excessive.
Background
- [2]The charges were as follows:
Charge 1 – s 328A(1) Criminal Code Act 1899 (Qld) (the “Criminal Code”) – dangerous operation of a motor vehicle;
Charge 2 – s 754(2) Police Powers and Responsibilities Act 2000 (Qld) (the “PPRA”) – fail to stop motor vehicle;
Charge 3 – r 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld)– exceed speed limit (one hundred and three kilometres per hour in an eighty kilometres per hour zone); and
Charge 4 – s 469(1) Criminal Code– wilful damage.
- [3]The charges arose out of an incident whereby police detected the appellant speeding at Coomera, travelling at one hundred and three kilometres per hour in an eighty kilometres per hour zone of roadworks. Instead of stopping when intercepted, the defendant drove off, giving rise to a chase. During the chase, he drove dangerously, including endangering oncoming traffic. Police abandoned the chase after a short time in accordance with Queensland Police Service policy.
- [4]It is to the appellant’s credit that about two hours later he handed himself in to police at the Beenleigh Police Station. He participated in an electronic record of interview where he made full admissions to the offences, saying that he was worried about losing his licence and he had a job interview the following day. He acted, he said, in panic. He was charged with the offences, to appear in the Southport Magistrates Court on 13 January 2016. He was dealt with promptly, pleading guilty on 18 February 2016.
The sentence
- [5]The sentences were as follows:
Charge 1 – three months’ imprisonment, suspended after serving a period of fifty days with an operational period of two years; combined with two years’ probation and disqualified from holding or obtaining a Queensland driver licence for twelve months;
Charge 2 – same penalty imposed;
Charge 3 – convicted and not further punished; and
Charge 4 – two years’ probation.
- [6]The appellant was born on 17 December 1995 and was nineteen years of age when committing the offences and twenty years of age when sentenced. He had a minor criminal history and traffic history at the material time.
- [7]The effect of the orders was that the appellant was immediately imprisoned. Through his solicitors he immediately instituted an appeal, the notice being filed on 19 February 2016. He was granted bail having served eight days imprisonment pursuant to the orders.
The appeal
Errors of law
- [8]It is submitted on the appellant’s behalf that a legal error was made in combining an order of a suspended sentence and a probation order, contrary to s 92(5) of the Penalties and Sentences Act 1992 (Qld) (the “PSA”).
- [9]The order imposing a suspended sentence concurrently with the probation orders is specifically prohibited by s 92(5) of the PSA. This was specifically addressed in R v Hughes (1999) 1 Qd R 389. At Page 392 of Hughes, their Honours, McPherson and Pincus JJ.A, stated:
“Except to the extent specifically permitted under s 92(1)(b), it is neither permissible nor proper to make a probation order to operate concurrently with a sentence of imprisonment.”
- [10]The appellant also points to a further error of law in that the Acting Magistrate failed to appreciate the proper effect of s 754(2)(b) of the PPRA, which prescribes minimum and maximum penalties. Although the section provides for minimum sentences of fifty penalty units or fifty days imprisonment, the appellant submits that the proper interpretation of the provision is that probation was not excluded as a sentencing option. The appellant referred to Commissioner of Police (Qld) v Magistrate Spencer & Ors [2013] QSC 202; Forbes v Jingle [2014] QDC 204 and Sbresni v Commissioner of Police [2016] QDC 018.
- [11]As set out in Forbes, the effect of s 754 in its present form does not exclude the operation of s 91 of the PSA which provides that where an offender is convicted of an offence punishable by imprisonment the Court may make a probation order. The relevant line of authority was helpfully traced in Sbresni, particularly at paragraphs [1] to [5] thereof. Thus in the present case, probation was an option for the appellant, including for the offence in contravention of s 754.
- [12]Thus, in my view, the appellant has demonstrated legal errors in the sentencing process. Once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be resentenced unless, in the separate and independent exercise of its discretion, the appellate court concludes that no different sentence should be passed.[1]I have concluded that a different sentence should be passed for the reasons set out below.
- [13]In mitigation of his penalty, the appellant points to:
- (a)his relatively minor traffic record;
- (b)he was a nineteen year old living with his family at the time;
- (c)he had good employment history, was then presently working fulltime, and is now studying;
- (d)he has completed the Queensland Traffic Offenders Programme;
- (e)he has had psychological treatment with a forensic psychologist which continues;
- (f)the offences occurred on one occasion within a short space of time and were a single course of conduct;
- (g)they were not planned or pre-mediated;
- (h)he voluntarily surrendered to police, made full admissions and prompt pleas of guilty, indicating co-operation and remorse;
- (i)he has served eight days in custody; and
- (j)he has thus far performed well on probation.
Thus the appellant argues his probation should continue and the custodial element of his sentence should be set aside.
The respondent’s submissions
- [14]The respondent quite properly concedes that an error was made in imposing the suspended sentence and probation order contrary to s 92(5) of the PSA. It is thus conceded that the sentencing discretion falls to be exercised afresh. Some comparable sentences are referred to, indicating a sentencing range including custody, however there was no vigorous resistance to a probation order as an appropriate disposition of the matter.
- [15]I have concluded that the appropriate sentence is one of probation for two years in respect of charges 1, 2 and 4. There was some argument as to whether a conviction should be recorded. In this regard I have taken into account the provisions of s 12 of the PSA. In particular, the features referred to in s 12(2) indicate that convictions should not be recorded. I have particular regard to the prospect of an adverse impact upon the appellant’s prospects of employment were convictions to be recorded; he should be given the benefit of the best prospects of rehabilitation.
Conclusion
- [16]In the circumstances, the Court’s orders will be:
- Appeal allowed.
- Sentences on charges 1, 2 and 4 set aside.
- In lieu thereof, a probation order on the same terms as the existing order is made for a period of two years.
- Convictions are not recorded.
- [17]As no period of imprisonment is imposed, there is no declaration of presentence custody made pursuant to s 159A of the PSA, although the fact of the appellant having served eight days’ imprisonment has been a relevant factor in the exercise of the sentencing discretion.
Footnotes
[1] AB v R (1999) 198 CLR 111, 160; [1999] HCA 46, [130] (Hayne J).