Cook v Commissioner of the Queensland Police Service
[2016] QDC 187
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- Cook v Commissioner of the Queensland Police Service[2016] QDC 187
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Cook v Commissioner of the Queensland Police Service[2016] QDC 187
Cook v Commissioner of the Queensland Police Service[2016] QDC 187
DISTRICT COURT OF QUEENSLAND
CITATION: | Cook v Commissioner of the Queensland Police Service [2016] QDC 187 |
PARTIES: | AARON DAVID COOK (appellant) v COMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 36/2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Rockhampton |
DELIVERED ON: | 26 July 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 July 2016 |
JUDGE: | Smith DCJA |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – whether errors by the Magistrate – dangerous operation of a motor vehicle whilst adversely affected by a drug and other offences – whether sentence manifestly excessive Criminal Code s 328A Justices Act 1886 (Q) ss 222, 223 Transport Use (Road Use Management) Act 1995 s 79 R v Coake [1999] QCA 12 R v Collier [2003] QCA 314 R v Fanning [2005] QCA 267 R v Gehrman [2002] QCA 261 R v Harch [2003] QCA 315 R v Kirby ex-parte Attorney-General [2009] QCA 35 R v Parker [2003] QCA 316 R v Smith [2004] QCA 126 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | Mr J. Ahlstrand for the appellant Ms M. Howard for the respondent |
SOLICITORS: | Legal Aid Office Queensland for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant appeals against the sentences imposed on him in the Magistrates Court at Rockhampton on 8 April 2016.
- [2]The appellant pleaded guilty to the following charges and the following sentences were imposed:
- (a)Disobeying the speed limit on 14 March 2016 – convicted and not further punished;
- (b)Driving under the influence of liquor or a drug contrary to s 79(1)(a) of the TORUM Act – four months imprisonment;
- (c)Driving a motor vehicle without a driver license – disqualified by court order – no evidence offered;
- (d)Stealing a quantity of petrol – one months imprisonment with an order for compensation of $72.27;
- (e)Unlawful use of a motor vehicle – 12 months imprisonment;
- (f)Failing to stop motor vehicle – four months imprisonment and disqualified from holding or obtaining a driver license for a period of two years;
- (g)Failing to stop a motor vehicle – four months imprisonment and disqualified from holding or obtaining a driver license for a period of two years;
- (h)Possessing utensils or pipes – 1 months imprisonment;
- (i)Failing to properly dispose of a needle and syringe – seven days imprisonment;
- (j)Stealing a wallet and driver license – charge dismissed;
- (k)Receiving tainted property, namely a driver license – 1 months imprisonment; and
- (l)Dangerous operation of a vehicle whilst adversely affected by an intoxicating substance[1] – 21 months imprisonment and disqualified from holding or obtaining a driver license for a period of 12 months.
- [3]The terms of imprisonment were ordered to be served concurrently. 24 days presentence custody was declared and the parole release date was set as at 16 September 2016, i.e. after six months.
Principles
- [4]The appeal is pursuant to s 222 of the Justices Act 1886 (Q) (“JA”). Section 222(2)(c) of the JA provides that where the defendant pleads guilty than the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
- [5]Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceedings before the Justices.
- [6]
“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 of the evidence now before the appellate court, the order that is the result of some legal, factual or discretionary error…”
Prosecution submissions below
- [7]The defendant pleaded guilty to each charge. The prosecutor informed the Court that at about 11am on 14 March 2016, the appellant attended the petrol station and pumped $78.27 of unleaded petrol into his vehicle and drove off without any attempt to pay for it. Twice after this the Police attempted to intercept him in the vehicle but the vehicle failed to stop. At 4.15pm that day the vehicle was intercepted and it was apparent that the appellant was under the influence of drugs.
- [8]In relation to the unlawful use charge, the complainant was Carter’s Reliable Car Rental. On 9 March 2016, the complainant rented a green Toyota Camry sedan to the appellant. The rental was conditional on it being returned on Friday 11 March 2016 and was only able to be used within a 100km radius of the agency at Tweed Heads in New South Wales. The vehicle was not returned to the complainant as required and the complainant attempted to contact him with no success. The appellant told Police that he intended to drive the vehicle to the Northern Territory and return it on a future date.
- [9]In respect of the first fail to stop charge, at 2.48pm on 14 March 2016, after the theft of petrol, Police from Tambo observed the vehicle in the main street. After this the vehicle increased its speed. The Police followed for some distance with lights and sirens activated but the vehicle continued to speed away from Police. The Police took evasive action and ceased their attempt to intercept. The appellant was later interviewed and he stated that he did not remember this incident. He recalled that the Police had tried to intercept him but could not recall where it was. He also said did not have any intention of stopping for Police.
