Heydt v The Commissioner of Police
[2017] QDC 104
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- Heydt v The Commissioner of Police[2017] QDC 104
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Heydt v The Commissioner of Police[2017] QDC 104
Heydt v The Commissioner of Police[2017] QDC 104
DISTRICT COURT OF QUEENSLAND
CITATION: | Heydt v The Commissioner of Police [2017] QDC 104 |
PARTIES: | NATHAN WAYNE HEYDT (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D 48/16 |
DIVISION: | Criminal |
PROCEEDING: | Appeal under s 222 Justices Act |
ORIGINATING COURT: | Magistrate Court at Ipswich |
DELIVERED ON: | 3 May 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 23 March 2017 |
JUDGE: | Lynch QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to a number of offences including an offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance – where the appellant was sentenced to a term of 12 months imprisonment cumulative upon a current sentence of 18 months imprisonment for this offence – where the parole eligibility date was fixed at 1 October 2017 – where the appellant had a relevant criminal history including traffic offences – where the appellant had not previously been convicted of a dangerous driving offence and was not serving a sentence for like offences – whether error by sentencing magistrate demonstrated – where offence resulted from appellant’s intoxicated state – whether conclusion that offence no less serious than intentional dangerous driving amounts to error – whether separate consideration as to parole eligibility amounts to error – whether the sentencing magistrate properly applied the principle of totality in imposing the parole eligibility date – whether the sentence imposed was manifestly excessive Legislation Justices Act 1886, s 222, s 224, s 225 Corrective Services Act 2006, s 184, s 209 Penalties and Sentences Act 1992 (Qld), s 9, s 156A, s 160B, s 160F, s 161B, Schedule 1 Cases House v The Queen (1936) 55 CLR 499 Hili v The Queen (2010) 242 CLR 520 R v Conquest; Ex parte A-G (Qld) [1995] QCA 567 R v Lennon [1999] QCA 192 R v CAN [2009] QCA 59 R v Gray [2005] QCA 280 R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206 Wong v The Queen (2001) 207 CLR 584 R v McDougall & Collas [2007] 2 Qd R 87; INSERT QCA R v Kirby; Ex parte A-G (Qld) [2009] QCA 35 R v Fanning [2005] QCA 267 R v Boubaris [2014] QCA 199 R v Obern [2002] QCA 444 R v Harvey-Sutton [2003] QCA 229 R v Simpson [2001] QCA 109 R v Hess [2002] QCA 184 R v McCoy [2015] QCA 48 R v Cocaris [2005] QCA 407 R v Smith [2004] QCA 126 R v Neil [2001] QCA 41 |
COUNSEL: | T. Zwoerner for the appellant K. Jones for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent |
- [1]On 10 June 2016, the appellant Nathan Wayne Heydt entered pleas of guilty in the Ipswich Magistrates Court to seven offences; namely, driving under the influence of liquor or a drug (on 24/2/16); dangerous operation of a vehicle whilst adversely affected by an intoxicating substance (on 24/2/16); unlawful possession of a dangerous drug cannabis (on 24/2/16); disqualified driving (on 24/2/16); fail to dispose of hypodermic syringe and needle (on 24/2/16); stealing (on 24/2/16); fail to appear in accordance with an undertaking (on 9/3/16).
- [2]For the offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance, the appellant was sentenced to 12 months imprisonment, to be served cumulatively with the sentence he was currently serving. The appellant was also sentenced to terms of imprisonment, to be served concurrently with his current sentence, for the offences of unlawful possession of a dangerous drug (six months imprisonment), disqualified driving (six months imprisonment), stealing (two months imprisonment) and failing to dispose of a syringe and needle (two months imprisonment). For each of the offences of driving under the influence of liquor or a drug and fail to appear in accordance with an undertaking, the appellant was convicted but not further punished. An order was made that the appellant be eligible for parole on 1 October 2017. The appellant was also given cumulative disqualification periods from holding or obtaining a drivers licence for the offence of driving under the influence (six months), disqualified driving (two years), and dangerous operation of a vehicle (18 months); meaning a total disqualification period of 4 years. The appellant was also ordered to pay $599 restitution in respect of the stealing charge.
- [3]At the time of sentence, the appellant was serving a sentence of 18 months imprisonment, imposed in the Beenleigh Magistrates Court on 15 February 2016. The appellant was initially released on parole at that time but was returned to custody on 24 March 2016, when arrested for failing to appear in accordance with an undertaking. His parole had been suspended on 25 February 2016. As at the date of sentence, the appellant had served about two and a half months of the 18 month sentence. His full-time discharge date in respect of that sentence was 11 September 2017.
- [4]The appellant appeals against the sentence imposed for the dangerous operation offence on the ground it is excessive.
