Gibson v Queensland Police Service
[2016] QDC 264
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- Gibson v Queensland Police Service[2016] QDC 264
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Gibson v Queensland Police Service[2016] QDC 264
Gibson v Queensland Police Service[2016] QDC 264
DISTRICT COURT OF QUEENSLAND
CITATION: | Gibson v Queensland Police Service [2016] QDC 264 |
PARTIES: | DYLAN MATHEW GIBSON (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 94/16 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 28 October 2016 |
DELIVERED AT: | Southport |
HEARING DATE: | 4 October 2016 |
JUDGE: | Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld), against the order of an Acting Magistrate – where it was contended by the appellant that each sentence imposed under the order was manifestly excessive – where it was contended that the Acting Magistrate erred in imposing an order for parole and a concurrent probation order – where it was contended that a prison/probation order should have been made – whether the order of the Acting Magistrate should be set aside Criminal Code Act 1899 (Qld), s 328A(2)(a) Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9, s 92, s 93, s 160, s 160A, s 160B, s 160C, s 160D, s 160E, s 160F, s 160H Police Powers and Responsibilities Act 2000 (Qld), s 754, s 791(2) Transport Operations (Road Use Management) Act 1995 (Qld), s 79(1D), s 80(5A)(a), s 80(11) and s 86(1)(f) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 169 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Harris v R (1954) 90 CLR 652, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Bawden [2004] QCA 285, cited R v Cocaris [2005] QCA 407, cited R v Hood [2005] 2 Qd R 54; [2005] QCA 159, considered R v Hughes [1999] 1 Qd R 389, considered R v Neil [2001] QCA 41, cited R v Simpson [2001] QCA 109, cited R v Sysel [2000] QCA 233, cited Rodway v R (1990) 169 CLR 515; [1990] HCA 19, applied Santillan v Queensland Police Service [2008] QDC 033, cited Sysel v Dinon [2003] 1 Qd R 212; [2002] QCA 149, applied |
COUNSEL: | J.A. McNab for the appellant V. Adams (sol) for the respondent |
SOLICITORS: | Legal Aid Queensland 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 sentences imposed by an Acting Magistrate at the Magistrates Court, Southport, on 8 April 2016. It was contended by the appellant that each sentence imposed was manifestly excessive. A further ground was added by leave, that “the learned Judicial Registrar erred in imposing an order for parole and a concurrent probation order”.
- [2]It also became apparent during argument that a probation order was made in circumstances where a prison/probation order would normally be required. The appellant was to be released on probation, but was not able to immediately report to authorities because he was also contemporaneously imprisoned for two months (the design of the order sought to accommodate this). This aspect was not, however, the subject of a ground of appeal.
Background
- [3]The appellant pleaded guilty. The charges, and respective penalties, were as follows:
Charge 1 – s 328A(2)(a) of the Criminal Code Act 1899 (Qld) – dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance. Penalty: six months imprisonment with a parole release date fixed at 8 June 2016 (i.e. after serving two months); and 15 months disqualification from driving;
Charge 2 – s 754 of the Police Powers and Responsibilities Act 2000 (Qld) (the ‘PPRA’) – fail to stop motor vehicle. Penalty: three months imprisonment concurrent; and two years disqualification from driving (mandatory);
Charge 3 – ss 80(11), 79(1D) and 86(1)(f) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the ‘TORUM’) – fail to provide specimen as required of breath or saliva. Penalty: 18 months probation with a special condition to submit to such medical, psychiatric or psychological assessment and treatment as may be deemed necessary including such alcohol/drug counselling and/or treatment as may be deemed necessary; and ten months disqualification from driving;
Charge 4 – s 80(5A)(a) of the TORUM – failed to provide specimen as required of breath. The penalty was 18 months probation as above;
Charge 5 – s 169 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) – stopping on a road with a yellow edged line. The appellant was convicted and not further punished; and
Charge 6 – s 791(2) of the PPRA – contravene a direction or requirement of police. The penalty was a $400 fine, with a conviction recorded.
