Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pearce v The Commissioner of Police[2019] QDC 12

Pearce v The Commissioner of Police[2019] QDC 12

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Pearce v The Commissioner of Police [2019] QDC 12

PARTIES:

PEARCE, Damian Lee
(Appellant)

v

THE COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

DC No 1463 of 2018

DIVISION:

District Court

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

18 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 January 2019

JUDGE:

Loury QC DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced for 22 offences in the Magistrates Court – where the Magistrate made the sentence cumulative upon a District Court Sentence – where the effective sentence was seven and one-half years imprisonment– where eligible for parole after having served two and one-half years – whether the sentence was manifestly excessive

Justices Act 1886 (Qld), s 222

Penalties and Sentences Act 1992 (Qld), s 9(2)(l)

Barbaro v The Queen (2014) 253 CLR 58, cited

House v The King (1936) 55 CLR 499, cited

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, cited

COUNSEL:

P J Wilson for the appellant

S D Kingston for the respondent

SOLICITORS:

Gatenby Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    On 5 April 2018 the appellant entered pleas of guilty in the Richlands Magistrates Court to 22 offences. He was sentenced as follows:

Unlawful use of a motor vehicle to facilitate the commission of an indictable offence

18 months imprisonment

Unlawful use of a motor vehicle (UUMV) x 3

18 months imprisonment

Dangerous operation of a motor vehicle

18 months imprisonment

Failing to stop x 2

18 months imprisonment

Disqualified driving

18 months imprisonment

Receiving tainted property x 3

12 months imprisonment

Stealing x 4

12 months imprisonment

Possession of a dangerous drug

12 months imprisonment

Entering premises and stealing

12 months imprisonment

Wilful damage

12 months imprisonment

Unlicensed driving (demerit point suspended) x 2

6 months imprisonment

Possession of  weapon

6 months imprisonment

Unlawfully taking away goods

Convicted and not further punished

All of the sentences imposed by the learned Magistrate were ordered to be served concurrently with each other but cumulatively upon the sentence the appellant was then serving, of four years and seven months imprisonment for two offences of armed robbery. A parole eligibility date was set at 5 April 2019. The effect of the sentences is that the appellant is required to serve 7 and one-half years imprisonment with parole eligibility after serving two and one-half years. 

  1. [2]
    The appellant appeals the sentences imposed by the Magistrate pursuant to section 222 of the Justices Act 1886 (Qld). The sole ground of his appeal is that the sentences were manifestly excessive. Pursuant to section 223 of that Act, the appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate.  
  2. [3]
    The High Court in Robinson Helicopter Company Inc v McDermott said as to the task of an appellate court conducting a rehearing:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” (Footnotes omitted.) [1]

  1. [4]
    As this is an appeal against the exercise of the sentencing discretion, it must be determined according to the principles found in House v The King[2]

“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.”

  1. [5]
    The appellant does not assert a specific error. He does not argue that there has been any misapplication of principle. His argument is that the sentence is excessive under these circumstances in that it is “unreasonable or plainly unjust”. 

