Holden v Queensland Police Service
[2018] QDC 217
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- Unreported Judgment
- Holden v Queensland Police Service[2018] QDC 217
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Holden v Queensland Police Service[2018] QDC 217
Holden v Queensland Police Service[2018] QDC 217
DISTRICT COURT OF QUEENSLAND
CITATION: | Holden v Queensland Police Service [2018] QDC 217 |
PARTIES: | LEIGH MARGARET HOLDEN (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 229/2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | Orders delivered ex tempore 29 March 2018 Reasons delivered 6 November 2018 |
DELIVERED AT: | Cairns |
HEARING DATE: | 29 March 2018 |
JUDGE: | Fantin DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 – where the appellant was convicted of dangerous operation of a motor vehicle, failure to stop motor vehicle and assault or obstruct police – whether sentence is excessive – leave to adduce new evidence pursuant to s 223(2) Justices Act 1886 – whether the new evidence might have reasonably led to a different result Legislation Criminal Code 1899 (Qld) s 328A Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) s 9 Police Powers and Responsibilities Act 2000 (Qld) ss 754, 790 Cases Adam P Brown Male Fashions Pty Ltd v Philips Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Barbaro v The Queen (2014) 253 CLR 58 Doig v Commissioner of Police [2016] QDC 320 Dwyco v Calco Timbers Pty Ltd (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gallagher v The Queen (1986) 160 CLR 392 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 Pavlovic v Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344 Pendlebury v Queensland Police Service [2017] QDC 166 R v Dean [2006] QCA 256 R v Goodger [2009] QCA 377 R v Lawley [2007] QCA 243 R v MCT [2018] QCA 189 R v Neumann; ex parte A-G [2007] 1 Qd R 53 R v Tout [2012] QCA 296 R v Tsiaras [1996] 1 VR 398 R v Verdins (2007) 16 VR 269; 169 A Crim R 581 R v Yarwood (2011) 220 A Crim R 497 Rodi v Western Australia [2018] HCA 44 Teelow v Commissioner of Police [2009] 2 Qd R 489 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | J Trevino for the Appellant T Hancock, solicitor, for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant The Office of Director of Public Prosecutions for the Respondent |
- [1]On 29 March 2018 I made orders allowing this appeal, setting aside the decision of the Magistrate on 30 November 2017 and resentencing the appellant. These are my reasons for that decision.
- [2]On 29 November 2017, the appellant was convicted on her own pleas of guilty in the Magistrates Court of one charge of failure to stop under s 754(2) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), one charge of dangerous operation of a motor vehicle under s 328A(1) of the Criminal Code Act 1899 and one charge of assault or obstruct police under s 790(1) of the PPRA. The fail to stop offence had a maximum penalty of three years imprisonment and a two year minimum mandatory disqualification: s 754(3). The dangerous operation of a motor vehicle also had a maximum penalty of three years imprisonment. The assault or obstruct police had a maximum penalty of six months imprisonment.
- [3]The appellant was sentenced:[1]
- for the failure to stop, to six months imprisonment and disqualified from driving for two years;
- for the dangerous operation of a vehicle, to 12 months imprisonment and disqualified from driving for 12 months; and
- for the assault or obstruct police officer, to three months imprisonment.
The terms of imprisonment were ordered to be served concurrently. Her parole release date was fixed at 28 February 2018, after serving three months.
- [4]The appellant appeals against the sentence pursuant to s 222(2)(c) of the Justices Act 1886 on the sole ground that it is excessive.
Circumstances of the offending
- [5]The appellant was sentenced on the basis of the following agreed facts. On 23 October 2016 at about 10pm, police were notified that a Nissan Patrol wagon travelling south on the Bruce Highway in the Innisfail area was driving very slowly and swerving over the roadway. Police located the vehicle and observed it travel across the double white lines and onto the incorrect side of the highway around a blind corner, at about 100 kilometres per hour.
- [6]Police activated their lights and sirens, but the vehicle did not stop. It maintained its speed and again swerved onto the incorrect side of the road. Police pursued the vehicle. It increased its speed and continued to travel south on the highway. That forms the fail to stop offence.
- [7]The vehicle gained speed travelling down a hill towards a creek. As it was travelling towards the bridge, it swerved over double white lines and into the lane of an oncoming vehicle. The vehicle continued to drive on the incorrect side of the road at a speed of approximately 100 kilometres per hour, narrowly missing a collision with the northbound vehicle, which moved onto the shoulder of the road. Police discontinued the pursuit.