- [4]The charges arose out of an incident at 10.50 pm on 31 December 2015 in Surfers Paradise. At that time, there was heavy pedestrian traffic in the area for New Year’s Eve celebrations. The road conditions included a residential area with low lighting where cars are usually parked on both sides of the road. The dangerous driving continued for approximately two kilometres; the elapsed time was about five minutes. As summarised, the driving conduct involved the following:
- (a)the defendant was directed by police to pull over for random breath tests;
- (b)he failed to stop;
- (c)he drove away from police;
- (d)he overtook a vehicle that had stopped to give way;
- (e)he accelerated heavily across Northcliffe Terrace;
- (f)he crossed onto the wrong side of the road;
- (g)he overtook another car by crossing again onto the wrong side of the road;
- (h)he drove through a red light;
- (i)he drove across tram tracks at high speed while the tram lights were green and the trams were running every seven minutes;
- (j)he came to stop on a yellow line and exited the car; and
- (k)he twice failed to provide a specimen of breath as directed.
- [5]The further offence of contravening a direction related to an earlier offence in time. The appellant was directed by police to attend Anglicare on 24 November 2015 in relation to drug diversion, which he failed to do.
- [6]The appellant was born on 13 January 1993 and was 22 years of age when committing the offences and 23 years of age when sentenced. He had no criminal history, although he did have a traffic history at the material time.
- [7]The appellant was imprisoned following the sentence, however he instituted an appeal and was granted bail on 19 April 2016 having served 12 days imprisonment pursuant to the orders.
The appeal
Error of law
- [8]It is submitted on the appellant’s behalf that a legal error was made in imposing an order for parole and a concurrent probation order. It is also argued that the sentence imposed is manifestly excessive in all the circumstances.
Probation and concurrent parole not permissible
- [9]The appellant’s first submission is that although s 92 of the Penalties and Sentences Act 1992 (Qld) (the ‘PSA’) permits prison/probation orders, it does not contemplate contemporaneous orders for parole and probation. In support of this submission, reference was made to R v Hood.[1] In that case, the Court of Appeal approved the imposition of a suspended sentence at the same time as a probation order so long as the orders have a consistent effect such as intended release into the community at the same time under each order.[2] However, I do not find Hood to be support for the proposition contended.
- [10]Hood was the conclusion of an earlier line of cases including R v Hughes,[3] where the Court considered the situation in which various periods of imprisonment, including a recommendation for parole, were imposed with a probation order. This was disapproved by the Court in Hughes, which concluded that, except to the extent specifically permitted under s 92(1)(b) of the PSA, it is neither permissible nor proper to make a probation order to operate concurrently with the sentence of imprisonment. Having referred to the fact that the recommendation did not produce any certainty of release, McPherson and Pincus JJA stated:[4]
“The difficulty of complying concurrently with two forms of sentencing order which are essentially inconsistent in their purpose and effect was the principal reason for the decision in R v Lihou. An offender who is sentenced to remain in prison cannot at the same time be released on probation. By way of illustration, D M Campbell J referred in his reasons in that case to a statutory provision expressly requiring a probationer to report in person where so directed within 24 hours after he is released on probation…. It might be possible to frame the reporting condition in such a way as to meet that particular difficulty; but… [after referring to R v Lihou ex parte Attorney-General [1975] Qd R 44 and English authorities]…the making of a probation order which could not immediately be of effect in such circumstances was contrary to the spirit and intention of the Act, and was improper.”