Circumstances of offences
- [5]In the proceedings before the learned Magistrate, a schedule detailing the facts of the offences was admitted as Exhibit 1. That document records that on 24 February 2016, the appellant’s vehicle was seen travelling erratically on the Logan Motorway at Gailes. The vehicle was followed by two motorists, one of whom was an off-duty police officer, until it was intercepted by police on Ipswich – Boonah Road at Purga. The vehicle was first observed to be swerving across lanes of traffic, narrowly avoiding collision with about seven other vehicles which were required to take evasive action. The appellant was seen to appear to be nodding off as he drove. The vehicle then travelled onto the Ipswich Motorway and then the Cunningham Highway and continued to swerve from side to side across traffic lanes requiring other vehicles to avoid collision. The appellant’s vehicle had its right-side indicator constantly activated. The vehicle was seen to take exit ramps from the Cunningham Highway but then immediately re-enter via the on ramps. Near the Flinders View exit from the highway, the vehicle was seen to swerve across lanes and almost collide with two motorcycles travelling in the opposite direction; the motorcycles having to avoid collision. The appellant’s vehicle exited the highway at Yamanto and was eventually intercepted.
- [6]The appellant, the sole occupant of the vehicle, had slurred speech, blood shot eyes, and swayed in his seat. The appellant provided his correct details to police but said he did not have his driver’s licence with him. The appellant was subjected to a roadside breath test which gave a negative result. He was arrested and a sample of his blood later taken at Ipswich Hospital. A certificate of analysis of that sample was admitted as Exhibit 4. It showed the presence of amphetamine (0.01 mg/kg), methylamphetamine (0.05 mg/kg), diazepam (0.28 mg/kg), and nordiazepam (0.14 mg/kg) in the appellant’s blood. A search of the car located a total of 5.2 grams of cannabis, and two used capped needle and syringes inside a bag. A check of records revealed the appellant was then disqualified by court order from holding or obtaining a driver’s licence until 28 July 2016. The appellant was released on a bail undertaking requiring him to appear in the Ipswich Magistrates Court on 9 March 2016.
- [7]The appellant failed to appear on 9 March 2016 in accordance with the undertaking. He was arrested on warrant for failing to appear on 24 March 2016. At that time, the appellant admitted he failed to appear because he believed he would be incarcerated and unable to enter drug rehabilitation. He also admitted the stealing offence which involved his taking a chair (valued at $599) that was on display outside a baby goods store, placing it in his car and driving away. The appellant said he exchanged it for drugs.
Appellant’s personal circumstances
- [8]The appellant was born on 29 August 1977 (as per criminal history - Exhibit 2). He was aged 38 at the time of the offences and when sentenced; he is now 39 years of age. He was in a relationship at the time of offending and has two children. The learned Magistrate was informed the appellant was addicted to amphetamine based drugs at the time of the offending, and whilst on parole, was waiting on admission to a drug rehabilitation program.
- [9]The appellant has a relevant criminal and traffic history. He has numerous convictions for dishonesty and drug offences commencing from 1997. Most of the past offending was dealt with before the Magistrates Court. In 1998 and 1999, the appellant appeared before the District Court for property/dishonesty offences and breaching probation and received a short period of imprisonment. In 2004, the appellant was again before the District Court for offences of entering a dwelling with intent, fraud and receiving, and sentenced to a suspended period of imprisonment. The appellant breached that order by conviction for drug offences in 2006. Further convictions for drug offences before the Magistrates Court followed in 2008, 2010, 2011, 2013, 2014, and 2016. Some of this offending was dealt with by way of fines, on one occasion by an order for intensive drug rehabilitation, and others by short terms of imprisonment. In 2013, the appellant was sentenced to three months imprisonment for drug offences and in 2014 to six months imprisonment for drug offences. On 15 February 2016, the appellant was dealt with in the Beaudesert Magistrates Court for offences including entering premises and committing an offence, possession of dangerous drugs, as well as other dishonesty and drug related offences. He was sentenced to 18 months imprisonment and immediately released on parole. He had spent three months in pre-sentence custody which was not declared time served under that sentence. The appellant’s full time release date for that sentence was 11 September 2017.
- [10]The appellant has a lengthy traffic history dating from 1998 up to the time of the present offences. This includes disobeying traffic signs (six offences between 1998 and 2007) and exceeding the speed limit (12 offences between 1998 and 2009). In addition, he committed numerous offences of driving whilst disqualified (10 offences between 2005 and 2010 and another offence in 2012). For some of these offences he was sentenced to imprisonment; for the last such offence in 2012, the appellant was sentenced to four months imprisonment. The appellant had not previously been convicted of driving whilst under the influence of liquor or a drug or of dangerous operation of a vehicle.
Magistrate’s sentencing remarks
- [11]The learned Magistrate took account of the appellant’s age which he said discounted any reliance upon youth as a mitigating factor. He noted the appellant’s apparently long-standing drug problem which he said did not provide an excuse for the offending. The Magistrate acknowledged he was required to order any term of imprisonment for the offence of dangerous operation be served cumulatively with the appellant’s current sentence. He said he was therefore required to “take account of that fact and impose a sentence so that the overall penalty that you have to suffer as a result is not out of kilter with the charges that you’re facing.” The learned Magistrate twice later referred to the need to take account of “totality” in imposing sentence.
