Taylor v Commissioner of Police
[2017] QDC 236
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- Unreported Judgment
- Taylor v Commissioner of Police[2017] QDC 236
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Taylor v Commissioner of Police[2017] QDC 236
Taylor v Commissioner of Police[2017] QDC 236
DISTRICT COURT OF QUEENSLAND
CITATION: | Taylor v Commissioner of Police [2017] QDC 236 |
PARTIES: | GARRY WAYNE TAYLOR (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D8/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Gympie Magistrates Court |
DELIVERED ON: | 16 June 2017 (ex tempore reasons given) |
DELIVERED AT: | Maryborough District Court |
HEARING DATE: | 15 June 2017 |
JUDGE: | Farr SC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant was found guilty of one count of dangerous operation of a motor vehicle and one count of driving under the influence of an intoxicating substance – whether the sentence imposed in the Magistrate’s Court at Gympie was excessive – whether appropriate consideration was given to the appellant’s personal circumstances. |
COUNSEL: | J Milburn for the appellant S Cupina for the respondent |
SOLICITORS: | McDuff & Daniel Solicitors for the appellant Office of the Director of Public Prosecutions for the respondent |
- [1]The appellant was convicted after a three day trial in the Magistrates Court at Gympie of one count of dangerous operation of a motor vehicle and one count of driving under the influence of an intoxicating substance. For the former offence, he was sentenced to 18 months’ imprisonment with court-ordered parole release after serving six months and was disqualified from holding or obtaining a driver’s licence for two years. For the latter offence, he was sentenced to three months’ imprisonment, suspended immediately, with an operational period of three years and was disqualified for 15 months. Those sentences were handed down on 28 April 2017 and were to run concurrently.
- [2]He now appeals, pursuant to s 222 of the of the Justices Act 1886 against the sentence imposed for the offence of dangerous operation of the motor vehicle, insofar as the prison term is concerned. He does not challenge the disqualification period.
- [3]In his Notice of Appeal, the appellant has listed 19 grounds of appeal but in submissions before me his counsel has conceded that only one has any potential merit, that being that the sentence was excessive. Although, I note that it is also argued, in the written material, that the magistrate failed to appropriately account for the appellant’s personal circumstances at the time of sentence.
- [4]I turn now to the law. An appeal under s 222, by virtue of s 223, is by way of re-hearing on the original evidence given in the court below, plus any new evidence adduced on appeal if leave to do so is granted. That has not occurred in this matter. Such an appeal is not a new trial for the court’s consideration, as if it were being presented for the first time. Rather it is a review of the record of the proceedings below.
- [5]I refer, in that regard, to White v Commissioner of Police [2014] QCA 121, at paragraph 8 per Morrison JA:
To have any prospect of success, the appellant must demonstrate some legal, factual or discretionary error on the part of the magistrate, and the Court is required to make its own determination of relevant facts in issue from the evidence, given due deference and attaching a good deal of weight to the magistrate’s views.
In this matter, counsel for the appellant does not assert any legal or factual error, but rather submits that the learned magistrate erred in the exercise of her discretion when determining the appropriate sentence.
- [6]Briefly, the facts of the matter are that the appellant was seen by numerous persons on 31 December 2014 around the middle of the day, it would seem, to be driving his motor vehicle, which was towing a trailer, over an approximate distance of 20 kilometres on the Bruce Highway in an erratic manner. He frequently was seen to swerve all over the road. On at least one occasion he veered onto the incorrect side of the highway, causing other drivers to take evasive action to avoid collision, including the driver of a semitrailer, which had to be driven off the road surface to avoid a head-on collision, as well as the driver of a car containing some young children. He also, at times, appeared to lose control of the trailer that he was towing and it was seen to fish-tail from side to side. I should say, the driver of the car with the young children, I think, was travelling in the same direction as he.
- [7]He drove at speeds estimated at times to be approximately 30 kilometres per hour in excess of the speed limit, which was 100 kilometres per hour. He weaved in and out of other vehicles in an erratic fashion and he collided, from behind, with another vehicle being driven in the same direction, at approximately 90 kilometres an hour causing it to violently spin out of control and collide twice with a guard rail. Fortunately for the two occupants of that vehicle, and therefore, also for the appellant, no one suffered any injury. Although, the vehicles sustained extensive damage.
- [8]I note, also, as did the learned magistrate that he was driving under the influence of drugs, but I note again, as did the learned magistrate, that he was not charged with that circumstance of aggravation insofar as the dangerous operation charge is concerned and was not sentenced for that circumstance of aggravation on that charge. Quite properly so.