- [11]This was further considered in R v Sysel,[5] where concurrent imposition of suspended sentences with a prison/probation order was regarded as prohibited by s 92(5) of the PSA. However, in Sysel v Dinon, Muir J, with whom the other members of the Court agreed, expressly endorsed the kind of order made in the present case, where an offender imprisoned for, say, six months on each of two counts could then be sentenced on a third count to probation without further imprisonment being imposed.[6]
- [12]
“[47] Where the effect of sentencing orders will result in an offender’s release on a fixed date,[9]usually the date of sentence,andwhere that offender can thereafter comply with the terms of the sentencing orders by continued lawful behaviour, there is very little statutory impediment to the orders which can be made and which result in liberty after that ascertained date, albeit subject to conditions such as good behaviour, reporting to nominated authorities, participation in specified activities or undergoing specified treatment. One limitation is provided in s 92(5). This Court has created others by its application of earlier judgments, while effectively reversing the commencing one. I consider the Court should not recognise impediments to sentencing options other than those expressly appearing in the applicable legislation, or resulting either from the manifest impossibility of compliance with the requirements of different orders, or manifest inconsistency of purpose. (emphasis added)
[48] There is no inconsistency or difficulty in compliance where an offender is released upon a suspended sentence at the same time as the offender is placed upon probation. There is no prohibition in the Act against both ordering probation (whether immediate or after serving a sentence of up to one year’s imprisonment) for one offence, and a (wholly or partially) suspended sentence for another offence. Obviously enough, any orders made should have a consistent effect, such as intended release into the community at the same time under each order. Section 92(1)(b) should be accepted as facultative, that is, its purpose is to allow both imprisonment and probation for one offence; and it says nothing about other orders for other offences. I would hold that suspended sentences of any length can properly be imposed at the same time as sentences of probation for other offences; and that sentences suspended after serving up to 12 months can be imposed concurrently with probation for other offences whether with or without imprisonment on those other offences before release on probation.”
- [13]It is difficult to see what impermissible conflict would arise from an offender being on court ordered parole and probation at the same time. There is no apparent inconsistency or difficulty in compliance with both obligations.
- [14]The previous problem, particularly as outlined in Hughes, was the difficulty in reporting on probation where it was quite possible the offender may still be held in prison, because release was uncertain. This was particularly a problem where, as in Lihou, there was a statutory obligation to initially report within 24 hours. However, the terms of the present s 92 and s 93(1)(b) of the PSA give flexibility in this requirement. Further, the introduction into the PSA of Division 3 relating to parole, operational from 28 August 2006, gives certainty as to parole release. This permits for example, as occurred in the present case, pursuant to s 160B of the PSA, the fixing by a sentencing court of a date for the offender to be released on parole. This certainty of release enables the reporting requirement to be met. In this way, the concerns which were present in Hughes have been alleviated.
- [15]In the present case, it is curious and unconventional that (where the offender was otherwise being imprisoned for two months) a probation order was made, rather than a prison/probation order pursuant to s 92(1)(b) of the PSA. This seems inconsistent with the usual concept of probation under s 92(1)(a), being release under supervision. However, the formulation of an order which purports to act under s 92(1)(a) and yet defers the reporting requirement to two business days of release, rather than immediate release on probation, was expressly approved in Sysel v Dinon. This does not, therefore, amount to an error.
Manifestly Excessive
- [16]The appellant acknowledges that an appeal against the sentencing discretion is limited; mere disagreement with the result is not enough. The discretion must be shown to have been improperly exercised, for example, by excluding proper considerations or regarding irrelevant ones, or mistaking the facts or law. The nature of the sentence itself, in relation to the offence and the circumstances, may demonstrate the discretion has miscarried.[10]
- [17]The material before the Acting Magistrate included:
- (a)A letter from the treating general practitioner, Dr Byrnes, setting out his health problems including PTSD (presumably post-traumatic stress disorder), depression, and anxiety disorder. He is treated with Temaze (presumably for insomnia) and Zyprexa (an anti-psychotic). He is said to be stable on these medications;
- (b)A support letter from Claire Burton of Lives Lived Well, setting out the appellant’s problems including drug use, homelessness and health problems as well as the plan to treat these;
- (c)Material from the Traffic Offenders Program, which the appellant had completed;
- (d)A support letter from Indigenous Elder Ms Simpson; and
- (e)A reference from a Mr Gibson.
- [18]Further material tendered on appeal included letters from other representatives of Lives Lived Well as to his progress since the original sentence.
- [19]The appellant submits that the appropriate exercise of the sentencing discretion would result in a non-custodial disposition of the matter, when proper weight is given to: his mental health issues; his completion of the Traffic Offenders Program; the letter of support from Ms Simpson (the appellant is Indigenous); the letter from Claire Burton of Lives Lived Well; and the further material from Ms Schlesinger and Ms Cook, both of Lives Lived Well.