- [12]The learned Magistrate said he did not accept that the dangerous operation offence was “in any way less serious” than a case of deliberate dangerous driving as doing so would allow the appellant’s drug consumption to be regarded as a mitigating circumstance. The Magistrate noted the driving had the potential for disaster for the appellant or other innocent road users who were required to take evasive action to avoid collision. The learned Magistrate acknowledged the pleas of guilty resulted in the matters proceeding without undue delay. The Magistrate then proceeded to impose the sentences and disqualification periods as set out above.
- [13]The learned Magistrate then said:
In the circumstances, given that the 12 months is cumulative, I now have to consider the question of a date which I order that you be eligible for consideration of parole. That date – your full time release date – is 12 – 14-odd months away. In the circumstances I’m going to order that you be eligible for parole on the 1st of October 2017. That in my view, takes into account all of the relevant circumstances including the nature of the offences and the fact that these offences occurred whilst you were on parole for the other offences.”
After imposing the sentences and stating the parole eligibility date, the appellant is recorded as asking the Magistrate: “So what’s that; a year and four months, your Honour, before I’m eligible for parole?” The learned Magistrate is recorded as replying:
“I understand that’s – that’s just simply a product of the cumulative nature of the sentencing and the overall offending and taking into account your criminal history including the fact that these offences have occurred on parole.”
Amended notice of appeal and submissions of parties
- [14]The appellant first filed a notice of appeal on 17 June 2016. That Notice listed the grounds of appeal as follows: “The sentence was manifestly excessive in so far as the parole eligibility date is concerned.” By outline of submissions filed on behalf of the appellant on 5 August 2016, it was contended that the learned sentencing Magistrate erred in setting parole eligibility at a date after the halfway point of the combined period of imprisonment, and failed to give an opportunity for submissions to be made as to that course.
- [15]The respondent filed an outline of submissions on 1 September 2016, opposing the appeal. The submissions of the respondent were to the effect that no error by the sentencing Magistrate was demonstrated, the sentence imposed was not excessive, and the appeal should be dismissed. In particular, the respondent submitted that a series of decisions of the Court of Appeal confirmed that where a cumulative sentence is imposed for offences committed whilst subject to parole, the “usual” considerations requiring the court to give reasons why the parole eligibility date is set after the half way point of the total period of imprisonment and inviting submissions as to that course, need not apply.
- [16]On 10 March 2017, counsel for the appellant filed a substituted outline of submissions in support of the appeal. At the hearing of the appeal on 23 March 2017, the appellant also filed, by consent, an amended notice of appeal. That notice listed the grounds of appeal as follows: “The sentence for the charge of dangerous operation of a vehicle while adversely affected was excessive.” The substituted outline of submissions expressly disavowed reliance upon the appellant’s earlier outline of submissions. The appellant submitted in effect that, because the sentence imposed for the offence of dangerous operation was required to be served cumulatively with the appellant’s existing sentence, considerations of totality compelled the conclusion that the length of that sentence was excessive. The appellant’s submissions highlighted that the appellant had not previously been convicted of a dangerous driving offence, that he was not serving a sentence for like offences, and that sentences imposed in comparable cases did not support the sentence imposed. It was submitted that this offence did not have the serious aspects that could be identified in many of the cases relied upon; namely, it did not result in damage to property or injury to any person, did not involve deliberate dangerous driving such as in a police chase or other deliberate recklessness, did not involve speeding, and did not involve any maliciousness directed at any person or property. Counsel for the appellant also submitted that, although the head sentence imposed by the learned Magistrate was that submitted for by the appellants legal representative, this was not case where the appellant “got what he asked for” as the overall result, in light of the parole eligibility date, was much different than contended for at first instance. It was submitted that a sentence for the dangerous operation offence of 6 months imprisonment should be substituted for that imposed.
- [17]A further outline of submissions was filed on behalf of the respondent on 21 March 2017. By those submissions, the respondent accepted that the “totality” principle applies in relation to the sentence imposed in this case. The respondent maintained that when so viewed, the sentence imposed was not excessive. The respondent’s submissions identified that the sentence of 12 months imprisonment imposed was what the appellant’s legal representative submitted was appropriate, that the dangerous driving in question was serious, that the appellant had a relevant criminal and traffic history, that sentences imposed in comparable cases supported the present sentence, and that the learned sentencing Magistrate correctly regarded the requirements of personal deterrence and community protection as being paramount considerations. The respondent maintained that no error was identified in the approach of the learned sentencing Magistrate and the appeal should be dismissed.
Statutory provisions and test to be applied
- [18]The right of appeal against the sentence imposed by the learned Magistrate is provided under s 222 of the Justices Act 1886. That section, relevantly, provides that a defendant aggrieved by an order made in summary proceedings for an offence, may appeal to a District Court judge on the ground that the penalty or punishment was excessive.[1] Under s 224 (1) (c), a District Court judge may amend the notice of appeal. Pursuant to s 225, on hearing the appeal, the District Court judge “may confirm, set aside or vary the appealed order” and “may exercise any power that could have been exercised” by the sentencing Magistrate.[2]
- [19]
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 his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer 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 such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
- [20]
As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". (Citations removed.)
