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Tobin v The Commissioner of Police QDC 52
DISTRICT COURT OF QUEENSLAND
Tobin v The Commissioner of Police  QDC 52
TOBIN, Jack Ross
THE COMMISSIONER OF POLICE
DC 3329 of 2018
Appeal against sentence
Magistrates Court at Richlands
18 April 2019
11 April 2019
LOURY QC DCJ
CRIMINAL LAW – APPEAL AGAINST SENTENCE – JUDGE ACTED ON WRONG PRINCIPLE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to unlawful use of a motor vehicle, pursuant to Summary Offences Act 2005 (Qld) in the Magistrates Court – where he was in the back seat of a stolen vehicle involved in a police pursuit – whether conduct of which he was not charged was taken into account by the learned Magistrate
Drugs Misuse Act 1986 (Qld)
Justices Act 1886 (Qld) s 222, s 223
Summary Offences Act 2005 (Qld)
House v The King (1936) 55 CLR 499, cited
R v D  1 Qd R 363, cited
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, cited
Legal Aid Queensland, for the Appellant
Director of Public Prosecutions (Queensland), for the Respondent
- On 14 August 2018, the appellant pleaded guilty to one count of unlawful use of a motor vehicle under the Summary Offences Act 2005 (Qld). He was convicted and ordered to perform 150 hours of community service. A conviction was recorded.
- The appellant appeals his sentence on the ground that the sentence is excessive. He argues that the learned Magistrate’s discretion miscarried because he took into account irrelevant matters.
- The appellant was a passenger in a stolen Audi A4 sedan. Police attempted to intercept the vehicle at 2.28 am on 7 May 2018 on Milton Road, Milton. The driver of the vehicle, Jessica Hope engaged in a protracted pursuit along the Centenary Freeway and Logan Motorway. The pursuit lasted around 40 minutes and involved her driving the vehicle dangerously. Stingers were deployed by police. She continued to drive the car on the rim of the front wheel when the tyre came off. The vehicle crashed. Police arrested her and her two passengers. Her boyfriend, Mr Osmanagic was seated in the front passenger seat and the appellant in the back seat of the car.
- The learned Magistrate did not consider that it was necessary to distinguish between the culpability of the appellant and Mr Osmanagic, who was sentenced at the same time as the appellant. He to was ordered to perform 150 hours of community service. The learned Magistrate considered it a very serious example for this type of offence. He referred to the fact that the police pursuit persisted for some considerable period of time and that it involved multiple attempts to evade police despite the deployment of stingers. He referred to the driving of the vehicle on rims. He referred to these facts as illustrating the objective seriousness of the offending.
- The learned Magistrate referred to the appellant having spent 29 days in pre-sentence custody before being granted bail. As he was not provided with a pre-sentence custody certificate, the learned Magistrate considered that community service was the appropriate penalty. In relation to Mr Osmanagic, the learned Magistrate considered that there were fewer aggravating features to Mr Osmanagic’s offending. He said that he didn’t feel that it was necessary to differentiate between sentences he was imposing on each of the appellant and Mr Osmanagic, because the aggravating features present in the appellant’s case were adequately addressed and taken into account by virtue of his pre-sentence custody.
- The appellant argues that the learned Magistrate’s sentencing discretion miscarried because he took into account uncharged acts namely, the acts of Ms Hope in driving the vehicle dangerously in the course of a police pursuit. Whilst not a ground of appeal, the appellant also argues that the learned Magistrate ought to have distinguished between the appellant and Mr Osmanagic given the period of time that the appellant served in pre-sentence custody.
- The respondent argues that the appellant’s criminal culpability included getting into the car and being a passenger in it when he knew that he was not permitted to use the car and being in the car while there was some “wild and dangerous” driving by Ms Hope. The respondent argues that the learned Magistrate’s emphasis on the actions of Ms Hope was not an error.
- The appellant appeals the sentence pursuant to section 222 of the Justices Act 1886 (Qld). Pursuant to section 223 of that Act, the appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate. That requires this court to conduct a real review of the evidence given in the Magistrates Court and the Magistrate’s reasons for imposing the sentence he did, to determine whether there has been an error. As this is an appeal against the exercise of the sentencing discretion, it must be determined in accordance with the principles found in House v The King. If I find that the Magistrate acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant matters or mistook the facts then I can exercise the discretion afresh.