- [9]At trial, the appellant represented himself and conducted his defence in such a way that he attempted to point the finger of blame at the driver of the vehicle he struck and also at another driver that he had overtaken. He was spectacularly unsuccessful in that forlorn attempt, but the effect of that approach, though, is that he has demonstrated no remorse whatsoever for his criminal activity. The absence of remorse, as well as an absence of cooperation with the administration of justice is a very relevant consideration on sentence; the appellant, of course, not being entitled to leniency that might otherwise have been afforded to him.
- [10]Insofar as his criminal and traffic history is concerned, his criminal history includes offences against the Drugs Misuse Act 1986, wilful damage offences, breaches of bail, multiple convictions for offences of violence and a conviction for sexual assault. In 2009, I note, he was sentenced to a term of imprisonment for assault occasioning bodily harm whilst armed, wilful damage and sexual assault.
- [11]He has four prior traffic convictions of relevance:
- driving with a blood alcohol content of 0.1 per cent in 1985;
- driving with a blood alcohol content of 0.14 per cent in 1987;
- driving with a blood alcohol concentration over the high alcohol limit, the reading being 0.156 per cent in 2008; and
- driving while a relevant drug is present, and that was in 2013.
I note, also, that he, subsequent to the subject offence but prior to his conviction, also drove whilst suspended. That occurred on 16 July 2016. His traffic history also includes dated entries for unlicensed driving and careless driving.
- [12]The maximum penalty for this offence is 300 penalty units and/or three years’ imprisonment.
- [13]If I turn now to the appellant’s submissions. As I have stated, the appellant submits that the magistrate failed to appropriately account for his personal circumstances when sentencing. I note that that was not pressed in oral submissions before me but, nevertheless I must consider it. I note, however, that in the course of her sentencing remarks, the magistrate specifically took into account the appellant’s age, his medical conditions, the fact that in 2014 he was suffering from back pain, depression, migraine headaches and had had a plate surgically removed from his shoulder and had some signs of post-traumatic stress disorder. She also noted that he was on a number of prescription medications at the time. She also took into account his criminal and traffic histories.
- [14]In the circumstances, and given that no particulars of the magistrate’s alleged failure have been placed before this court, I cannot perceive of any error in that regard by the learned magistrate.
- [15]The appellant’s principle submission, however, is that when compared to sentences imposed in other matters, the sentence imposed here is demonstrably excessive. The respondent submits to the contrary. To properly consider this submission, consideration must be given to the comparable cases that have been placed before the court. I should, however, refer to a passage from R v Smith [2004] QCA 126 at page 7, where it was said:
At this appellant stage, it is not generally helpful to dwell on too close a comparison and contrasting from case to case. It is, to my mind, sufficient for the disposition of this application to note that there are a number of cases generally and sufficiently comparable with this one, in which the requirement that the driver serve a term of imprisonment has been upheld.
- [16]Notwithstanding those comments – I think that was by McPherson JA, if I remember correctly – some consideration and assessment of the cases that have been referred to this court is necessary.
- [17]In R v Liu [2016] QCA 186, the offender was convicted on his own plea of guilty of one count of dangerous operation of a motor vehicle causing death. He was sentenced to two years’ imprisonment, suspended after three months, with a three year operational period. He was 23 years old at the time and he suffered significant injuries in the accident, including head injuries. He drove into an intersection, past a give way sign without giving way, and a passenger in his vehicle died. He was deeply remorseful, had no criminal or traffic history, pleaded guilty at the earliest possible time, was Taiwanese and had no family in Australia and for those reasons it was accepted that any period of imprisonment would be more difficult for him. Were it not for his particular circumstances, he would have been required to serve a period of six to eight months’ actual imprisonment.
- [18]In R v Maher [2016] QCA 219, the offender rode his motorcycle at the Charleville Motocross Track. He rode off the track, entered an area where people attending had parked their cars and were preparing to ride. He performed a wheel stand at high speed over about 85 metres, passing close to a number of people. After dropping the bike back onto two wheels, he collided with a nine year old boy, causing injuries amounting to grievous bodily harm. He pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm and was sentenced, after appeal, to 15 months’ imprisonment, suspended after what would appear to be three months. It is a little hard to understand the final period of time that he served, but it was about that.