Relevant considerations
(i) Nature of offending
- [21]The appellant stood to be sentenced for the offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance. The offence involved his driving in a dangerous manner between the point his vehicle was first observed on the Logan Motorway at Gailes and where it was subsequently intercepted by police at Purga. In the course of the driving, the vehicle was seen to swerve across the lanes of traffic heading in a westerly direction on the Ipswich Motorway, causing numerous other vehicles, also travelling in that direction, to avoid collision. The appellant was seen to be nodding off whilst driving. After continuing onto the Cunningham Highway, the appellant’s vehicle was seen to take exits ramps then immediately re-enter that roadway, and at one point to almost collide with two motorcycles travelling in the opposite direction. The vehicle was seen to exit the Cunningham Highway at Yamanto. No further dangerous manoeuvres were described before the vehicle was intercepted by police at Purga.
- [22]The driving was over a total distance of approximately 27 kilometres which would take approximately 17 minutes to drive at normal speed.[7] Testing of a blood sample taken from the appellant showed the presence of methylamphetamine (and its metabolite amphetamine) and diazepam (and its metabolite nordiazepam) in his blood. Whilst no evidence was placed before the court as to the likely effect upon the appellant of the quantities of the drugs present in that sample, it is to be assumed by virtue of the plea of guilty, that the methylamphetamine and/or diazepam adversely affected the appellant’s ability to safely operate the vehicle. Therefore, it should also be accepted the explanation for the appellant’s dangerous operation of the vehicle is that it was due to his level of intoxication. The appellant was, at the time, disqualified from driving. The appellant was also charged with offences directly connected to his dangerous operation of the vehicle whilst adversely affected; namely, driving under the influence of a drug and disqualified driving. In addition, the appellant faced charges of possession of a small quantity of cannabis, failing to dispose of a needle and syringe (cannabis and needles located in the vehicle he was driving), and offences of stealing a chair and failing to appear in court on the first return date.
(ii) Relative seriousness of offence
- [23]The learned Magistrate concluded that he did not regard the driving identified here as “in any way less serious” than deliberate dangerous driving, in light of the appellant’s voluntary drug use. It was not alleged in the proceedings below that the appellant deliberately drove in a dangerous manner, rather, that the driving resulted from his intoxicated state. Various decisions of the Court of Appeal do not support the approach of the learned Magistrate. In R v Conquest; Ex parte A-G (Qld),[8] the majority (McPherson and Thomas JJA), said: “Plainly the actual result of conduct like this is a highly relevant factor in the sentencing process. So too is the nature of the driving.”[9] Their Honours then identified various levels of seriousness of dangerous driving “between recklessness and deliberate harm”.[10] In R v Lennon,[11] where the blood alcohol concentration of the applicant was 0.275%, Chesterman J said: “The dangerous driving in this case was not deliberate but the result of excessive intoxication. Intentional aggressive or dangerous driving appears from the cases to be a factor tending to a heavier penalty.”[12] The significance of that distinction was affirmed in R v CAN by Atkinson J (Holmes & Muir JJA agreeing).[13] In R v Gray, where the offender drove with a blood alcohol concentration in excess of 0.125%, the majority concluded it “was not simply a case of negligent driving” but rather was more serious because the offender “deliberately drove in a dangerous manner”.[14] That driving, of a utility in circumstances where the driver knew there were passengers in the tray of the vehicle, included deliberately swerving the vehicle and “fishtailing” before losing control and colliding with trees.
(iii) Totality considerations
- [24]The offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance is contrary to s 328A of the Criminal Code. Section 328A is a provision listed in schedule 1 to the Penalties and Sentences Act 1992. The appellant was, on 15 February 2016, sentenced to 18 months imprisonment for previous offending but immediately released on parole. The dangerous operation offence was committed on 24 February 2016, i.e. nine days later. The appellant was therefore, at the time he was sentenced by the learned Magistrate, a person to whom s 156A of the Penalties and Sentences Act applied. In those circumstances, any term of imprisonment imposed for the dangerous operation offence was required to be served cumulatively with the existing sentence.
- [25]
In such a case, “the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable”. (Citations removed.)
It is to be noted that, although the learned Magistrate expressly acknowledged this requirement, he was not referred to authority as to the appropriate penalty for the offence of dangerous operation of a vehicle, and did not identify in his reasons any sentence, from which he had reduced the penalty on account of this consideration. It is therefore not possible to say with certainty to what extent the learned Magistrate reduced the sentence to ensure the overall sentence reflected the overall criminality. In the result, the learned Magistrate imposed a sentence of 12 months imprisonment, cumulative with the sentence of 18 months imprisonment, and which was in addition to the three months undeclared pre-sentence custody prior to that sentence commencing. Overall then, as a result of the sentence under appeal, the appellant was required to serve a total period of 33 months in custody.
(iv) Parole eligibility
- [26]In addition, the learned Magistrate was, pursuant to s 160B (2) of the Penalties and Sentences Act, required to fix the date the appellant is to be eligible for parole, since by operation of s 209 (1) of the Corrective Services Act 2006, the appellant’s parole was automatically cancelled upon his being sentenced to another period of imprisonment for an offence committed during the period of his parole order. Where no fresh parole eligibility date was set, s 184 (2) of the Corrective Services Act applied so that the appellant’s parole eligibility would arise after half of the combined period of imprisonment. The learned Magistrate set parole eligibility at 1 October 2017; i.e. about 3 weeks after the appellant’s full-time release date for his existing sentence, or about 22 months into his total sentence of 33 months (or after about 66 per cent of the total).
