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Ratcliffe v Queensland Police Service QDC 144
DISTRICT COURT OF QUEENSLAND
Ratcliffe v Queensland Police Service  QDC 144
MICHAEL JAMES RATCLIFFE
QUEENSLAND POLICE SERVICE
District Court of Queensland
District Court, Cairns
DELIVERED EX TEMPORE ON:
29 May 2019
29 May 2019
Morzone QC DCJ
(a) For each charge the defendant is sentenced as follows:
(b) All sentences of imprisonment will be served concurrently.
(c) The periods of disqualification relating to the offending of driving without a licence, repeat offender will be served cumulatively with each other, but concurrently with the disqualification period in respect of charge 8, fail to stop a motor vehicle.
(d) 229 days spent in custody from 12 October 2018 to 28 May 2019 inclusive in relation to the offending is declared to be imprisonment already served under the sentence, and the registrar is directed to inform the commission of this declaration.
(e) The parole release is set at 12 June 2019.
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - whether sentence manifestly excessive – resentence.
B. Bilic for the appellant
Aboriginal And Torres Strait Islander Legal Service for the appellant;
- The appellant was sentenced in the Magistrates Court in Cairns on 9 January 2019 in respect of 13 charges. By his own plea, he was convicted and sentences were passed in various forms comprising of fines, periods of driving disqualification and terms of imprisonment.
- He now appeals his sentence.
- On appeal, both parties have provided outlines of argument and have made further submissions on the hearing of the appeal, which I have considered.
- The facts and circumstances of the background were reduced to an agreed schedule of facts which was tendered at the sentence hearing. The defendant was involved in a string of offences ranging from 22 May 2018 to 12 October 2018. The factual circumstances can be summarised as follows:
- For charges 1 and 2 of receiving tainted property and unlawful use of a motor vehicle respectively, after a motor vehicle was stolen by others, the defendant came to receive possession of it together with the keys. From there it was used and found parked;
- For charge 3 of stealing he stole two pairs of running shoes from a sport store valued at $250;
- For charge 4 of contravening a direction or requirement, having been a passenger in a car stopped by police, the defendant failed to give his true name when asked several times to do so;
- For charge 5 and 6 of unlawful use of a motor vehicle and driving whilst unlicensed (repeat offender) respectively, he drove a stolen car and ran away after police approached;
- For charge 7, fail to properly dispose of a needle and syringe, the facts relied upon were that he was found in possession of two needles and syringes inside his bag when he was arrested for earlier offences;
- For charge 8 and 9, failing to stop motor vehicle and driving a motor vehicle without a licence (repeat offender) respectively, when police attempted to stop the car, having activated the emergency lights and siren, the driver failed to stop but instead sped away through a red light. The defendant later confessed that he was the driver in the course of a police statement;
- For charge 10, unlawful use of a motor vehicle, and a related charge 11, driving a motor vehicle without a licence (repeat offender), the defendant was implicated as being the driver of a stolen car whilst he was not holding a driver’s licence;
- For charge 12, unlawful use of a motor vehicle, again the defendant was implicated by his fingerprints on the interior surface of the driver’s doorsill; and
- For charge 13, unlawful use of a motor vehicle, he is said to have fled from that car from the passenger seat; a car which had been identified as stolen.
- During the course of the sentence hearing, the police prosecutor made appropriate and measured submissions which were subject of competent response by the defendant’s representative. However, there appeared to be some level of disconnect between the assistance provided by those advocates and the Court. During the course of the reasons, by way of example, the learned magistrate made remark associating the defendant with the offending of the vehicles being stolen. His Honour prefaced the sentencing remarks in this way in the very first paragraph:
“Yes, defendant, in assessing penalty: you have entered a plea of guilty this charges, you’re entitled to some leniency by pleading guilty. What goes against you, of course, is the serious nature of the offences. I think there is some – at least four unlawful use of motor vehicles where you have just gone onto people’s property. There is the fail to stop when the police directed you to stop. They are the serious offences here. You have a lengthy history. That unfortunately goes against you as well.”