- [8]Police then received information from a motorist travelling on the highway further south that they were driving at approximately 80 kilometres per hour when a vehicle approached from behind and struck their vehicle.
- [9]A short time later, police saw the appellant’s vehicle driving south. A cane train was crossing the highway and the red flashing warning lights were activated. The appellant drove towards the cane train and her vehicle ‘clipped’ the front of the train. The collision forced her vehicle off the highway and into a ditch, where it came to rest. The appellant was found unconscious in the driver’s seat. It was, by then, 10:27pm.
- [10]After the appellant regained consciousness, she threatened to spit at an ambulance officer. A police officer used her hand to cover the appellant’s mouth. In response, the appellant punched the police officer in the mouth, splitting her lip and causing light bleeding.
- [11]The appellant was admitted to hospital. About one week later, she was discharged and participated in an interview with police. She admitted consuming about six stubbies of beer but could not recall over what timeframe. She said that at the time of the incident she was suicidal due to depression and stress from several major events in her life. She had no memory of evading police, driving dangerously, crashing or assaulting police. The appellant cooperated fully with police and was genuinely upset and remorseful.
Appellant’s antecedents
- [12]The appellant was 41 years old at the time of the offences, and 42 at sentence.
- [13]She had a criminal history comprising only one entry. On 6 June 2014 she was convicted in the Magistrates Court at Bundaberg of one charge of commit public nuisance and two charges of assault or obstruct police. She was fined $750, ordered to pay $250.00 compensation and no convictions were recorded.
- [14]The appellant had a traffic history described by the prosecutor as “somewhat lengthy but unremarkable”[2]. It included one dated alcohol related entry in New South Wales in 1995 and 11 speeding offences. She had never been disqualified from driving by a court. She had never been convicted of driving whilst under the influence of liquor. The Magistrate noted: “there is one very dated drink driving offence, and nothing else of any great import in respect of your traffic history.”[3]
Nature of Appeal
- [15]An appeal to the District Court pursuant to s 222 Justices Act 1886 is by way of rehearing on the evidence before the Magistrates Court unless leave is given to adduce new evidence: s 223.
- [16]The court does not merely consider whether or not the Magistrate made an error of fact or law. The rehearing requires this court to conduct a real review of the evidence given at first instance, and make up its own mind about the case.[4]
- [17]Ordinarily, to succeed in such an appeal an appellant must establish some legal, factual or discretionary error by the sentencing court.[5]
- [18]In an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504-5 apply[6]. This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[7]It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion[8].
- [19]To establish that a sentence is manifestly excessive, it is insufficient to show it to be markedly different from sentences in other cases. What must be established is that there must have been a misapplication of principle by the sentencing judge or that the sentence is “unreasonable or plainly unjust”.[9]
- [20]
“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.” [footnotes omitted].
Application to adduce new evidence
- [21]The appellant applies pursuant to s 223(2) of the Justices Act 1886 (Qld) for leave to adduce new evidence.
- [22]The respondent opposed the application to adduce new evidence on the basis that even with its inclusion, the sentence imposed by the Magistrate was not manifestly excessive.
Relevant principles
- [23]Section 223 provides:
“(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- [24]The reference in s 223(2) to "special grounds" indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is "by way of rehearing on the evidence given in the proceedings before the justices"[12].
- [25]The following considerations are a useful guide for the purposes of identifying the kind of ‘special grounds’ which might be said to justify a grant of leave under s 223(2)[13]:
- whether the evidence relied on could with reasonable diligence have been produced by the accused at the trial;
- whether the evidence is apparently credible (or at least capable of belief); and
- whether the evidence, if believed, might reasonably have lead a tribunal of fact to return a different verdict.
- [26]The first consideration is not "a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial."[14]
- [27]As to the second consideration, “the issue as to the credibility or cogency of fresh evidence for this purpose is not concerned with whether the appellate court ‘acting upon its own view’ accepts the evidence as true, but ‘rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take’”.[15]
- [28]The new evidence sought to be adduced here comprises:
- The final report and discharge summary for the appellant’s admission to the Cairns Hospital between 28 and 31 October 2016 (“the 2016 hospital records”); and
- The following medical information:
- a.Letter of Dr Sukumaran, Consultant Psychiatrist, dated 27 February 2017;
- b.Letter of Dr David Spiers, General Practitioner, dated 8 March 2017; and
- c.Letter by Michelle Milne, North CCT Clinical Lead, dated 28 April 2017;
(collectively, “the 2017 medical reports”).