- [27]The learned Magistrate’s remarks suggest his consideration of the parole eligibility date was undertaken as a separate issue after determination of the length of the cumulative sentence. He said: “In the circumstances, given that the 12 months is cumulative, I now have to consider the question of a date which I order that you be eligible for consideration of parole.” The learned Magistrate went on to explain the date was set because of “all of the relevant circumstances including the nature of the offences and the fact that these offences occurred whilst you were on parole”. After the appellant sought clarification of the parole eligibility date, the learned Magistrate then identified that the date fixed was “a product of the cumulative nature of the sentencing and the overall offending and taking into account your criminal history including the fact that these offences have occurred on parole.”
- [28]The appellant’s initial complaint was that the learned Magistrate erred by setting a parole date after the halfway point of the combined sentences, in circumstances where he did not give the appellant’s legal representative an opportunity to make submissions as to that course and did not give reasons for his doing so.[17] However, as decisions of the Court of Appeal demonstrate,[18] where an offender is to be sentenced for an offence or offences committed whilst subject to parole, those considerations need not apply. No doubt that explains the appellant’s amended notice of appeal and further submissions. It was of course not mandatory for the parole eligibility date to be set after the completion date of the existing sentence; that date could be set at any time during the “period of imprisonment”, as per s 160F (2) of the Penalties and Sentences Act.
- [29]
… the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. (Citations removed.)
This passage was quoted with approval in Markarian v The Queen.[21] In R v McDougall & Collas,[22] the Court of Appeal said:[23]
… A secondary issue has been whether the exercise of the discretion has resulted in a “two step” or an “integrated” sentencing process. The joint judgment of the High Court in Markarian v R (2005) 215 ALR 213 discourages focus on those terms, and encourages the view that a sentencing court take into account all relevant considerations, and only relevant considerations.
As the High Court stated in Markarian v R, the sentencing process is an integrated process directed to the determination of a just sentence. The exercise of the discretion conferred by s 161B(3) of the Penalties and Sentences Act thus falls to be exercised as part of, and not separately from, the conclusion of the process of arriving at a just sentence. (Citations removed.)
The discretion referred to under s 161B of the Penalties and Sentences Act is the power to declare an offence a “serious violent offence”, which has the consequence of deferring parole eligibility until after 80 per cent of the sentence. The correct approach then, should be to make a determination as to the parole eligibility date as part of the overall determination of a just sentence; i.e. “take into account all relevant considerations”, including the length of any cumulative term.
(v) Comparable decisions
- [30]The appellant relies upon cases of R v Kirby; Ex parte A-G (Qld),[24] R v Fanning,[25] R v Boubaris,[26] and R v Obern[27] as demonstrating that the sentence of 12 months imprisonment for the offence of dangerous operation of a vehicle whilst adversely affected was excessive. The respondent relies upon cases of R v Harvey-Sutton,[28] R v Simpson,[29] and R v Hess[30] as supporting the sentence imposed.
- [31]In Kirby, the court of Appeal varied the penalties imposed at first instance because of error, but did not make any substantial change to the sentences. In the result, the offender was sentenced to six months imprisonment to be served as an Intensive Correction Order. There, the offender commenced driving from the city, after he had been drinking. He was heard revving his vehicle before accelerating above the 50kph speed limit through an intersection, against a red light and colliding with another vehicle. The offender’s passenger, and four of the persons in the other vehicle were seriously injured, as was the offender. The offender was aged 23 years and had a minor criminal history. He had a prior conviction for driving with a blood alcohol concentration of 0.06%, and whilst on bail for this offence was convicted of two offences of driving whilst over the alcohol limit (0.98% and 0.05%). Fraser JA (with whom Holmes and Muir JJA agreed), concluded that the offender should have been sentenced to a term that included actual imprisonment,[31] but determined it was not then appropriate to intervene.[32] This is arguably more serious than the present case, involving injury to others as a result of either deliberate dangerous or reckless driving, although over a shorter time period.
- [32]In Fanning, the court did not interfere with the sentence of 18 months imprisonment but ordered that it be suspended after three months (rather than six months). There, the offender was observed by police to drive at speed and lose control at a corner. Later, the vehicle was seen to lose control and spin 360 degrees on three occasions before driving away. When apprehended, the offender had a blood alcohol concentration of 0.175%. The offender was released on bail but failed to appear. Whilst at large he committed an offence of breaking, entering and stealing. The offender, aged 22 years, had a minor criminal record and his licence had been suspended on three prior occasions. Williams JA expressed the view that the subsequent offending on bail justified the imposition of actual imprisonment.[33] Arguably, the driving in that case was more serious than the present case, involving deliberate recklessness in the control of the vehicle. The offender however, was much younger, and without the lengthy criminal or traffic record of the appellant.