- [19]Morrison JA said that the riding whilst “undoubtedly foolish and dangerous, did not warrant the description of dangerous driving of an extreme kind”. Furthermore, Maher had no criminal history and an inconsequential traffic history. He entered a timely plea of guilty and evidenced significant remorse and had excellent prospects of rehabilitation. He received more leniency than would otherwise have been appropriate because he was a youthful offender with no prior convictions and promising prospects of rehabilitation, who pleaded guilty and cooperated with the administration of justice.
- [20]In R v Reynaud (unreported), the offender pleaded guilty in the District Court at Brisbane on the 22 February 2010 to one count of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance. He was sentenced to 12 months’ imprisonment, suspended after three months with an operational period of two years. He was young, only 22 years of age, had a blood alcohol content of 0.198 percent, drove at speeds of up to 122 kilometres per hour in areas where limits were 60 kilometres per hour or 80 kilometres an hour, took part in a police pursuit and drove onto the wrong side of the road, through a roundabout at speed, collided with a power pole and caused damage to his vehicle and injury to himself. He had no relevant criminal history and a traffic history including two previous convictions for driving with a prescribed concentration of alcohol. It was accepted that remorse was present.
- [21]In R v Simpson [2001] QCA 109 the offender entered a timely plea of guilty to one count of dangerous operation of a motor vehicle with a circumstance of aggravation of having a blood alcohol concentration of 0.169 percent. She was sentenced to two years’ imprisonment, suspended immediately, with a four-year operational period, and fined $5000. Her driving covered a distance of two to three kilometres initially, during which she swerved from side to side, striking gutters on occasions on busy main roads, and changed lanes erratically causing other drivers to take evasive action. Later, approximately 30 minutes later, she, in excess of the speed limit whilst driving erratically, overtook several vehicles, cut in front of vehicles, struck a concrete barrier and spun out of control, before colliding with another car, causing it to collide with a cement truck. The driver of that car suffered injury, which was described by Moynihan QC DCJ as relatively minor. She had no relevant criminal history, although she had one previous conviction for driving under the influence just over a year earlier. It should be noted that the appeal was only against the fine and the five-year disqualification period.
- [22]In Haydt v Commissioner of Police [2017] QDC 104, the offender pleaded guilty to a number of offences including dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance. Nine days before the offending behaviour, the offender was sentenced to a term of imprisonment for a period of 18 months, but released immediately on parole.
- [23]The driving involved the offender driving erratically on the Logan Motorway, swerving across lanes of traffic and narrowly avoiding colliding with about seven other vehicles where drivers were required to take evasive action. He was seen to be nodding off as he drove. He then travelled onto the Ipswich Motorway, and then the Cunningham Highway, and continued to swerve from side to side and across traffic lanes, again causing other drivers to take evasive action. He also swerved across lanes and almost collided with two motorcycles before being intercepted. The driving occurred over a distance of approximately 27 kilometres. He had a variety of drugs in his blood system, including amphetamine and methamphetamine. Relevantly, the driving did not result in damage to property, nor injury to person. It should also be noted that it did not involve excessive speed.
- [24]Given that the offending occurred whilst on parole, any sentence of imprisonment had to be served cumulatively upon the sentences he was serving at the time of sentence. Hence, totality issues were relevant. On appeal, he was sentenced to nine months’ imprisonment, cumulative upon his other sentences, which resulted in an overall sentence of 30 months’ imprisonment, with parole eligibility after 17 months.
- [25]In R v Merlot (unreported), the offender entered a timely plea of guilty in the District Court at Brisbane on 20 March 2012 to a charge of dangerous operation of a motor vehicle with two circumstances of aggravation: being adversely affected by an intoxicating substance and having had two previous convictions for a prescribed offence. He was sentenced to 18 months’ imprisonment with immediate release on parole.
- [26]He drove erratically over two suburban streets in the early hours of the morning, sideswiped cars, collected traffic signs, and collided with two vehicles before continuing on and colliding with another vehicle before coming to a halt. No one was injured, but the value of the property damage totalled $39,000. His blood alcohol content was 0.169 percent.
- [27]The defendant was noted to have commenced a rehabilitative course, which was continuing at the time of sentence for his alcoholism and depression, and had ceased alcohol consumption from the date of the incident.
- [28]In R v Harvey-Sutton (unreported), the defendant pleaded guilty to one count of dangerous operation of a motor vehicle with two circumstances of aggravation, those being a blood alcohol concentration of 0.247 percent and two prior convictions for driving under the influence. He was sentenced to two years’ imprisonment, wholly suspended for four years, fined $7500, and was disqualified for five years. The appeal only related to the quantum of the fine and the disqualification period.
