Pendlebury v Queensland Police Service
[2017] QDC 166
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Pendlebury v Queensland Police Service[2017] QDC 166
- Add to List
Pendlebury v Queensland Police Service[2017] QDC 166
Pendlebury v Queensland Police Service[2017] QDC 166
DISTRICT COURT OF QUEENSLAND
CITATION: | Pendlebury v Queensland Police Service [2017] QDC 166 |
PARTIES: | KATE PENDLEBURY (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 2/2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Innisfail |
DELIVERED ON: | 24 May 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 17 May 2017 |
JUDGE: | Harrison DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – charge of dangerous operation of a motor vehicle whilst adversely affected – charge of dangerous operation of a motor vehicle – charge of failing to appear – various other charges – whether sentence in each case manifestly excessive. Legislation Justices Act 1886 (Qld) s 222 Cases R v Smith [2004] QCA 126 Heydt v The Commissioner of Police [2017] QDC 104 |
COUNSEL: | J Trevino for the Appellant L Moore for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant The Office of Director of Public Prosecutions for the respondent |
- [1]On this matter of Kate Pendlebury and Queensland Police Service, this is an appeal against sentence pursuant to the provisions of section 222 of the Justices Act 1886. On the 29th of November 2016 in the Magistrates Court at Innisfail, the applicant pleaded guilty to a number of offences. Particulars of the offences to which she pleaded guilty, and the sentences imposed are as follows:
Offence | Penalty |
Dangerous operation of a motor vehicle whilst adversely affected by alcohol on 28.12.2014 | Two years and nine months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years |
Dangerous operation of a motor vehicle on the 12th of September 2015 | Two and a-half years’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years |
Possession of cannabis on the 29th of July 2015 | Three months’ imprisonment |
Failure to appear in accordance with undertaking on 14.9.2015 | Three months’ imprisonment, cumulative |
Possession of methylamphetamine on 22.10.2015 | Six months’ imprisonment |
Stealing on 3.3.2016 | Four months’ imprisonment |
Drive a motor vehicle without a licence whilst on demerit points on the 17th of April 2016 | Six months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of six months |
Drive unregistered motor vehicle on 17.4.2016 | Convicted but not further punished |
Drive uninsured motor vehicle on 17.4.2016 | Convicted but not further punished |
Two charges of using a motor vehicle with registration label belonging to another vehicle on 17.4.2016 | Convicted but not further punished |
Drive vehicle not in a safe condition on 17.4.2016 | Convicted but not further punished
|
Possession of explosives on the 15th of July 2016 | Three months’ imprisonment |
Possession of tainted property on 15.7.2016 | Four months’ imprisonment |
Failure to dispose of needle and syringe on 9.11.2016 | Three months’ imprisonment |
Contravention of probation order between 3.3.2016 and 9.11.2016 | Breach proven, conviction recorded, resentenced on original offences to terms of imprisonment not exceeding four months |
- [2]The effective sentence imposed on the applicant was, therefore, one of three years’ imprisonment. I note that she was born on the 17th of February 1978, and is now 39 years of age. The appeal, essentially, relates to whether or not the sentences imposed were manifestly excessive. The first two of the charges mentioned are by far the most serious, and are the ones that really require consideration on appeal, namely, the charge of dangerous operation of a motor vehicle whilst adversely affected on the 28th of December 2014, and the further charge of dangerous operation of a motor vehicle simpliciter on the 12th of September 2015.
- [3]The applicant has argued that the penalties imposed were manifestly excessive, even after allowing for the totality of the offending set out in the vast number of charges that were dealt with before the learned Magistrate. No real issue has been taken in relation to the sentences imposed in relation to the bulk of these matters. I do not intend to refer in any detail to the circumstances surrounding the bulk of the offending other than in relation to those two particular charges, but I do confirm that I have read the schedule of facts that was placed before the learned Magistrate which did contain all of the allegations for all of the offending.
- [4]The most serious charge was the dangerous operation whilst adversely affected charge on the 28th of December 2014. The allegations here were serious. The police were contacted early on the evening of that day about the behaviour of this vehicle which was being driven on the Bruce Highway northbound between Innisfail and Gordonvale by the applicant.