- [33]Boubaris pleaded guilty to an offence of dangerous operation of a vehicle causing death. The sentence of 18 months imprisonment suspended after serving three months was not altered on appeal. The offender drove a concrete pumping truck along the highway, at or below the speed limit of 100kph. The truck slowly moved to the left off the roadway before rolling over. The passenger in the truck, who was not wearing a seat belt, was killed in the collision. The offender had a level of methylamphetamine in his blood at the time but it was not asserted that affected his ability to drive safely. The driving of the offender was regarded as “brief but not momentary” inattention.[34] In light of that characterisation of the driving, this decision is of little assistance.
- [34]In Obern, the offender was sentenced to 12 months imprisonment suspended after four months. His appeal against that sentence was unsuccessful. The driving involved the offender attempting to drive his vehicle away from a “clearway” where he had parked. Police authorised tow truck operators to tow the vehicle, at which time the offender returned. The offender drove contrary to the instruction of a police officer. When the officer attempted to remove the keys from the ignition, the offender held the officer’s arm and the officer was dragged along, struck a pole, and suffered permanent injury to his leg. The offender, aged 56 years, had a criminal record including convictions for stealing, resisting police, wilful damage and obstructing a fire officer in the performance of his duty. His traffic history included an offence of failing to give way on the day prior to the offence in question. Subsequently, the offender committed offences of unlicensed driving and speeding and his driver’s licence was cancelled due to a collection of demerit points. The plea of guilty was entered on the day of trial and the offender showed no remorse. The nature of the driving in Obern can also be regarded more seriously than the present case, since it involved deliberate dangerous operation of the vehicle, contrary to the instruction of the police officer, resulting in serious injury to that officer.
- [35]In Harvey-Sutton, the offender was sentenced to two years imprisonment, wholly suspended, and fined $7,500. His appeal against sentence was refused. The offender’s driving involved his travelling on the Bruce Highway for a distance of about 25 kilometres whilst grossly intoxicated by alcohol. He had a blood alcohol concentration of 0.247%. His vehicle was seen to swerve onto the incorrect side of the road forcing oncoming traffic to avoid collision. The offender, a psychologist, was addicted to alcohol but subsequently made efforts to reform. The offender had two prior convictions for driving under the influence. The complaint on appeal was as to the amount of the fine and the length of the licence disqualification. The driving in this case is similar to the present case, although the offender’s personal circumstances were far more favourable than the appellant. Of significance, the offender was not required to serve any period of actual imprisonment.
- [36]In Simpson, the offender was sentenced to two years imprisonment, wholly suspended and fined $5,000. Her appeal was unsuccessful. The offender drove her car whilst unlicensed, and with a blood alcohol concentration of 0.169%. The driving included an initial distance over approximately two kilometres during which the vehicle swerved from one side of the road to the other and changed lanes erratically, requiring other vehicles to avoid collision. Approximately half an hour later, the vehicle was again driven erratically, was speeding, overtook a number of vehicles, cut in front of vehicles, struck a concrete barrier and spun out of control, before colliding with another car and causing that car to collide with a cement truck. The driver of that car suffered significant injury. The offender had a prior conviction for driving under the influence of alcohol. The appeal was focused upon the fine and length of the licence disqualification. This case also involved similar driving to the present case. A significant aggravating feature however, was that the driving resulted in injury to another driver. This offender also had far more favourable personal circumstances than the appellant. Again, it is significant that that offender was not required to serve any actual imprisonment.
- [37]In Hess, the offender was sentenced to two years imprisonment with a recommendation for parole after nine months. His appeal against sentence was refused. The dangerous driving by the applicant commenced with his overtaking an unmarked police vehicle at speed. When police gave chase, the offender drove through a red light. Eventually, police stopped along-side and instructed the offender to pull over but he accelerated away and police pursued, at times reaching speeds of about 120kph. When eventually the vehicle stopped, a police officer stood in front with his gun drawn, and the vehicle accelerated, striking the officer, who suffered some disability. The officer fired his weapon deflating two of the vehicle tyres. The offender continued to drive, but when stopped, attempted to run off. The offender had a blood alcohol concentration of 0.176%. The driving occurred over a distance of about one kilometre. The offender was on parole at the time of the driving offence. This sentence was ordered to be served cumulatively with the offender’s earlier sentence of five and a half years imprisonment for the offence of wounding with intent. At the time this sentence was imposed, the offender still had about 14 months to serve to complete the earlier sentence. The court described the conduct as “a deliberate protracted course of reckless driving”.[35] The driving involved in this case is clearly worse than the appellant’s, involving as it did, an intentional episode of dangerous driving, attempts to avoid apprehension, and resulting in injury to a police officer. The offence was committed whilst subject to parole for an offence involving the intentional infliction of serious injury.
- [38]Sentences imposed in other cases of dangerous operation of a vehicle whilst adversely affected are useful. In R v McCoy,[36] the offender was sentenced to two and a half years imprisonment suspended after 13 months. The offender was a passenger in a vehicle stopped by police and, at the driver’s request, swapped position with the driver. A police officer stood in front of the vehicle and the offender accelerated, deliberately striking the officer, and then drove away. The officer suffered serious injury. The offender had a blood alcohol concentration of 0.133%. The offender had not previously been imprisoned but had numerous convictions for criminal offences and an extensive traffic history which included four prior licence suspensions and a prior drink driving conviction. This is clearly more serious than the present case due to the deliberate dangerous driving and the serious injury resulting to the police officer.
