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- Unreported Judgment
Williamson v The Commissioner of Police QDC 56
DISTRICT COURT OF QUEENSLAND
Williamson v The Commissioner of Police  QDC 56
BENJAMIN JAMES WILLIAMSON
THE COMMISSIONER OF POLICE
Appeal pursuant to section 222 of Justices Act 1886 (Qld)
Magistrates Court Southport
17 April 2019
05 April 2019
Kent QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of driving whilst disqualified by court order and possession of dangerous drugs – where the appellant had extensive traffic history – where the sentence was partially suspended and imposed one month of actual imprisonment – where the respondent concedes the sentence was excessive – whether imposing a term of actual imprisonment was excessive
Justices Act 1886 (Qld), s 222
Justices Regulation 2014 (Qld), sch 2
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13
Forrest v Commissioner of Police  QCA 132, applied
House v R (1936) 55 CLR 499, applied
Prew v Commissioner of Police  QDC 178, considered
Rongo v Commissioner of Police  QDC 258, applied
R v Mallon (QCA 480 of 1996, 21 March 1997, unreported), considered
R v Safi  QCA 13 at ; R v NQ  QCA 402, considered
Spizzirri v Commissioner of Police  QDC 222, considered
Wong v The Queen (2001) 207 CLR 584, considered
EDRIDGE, N (I/b Dib & Associates) for the appellant
BAKER-SMITH, A (Solicitor) for the respondent
Dib & Associates Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent
- On 18 September 2018, at the Southport Magistrates Court, the appellant pleaded guilty to one count of driving a motor vehicle with a driver’s licence disqualified by Court order and one count of possessing dangerous drugs, namely Testosterone.
- For disqualified driving, he was sentenced to 4 months imprisonment, with parole release fixed on 18 October 2018, and further disqualified from holding or obtaining a licence for 3 years. For the possession of dangerous drugs, he was sentenced to 1 month imprisonment with parole release fixed on 18 October 2018 (i.e. the parole release date was after the expiration of the sentence, which was, mathematically, 17 October).
- On 18 September 2018 the appellant filed a Notice of Appeal and was granted appeal bail. On 22 November 2018 the respondent filed an application to strike out the appeal as the appellant had failed to file an outline.
- On 26 November 2018 the appellant filed an outline of submissions for the appeal and the respondent withdrew the application to strike out. The respondent’s outline was filed on 20 December.
Grounds of Appeal
- The appellant’s grounds are that the sentence imposed was manifestly excessive; and that the sentencing discretion miscarried because the learned Magistrate:
- Failed to take into account the appellant’s guilty plea and did not explain how or whether the sentence was reduced by this plea, contrary to section 13 of the Penalties and Sentences Act 1992; and
- Failed to have regard to the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable, contrary to section 9(2)(a) of the Penalties and Sentences Act 1992.
- The appellant appeals under s 222 of the Justices Act 1886; the sole statutory ground is that the sentence was excessive. The appeal is by way of re-hearing of the original evidence given in the proceedings. As this is an appeal against sentence, the principles in House v R apply: it must appear that some error has been made in the exercise of the sentencing discretion which renders the sentence excessive.
Facts of the appellant’s offending as placed before the Magistrate
- On 18 March 2018 police conducted a search of the appellant’s bedroom, in his presence, pursuant to a search warrant. Police located a vial which was one third full of the steroid testosterone. The defendant stated to police that he had forgotten about the vial as he had recently moved house.
- On 10 April 2018 police conducting enforcement on Birmingham Road, Carrara, had reason to speak with the driver of a utility, being the defendant. Their licence enquiries indicated the defendant was disqualified from driving and the defendant acknowledged he was aware of the disqualification. The appellant was issued with a Notice to Appear in the Southport Magistrates Court.
The appellant’s antecedents
- The appellant was aged 29 at the time of offending and sentence and is currently 30.
- He has an extensive traffic history including:
- Disqualified driving on 28 August 2016 – convicted and disqualified for 2 months and fined $1,600.
- Disqualified driving on 30 July 2016 – convicted and disqualified for 30 months and fined $1,200.
- Disqualified driving on 1 June 2016 – convicted and disqualified for 24 months and fined $1,500.
- Unlicensed driving on 18 December 2015 – convicted and disqualified for 6 months and fined $100.
- The appellant also has a Queensland criminal history mainly involving drug, property and weapons offences but had not been sentenced to imprisonment prior to the sentence that is the subject of this appeal.
- He also has a dated New South Wales criminal history which contains traffic offences of driving with a suspended licence on 11 November 2007 and driving while disqualified on 10 August 2008.
Prosecution submissions at Sentence
- The prosecution outlined the facts of the appellant’s offending and tendered the appellant’s traffic history and Queensland criminal history. The prosecution made no submissions as to penalty but stated that a term of imprisonment was within range.
Defence submissions at Sentence
- The defence tendered a character reference by Mr Ben Nicholl, a letter by the appellant’s sister, Ms Nicole Williamson and a medical certificate indicating she was unwell on the date of the incident, a character reference by Mr Stephen Harden, a statement of attendance at the Attitudinal Driving Workshop and an ASIC registration of the appellant’s business.