- [29]The offence involved the defendant, the offender, driving along the Bruce Highway over a distance of approximately 25 kilometres, and, from time to time, his vehicle was seen to swerve onto the incorrect side of the carriageway, forcing oncoming vehicles off the road. No collision occurred, no property was damaged, and no injuries were sustained.
- [30]He was an alcoholic, and suffered from depression, but prior to sentence, he had embarked on a determined effort to rehabilitate himself at a rehabilitation centre, which had been quite successful. He was of a mature age, was a professional person with a very good employment history, and, as no mention is made of any criminal history, I infer that he had none, although he had two prior convictions for driving under the influence.
- [31]I note that when determining sentence, the learned Magistrate referred to three cases. The first was R v Neil [2001] QCA 41. That case has, in fact, been summarised in the matter of R v Cocaris [2005] QCA 407, and I will repeat the summary that is seen in paragraph 20 there.
- [32]In that matter, the offender was sentenced to 18 months’ imprisonment, suspended after four months, for an operational period of two years. He had pleaded guilty to dangerous operation of a motor vehicle with a circumstance of aggravation, namely, that he was adversely affected by an intoxicating substance, that being a combination of methadone and self-administered heroin. He had driven a van onto the incorrect side of Gladstone Road at Highgate Hill, colliding head-on with an oncoming vehicle, injuring his own passenger, but injuring himself more severely. He suffered a broken leg. He had an extensive driving history, with four convictions for driving with a blood alcohol content over the prescribed limit, all incurred in the period between 1990 and 1995.
- [33]I then turn to the matter of Cocaris. In that matter, 30 minutes after injecting herself with heroin, the offender drove three or four kilometres before colliding with another car travelling in the opposite direction. She had been travelling too close behind a tow truck, and appeared to be taken by surprise by a turn in the road. She appeared to slump down in her seat before the collision, appearing to have fallen asleep. The driver of the other car suffered a fracture of the tibia and a laceration. His passengers were uninjured. The offender suffered multiple lacerations, and was off work for two months.
- [34]She had also paid $10,500 compensation to the other driver before sentence. The offender was 23 years old at the time, and she had pleaded guilty to one count of dangerous operation of a motor vehicle with a circumstance of aggravation of being adversely affected by an intoxicating substance. She had no criminal history, and only one previous traffic conviction. She was initially sentenced to 15 months’ imprisonment, suspended after three months. Jerrard JA was of the view, though, that whilst the sentence was not manifestly excessive, the offender’s rehabilitative efforts and background were such that continuing supervision should have been ordered. His Honour said, “She is a young woman with a considerable need for guidance from others.” The sentence was therefore reduced to two months’ imprisonment to be actually served, followed by 12 months’ probation.
- [35]Finally, her Honour also referred to the matter of R v Smith [2004] QCA 126. This was a case where the offending driving was similar in nature to the present matter, but with some significant distinguishing circumstances. No excessive speed was involved, and no collision occurred. He also, very relevantly and importantly, pleaded guilty at the earliest possible stage. He also had no criminal history, and only one prior traffic conviction notwithstanding that he was 54 years of age at the time. That conviction related to a period 18 months earlier, when he drove with a blood alcohol concentration of 0.98 percent. He had a good record of voluntary community work, had a good work history, and 20 years of military service.
- [36]He was convicted of one count of dangerous operation of a motor vehicle while adversely affected by alcohol, and at first instance was sentenced to 15 months’ imprisonment, suspended after four months. On appeal, the period of suspension was reduced to time served, which was a period of 21 days.
- [37]Finally, the respondent has referred me to the matter of R v Bolton [2000] QCA 175, where the offender was convicted of one count of dangerous operation of a motor vehicle simpliciter, and was sentenced to 12 months’ imprisonment, suspended after four months, with an operational period of two years.
- [38]The driving involved him driving onto a road, fishtailing, and driving at speed. He overtook another car by driving onto a grassed verge or footpath. When driving back onto the road, he was partially on the incorrect side, and caused an oncoming vehicle to veer off the road. He then overcorrected back onto his side of the road, but collided with some posts. His car manoeuvred over the road as he continued to drive until, ultimately, stopping at some shops. He initially entered a plea of not guilty, but changed his plea to guilty on the first day of the trial. He had a minor criminal history, but at least 14 convictions for traffic offences, mostly for speeding or driving a defective vehicle, but he had one prior conviction for drink driving.