- [39]In R v Cocaris,[37] the offender was re-sentenced by the Court of Appeal to two months imprisonment and placed on probation for 12 months. The original sentence had been 15 months imprisonment suspended after three months. The offender drove her car in traffic in a built-up area, whilst adversely affected by heroin. She fell asleep and collided head on with another car, seriously injuring herself and the driver of the other car. The offender was aged 23 at the time, had no criminal history and a limited traffic history. The driving in this case was similar to the present case although the offender in that case was much younger and her personal circumstances were much more favourable.
- [40]In R v Smith,[38] the offender was sentenced to 15 months imprisonment wholly suspended. This was reduced on appeal from suspension after four months. The offender drove for about 20 minutes between Toowoomba and Oakey. His vehicle was seen to be driven erratically, wandering between lanes, onto the shoulder of the road and the incorrect side of the road which caused other vehicles to take evasive action. The vehicle was not speeding and there was no collision or injury. The driver had a blood alcohol concentration of 0.182%. The offender was aged 54 years, had no criminal history, and had a traffic history that included a prior conviction for drink driving. Both of the majority judgements in that decision distinguished cases where offender’s fled police and a chase ensued as being, for that reason, more serious.[39] While the driving in that case is similar to the present case, that offender’s personal circumstances were more favourable.
- [41]In R v Neil,[40] the offender was sentenced to 18 months imprisonment suspended after 4 months. An appeal against that sentence was unsuccessful. The offender drove his vehicle in busy traffic at Highgate Hill whilst adversely affected by morphine and codeine. The offender’s vehicle crossed onto the incorrect side of the road and struck the side of a vehicle, then collided head on with a second vehicle. The drivers of the other vehicles, and a passenger in the offender’s vehicle were injured, as was the offender. The offender was aged 30 years and had an extensive traffic history, including four prior convictions for driving under the influence of alcohol. The driving in that case was similar to the present case, but resulted in serious injury to a number of persons. Although that offender had a bad traffic history, he did not have the criminal history of the appellant.
Conclusions
- [42]In this case, it is open to conclude the learned Magistrate fell into error in two respects; firstly, his characterisation of the nature of the driving as being no less serious than deliberate dangerous driving; secondly, in apparently determining the parole eligibility date as a separate and distinct issue, rather than as one factor to be considered in conjunction with all relevant factors in order to arrive at a just sentence.
- [43]The learned Magistrate correctly referred to the “potential disaster” for other road users created by the appellant’s driving; but no allegation of deliberate dangerous or reckless driving was made. There was, for example, no allegation the appellant was speeding, or being pursued or chased by police or attempting to evade arrest. As confirmed in the cases referred to above, where the risk to other road users results from an intentionally dangerous or reckless course of driving, the culpability of the offender is higher and higher penalties are imposed. Although the learned Magistrate did not refer to any specific authorities as justifying the sentence imposed, it should be accepted that the sentencing discretion miscarried because he proceeded on the basis the appellant was as culpable as if he had deliberately driven dangerously.
- [44]As to the order for parole eligibility, the learned Magistrate’s remarks suggest he considered the appropriate date as a separate and distinct issue, after settling upon the length of the cumulative term. Clearly, that issue should, together with all relevant considerations, be taken into account in order to fix a just sentence. In this regard, the learned Magistrate did refer to having taken account of “all relevant considerations” and specifically listed them as including: the nature of the offences, that the offences were committed whilst subject to parole, that the sentence was to be served cumulatively, and the appellant’s criminal history. Other relevant considerations would include: the length of the existing term, the total period in custody in light of the cumulative term, the period spent in custody up to that point, the period to be spent in custody before becoming eligible for parole, and the period over which the offender might be subject to parole. The extent, if any, to which these or other factors were given weight is unknown. In the circumstances, I would also regard the learned Magistrate’s approach to this issue as being in error.
- [45]Accordingly, the sentencing discretion should be exercised afresh. Of the cases referred to above, the driving in Cocaris (two months imprisonment plus 12 months probation), Smith (15 months wholly suspended), Neil (18 months suspended after four months), Harvey-Sutton (two years wholly suspended), and Simpson (two years wholly suspended), are most comparable to the present case, since the dangerous driving in those cases was not deliberate but due to the offender’s intoxicated state. In all of these cases, the offenders’ personal circumstances were significantly more favourable than the appellant’s; none had a criminal history, and the appellant’s traffic history is as bad, if not worse, than all of them (save for the appellant not having any prior convictions for driving under the influence). The offender in Cocaris was much younger than the appellant. Of significance, in the cases of Simpson, Cocaris, and Neil, collisions resulted in serious injury to persons. In the cases of Harvey-Sutton, Simpson, and Smith, the offenders were not sentenced to a period of actual imprisonment.[41]
- [46]The driving in the cases of Kirby, Fanning, and Obern, was worse than the appellant’s because of its deliberate nature. In the cases of Kirby and Obern, serious injury to persons resulted. None of those offenders’ criminal or traffic history was as bad as the appellant’s, and Kirby and Fanning, were significantly younger. The sentences imposed in the cases of Hess and McCoy reflect significantly worse driving with significantly worse consequences. Those cases are at least useful as demonstrating that the sentence in the present case should be significantly less than imposed in either.