- [10]In relation to the second fail to stop charge, at 3.24pm on the same date, Police saw the vehicle 15kms south of Blackall. Police attempted to intercept the vehicle and followed it for some time. It continued at high speeds and did not stop. The Police then stopped their attempt to intercept the vehicle. At one stage the appellant shook his head at Police to indicate that he had no intention of stopping. The vehicles travelled to about 50kms south of Barcaldine but the vehicle was not intercepted due to the high speeds. The appellant later told Police he did not recall this incident.
- [11]On 14 March 2016, the vehicle was intercepted on the outskirts of Barcaldine. During the search of the vehicle Police located a glass pipe which appeared stained with scorch marks and resin. There were also a number of small plastic containers in the vehicle with small amounts of white powder residue. A set of scales was located in the boot. The appellant said the pipe, scales and containers were his and were used to consume methylamphetamine. A syringe was found in the front passenger seat. The appellant said the syringe was not his and he had located it in his room previously and put it in his car to dispose of it but had forgotten about it.
- [12]In respect of the receiving charge, a Queensland driver’s license in the name of Dean McFadden was located. Police had contacted Mr McFadden who believed his wallet was lost about a month prior. He did not know the appellant and did not give permission to the appellant to have possession of the license. The appellant said that he had found the driver’s license in the car which he had hired and had made no attempts to return it.
- [13]In respect of the dangerous operation charge, this relates to the Police pursuit at 3.24pm. The appellant’s vehicle was travelling 184km/h in a 110km/h zone. Police attempted to intercept it but it failed to stop, continuing into Blackall. The vehicle travelled at great speed through Blackall. It sped through a school zone, with the appellant having no regard to the safety of children. It was travelling at high speed with the engine revving loudly. Another witness told Police that she saw the vehicle speeding towards her when she exited her vehicle at the front of a supermarket. It was going so fast that it appeared to be wobbling and she had to close her door quickly and get out of the way as the vehicle almost collided with her vehicle door. Another witness at the school said he observed the vehicle approaching from behind at great speed which caused him to pull over to the side of the road to avoid a collision. The vehicle then travelled past him at great speed towards Barcaldine. Two other witnesses informed Police that about 20kms south of Blackall the vehicle overtook them on a tight corner and almost collided with the side of their vehicle, almost forcing them off the road. Officers from Barcaldine tried to locate the vehicle. It was located 50kms south of Barcaldine but was unable to be intercepted due to high speeds. At 4.15pm on 14 March, the vehicle was intercepted on the outskirts of Barcaldine and it was almost out of fuel at this stage which is why it stopped.
- [14]The appellant was arrested showing signs of indicia for recent drug use. A sample of his blood was taken. He admitted driving like a lunatic and told Police he had smoked ice around lunchtime but said he did not feel affected by the drugs. He did recall going through a few towns at high speed. His eyes appeared heavily bloodshot and his pupils narrow. He was sweating profusely, even in the inside of an air-conditioned vehicle. He was very skittish. A certificate as to the level of drugs in his blood had not yet been obtained but the defence admitted that methylamphetamine was present and he was affected.
- [15]The speeding charge relates to the speeds that the vehicle reached. He maintained a speed of 190km/h for a good part of the journey.
- [16]His criminal history was tendered and it is disclosed that he had convictions for commit public nuisance and contravening a requirement (15 June 2009), possessing dangerous drugs (27 September 2010), possessing dangerous drugs, utensils, a controlled drug and property suspected of having been used in connection with the commission of a drug offence (2 February 2015) and failure to appear (22 February 2016). He had received fines and a good behaviour bond with respect to those previous convictions.
- [17]His traffic history disclosed that he had numerous offences of exceeding the speed limit in 2009, 2014, 2015 and 2016 and SPER suspensions in 2010, 2011 and 2013.
- [18]The last speeding offence was committed on 15 January 2016.
- [19]He also had convictions for failing to stop at a red light x 2 (2015) and driving an unregistered vehicle x 2 (2015).
Defence submissions
- [20]The defence solicitor informed the Court that the appellant was 25 years of age. He was the Dux of his school at Mount St Patrick’s College. He had enrolled in Griffith University and had completed half of a business degree. He wanted to change to a law degree. He was a talented sportsman in the area of rugby league. He had spent some 24 days in presentence custody. He was working as a cleaner and engaged with counsellors and a psychologist. He had “fallen off the rails” in relation to a methylamphetamine addiction. He was intent on engaging with a psychologist. The defence instructed that the appellant had a bipolar disorder and was going through a manic episode at the time. He had made an erratic decision to drive to the Northern Territory in the rental car. Ultimately he cooperated with the intercept attempt. The defending lawyer asked the Court to take into account the early plea of guilty and his cooperation with the Police. A submission was made for an immediate release on parole.