Circumstances of the offences

  1. [6]
    On 10 October 2015, the appellant failed to pay for $30 worth of fuel he had pumped into his car (unlawfully taking away goods). On 14 October 2015, when police located the appellant for the purpose of speaking to him about his theft of the fuel he was found to be driving a vehicle whilst his license was suspended for an accumulation of demerit points (unlicensed driving). 
  2. [7]
    On 12 November 2015, the appellant stole the complainant’s Mercedes Benz motor vehicle whilst she was at a social gathering (UUMV to facilitate the commission of an offence). On 12 December 2015, the appellant used that Mercedes Benz to steal $100 worth of diesel fuel from a service station (stealing). The appellant used the vehicle to assist in stealing another vehicle on 12 December 2015. The vehicle was found on 14 December 2015. The appellant’s fingerprints were located in the vehicle.
  3. [8]
    On 24 November 2015, the appellant stole a quantity of bourbon valued at $19 from a liquor store (stealing).
  4. [9]
    Overnight on 3-4 December 2015, the complainant’s car, a Holden Commodore was stolen from his home address (UUMV). On 4 December 2015, the appellant filled the car with $50 worth of fuel, which he stole (stealing). The vehicle was located on 8 December in a hotel carpark. The appellant’s fingerprints were located in the vehicle.  He had received stolen registration plates, which he affixed to the vehicle (receiving tainted property). He had further received another stolen registration plate, which was located in the boot of the vehicle (receiving tainted property). 
  5. [10]
    On 10 December 2015, the complainant’s Holden Commodore was stolen by the appellant. He produced a replica gun and demanded the complainant get out of his vehicle and hand over the keys or risk being shot. (This robbery was the subject of one of the offences dealt with in the District Court on 7 March 2015). On 11 December 2015, police located the vehicle at Mt Cootha. The appellant and a woman fled from the vehicle on foot (UUMV). Located in the abandoned vehicle was identification in the appellant’s name as well as a ninja star (possession of a weapon) and six grams of white substance, which contained methylamphetamine (possessing drugs). Stolen registration plates were also located in the vehicle (stealing). At the time the appellant stole the vehicle, his license had been suspended due to the accumulation of demerit points (unlicensed driving).    
  6. [11]
    On 11 December 2015, the appellant entered the Nike Factory store at Jindalee and stole a pair of shoes (entering premises and stealing).
  7. [12]
    On 12 December 2015, the appellant drove the stolen Mercedes Benz (referred to in paragraph [7]) to meet with a person selling a Ford Falcon. At around 8 pm, the appellant took the Ford Falcon, which had been advertised privately for sale, for a test-drive. After doing so he stole the Falcon (UUMV). At 11.40 pm, the appellant was driving that stolen vehicle in Goodna when police attempted to intercept him by activating their lights and sirens. He accelerated quickly away from police and commenced driving at a high speed, running a number of red lights (failing to stop). Police discontinued any attempt to stop the vehicle losing site of it at Camira. Seventeen minutes later different police attempted to intercept the vehicle on the Logan Motorway by activating their lights and sirens. The appellant accelerated away reaching a speed in excess of 180 kilometres per hour, along the motorway (failing to stop). Police again discontinued their attempt to intercept the vehicle. The police helicopter tracked the stolen vehicle from that point. Tyre deflation devices were deployed by police on multiple occasions in an attempt to stop the appellant. The appellant travelled at high speeds, on the incorrect side of the road, mounting traffic islands, running red lights and driving towards marked and unmarked police vehicles throughout the Heathwood and Forest Lake areas. At one point the appellant drove deliberately at the driver’s side of a marked police vehicle, striking the vehicle on the front right hand guard causing minor damage before driving away at a high speed (wilful damage). Tyre deflation devices were successfully deployed with at least one of the tyres of the stolen car being punctured. Despite that, the appellant drove onto the Logan Motorway travelling at high speeds in excess of 100 kilometres per hour with the tyre shredding as he drove. A large portion of the tyre came off the wheel, however, the appellant continued to drive at high speed onto Beaudesert Road. The appellant lost control of the car crashing into a tree. Two passengers alighted from the vehicle and ran away. The appellant continued to travel at speed through the streets of Calamvale (dangerous operation of a motor vehicle). Eventually the vehicle came to a stop in a driveway in Calamvale. The appellant refused to exit the vehicle and had to be physically removed by police. The defendant was disqualified from driving at the time of these driving offences (disqualified driving). The vehicle, when searched, was found to contain a large amount of property which had been stolen from the house where the Mercedes Benz had been stolen (receiving tainted property).   

District Court sentence

  1. [13]
    On 7 March 2018, the appellant was sentenced in the District Court at Maroochydore for the offences of aggravated unlawful use of a motor vehicle, attempted robbery and two counts of armed robbery. The sentencing remarks of the learned District Court judge were tendered before the Magistrate. Those remarks reveal that the applicant was armed with a replica gun when he committed the two armed robberies. The two armed robberies were committed whilst the appellant was subject to a suspended sentence imposed in the Magistrates Court on 2 October 2015. That suspended sentence of six months imprisonment was activated. Very little else is revealed in the sentencing remarks of the facts of the matters before the District Court. No further information about those facts was placed before the learned Magistrate.
  2. [14]
    The sentencing remarks reveal that the effective sentence imposed in the District Court was six years imprisonment. That period was reduced to four years and seven months to take into account a period of 17 months of pre-sentence custody, which could not be declared. A parole eligibility date was set at 7 October 2018. That required the appellant to serve two years in custody before becoming eligible for parole. 
  3. [15]
    The effect of the sentence imposed by the learned Magistrate was to order 18 months to be served cumulatively on the effective six year sentence imposed in the District Court. He extended the parole eligibility date by a further period of six months, thus requiring the appellant to serve two years and six months in prison before becoming eligible for release on parole.