- Ultimately, having regard to the maximum penalties applicable to the various offences as well as mandatory minimum penalties, particularly for the fail to stop and driving without licence (repeat offender), the learned magistrate passed sentence which can be summarised as follows for each of the offences:
Receiving tainted property
Convicted and fined $400
Unlawful use of a motor vehicles
Two years three months imprisonment, disqualified from holding or obtaining a driver’s licence for six months
Three month imprisonment
Contravened a direction or requirement
Unlawful use of a motor vehicle
Two years and three months imprisonment and six months disqualification of driving or obtaining a driver’s license
Driving without a license, repeat offender
Fined $500 and disqualified from holding a driver’s license for six months
Failing to properly dispose of a needle
Fail to stop a motor vehicle
Three months imprisonment and disqualified from holding or obtaining a driver’s license for two years
Driving a motor vehicle without a license, repeat offender
Fined $500 and disqualified from holding or obtaining a driver’s license for one month
Unlawful use of a motor vehicle
Into years and three months imprisonment and disqualified from holding or obtaining a driver’s license for six month prisoned
Driving a motor vehicle without a driver’s license, repeat offender
$500 fine disqualification of holding or obtaining a driver’s license for three months
Unlawful use of a motor vehicle
Two years and three months and disqualified from holding or obtaining a driver’s license for six months
Unlawful use of a motor vehicle
Two years and three months imprisonment and disqualification from holding or obtaining a driver’s license for six months
- The learned magistrate ordered that the terms of imprisonment be served concurrently and set a parole release date of the 9 July 2019, equating to a third of the sentence after taking into account 89 days declared as presentence custody. The learned magistrate further ordered that all periods of license disqualification would be served cumulatively, effectively imposing a total disqualification period of four years and 10 months. The aggregate of the six fines is $2600.
Mode of Appeal
- The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld), which provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to the District Court Judge.”
- Pursuant to s 222, the appeal is by way of rehearing on the original evidence, unless new evidence is adduced by leave. None was in this case and the appeal was made within time.
- For an appeal by way of hearing: “The powers of the appellate Court are exercisable only where the appellate can demonstrate that having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error,” and thereby results in a manifestly excessive sentence.
- The rehearing requires this Court to conduct a real review of the evidence before it, rather than a complete fresh hearing, and make up its own mind about the case. Its function is to consider each of the grounds of appeal, having regard to the evidence, and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so, it ought to pay due regard to the advantage that the magistrate had at first instance.
Grounds of appeal
- The appellant appeals against a sentence in reliance on three grounds which can be summarised as follows:
- The learned magistrate failed to take into account the financial circumstances of the appellant and the nature of the burden a fine would have on him pursuant to s 48(1)(a) and (b) of the Penalties and Sentences Act 1992;
- The learned magistrate failed to have regard to the totality principle as espoused in Mill v R  166 CLR 59 at 63; and
- The learned magistrate sentenced the appellant on the basis that he had entered dwellings and stolen cars, whereas the alleged facts were that the appellant was simply a passenger or driver in stolen cars after they had been stolen.
Manifestly Excessive Sentence
- Here, the respondent properly concedes that the learned magistrate appeared not to have taken into account the appellant’s financial circumstances in imposing the fines as he did. It is also conceded, properly I think, that the aggregate of the disqualification period is manifestly excessive in the circumstances. And, whilst it is further acknowledged that the learned magistrate approached the case on an erroneous factual basis, extending to the initial stolen disposition of the cars involved, it is submitted that no error has eventuated in taking the matter outside the permissible range getting appeal against sentence.
- This court ought not interfere with a sentence, unless it is manifestly excessive, it is officiated 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.
- The principles in House v The King apply. Further, that approach is reinforced in the High Court decision of Kentwell v R. Those decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise its sentencing discretion afresh, unless, in that separate and independent exercise, it concludes that no different sentence should be passed. That is, unless the sentence is manifestly excessive. By contrast, an error may not be discernible but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
- It is apparent on the record that the learned magistrate neither received submissions, nor inquired into the appellant’s financial circumstances or his capacity to pay a fine before imposing various fines amounting to the aggregate $2600.
- Section 48 of the Penalties and Sentences Act 1992 (Qld) requires the court in determining the amount of the fine and the way in which it is to be paid, to have regard to the appellant’s financial circumstances and any burden a fine may have on him.