The respondent’s submissions
- [20]The respondent submits that the ground of appeal of the sentence being found to be manifestly excessive was considered in Barbaro v The Queen:[11]
“The residuary category of error in discretionary judgment identified in House is where the result embodied in the court’s order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.”
- [21]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then this determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.”
- [22]The respondent submits that there was no error in imposing concurrent parole and probation orders and, for the reasons outlined above, I agree.
- [23]There was discussion of whether the Acting Magistrate had made an error in not imposing a parole release date for the three months term of imprisonment, which is certainly an available reading of His Honour’s sentencing remarks. However, this was clarified somewhat by the criminal history, which has identified the orders as being both subject to the same parole release date. This is, as the respondent submits, consistent with ss 160A-160E of the PSA and, more specifically, ss 160F(1) and 160H. It is also consistent with the relevant handwritten notation on the relevant Bench Charge Sheet.
- [24]In relation to the sentence being manifestly excessive, the respondent argues that it may be considered heavy, but is not excessive. It is pointed out the mandatory minimum penalty for evading police includes 50 days wholly served in a correctional facility coupled with a two year disqualification period. This is correct, although there is an available alternative of a fine with a minimum of 50 penalty units.
- [25]The respondent submitted that the appellant had only recently engaged with the Lives Lived Well program at the time of the sentence, and thus this material did not carry great weight. It was also submitted that the material concerning the appellant’s health was minimal.
Discussion
- [26]As outlined above, I am of the view that no error was made in the sentencing process in imposing a probation order concurrently with a parole release order. The appeal then turns on whether the sentence is shown to be manifestly excessive. It is submitted, and I accept, that it is not sufficient for me to conclude that I may have struck a different balance between the competing considerations affecting the discretion than that reached by the Acting Magistrate. Rather, as outlined above, the question may be summarised as whether the sentence is beyond the permissible range.
- [27]The offences are serious and the respondent rightly points to the minimum penalty for evading police. Fortunately, however, the period of the dangerous driving was brief, the distance was relatively short and the evasion was short lived. No injuries were caused. The appellant emphasises his lack of any criminal history, his age, his prompt plea of guilty and the clear evidence of his mental health issues.
- [28]The original support letter from Claire Burton indicated that the appellant: had a history of serious mental health concerns and substance misuse issues; and was homeless and isolated from his family. The plan was to have him detoxified at a facility before admitting him to Mirikai for assessment and treatment. He was then to be released to a halfway house program. On the appeal, further material was tendered of which, clearly, the Acting Magistrate did not have the advantage. This included the letter from Ms Schlesinger of 23 September 2016, indicating the appellant had been admitted to Mirikai on 12 May 2016. On 5 August 2016, he was discharged for breaching the rules. However, he was readmitted on 28 August 2016 and is now in the “leadership program”. The program includes: a three weeks assessment period; a ten weeks living and life skills program; an eight weeks leadership phase; a three months integration stage where the resident moves into a halfway house; and a three months program for entering the community. The appellant was showing strong growth in recovery. As a resident, he has urine analysis weekly and random urine tests conducted by an independent laboratory. He seems to be doing well on the program.
- [29]This material has thus firmed up the previously somewhat tenuous position as to the appellant’s rehabilitation. Further, the appellant has now served 12 days in custody since the original sentence was passed.
- [30]Thus, the position may be summarised as follows. The Acting Magistrate was dealing with a youthful first offender who committed a number of offences with serious aspects to them. However, in his favour are the facts that no one was injured, there was no property damage and the driving was of brief duration over a short distance. He pleaded guilty, suffered from serious health issues that were under treatment as well as social disadvantage and was offered, and engaged in, genuine and effective rehabilitative programs. The health issues, and his completion of the Traffic Offenders Program, were not mentioned by the Acting Magistrate. The mandatory two year disqualification is of itself a heavy penalty.[13]
Comparable Sentences
- [31]In R v Cocaris,[14] the appellant was prosecuted on indictment, rather than summarily as here; the maximum sentence available was thus five years imprisonment. She was intoxicated by heroin and injured other road users, but was a 23 year old first offender working as a social worker. She was sentenced on appeal to two months imprisonment and twelve months probation.