- [5]The vehicle was seen to be travelling at speeds which fluctuated between 60 kilometres and 100 kilometres per hour over a distance of about 15 kilometres. Actual video footage was obtained which shows the vehicle swerving off the roadway causing other road users travelling in the opposite direction to take evasive action to avoid colliding with the applicant. It was alleged that this occurred 23 times throughout the course of the footage. This included the vehicle travelling over double white lines on blind corners. On some occasions, she strayed so far onto the wrong side of the road that it was almost touching the shoulder in the opposite direction.
- [6]After she was detained, a breath test was conducted which was negative but then further analysis showed the presence of both amphetamines and methylamphetamines in her blood, and it was accepted by her plea that she was adversely affected by amphetamines and methylamphetamines.
- [7]The dangerous drive simpliciter charge was also serious. This occurred on the 12th of September 2015, some five weeks after she was actually charged in relation to the earlier matter. It is not clear to me why there was such a significant delay in her having been charged. On this occasion, she was observed driving a vehicle on the Kennedy Highway near Kuranda. The vehicle was observed over a distance of about 10 kilometres in the area of Speewah. It was observed by a number of people to be driving in an erratic manner, and a number of other vehicles came very close to colliding with it before eventually the vehicle being driven by the appellant sideswiped another vehicle, and then ran off the road.
- [8]There were two people in the other vehicle. There was damage to the other vehicle, but neither of those people was injured. The applicant herself was seriously injured in that particular collision, so much so that it was not possible for the doctors, because of her injuries, to conduct the relevant testing in relation to alcohol and/or drugs. This Court, however, cannot speculate about what may or may not have been in relation to that.
- [9]The applicant’s traffic and criminal history was placed before the learned Magistrate, and it is clear that she had a very poor criminal history, and a very poor traffic history. The Magistrate was also given other material including some earlier sentencing remarks from me in another drug-related matter, and also a report from probation and parole service which made it clear that the applicant had been suffering from drug and alcohol abuse, effectively, right throughout her adult life.
- [10]Her record, as is apparent in the criminal history that was provided to the learned Magistrate, is totally consistent with that. There are numerous entries for drug-related matters, street offences, lesser serious violent offences, insulting language and other street-type offences, and I note that whilst fines have been imposed, suspended sentences have been imposed, probation has also been imposed. The most recent probation order was made on the 2nd of June 2015 when she was placed on probation for 18 months. Much of the offending for which she was dealt with before the learned Magistrate actually occurred in breach of that particular probation order.
- [11]Her traffic history is also poor. There are numerous entries, including some for driving without a licence, some for disqualified driving, some for driving with blood alcohol levels in and excess of the limit, and at different times she has served periods of disqualification.
- [12]When the Police Prosecutor made submissions before the Magistrate, he placed before her only one comparative decision, and that was one of the Court of Appeal in the matter of R v Smith [2004] QCA 126. This is a well known case, but it was interesting to note that here it was used as a comparative because there are some difficulties associated with using a case such as Smith as a starting point comparative for a matter such as this. Smith was originally sentenced to 15 months imprisonment suspended after serving four months in respect of prolonged driving on a highway whilst adversely affected with the real potential, according to an eyewitness who followed him, for a number of accidents along the way. And again, it was one of those cases where the fact that there was no accident was probably more good luck than good management.
- [13]The majority of the Court of Appeal in Smith upheld the appeal and indicated that because of his excellent background, they would have been prepared to fully suspend that sentence. He had, however, served one month at the time the appeal was heard so the effective sentence at the end of the day was 15 months suspended after one month. I do have some difficulty with a case such as that where the majority was of the view that the sentence could have been fully suspended being used as authority in a matter such as this. Here, there is little doubt and certainly no argument to the contrary that the applicant had to be sent to prison. Her atrocious criminal and traffic history of themselves demanded that, as did the seriousness of these two particular offences.