- Here, the absence of any exchange during the hearing, as well as any exposition in the reasons, it seems to me, bespeaks an error. So much is clear from an examination of the record, in any event. The appellant clearly has no prospects of employment now or in the immediate future, as a consequence of his incarceration resulting from this and previous offending. He will remain at a significant risk of long-term unemployment. His financial circumstances and his income earning capacity are very poor. He has no reasonable prospects of paying, and the burden of paying, any fine is likely to lead to default. In all the circumstances, a fine was not an appropriate sentencing option for this defendant, especially in conjunction with significant periods of imprisonment and driving disqualifications which further hindered his capacity to seek and participate in work. In this regard, in my respectful view, the learned magistrate, in exercising the sentencing discretion, failed to take into account those material considerations prerequisite to imposing a fine in the exercise of the discretion.
- Both parties accepted that success for the appellant on this ground would justify the allowance of the appeal and, therefore, it is not necessary for the court to express any views about the remaining grounds.
- This issue, having been properly conceded by the respondent, together with the cumulative effect of the periods of disqualification, comprise but some of the grounds of appeal relied upon by the appellant. Whilst it does not appear how the learned magistrate reached the particular individual fines or the disqualification periods, the aggregate result, in my respectful opinion, was unreasonable or plainly unjust, resulting in a manifestly excessive sentence. I therefore allow the appeal against sentence.
- Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
- The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld).
- It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrents. For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
- The appellant is an indigenous man born on 14 October 1991. He was 26 years old at the time of the offending and was 27 when originally sentenced. He is now well into his 27th year. He was born to an alcoholic mother. He was raised by his grandmother and, on all accounts, has endured a very challenging childhood. He came in contact with the juvenile justice system but his past record of adult offending extends to seven pages of a criminal history and two pages of traffic history, which include:
- Four convictions of unlawfully using a motor vehicle;
- Seven convictions of stealing;
- Six convictions of wilful damage; and
- Five convictions of unlicensed driving and other various offences.
- He left school at about grade 10. At that time, he began experimenting with cannabis and alcohol. His drug use escalated into his early 20’s, manifesting in reckless and criminal behaviour revealed by his criminal history. He acknowledged that “his life was out of control” as conveyed by his counsel on appeal.
- His plea of guilty is indicative of his remorse, which is also indicated by his cooperation with police, at least to some extent and to the extent that he made admissions in circumstances where police had very little by way of evidence to charge or, at least, had to rely upon implication by others. He has otherwise cooperated with the prosecution, which brought the matter to a conclusion with his sentence.
- He now finds himself as a young adult in a committed relationship. That, coupled with his time in pre-sentence custody and since his sentence, he has expressed an ability to focus in a more disciplined way towards his future prospects. Addressing his drug use will be critical to his desires of gaining employment and fulfilling a law-abiding life. Such are his honourable aspirations. He will, by necessity, require appropriate support, since he has spent most of his life in contact with the criminal justice system. He has now spent in excess of seven and a half months in custody to the date of this appeal, which has additionally forced his sobriety and self-examination.
- Comparative decisions are difficult to find for this level and nature of offending. I have been provided with three comparative authorities which are of assistance, namely, Rongo v Commissioner of Police, R v Harrison and R v Thieman. Those cases demonstrate a range of 15 months to two years imprisonment for offending of unlawful use of a motor vehicle, in the main, involving one or two offences coupled with other lesser offending.
- Here, there are multiple driving offences. Some involving the defendant driving, others involving him as passenger and, of those, generally, he has been implicated to accept responsibility or otherwise admitted his involvement in the relevant role. However, here there are multiple driving offences, with coincidental offending arising out of the same conduct and other types of lower level offending by this 26-year-old, then, recidivist offender, who has spent most of his adult life in the criminal justice system, with little opportunity for rehabilitation, albeit given the opportunity by various sentencing options. In those circumstances, the defendant ought be liable for a sentence in the higher end of the range, and arguably, more.