The 2016 hospital records
- [29]The 2016 hospital records contain the following information. On 28 October 2016 the appellant was transferred from Townsville hospital to the mental health unit at Cairns Hospital. She remained there until 31 October 2016 when she was discharged into police custody and taken to the watch house. The progress notes from the treating psychiatrist and psychiatric registrar record that the appellant disclosed previous periods of homelessness, previous substance use (alcohol and “ice”), and that crashing into the cane train was a suicide attempt while intoxicated, likely contributed to by “dissociative experience”. The notes record “recent stressors of relationship breakdown, loss of job, marriage breakup some time in the past, unstable sense of self, cluster B traits. Alcohol misuse likely contributing to depressive symptom”. The appellant suffered from depression for which she had been medicated. The appellant reported a “chaotic history”: she had grown up with an alcoholic, abusive parent, she and another sibling were abused as children, her mother died when she was 18 years, she had her first child at 19 years, she had four children with three different fathers, she had previously had a drug addiction, had been subjected to domestic violence and abuse as an adult, and one of her children was also abused. In the collision with the cane train, the appellant suffered fractures to her left arm (which was in a cast) and 2 left ribs. The notes referred to “?persistent depressive disorder/dysthymia/recurrent adjustment disorder”. The appellant wished to be seen by the drug and alcohol service for help with spasmodic drug use. She was treated with medication and saw an orthopaedic surgeon for her fractures.
- [30]The treating psychiatrist’s diagnosis for this episode was “persistent depressive disorder” and “admitted post suicide attempt”. The “previous or long term diagnosis” is recorded as “Cluster B traits” and “alcoholism”.
The 2017 medical reports
- [31]The appellant’s treating psychiatrist, Dr Sukumaran, provided a letter dated 27 February 2017 addressed to the Magistrates Court. He stated that the appellant was an open patient of the District Mental Health Service. He confirmed that she was a single mother of four children that she had longstanding emotional issues stemming from childhood trauma, that she had received mental health treatment from various services in NSW and Qld which included previous psychiatric admissions, and that she had had multiple suicide attempts. It noted her use of alcohol as a “coping method”. It stated that these charges occurred in the context of a relationship breakdown which resulted in a suicide attempt whilst under the influence of alcohol. He reported that the appellant was remorseful and that the offending was out of character. He confirmed the injuries she had suffered during the collision. He confirmed a diagnosis of Major Depressive Disorder, that she was being treated with anti-depressants and was receiving case management.
- [32]The appellant’s general practitioner, Dr Spiers, provided a letter dated 8 March 2017 which was a referral to a psychologist to treat the appellant for post-traumatic stress. It confirmed that the collision was an attempted suicide and that the appellant was seeing a psychiatrist biweekly. He confirmed that she had suffered from depression and was currently taking a number of medications, including anti-depressants.
- [33]The letter from Ms Milne, Clinical Lead North Community Care Team Mental Health Unit, dated 28 April 2017 stated that the appellant was supported by mental health services. It confirmed that she was seeing a case manager, a consultant psychiatrist for regular reviews, and a psychologist through her general practitioner.
Discussion
- [34]It is well established that an offender’s mental disorder, short of insanity, may lessen moral culpability and so lessen the claims of general or personal deterrence upon the sentencing discretion[16].
- [35]
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
- The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
- The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
- Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
- Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
- The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
- Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
- [36]The sentencing considerations identified in R v Tsiaras are not, and were not intended to be, applicable only to cases of ‘serious psychiatric illness’. One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness[20].
- [37]Turning to the first consideration which might be said to justify a grant of leave for admission of new evidence, all of the new evidence above could with reasonable diligence have been produced by the appellant at the sentence but was not. The appellant’s solicitor on appeal was not the same solicitor who appeared on sentence. The appellant’s solicitor on appeal deposed that she obtained the 2017 medical reports from the appellant’s former solicitor.[21]Although the 2017 medical reports pre-dated the sentence, the appellant’s former solicitor did not tender them on sentence. The appellant’s former solicitor also did not seek or obtain the 2016 hospital records. They were only requested and obtained in January 2018 by the appellant’s (new) solicitor on appeal. So the first consideration falls against the appellant.