The appellant’s antecedents

  1. [16]
    The appellant was 33 at the time of the offending and at sentence. He had criminal convictions in Tasmania predominantly for offences involving breaching driving regulations and for some offences of dishonesty. In 2013, the appellant moved to Queensland. He began using methylamphetamine after separating from his partner. In August 2014, the appellant was sentenced to an effective sentence of 14 months imprisonment. He was released upon parole on the day of his sentence. His convictions included drug offences, assaulting police, possessing weapons, assault occasioning bodily harm, breaches of a domestic violence order, wilful damage and failing to appear. On 2 October 2015, the appellant was sentenced to six months imprisonment wholly suspended for an operational period of 12 months. He was also admitted to probation for two years. His convictions were for offences connected with the production of a dangerous drug, entering premises and committing indictable offences and stealing. 
  2. [17]
    The offending, which the learned Magistrate was considering commenced less than two weeks after the appellant was sentenced to the wholly suspended term of imprisonment. 
  3. [18]
    The appellant continued to offend after the commission of the offences under consideration by the Magistrate. He acquired convictions for receiving tainted property, unlawful use of a motor vehicle, assaulting police, possessing a knife in a public place, possessing explosives and drug related offences. He was sentenced to 136 days imprisonment in November 2017.

The Magistrate’s sentencing remarks

  1. [19]
    The learned Magistrate took into account the appellant’s guilty pleas and reduced the penalty that he would otherwise have imposed. He noted the appellant’s extensive criminal history in both Queensland and Tasmania. He noted that the appellant was on probation at the time of the offending and only recently released from various sentences of imprisonment. He identified that considerations of totality were relevant. He referred to the necessity of identifying the likely sentence had the appellant been dealt with at the same time for the offences before him, the District Court offences and the subsequent offence of unlawful use of a motor vehicle. 
  2. [20]
    The learned Magistrate identified relevant principles, which affected the exercise of his discretion including deterrence, both personal and general, community denunciation and community protection. He took into account that the appellant was free of drugs at the time of his sentence. 
  3. [21]
    The Magistrate properly identified that the offences before him were not minor. He considered that a sentence of two and one-half years imprisonment would have been the appropriate sentence for all of the offending before him. He reduced that period to 18 months to factor in the cumulative aspect of it and to avoid the sentence being crushing. He further reduced the period of time that the appellant had to serve prior to becoming eligible for parole to six months imprisonment.

The appellant’s contentions

  1. [22]
    The appellant accepts that he ought to have received a further period of imprisonment, however, he contends that a period of 18 months imprisonment cumulative on the sentence he was then serving together with a parole eligibility date, which required him to serve a further six months imprisonment, was excessive. He argues that a sentence of six months imprisonment cumulative ought to have been imposed. The appellant refers to other cases,[3] where sentences ranging from four years imprisonment through to eight years imprisonment were imposed on offenders convicted of armed robbery and varying other offences. The appellant accepts that they are not comparable but rather demonstrate a broad sentencing trend.  

The respondent’s contentions

  1. [23]
    The respondent contends that whilst the sentence was a significant one it was not outside the exercise of a sound sentencing discretion. The respondent also refers to other cases, which are not directly comparable, in support of their argument.[4] The respondent refers to cases where sentences were imposed from 12 months imprisonment for a single offence of dangerous operation of a motor vehicle imposed twenty years ago to eight years imprisonment for armed robbery and varying other offences. 
  2. [24]
    The cases referred to by both the appellant and the respondent serve only to show that there is no one correct penalty. As the plurality said in Barbaro v The Queen[5]

“[I]n seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.”

  1. [25]
    The cases referred to by both the appellant and respondent are not comparable and are not in my view, determinative of the appropriate sentence. 