- [47]Here, the driving was prolonged and unquestionably placed other drivers at significant risk. However, the driving was not intentionally dangerous, and fortunately, did not involve injury to any person or damage to property. General deterrence remains a significant consideration. The appellant’s lengthy and relevant criminal and traffic history, and his evident long standing drug addiction, mean the need for personal deterrence and protection of the public are also significant. These considerations require a sentence of imprisonment which includes actual custody, which of necessity must be cumulative with the appellant’s current sentence. The sentences imposed in the cases referred to above suggest the sentence in the present case, before reduction is made for totality considerations, should be in the order of 12 months imprisonment. A sentence of that length sits comfortably with the sentences imposed in Smith (where no injury occurred), Neil and Simpson (where injury was caused), and makes allowance for the appellant having to serve actual imprisonment due to his personal antecedents.
- [48]The appellant is still serving the sentence of 18 months imprisonment imposed on 15 February 2016. This was for offences including: break and enter premises and commit indictable offence, two counts of possessing dangerous drugs, four counts of stealing, fraud, possessing utensils or pipes, possessing a controlled drug, two counts of breaching a bail condition. The full-time release date in respect of that sentence is 11 September 2017. The appellant spent three months in pre-sentence custody before that sentence was imposed which was not declared time served under that sentence. He will therefore spend a total of 21 months in custody under the current term and the sentence to be imposed for the dangerous operation offence will be in addition to that period of imprisonment. The appellant is entitled to recognition of his co-operation by making admissions in relation to the new offences and entering timely pleas of guilty. It is not only in the appellant’s interest, but also the community’s interest, that the appellant be supervised in the community for a lengthy period if granted parole.
- [49]In all of the circumstances, it is appropriate to impose a sentence of nine months imprisonment for the offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance, cumulative with the appellant’s existing sentence, and order the appellant be eligible for parole from 11 May 2017. Such a sentence gives effect to the sentencing purposes set out in s 9 (1) of the Penalties and Sentences Act and takes account of the totality of the appellant’s offending. The total period of imprisonment therefore is in effect 30 months, with parole eligibility after 17 months; or after 56.6 per cent of the total sentence. This sentence also recognises that the appellant has, to this point, been in custody for just short of 17 months, has about four months remaining of his existing sentence, and will be liable to be supervised on parole for a maximum of a further 13 months.
Order
- [50]The appeal is allowed. It is ordered that the sentence imposed in the Magistrates Court on 10 June 2016 for the offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance be set aside. In lieu, the appellant is sentenced for that offence to nine months imprisonment to be served cumulatively with his current sentence. It is ordered the appellant is eligible for parole from 11 May 2017.
Footnotes
[1] See s 222 (1) & (2) (c).
[2] See s. 225 (1) & (3).
[3] (1936) 55 CLR 499.
[4] At 504.
[5] (2010) 242 CLR 520.
[6] At [59]; see also The Queen v Pham [2015] HCA 39 at [28]; R v Turner [2016] QCA 282 at [48].
[7] See respondent’s further outline of submissions at paragraph 12.
[8] [1995] QCA 567.
[9] At 10.
[10] At 11.
[11] [1999] QCA 192.
[12] At 4.
[13] [2009] QCA 59; at [32].
[14] [2005] QCA 280; per Williams JA, (McPherson JA agreeing) at [13].
[15] [2014] QCA 206.
[16] At [19].
[17] In R v Kitson [2008] QCA 86, this course was held to amount to error resulting in the sentence being set aside.
[18] See R v Matue [2009] QCA 216, R v Rowe [2011] QCA 372, R v Herbert [2013] QCA 62.
[19] (2001) 207 CLR 584.
[20] Per Gaudron, Gummow, Hayne JJ at [75].
[21] (2005) 228 CLR 357; per Gleeson CJ, Gummow, Hayne, Callinan JJ at [37].
[22] [2007] 2 Qd R 87.
[23] At [16] - [17].
[24] [2009] QCA 35.
[25] [2005] QCA 267.
[26] [2014] QCA 199.
[27] [2002] QCA 444.
[28] [2003] QCA 229.
[29] [2001] QCA 109.
[30] [2002] QCA 184.
[31] At [43].
[32] At [45] – [46].
[33] At 8.
[34] Per Morrison JA at [37] – [38].
[35] At 7.
[36] [2015] QCA 48.
[37] [2005] QCA 407.
[38] [2004] QCA 126.
[39] Per Jerrard JA at 9, Holmes J at 11.
[40] [2001] QCA 41.
[41] For this reason, Holmes J regarded the decisions in Harvey-Sutton and Simpson as being of “limited assistance” when considering whether the sentence in Smith was manifestly excessive. See Smith at 10.