- A sentencing judge is required to take into account all of the circumstances of the offence. Common sense and fairness determine what those circumstances are. An act, which may technically constitute an offence, is not excluded from consideration. Such an act cannot be taken into account if the conduct does not form part of the offence of which the person to be sentenced has been convicted.
- The learned Magistrate’s reference to the multiple attempts to evade police, the deployment of stingers and the driving on the rims of the vehicle as factors which illustrated the objective seriousness of the offending, does tend to suggest that he took into account the conduct of the driver of the vehicle in determining the seriousness of the appellant’s conduct. Whilst it was a relevant circumstance that the appellant was a passenger in the stolen vehicl, which was involved in a police pursuit, the learned Magistrate’s reference to the particulars of the driving as indicating the objective seriousness of the offending does tend to suggest that he impermissibly took into account other offences in respect of which the appellant had not been convicted.
- Error having been demonstrated, it is necessary for me to exercise the sentencing discretion afresh. In re-sentencing, I must be cognisant of the parity principle, which requires me to consider the sentence imposed upon Mr Osmanagic.
- A pre-sentence custody certificate has now been provided, which indicates that the appellant was held in pre-sentence custody from 7 May 2018 until 6 June 2018, a period of 31 days. Mr Osmanagic was not held in pre-sentence custody at all. The appellant has completed no hours of his community service order.
- The appellant was 26 at the time of the commission of the offence and is 27 years of age now. He has a significant criminal history. As a 19 year old, he was convicted of an attempted robbery with circumstances of aggravation, which resulted in him being sentenced to three years imprisonment with immediate release on parole. At age 22, he was sentenced for offences of receiving, fraud and attempted fraud and sentenced to four months imprisonment wholly suspended for an operational period of two years. He breached that suspended sentence by being found in possession of drugs. The operational period of the suspended sentence was extended by three months. Most relevantly, the appellant was convicted in the Supreme Court on 16 January 2018 of trafficking in dangerous drugs, possessing dangerous drugs in excess of the third and fourth schedules to the Drugs Misuse Act 1986 (Qld), possessing a weapon and other drug related offences. He was sentenced to five years imprisonment wholly suspended for an operational period of five years.
- This offence of unlawfully using the vehicle was committed only four months into the operational period of the suspended sentence imposed in the Supreme Court. That is an aggravating feature of his offending.
- Mr Osmanagic was 27 years of age at the time of the offence. His criminal history is much less serious than that of the appellant. He had been convicted of being drunk and disorderly, assaulting/obstructing police, possession of weapons and drugs and stealing. He had been fined for those offences, which have all been dealt with in the Magistrates Court across three appearances.
- The maximum penalty for the offence of unlawfully using a motor vehicle under the Summary Offences Act 2005 (Qld) is 12 months imprisonment. Disparity between the sentence imposed on Mr Osmanagic and the appellant is warranted in light of their differing criminal histories and the appellant having committed the offence whilst subject to a suspended sentence.
- The appellant’s offending warrants a term of imprisonment in light of the significant aggravating feature, that he was subject to a suspended sentence only recently imposed. As a term of imprisonment is a more serious penalty than an order for the appellant to perform unpaid community service, I allowed the appellant’s solicitor the opportunity to take instructions from the appellant as to whether he wanted to proceed with the appeal. The appellant wishes the appeal to proceed.
- In those circumstances my orders are:
- The appeal is allowed.
- The sentence imposed on 14 August 2018 is set aside.
- The appellant is re-sentenced as follows:
- (a)A conviction is recorded.
- (b)The appellant is sentenced to 31 days imprisonment.
- (c)I declare that 31 days spent in pre-sentence custody between 7 May 2018 and 6 June 2018 be deemed time already served under the sentence.
- Published Case Name:
Tobin v The Commissioner of Police
- Shortened Case Name:
Tobin v The Commissioner of Police
 QDC 52
18 Apr 2019