- [39]So now I come to my conclusion. Of course, it is very relevant that no one was injured as a result of the appellant’s driving in this matter. But that is not the only consideration. As was said by McPherson JA and Thomas J in R v Conquest, ex parte Attorney-General [1995] QCA 567 at page 11:
The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender's criminal record (with particular emphasis on his driving history and his attitude to fellow citizens), and whether the offender has little prospect of rehabilitation.
- [40]As their Honours also noted in that matter, no two cases match perfectly, and in general the level of sentence in one case can only be a rough guide to another.
- [41]The one constant distinction between this matter and all of the aforementioned comparables is that in this matter, the appellant pleaded not guilty, whereas in all of the other cases, pleas of guilty were entered. Of course, an offender is not to be sentenced more harshly than would otherwise be appropriate because he or she chose to exercise their lawful right to plead not guilty. But doing so means that any leniency that might have been extended due to the entry of a plea of guilty, because of their cooperation with the administration of justice and/or a demonstration of remorse, or contrition, or even perhaps insight, is lost. Therefore, the sentences imposed in those matters must be considered in that light.
- [42]Even then, the sentences imposed in Maher, Simpson, Merlot, Harvey-Sutton, Smith, Neil and Bolton all suggest that a head sentence of 18 months’ imprisonment in this matter was not excessive. The matter of Lou and Rinau had the powerful mitigatory features of youth, as well as other circumstances of mitigation absent in this matter.
- [43]Haydt is of little assistance, because of the sentence being imposed cumulatively, although I note that Lynch QC DCJ stated that if it were not for the fact that it had to be served cumulatively, a sentence of 12 months’ imprisonment would have been appropriate. Given the fact that Haydt pleaded guilty, that matter is not suggestive that a head sentence of 18 months in this matter is excessive. Finally, Cocaris was a matter where considerations different to those in this matter predominated.
- [44]I, of course, have taken into account the fact that all bar Bolton involve a charge that included a circumstance of aggravation, and that the maximum penalty was five years as opposed to the maximum in this matter of three years. Nevertheless, given that I am of the view that the head sentence of 18 months was not excessive, it follows that I am also not of the view that the learned Magistrate has made any discretionary error in arriving at such a decision.
- [45]As the head sentence was not excessive, it is very difficult for the appellant to successfully assert that the period of actual imprisonment was excessive, given that he was ordered to serve only one-third of the head sentence. Whilst I appreciate that there are no hard and fast rules requiring a convicted offender to actually serve only one-third of the sentence imposed after a plea of guilty, he nevertheless received an order that gave him such a benefit.
- [46]Putting that issue to one side, the authorities suggest that an actual term of imprisonment of six months is not excessive, given the following factual circumstances: the nature of the dangerous driving itself, involving as it does excessive speed; crossing over onto the incorrect side of the road in the face of oncoming vehicles which had to take evasive action, including a semi-trailer driver; veering over the road lanes and generally erratic driving, causing others to take evasive action to avoid collision; and periodically losing control of the trailer.
- [47]In addition, that driving threatened the lives of many other road uses, it extended over a distance of approximately 20 kilometres on a busy highway and it resulted in a collision with another vehicle travelling in the same direction, and that collision caused that vehicle to spin out of control and hit a guard rail twice, which, in fact, proved to be fortunate, because, in the opinion of the driver of that vehicle, it stopped that vehicle from rolling down an embankment.
- [48]In addition, there has been a complete absence of remorse, contrition, and cooperation with the administration of justice in this matter. That absence was also accompanied by an attempt to point the blame at others, at other, quite innocent road users, including accusing them of dangerous driving by, in relation to one other road users, giving chase at speed to the appellant’s vehicle and in relation to the driver of the vehicle that he struck, it was alleged that she had come to a complete and sudden stop in the middle of the highway. These were allegations without any evidentiary foundation whatsoever. Furthermore, the appellant’s serious traffic history, including a subsequent conviction for unlicensed driving is a relevant consideration in the determination of an appropriate degree of leniency, as is the appellant’s significant criminal history.
- [49]It follows that I am not persuaded that the learned Magistrate made any error in the exercise of her discretion when determining the period of actual imprisonment. By running a trial in this matter, which consisted of an overwhelmingly strong prosecution case, the appellant put himself at risk of a sentence of the severity that was in fact imposed. Insofar as the other grounds of appeal are concerned, counsel has not argued those matters, and, as I understand it, it is not pushed that any have merit, and I will not go into the details of them. The appeal is dismissed.