- [14]In Smith, at page 10, Justice Holmes, as she then was, noted that earlier decisions of Simpson and Harvey-Sutton were of limited assistance because they were not concerned with a period of imprisonment given that in each case the sentence was fully suspended, and I must say that I have the same reservations here in this matter. Certainly, there are numerous reported decisions which could have been referred to which perhaps deal more helpfully with an appropriate range in cases involving dangerous driving whilst adversely affected where there is no police chase but where there is real potential for serious injury even though no such injury was never sustained.
- [15]I have considered the learned Magistrate’s reasons on sentence. She did not refer to any established decisions in arriving at her conclusion that an appropriate overall sentence was one of three years’ imprisonment. She eventually achieved that outcome by imposing a sentence of two years and nine months on the charge of dangerous driving whilst adversely affected coupled with a three month cumulative sentence for the failure to appear. Clearly, she was concerned about the applicant’s record. She accepted and took into account the pleas of guilty. She noted that the maximum penalties in respect of the two serious traffic matters were five years and three years respectively. She took into account the deterrent aspect of sentencing and as she put it, the need to protect the community.
- [16]On page 4 of her reasons, she said when dealing generally with all of the offences:
Your continued driving in a dangerous manner despite being on probation, despite being on bail, and your continued driving despite being on probation on bail for the two dangerous offences, your driving, which included driving while a relevant drug is present and driving on demerit points in the meantime, gives rise to the need to protect the Queensland community from you as one of the elements of the sentence.
- [17]She then took into account that the applicant clearly had a drug related problem and noted that she had taken limited steps to address that problem as part of an earlier probation. I understand from the material provided to her that the cooperation under that original probation order had not been good. I did note one error in the facts in her reasons which appeared on page 2 at about line 40 onwards. When referring to the fact that the second serious traffic matter occurred five weeks after she had been charged with the first one, she commented:
You actually did injure somebody else as a result of dangerous operation of a motor vehicle.
- [18]That clearly was not the case because in the schedule, there was specific reference to the fact that neither person in the other vehicle was injured. In this particular matter, I have been referred by the Defence to a decision of his Honour Judge Lynch in Heydt v The Commissioner of Police [2017] QDC 104. This was a case that I found particularly helpful because his Honour in that case analysed at some length the various reported decisions in respect of dangerous driving whilst adversely affected.
- [19]That case involved quite a serious example of dangerous driving whilst adversely affected. The applicant there was on parole at the time and was facing a sentence of 18 months’ imprisonment, and drove on a number of major roads in the Brisbane area including the Logan Motorway at Gailes over a lengthy period of time while clearly adversely affected in circumstances where there were numerous incidents where other people had to take evasive action.
- [20]Subsequent testing revealed the presence of a number of drugs including amphetamine, methylamphetamine, diazepam, nordiazepam, and cannabis and used syringes were also found in the vehicle. His Honour found fault with the reasoning of the learned Magistrate in that case for two reasons which are not really of concern to me for current purposes. Firstly, he took issue with the Magistrate’s finding to the effect that that case was no less serious than the ones that are often referred to as deliberate driving, and he also took issue as to how the Magistrate took into account or fixed a parole release date bearing in mind that any sentence imposed had to be made cumulative upon the existing sentence because the offence was committed whilst the applicant was on parole.
- [21]What he did do, however, once he decided that he would need to exercise the discretion himself was to analyse a large number of comparative cases, and these are set out in paragraphs 30 through to 41 of the decision. Those cases include the matter of Smith that I referred to earlier and also the matter of Harvey-Sutton that I referred to earlier where the effective sentences, at the end of the day, were sentences that were wholly suspended. They also included a whole range of other sentences. I am not going to go through those cases in any detail other than to refer to his Honour’s summaries in paragraphs 45, 46 and 47 of that decision.
- [22]He drew a distinction in paragraph 45 between the cases where someone was driving doing what he described as their intoxicated best in circumstances where the driving was not deliberate. In paragraph 46, he drew that same distinction and referred to a number of cases where the driving was deliberate. Invariably, that involved people who drove and continued to drive after intervention or attempted intervention on the part of the police or others. He went on to conclude that in relation to Heydt himself that the driving was prolonged and unquestionably placed other drivers at significant risk. He found, however, that it was not intentionally dangerous and fortunately, did not involve injury to any person or damage to property.