- [38]Balanced against this are the other two considerations.
- [39]The evidence is credible and reliable. It is evidence from hospital and medical practitioners with respect to the appellant’s mental and physical health. It is relevant in each of the ways identified at paragraphs 1 - 4 inclusive above in Tsiaris. It demonstrates a causal link between her psychological condition and the offending, including that the offending occurred as part of a suicide attempt. It also demonstrates that the appellant was remorseful, had insight into her offending, that she was obtaining medical treatment from care providers and had taken substantial steps towards rehabilitation. It also demonstrates that the appellant suffered serious injuries in the collision, and was hospitalised for eight days in at least two different hospitals. In addition, it contains detailed information about her antecedents. All of those matters are relevant to the exercise of the sentencing discretion, but were not available to the Magistrate.
- [40]At the sentencing hearing, the appellant’s solicitor made the following submissions with respect to the appellant’s injuries and mental health:[22]
“She sustained an injury to her right arm … She is 41 years of age – well, 42 now. She is a single woman, although she has four children, and three of those children live with her at Redlynch. There are two girls, one in year 12 and one in year 5. The younger one has autism and does need a lot of support. She has a 17 year old boy who lives with her on a permanent basis…
She, as a young girl, had a fairly difficult family life. That was characterised by a lot of instability, moving residence, the early death of her mother. Her subsequent relationships were marred by domestic violence. Despite all of that, she has raised four children … She has been employed for the most part of her adult life after – for about 15 years as an audiologist, and she will be returning to that. She has taken some time off work after these events, and during that period, she sought help with clearly some difficulties, which are touched upon marginally in the statement of facts. …
She does have a background of depression, anxiety and post-traumatic stress disorder. Regrettably – being a legally-aided matter, it would have been desirable to be able to put a medical report before your Honour about that, but we don’t have those resources. She has, since the accident, however recognised the significance of her problems, which are of real significance … She has, since the accident, been seeing a counsellor, and she does that once a week in relation to drug, alcohol and other issues. She takes medication. She takes antidepressants with a fairly significant dose and Valium as required. She sees her psychiatrist once a month and a psychologist weekly, and she intends to return to work as an audiologist in the very near future. She has been doing some study in the interim period. She has been studying for a diploma in community services.”
- [41]At conclusion of the submissions, the Magistrate referred to the submissions made by the appellant’s solicitor[23]:
“Magistrate: And the issue of her personal circumstances doesn't enliven those exceptional circumstances considerations … I mean, you’re not submitting that she falls into that category in her personal circumstances are you?
Solicitor: No, no. I’ve said what I’ve said about her family background.
Magistrate: And the instructions are that there’s some issues that you raised but you don’t have your material. It doesn’t get to the [indistinct] enlivening a consideration of a psychiatric illness short of insanity under – those cases that started with [indistinct] I’m struggling to see on the submissions you’ve made where, bearing in mind that imprisonment is, under the provisions of section 9, a last resort, and the following provision that says and a sentence, effectively, in the community is most appropriate. … ”
- [42]The Magistrate expressed reservations about how any of the matters submitted by the appellant’s solicitor “ultimately dissuades me or ultimately causes me to conclude that (1) a period of imprisonment isn’t appropriate and (2) there will not be actual incarceration.”[24]The appellant’s solicitor replied: “Yes. Well, your Honour, as I’ve said, no previous community based orders, limited history – yes, that’s – those are the other factors, I suppose, that I refer to. Thank you, your Honour.”
- [43]At 10:32am, the Magistrate adjourned the matter to the next day, revoked the appellant’s bail and remanded her in custody overnight. The appellant then attempted to speak but the Magistrate told her that her solicitor would no doubt explain it to her[25].
- [44]At 9:14am the next day, the Magistrate sentenced the appellant.