- I have also considered the effect of the periods of disqualification upon the defendant given his age, and already reduced capacity to work. By virtue of s 90B of the Transport Operations (Road Use Management) Act 1995 (Qld), those offences must be regarded as drink driving offences, and ought be served cumulatively. The effect of such an approach must also be considered alongside the mandatory disqualification period relating to the offence of fail to stop a motor vehicle. For that offending, the minimum mandatory sentence is a period of disqualification of two years, coupled with minimum penalties of 50 penalty units, or 50 days imprisonment, up to maximum penalties of 200 penalty units and three years’ imprisonment respectively. The legislature have not otherwise imposed a requirement that the mandatory minimum of 2 years disqualification be served cumulatively with other sentences of disqualification for driving without a licence repeat offender.
- The other observation is that the various offences although on their face significant, having regard to their facts are of a lesser kind of offending for that type. And to the extent that there has been offences charged, where they arise out of the same conduct, that ought be taken into account, so as to ensure that the offender is not twice punished, but rather punished appropriately for those facets of conduct attributable to each of the offences.
- In that regard in particular, it seems to me that this is not an appropriate case, particularly where there is a cognate charge of driving without a licence repeat offender to the charges of unlawful use of a motor vehicle, that there should be a further imposition of disqualification. In any event, it seems to me that the exercise of the discretion to impose such a further disqualification, even where it is not coupled with the cognate charge of driving without a licence, would serve no utility. Indeed, it is likely to further impede the defendant’s rehabilitation, and therefore be contraindicated as a matter to be considered in s 9 of the Penalties and Sentences Act 1992 (Qld).
- For these reasons, I will allow the appeal. I will set aside the orders made by the Magistrates Court, and I substitute the following orders:
- For receiving tainted property, the defendant is convicted but I do not further punish;
- For unlawful use of a motor vehicle I sentence the defendant to sixteen months imprisonment;
- For stealing, I sentence the defendant to one month of imprisonment;
- For contravene of direction or requirement of police, the defendant is convicted but not further punished;
- For unlawful use of a motor vehicle, I sentence the defendant to two years of imprisonment;
- For driving without a licence repeat offender, I sentence the defendant to one month disqualification, but not further punished;
- For failure to properly dispose of a needle and a syringe, the defendant is convicted but not further punished;
- For failure to stop a motor vehicle, I sentence the defendant to 50 days imprisonment and two years disqualification of holding or obtaining a driver’s licence;
- For driving without a licence repeat offender, the defendant is disqualified from holding or obtaining a driver’s licence for one month but not further punished;
- For unlawful use of a motor vehicle, I sentence the defendant to eighteen months imprisonment;
- For driving without a licence repeat offender, the defendant is disqualified from holding or obtaining a driver’s licence for one month, but not further punished;
- For unlawful use of motor vehicle, I sentence the defendant to 20 months’ imprisonment;
- For unlawful use of a motor vehicle, I sentence the defendant to 15 months’ imprisonment.
- In reaching those sentences, I have had regard to the conduct of the defendant in the offending, the roles that he played in it, how the offences otherwise overlap arising from the same conduct, as well as the degree of cooperation constituting each of the offences, and the sparsity of facts upon which the Court was expected to pass sentence. Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and too crushing or disproportionate that the sentences of imprisonment be served concurrently.
- I will further order that the periods of disqualification relating to the offending of driving without a licence, repeat offender will be served cumulatively with each other, but concurrently with the disqualification period in respect of charge 8, fail to stop a motor vehicle.
- I declare that 229 days spent in custody from 12 October 2018 to 28 May 2019 inclusive in relation to the offending is to imprisonment already served under the sentence, and I direct the registrar to inform the commission of this declaration.
- I do set a parole release date in view of the defendant’s plea of guilty, cooperation with the police and prosecution, his criminal history and like offending, the time that he has spent in custody before the sentence and pending this appeal, as well as his various roles in the offending and his cooperation bringing about the charges. Further, I take into account his age.
- It seems to me that it is appropriate in all the circumstances that I set a parole release date at 12 June 2019, which equates to one third of his sentence.
Judge Morzone QC
 Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
 White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
 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
 House v The King  CLR 499 at 504 and 505
 Kentwell v R  252 CLR 60 at 
  QDC 258
  QCA 474
  QCA 195
- Published Case Name:
Ratcliffe v Queensland Police Service
- Shortened Case Name:
Ratcliffe v Queensland Police Service
 QDC 144
29 May 2019