- [23]He accepted that general deterrence remained a significant consideration. There, like here, the appellant had a lengthy and relevant criminal and traffic history and also had, as is the case here, a longstanding drug addiction which meant that the need for personal deterrence and the protection of the public were also significant. He went on to conclude that these considerations required a sentence of imprisonment which included actual custody which of necessity must be cumulative with his concurrent sentence. He went on to conclude in that particular case, which had a lot of similarities to this case, that the appropriate sentence would have been 12 months. He eventually imposed nine months on the basis that there needed to be some amelioration to cater for the fact that it was cumulative.
- [24]I found that analysis particularly helpful here, because it seems to me that the first charge here has a lot of similarities to the driving in Heydt. If anything, it may even be more serious, but it seems to me that it is difficult to conclude that that matter, even after allowing for the potential injury to others, justifies, as against her record, a head sentence of any higher than 15 months’ imprisonment. It seems to me that if I was looking at the second matter in isolation, that, too, would, in the particular circumstances of this case, attract a prison sentence. It was accepted on argument before me that it was open to the Magistrate to impose cumulative sentences, and, of course, it is well accepted, for totality purposes, that had she chosen to do so, then there would have needed to be some amelioration, at least in terms of the second sentence.
- [25]The second matter is dangerous drive simpliciter. I accept that it is a serious example because of the prolonged driving over a period of 10 kilometres. It is also significant in relation to that second matter that the applicant herself sustained quite serious injuries. These are summarised by her solicitor on sentence at page 16 of the transcript, where he said:
She ended up with eight broken ribs, a punctured lung, a perforated bowel, where 1.2 meters of her bowel was removed, and fractured teeth, as well as a fractured arm.
- [26]He also mentioned problems with memory. These matters were not disputed at all by the prosecution on the sentence. It seems to me that if I looked at the second one in isolation, even after allowing for the fact that it was aggravated by her offending whilst on bail, that it would have justified a sentence in the region of nine to 12 months’ imprisonment.
- [27]If there were to be cumulative sentences, there would need to be some amelioration, and it seems to me that the appropriate range in relation to both of those, looked at collectively, would have been in the region of two years’ imprisonment. It is hard to justify, in this case, a period of imprisonment any longer. Despite her record, the applicant has not been sent to jail before. She may have served some terms in relation to non-payment of fines, perhaps even on breaches of other orders, but this is the first actual period of imprisonment imposed.
- [28]It seems to me that an overall sentence of two years would have more than adequately punished her for her offending, and more than adequately catered for matters such as general deterrence and also, in her case, personal deterrence, which were clearly relevant. It seems to me that the periods of imprisonment imposed in relation to both of those serious traffic matters were well outside the range, as explained by his Honour Judge Lynch in Heydt’s case, and for that reason, it is an appropriate case for this Court to interfere.
- [29]Having decided to exercise the discretion myself, I have eventually concluded that an appropriate sentence to reflect the totality of all of her offending would be one of two years. I can achieve that in a number of ways, either by way of cumulative sentences or by means of imposing two years on the most serious offence, being the first of the dangerous driving charges, and it seems to me that the latter is a much more preferable course in this case. So in the circumstances, the appeal is allowed.
- [30]In relation to the sentence of two years and nine months’ imprisonment imposed on the charge of dangerous operation of a motor vehicle whilst adversely affected on the 28th of December 2014, I set aside the sentence of two years and nine months’ imprisonment, and in lieu thereof, I impose a period of two years’ imprisonment. In relation to the charge of dangerous operation of a motor vehicle on the 12th of September 2015, I set aside the period of imprisonment of two and a-half years that was imposed, and in lieu thereof, I impose a term of imprisonment of 12 months. In relation to charge of failing to appear, I set aside the term of imprisonment of three months, which was imposed, and I order that she be convicted and not further punished in relation to that matter. I confirm that I have, however, taken that matter into account in arriving at an appropriate effective total sentence of two years.
- [31]I order that all terms of imprisonment be served concurrently. All of the remaining sentences and also the sentences in relation to the disqualification of driver’s licence are not interfered with and will remain. I fix her parole release date at the 29th of July 2017, which is, effectively, after she serves eight months, namely one-third of the overall sentence.