Conclusion

  1. [26]
    The most serious offences for which the appellant came to be sentenced were dangerous operation of a motor vehicle and unlawful use of a motor vehicle. The learned Magistrate recognised that the offences were not minor. He specifically referred to the seriousness of driving a stolen car whilst disqualified and not stopping when the police were pursuing him.  
  2. [27]
    My own conclusion is that the appellant’s driving was highly dangerous. It involved driving at very high speeds, at times on the incorrect side of the road and at times through red lights. That conduct exposed other road-users to the potential of being seriously hurt or killed. Further, the appellant deliberately collided with the driver’s side of a police car potentially endangering the life of the police officer driving the car. The appellant continued to drive at high speeds after the successful deployment of tyre deflation devices. His ability to properly control the vehicle with the tyre shredding as he drove would have been impaired. The appellant’s driving involved a sustained course of conduct undertaken for the purposes of evading arrest. 
  3. [28]
    General deterrence is of particular importance to the exercise of the sentencing discretion for this sort of conduct which has a substantial potential for danger to other road users. Personal deterrence and protection of the community were also significant factors to be considered in the exercise of the sentencing discretion. The need for personal deterrence is apparent given the appellant’s extensive criminal history, that he was subject to a suspended sentence only recently imposed and the number and nature of the offences committed over a two month period. The appellant had been using methylamphetamine since he was a young person. He was 35 at the time of sentence. The appellant’s continued use of drugs means that he presents as a danger to the community whilst he continues to use them. The learned Magistrate so too recognised that deterrence both personal and general, community denunciation and protection of the community were important matters which bore upon the exercise of his discretion. 
  4. [29]
    The appellant’s conduct in driving in the way in which he did fell against a background of serious offending over a period of two months, which involved stealing four cars and other property, receiving stolen property and possessing drugs all culminating in his dangerous conduct on 12 December 2015. The appellant was subject to a suspended sentence imposed on 2 October 2015 when all of the offences were committed. That was a factor which aggravated his offending. 
  5. [30]
    The learned Magistrate adopted a starting point of two and one-half years before applying totality considerations. The maximum penalty for the offence of dangerous operation of a motor vehicle is three years imprisonment. The maximum penalty for unlawfully using a motor vehicle is seven years imprisonment and with the circumstance of aggravation of using the said vehicle to facilitate the commission of an indictable offence is 10 years imprisonment. 
  6. [31]
    Section 9(2)(l) of the Penalties and Sentences Act 1992 (Qld) required the learned magistrate to have regard to “sentences already imposed on the offender that have not been served”. The learned magistrate applied totality considerations and reduced the sentence he otherwise considered appropriate to one of 18 months imprisonment. He further reduced the period he would have to serve before becoming eligible for parole to six months. The learned magistrate was cognisant of the need to avoid a crushing sentence. A sentence of 18 months imprisonment to be served cumulatively could not be considered crushing in my view. Further by extending the non-parole period by only six months, the sentence cannot in my view be considered excessive.
  7. [32]
    A condign sentence was warranted to reflect the need for deference and which protected the community from the appellant’s offending. Adopting two and one-half years imprisonment as a starting point against which to then consider issues related to totality was not in my view an excessive sentence.
  8. [33]
    By reducing both that head sentence and the period required to be served before becoming eligible for parole, the learned Magistrate has properly taken into account the mitigating factors.
  9. [34]
    I am not persuaded that the sentence imposed is “plainly unjust or unreasonable”.    The appeal is therefore dismissed. 

Footnotes

[1] (2016) 90 ALJR 679, 686-687 at [43].

[2] (1936) 55 CLR 499 at 504.

[3] R v Apps [2008] QCA 326; R v Gwilliams & Fish [2010] QCA 286; R v Remeeus [2004] QCA 443;
R v Shipman [2004] QCA 171; R v McKeown [1993] QCA 262; R v Gordon [2011] QCA 326;
R v Nolan [2000] QCA 151; Williams v The Queen [2008] QCA 65; R v Reu; Attorney-General of Queensland [1999] QCA 196.

[4] R v Orchard [1998] QCA 249; R v Hitchens [1998] QCA 314; R v Richardson [2010] QCA 216.

[5] (2014) 253 CLR 58 at [41].

Close

Editorial Notes

  • Published Case Name:

    Pearce v The Commissioner of Police

  • Shortened Case Name:

    Pearce v The Commissioner of Police

  • MNC:

    [2019] QDC 12

  • Court:

    QDC

  • Judge(s):

    Loury DCJ

  • Date:

    18 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.