- [45]
“I am informed, although there is nothing before me, that as a result of the accident with the cane train that ultimately saw you stop driving and be intercepted, you suffered some injuries to your arm. Nothing is placed before me in relation to that. My view is that I am entitled to accept that you are represented by a competent lawyer; thatif there is anything that arose out of that that was particularly relevant to sentence, something would have been placed before me; nothing is.” [emphasis added]
- [46]
“The submissions indicated that you now recognised you had a problem with drug and alcohol, had attended counselling, that you were attending some counselling weekly with a psychologist and monthly with a psychiatrist. Again, nothing was placed before me in respect of that. It was indicated that you had informed your solicitor that you had suffered from depression and anxiety; similarly, nothing was placed before me in relation to that. In respect of those matters, bearing in mind all of the other considerations, I was at great pains to seek to explore that in the course of the submissions made on your behalf to ascertainwhether there had been a proper diagnosis in respect of any psychiatric condition,whether there was something that would be available to provide some context to your personal circumstances; I was informed, there was not. In particular, I sought Mr [solicitor] to address me about the nature of that condition, and invited submissions as to whether, on his instructions, your condition rose to the point that required consideration in respect of whether it was a psychiatric illness short of insanity, and as such, applying the principles most recently reconsidered by the Court of Appeal in decisions such as R v [indistinct] and R v Yarwood that it agitated for the lesser weight being placed on general and personal deterrence and public denunciation, Mr [solicitor] clearly informed me in response to that that upon his instructions, and in his view, it did not.” [emphasis added]
- [47]If the 2017 medical reports were in the possession of the appellant’s solicitor on sentence (as appears the case), it is inexplicable that they were not tendered on sentence. Particularly in circumstances where the Magistrate noted the absence of that material, indicated that he was considering imposing a sentence of imprisonment requiring actual custody, adjourned the sentence overnight, the solicitor then had a further opportunity to place material before the court before sentence, and he did not do so.
- [48]I am satisfied that if the new evidence had been adduced on sentence, it might reasonably have led the Magistrate to impose a lesser sentence. In my view, this is a case where the strength of the new evidence is such as to justify interference with the verdict. When the new evidence is taken into account, the head sentence imposed was “unreasonable or plainly unjust”.
- [49]I am satisfied there are special grounds to give leave to the appellant to adduce the new evidence pursuant to s 223(2).
The submissions below and the sentencing remarks
- [50]In the court below the prosecutor relied upon the decisions in Pendlebury v Queensland Police Service [2017] QDC 166, Doig v Commissioner of Police [2016] QDC 320 and R v Dean [2006] QCA 256 to submit that a head sentence of nine to 12 months imprisonment was appropriate, and that actual imprisonment was not outside the range. The prosecutor made no express submission about whether the appellant should serve actual time in custody.
- [51]The appellant’s solicitor below conceded that a term of imprisonment including actual custody was within range but submitted that a community based order would be appropriate having regard to the appellant’s family responsibilities. The solicitor did not adduce any evidence about her mental health, either generally or at the time of commission of the offences.
- [52]The Magistrate considered that the dangerous driving and fail to stop offences were both serious examples of those offences. He noted that the appellant had participated in an interview and made admissions. He declined to accept that they were early pleas, notwithstanding the prosecutor’s submission to that effect and that a number of charges were discontinued. The Magistrate took into account the appellant’s limited criminal and traffic history. In the absence of evidence, he declined to reduce the head sentence on the basis of her mental health or the hardship to her family.
- [53]He considered her offending to be more serious than that in Pendlebury, Doig and Dean, and said that the appropriate starting point, before recognition of her plea of guilty and cooperation were taken into account, was 15 months imprisonment. He also considered that a period of imprisonment requiring actual custody was appropriate.
The appellant’s submissions on appeal
- [54]The appellant submitted that the Magistrate erred in his characterisation of Pendlebury and Doig as “less serious offending” and that Dean was not comparable.
- [55]The appellant submitted that Pendlebury and Doig support a non-custodial sentence for the appellant, and that that conclusion is strengthened upon consideration of the new evidence, particularly in relation to the appellant’s mental health at the time of offending.
The respondent’s submissions on appeal
- [56]The respondent submitted that the sentence imposed by the Magistrate was not excessive. It went further, and submitted that even with the addition of the new evidence, the sentence imposed does not go beyond the ‘permissible range’.
- [57]In my view it is clear, from the Magistrate’s pointed remarks during sentencing about the lack of evidence about the appellant’s mental condition and about her injuries, that had the new evidence been adduced at sentence, it would have resulted in a lesser penalty. The respondent’s submission cannot be accepted.