- [21]No psychological report nor any references were tendered.
Acting Magistrate’s decision
- [22]The acting magistrate took into account the pleas of guilty. He took into account the circumstances of the offending. He took into account the degree of speed, the substance abuse, the level of danger accorded to the members of the community and the lengthy journey of the dangerous operation. Ultimately, the penalties which I have mentioned were imposed.
Appellant’s submissions
- [23]The appellant submits that the penalties imposed were manifestly excessive. It is submitted that the offending arose out of a single course of conduct. He submits that the acting magistrate fell into error because he appears to have sentenced the appellant on the basis of later disclosures to the Police of having travelled at 190km/h for a good part of the journey. It is submitted this was not part of the particulars of the charge. It is submitted the Magistrate erred in stating the appellant had committed offences through half of Queensland. It was submitted that the magistrate failed to refer to the appellant’s level of youth, the fact he had not been imprisoned before, his educational qualifications and his prospects of rehabilitation. It was submitted the magistrate focused too much on issues of general deterrence.
- [24]It is submitted that the appellant should be admitted to immediate release on parole. It is submitted that the appellant’s traffic history is minor, as is his criminal history.
- [25]In oral submissions it was said that the magistrate fell into error by failing to refer to the appellant’s youth; the fact he had not been to jail previously; there was no reference to his antecedents and to his good prospects of rehabilitation.
Respondent’s submissions
- [26]On the other hand, the respondent submits that the magistrate did not fall into any error. The Police prosecutor properly placed before the Court the facts of the offending, including the charge of disobeying the speed limit to which a plea of guilty was entered. The Police had recorded his speed to be 192km/h in a 110km/h Police zone. The speed was relevant to the charges. The fact that the magistrate referred to the offence as being “committed throughout half of the state of Queensland” is contextually correct considering he committed the offence of unlawful use three days prior at Tweed Heads. The substantive offence of dangerous operation extended over about 100kms on the Landsborough Highway for not less than one and a half hours which is a not insignificant difference. He failed to stop twice when directed by Police and disregarded the safety of other road users and the authority of the Police. It is submitted the magistrate took into account the pleas of guilty and the fact the appellant had an otherwise limited criminal history. It is submitted the appellant had a serious traffic history with 12 entries in Queensland for speeding. He was also under the influence of methylamphetamine at the time of the offending. It is remarkable no one was injured.
- [27]In oral submissions the respondent says that the magistrate did not fall into error and the appeal on those grounds should be dismissed.
Discussion
- [28]In my view, there was no error on the part of the magistrate here. In my view, reading the sentencing proceedings as a whole, the learned magistrate did take into account the pleas of guilty; the limited history and the antecedents of the appellant.
- [29]The magistrate did not mention the age of the appellant but he could not have been unaware of this, it was specifically mentioned. His Honour specifically noted the limited history.
- [30]As to the submission concerning the antecedents the magistrate would not have been unaware of the appellant’s background and specifically mentioned the football career. There were no references or reports tendered concerning the appellant’s rehabilitation. Indeed the magistrate would have been entitled to regard these as marginal bearing in mind his appearance in the Magistrates Court on 2 February 2015 (including for drug offences) and a speeding offence a month prior to the instant offences.
- [31]There is truth in the statement that the offences were committed throughout “half of Queensland” bearing in mind the unlawful use charge. I agree with the respondent’s submissions as to the relevance of the speeds reached by the vehicle. The 184km per hour and 192km per hour detected by the police are relevant features of the offending.
- [32]The next question is whether the sentence is manifestly excessive.
Comparable decisions
- [33]A number of comparable decision have been referred to. Of course, each case depends upon its own facts.
- [34]In R v Fanning[3] the offender received 18 months to serve six months imprisonment with respect to dangerous operation of a vehicle whilst adversely affected and breaking and entering and stealing. The appeal was allowed and the 6 months reduced to 3 months. In that case the distinguishing feature is that the driving was not over the same distance as that in the instant case. Also, the appellant at the time of sentence had been free of his drug habit. Additionally, he had not committed any offence for 11 months, nor any traffic offence for over two years. He had served 73 days imprisonment at the time of the appeal. I consider Fanning to be a less serious case than the instant one.