- [32]In R v Bawden,[15] a 20 year old first offender with good references and employment pleaded guilty to dangerous operation whilst adversely affected. He drove at 140 kph in a 60 kph zone for over 3.1 km and had a blood alcohol content of .149, but did not injure anyone. He was fined $1,000 and disqualified for 18 months.
- [33]Other cases referred to in Cocaris include R v Simpson:[16] a case of dangerous operation whilst adversely affected; blood alcohol content of .169; unlicensed; he injured the other driver and was sentenced to two years imprisonment wholly suspended; and R v Neil:[17] dangerous operation whilst adversely affected by methadone and heroin; he injured his passenger and himself; he had a bad driving history and was sentenced to 18 months imprisonment partly suspended after four months for two years.
- [34]It is true that the offence of failure to stop is a serious one and is present in this case and not in the older comparable cases. However, they were all prosecuted for more serious offences, on indictment. All caused injuries except Bawden, who received a fine. These matters, with the features listed in paragraph [30] above, drive the conclusion that the sentencing discretion miscarried and that the sentence was manifestly excessive and thus should be set aside. In exercising the sentencing discretion afresh, I am dealing with the appellant in circumstances where the post sentence material is relevant. Some of this is quite powerful, including his success on the Lives Lived Well program and his 12 days in custody. I take into account the purposes for which sentence is to be imposed, and the factors relevant thereto, set out in s 9 of the PSA.
- [35]Further, since sentence was originally passed, the amended s 9(2)(a) of the PSA, which commenced on 1 July 2016, dictates that imprisonment is a last resort. As I am exercising the sentencing discretion afresh on the present updated material, I consider the present version of the legislation to inform the sentencing discretion. It is, in my view, essentially procedural in nature and thus has retrospective operation in these circumstances.[18]
Orders
- [36]In all the circumstances, the appeal is allowed. The original sentences for offences 1 to 4 are set aside, apart from the licence disqualification for charge 2, and in lieu thereof, the appellant is sentenced to:
Charges 1, 3 and 4: 12 days imprisonment with 18 months probation, pursuant to s 92(1)(b) of thePSA; the same special condition to apply as in the existing order; the requirements in s 93 are to apply, with the condition that he report to an authorised corrective services officer at Burleigh within two days of the publication of these reasons; further, a declaration of 12 days presentence custody as already served.
Charge 2: a fine of 50 penalty units, which as at April 2016 amounted to $117.80 x 50 = $5,890.00; to be paid within 30 days, in default reference to the State Penalties Enforcement Register.
The appellant has indicated his consent to enter into probation, as demonstrated by the existing orders. Therefore, his presence is not required for that purpose at delivery of the judgment, but he should attend forthwith to enter into the new orders.
Footnotes
[1] [2005] 2 Qd R 54; [2005] QCA 159.
[2] Ibid, [48] (Jerrard JA).
[3] [1999] 1 Qd R 389.
[4] Ibid, 390.
[5] [2000] QCA 233.
[6] [2003] 1 Qd R 212, [32]-[35]; [2002] QCA 149, [32]-[35].
[7] [2000] QCA 16.
[8] R v Hood [2005] 2 Qd R 54; [2005] QCA 159.
[9] As occurred in this case.
[10] Harris v R (1954) 90 CLR 652, 665-666.
[11] (2014) 253 CLR 58; [2014] HCA 2, [26].
[12] (1936) 55 CLR 499, 505; [1936] HCA 40.
[13] Santillan v Queensland Police Service [2008] QDC 033, [3]-[4].
[14] [2005] QCA 407.
[15] [2004] QCA 285.
[16] [2001] QCA 109.
[17] [2001] QCA 41.
[18] Compare Rodway v R (1990) 169 CLR 515, 518-522; [1990] HCA 19.