Consideration
- [58]In Pendlebury the appellant pleaded guilty to a number of offences, including dangerous operation of a motor vehicle whilst adversely affected and a dangerous operation of a motor vehicle simpliciter. There were a number of aggravating features present in Pendlebury that are absent in this matter. The simpliciter offence was committed whilst the appellant was on bail for the offence of dangerous operation of a motor vehicle whilst adversely affected, and in breach of a probation order for other offences. There were also multiple other offences committed after the dangerous driving offences including unrelated driving offences. The appellant had a significant criminal history containing numerous entries including previous suspended sentences and community based orders. Her traffic history was also poor, containing numerous entries including driving without a licence, disqualified driving, driving with blood alcohol levels in excess of the limit, and periods of disqualification. The simpliciter offence involved the appellant driving erratically over about 10 kilometres on the Kennedy Highway, coming close to colliding with a number of vehicles before sideswiping another car and running off the road. The appellant suffered serious injuries in the crash. For the offence of dangerous operation of a motor vehicle whilst adversely affected the appellant was sentenced to two years and nine months’ imprisonment. For the dangerous driving simpliciter offence, the appellant was sentenced to two and a half years imprisonment. On each charge the appellant was disqualified from holding or obtaining a driver’s licence for a period of two years. The appellant was a recidivist offender. That is not a characterisation that applies here. His Honour Judge Harrison considered that if the simpliciter offence were considered in isolation, a head sentence of nine to 12 months would have been appropriate. This decision does not support a starting point for the head sentence of 15 months imprisonment in the subject case.
- [59]In Doig the appellant pleaded guilty to four offences: dangerous operation of a motor vehicle, failing to stop, driving while over the middle alcohol limit but not the high alcohol limit and driving whilst disqualified by court order. The appellant was originally sentenced as follows:
- Dangerous operation of a motor vehicle: nine months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of two years;
- Failing to stop a motor vehicle: nine months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of two years;
- Driving while over the middle alcohol limit but not the high alcohol limit: two months imprisonment disqualified from holding or obtaining a driver’s licence for a period of one year; and
- Driving while disqualified by court order: 12 months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of three years.
- [60]The appellant received a parole release date after serving two months imprisonment. Her appeal was allowed. For the dangerous operation offence, she was resentenced to two years probation, disqualified for two years and a conviction was recorded. For the failing to stop, she was fined and disqualified for two years. For the driving over the limit, she was fined and disqualified for one year. For the driving while disqualified, she was sentenced to 12 months imprisonment, wholly suspended for two years and disqualified for three years.
- [61]The appellant submitted that Doig involved comparable offending. The appellant had no criminal history but had a substantial traffic history, which included five drink driving convictions and five convictions for driving while disqualified or unlicensed. The offending was serious, involving a police chase at night on the esplanade at Surfers Paradise, striking a median strip and flattening a traffic sign. There were aggravating features present in Doig that are absent here. The appellant returned a reading of BAC of 0.114%. The appellant was also driving whilst disqualified, having been disqualified only one month earlier. She had an excellent education and work history, but a history of alcohol and prescription medication abuse. Her addiction to alcohol was not a mitigating circumstance but the court found that the Magistrate had failed to appreciate the significance of the rehabilitation achieved.
- [62]Dean was convicted and sentenced after a trial for dangerous operation of a motor vehicle, for which he was sentenced to nine months imprisonment suspended after one month and disqualified from driving for four years. He was driving an unregistered vehicle dangerously, with a young child and passenger in the vehicle, while trying to avoid police. He was speeding, veered onto the wrong side of the road, drove quickly past a group of pedestrians including children, drove again on the wrong side of the road, drove through a stop sign without stopping and eventually collided with a gate. It was not a high speed chase. He had a traffic history described as “bad” but not “extremely bad”, including a number of licence suspensions. The disqualification period was reduced on appeal from four years to three years.
- [63]None of those cases involved the mitigating circumstances that are present here, in particular those referred to in the new evidence.
- [64]In this case, the circumstances of the dangerous operation of a motor vehicle were serious. They involved a protracted period of dangerous driving on a highway at night in which the appellant came close to colliding with other vehicles and did strike another vehicle from behind. That particular incident must have been brief because no injuries were sustained by that vehicle or driver. It is very fortunate that no persons were injured during the offending, other than the appellant.
- [65]However the seriousness of the offending must be balanced against the following matters.