- [35]In R v Kirby ex-parte Attorney-General[4] the respondent pleaded guilty to 1 count of dangerous operation whilst adversely affected by alcohol and the summary offence of driving over the general alcohol limit. He was sentenced to six months imprisonment suspended immediately for four years on the indictable offence and six months to be served by way of an intensive correction order for the summary offence. He was disqualified absolutely from holding or obtaining a driver license. Again, I consider that case less serious than the instant one in terms of length of driving and manner, although a taxi driver and other people suffered injury in a collision with the respondent’s vehicle. Very favourable character references were tendered together with a psychologist’s report which diagnosed significant depressive symptomatology. It was ultimately held that the sentence gave too much weight to mitigating factors and insufficient weight to deterrence and the sentence should have involved at least a short period in actual custody (see [43]). The respondent though had served three months of the intensive correction order. In the circumstances, he was not sentenced to actual imprisonment. Also, it must be borne in mind this was an Attorney’s appeal, i.e. a more moderate approach was taken (see [46]). It also seems to have been accepted that cases involving Police chases were worse (see [34]). In this regard, there was reference to the case of R v Harch[5] where 18 months imprisonment suspended after four months was imposed. In Harch the offender was only 20, but with a previous conviction for drink driving. His BAC was 0.191%. The distance of the police chase was far less than in the present case.
- [36]In R v Coake[6] the appellant pleaded guilty to 1 count of dangerous driving with a circumstances of aggravation, namely a blood alcohol concentration of 0.201%. He received two years imprisonment suspended after eight months with a disqualification of three years. He was a 33 year old with a good work history and a dated criminal history. He had one previous conviction for drink driving. The appeal was dismissed. That case like the present involved a police chase. He was older but his last conviction was for minor drug offences 10 years prior. It was noted that deterrent sentences are required particularly where there is “a Police chase situation and whilst heavily under the influence of alcohol or drugs…”.
- [37]In R v Collier[7] the offender received three months imprisonment followed by 12 months’ probation. He was only 18 years old though and the offending less serious. The offending involved a Police chase over 2kms and the offender voluntarily pulled over. The Court of Appeal noted that imprisonment of two years, including a period of actual incarceration, did not fall outside the ambit of a proper sentencing discretion (see page 4).
- [38]In R v Gehrman[8] the offender received 12 months to serve 6 months. The Court accepted that two years imprisonment was within the appropriate range for such offences (see page 3). The offender drove at speeds of up to 120km/h in Rockhampton. He had previous convictions including one for drink driving.
- [39]In R v Smith[9] the offender was 54 years old with a good history. He had one previous drink driving conviction. The driving though took place over 20 minutes and no Police chase was involved. The majority allowed the appeal the effect of which was the sentence was 15 months imprisonment suspended after 21 days. There was also reference to R v Parker.[10] In Parker the offender was sentenced to 18 months imprisonment suspended after six months. The BAC was 0.219%. There was a Police chase over 1km. He had 2 previous drink driving convictions but the driving occurred only over 1 kilometre. He was 27 and had taken steps towards rehabilitation.
- [40]Having regard to the comparable decisions it cannot be said that 21 months imprisonment to serve six months is outside of the sentencing range here.
- [41]In my view, His Honour correctly regarded seriously the nature and extent of the dangerous operation in this matter, in particular the speed involved and the length over which the offence occurred. Further, there was the speeding offence and the two failing to stop charges and this was in the context of the unlawful use of a motor vehicle. In addition, it was a serious matter, in my view, that the appellant was significantly affected by methylamphetamine when he drove at excessive speeds in a very dangerous manner over a considerable distance and through built up areas.
- [42]The dangerous driving here occurred at times over a distance of about 100km between 248pm and 415pm. The speeds reached were in excess of 80km per hour over the speed limit.
- [43]It was due to good luck rather than good management that no one was killed or seriously injured.
- [44]The parole release date, at less than one third of the head sentence, reflected matters in mitigating namely the age of the offender, his antecedents and the pleas of guilty.
- [45]It may have been that another sentencing magistrate might have imposed a penalty of e.g. 18 months imprisonment to serve four months. However, in my view, it cannot be said that 21 months imprisonment to serve six months (which as I have said, is less than one third of the head sentence), with 24 days in presentence custody declared, was manifestly excessive. Even if the penalty was towards the higher end of the range in light of the facts of the case cannot be said to be excessive.
Order
- [46]In the circumstances, I order that the appeal be dismissed.
Footnotes
[1] Section 328A(2)(a) of the Criminal Code 1899 (Q). The maximum penalty is 400 penalty units or 5 years imprisonment.
[2] [2009] 2 Qd R 489.
[3] [2005] QCA 267.
[4] [2009] QCA 35.
[5] [2003] QCA 315.
[6] [1999] QCA 12.
[7] [2003] QCA 314.
[8] [2002] QCA 261.
[9] [2004] QCA 126.
[10] [2003] QCA 316.