- [66]The appellant’s criminal history was minor and largely irrelevant. The appellant’s traffic history contained a number of speeding fines but no previous offences of a like nature and no periods of disqualification.
- [67]There were also compelling mitigating circumstances:
- Her timely pleas of guilty;
- Her cooperation with police and the making of full admissions;
- Her genuine remorse;
- Her personal circumstances including tragic antecedents;
- The effect of imprisonment on her family given that she was a single parent with the care of three children including one with autism;
- The substantial steps she had taken towards rehabilitation in the long period (more than one year) since the offence, including regular treatment by a psychiatrist and a psychologist, medication for her mental condition and treatment for substance abuse;
- Her solid work history;
- The serious injuries suffered by her in the collision including eight days hospitalisation;
- The appellant did not have a criminal history for like offending;
- The offending was out of character;
- The particular circumstances in which the offending occurred, being a suicide attempt prompted by a number of stressors;
- The appellant was suffering from a mental illness at the time of the offence, which is relevant in a number of ways:
- there was a causal link between her condition and the offending;
- it reduces the appellant’s moral culpability for the offending, as distinct from her legal responsibility. It affects the punishment that is just in all the circumstances. Denunciation is less likely to be a relevant sentencing objective;
- it has a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
- general deterrence should be moderated as a sentencing consideration because of the nature and severity of the appellant’s symptoms, and the effect of the condition on her mental capacity at the time of the offending; and
- specific deterrence should also be moderated or eliminated as a sentencing consideration for the same reasons.
- [68]By the time of the appeal hearing, the appellant had already served 65 days in custody over the Christmas holiday period and been released on bail. If not for that period already served in custody, taking into account all the relevant circumstances and the factors in s 9 of the Penalties and Sentences Act, on the dangerous operation of a motor vehicle offence I may have imposed a community based order of probation, with lesser penalties for the other offences. A term of imprisonment requiring actual custody was in my view excessive, in the sense that it was unreasonable or plainly unjust.
- [69]I accept the appellant’s submission that because the appellant has already served 65 days in custody, the appropriate course now is to resentence for the offence of dangerous operation of a motor vehicle by imposing a head sentence of nine months imprisonment suspended after serving 65 days, for an operational period of nine months and to declare the 65 days as time served under the sentence. It follows that the parole release date should also be set aside.
- [70]I was not addressed on the penalties imposed for the lesser offences or the periods of disqualification imposed, and I decline to alter the orders made by the Magistrate with respect to those matters.
Footnotes
[1] TS Decision p 7; see also TS Proceeding 1-21 for the Magistrate’s explanation about which offences the periods of disqualification will attach to. This accords with the Magistrates Court order sheet.
[2] TS Proceeding 1-9
[3] TS Decision p 3
[4] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, [5].
[5] Allesch v Maunz (2000) 203 CLR 172 at [22] – [23] followed in Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3] - [4]. White v Commissioner of Police [2014] QCA 121 at [8].
[6] R v Lawley [2007] QCA 243 at [18]
[7] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519
[8] R v Lawley [2007] QCA 243 at [18]
[9] R v Tout [2012] QCA 296 at [8]
[10] Barbaro v The Queen (2014) 253 CLR 58 at [41]; R v MCT [2018] QCA 189 at [239].
[11] [2018] QCA 189 at [240]
[12] Pavlovic v Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344 at [30]
[13] Gallagher v The Queen (1986) 160 CLR 392 at 395, 396 affirmed in Pavlovic at [30], [31], [34]-[36]
[14] Gallagher at 395
[15] Rodi v Western Australia [2018] HCA 44 at [37] citing a passage adopted from Gallagher ibid
[16] R v Goodger [2009] QCA 377 at [21] and R v Neumann; ex parte A-G [2007] 1 Qd R 53
[17] (2011) 220 A Crim R 497 at [23]-[24]
[18] [1996] 1 VR 398 at 400
[19] (2007) 16 VR 269; 169 A Crim R 581
[20] Verdins at [5], cited in Yarwood at [25]
[21] Affidavit Tricia Price filed 31 January 2018 paragraph 5
[22] TS Proceeding 1-17, 1-18 and 1-19
[23] TS Proceeding 1-21 and 1-22
[24] TS Proceeding 1-22
[25] TS Proceeding 1-23
[26] TS Decision pp 3 - 4
[27] TS Decision p 4