- The defence noted the appellant’s age and that the appellant had not understood the severity of driving whilst disqualified.
- The defence submitted that on this occasion the appellant drove while disqualified as a ‘knee-jerk’ reaction to a telephone call from his pregnant sister who had advised him she was unwell. The appellant drove 15 minutes to her house, stayed for 1.5 hours until her husband arrived and was intercepted by police whilst driving home.
- As evidence of the appellant’s rehabilitation, the defence submitted the appellant had completed an attitudinal driving course and enrolled in QTOP (a traffic offenders program to educate and deter offenders from re-offending) of his own volition. Further, the defence submitted the appellant had not driven since this incident and had arranged for his subcontractors to drive him and his tools to and from work.
- When the learned Magistrate noted a speeding infringement of 23 March 2018 as evidence the appellant had driven since the incident, the defence submitted this could have been incurred by a subcontractor, although they acknowledged the appellant had not lodged a statutory declaration to that effect and that he had paid the fine. They further submitted the appellant’s recent change of address could explain his failure to lodge a statutory declaration if he did not receive the infringement notice and the fine was automatically added to his SPER debt.
- It was submitted that the appellant had recently moved in with his de facto partner and was financially responsible for their rent and other household utilities. The appellant had also recently started a new concreting business with two subcontractors which had been successful to date. It was submitted that he therefore had capacity to pay a fine but would be appropriately burdened by such a sentence.
- The defence submitted that licence disqualification was particularly burdensome and onerous for the appellant who relies on his licence for work.
- The defence submitted that a fine upwards of $3,000 was an appropriate penalty.
The Learned Magistrate’s reasons
- The learned Magistrate took into account the risk to the public of a person of driving whilst disqualified and the appellant’s traffic history, particularly the three previous occasions of driving while disqualified. He also considered the appellant’s reliance on a licence for work and the detrimental effect disqualification would have on his business.
- The learned Magistrate sentenced the appellant to four month’s imprisonment for the disqualified driving and one month’s imprisonment for the drug charge, to be served concurrently with a parole release date of 18 October 2018. The appellant was further disqualified from holding or obtaining a licence for three years from date of sentence.
- The appellant submits that the sentence imposed is manifestly excessive.
- Further to the matters outlined at sentence, the appellant raises the following additional matters of mitigation:
- The early plea of guilty;
- That it was open to the learned Magistrate to impose a wholly suspended term of imprisonment and that this was within range as the appellant had not been subject to any suspended terms of imprisonment previously;
- That a term of imprisonment to be served in the community would allow the appellant to continue his employment and contribute to the community;
- That a wholly suspended term of imprisonment, which would activate upon re-offending would be appropriate given his history of re-offending whilst subject to disqualification;
- That the appellant had no drug or alcohol related driving offences;
- That there was no allegation the appellant had driven dangerously;
- That the other instances of the appellant driving whilst disqualified were a result of him driving to or from work.
- The appellant submits that
– The learned Magistrate did not give sufficient weight to the principle of imposing a sentence which allows the offender to stay in the community;
– The appellant has already served a cumulative disqualification period of 4 years and 10 months and that the sentence subject to this appeal would prevent the appellant from re-applying for a licence until 18 September 2021. It is submitted that this alone would profoundly impact the appellant’s employment and daily life;
– The disqualification coupled with the separate term of imprisonment is manifestly excessive and does not consider the personal circumstances of the appellant;
– Serving one month of the imprisonment term would not have a rehabilitative effect and could harmfully expose the appellant to serious criminals, drugs and the risk of injury or degrading conduct in detention. Further, serving the whole four months of the imprisonment term would be excessive. Accordingly, the appellant submits that that the imprisonment term be wholly suspended.
- He refers to the comparable case of Spizzirri v Commissioner of Police in which the appellant, who had a significant criminal and traffic history and had pleaded guilty to driving whilst disqualified, was successful in varying their sentence to a 12 month head sentence, wholly suspended for an operative period of 2 years and 3 months.
- The appellant submits that a wholly suspended sentence of 3 months, with a 2-3 year licence disqualification, is an appropriate sentence for the disqualified driving.
- As to the offence of possessing dangerous drugs, the appellant submits that imprisonment was excessive and that the learned Magistrate failed to properly regard the guilty plea in fixing the parole release date. The appellant had never previously been imprisoned nor subject to community based orders, and had only been sentenced for 2 previous drug offences, for which he was fined $1,500 with no conviction recorded. Thus the appellant submits he should be convicted and fined.
- The appellant if successful seeks costs of the proceeding being $1,800.00 pursuant to Schedule 2 of the Justices Regulation 2014.
- The respondent concedes that the sentence imposed by the learned Magistrate was excessive.
- The respondent further concedes the submissions of the applicant summarised in paragraphs - above.
- The respondent refers to Spizzirri v Commissioner of Police, summarised above, and Prew v Commissioner of Police as comparable cases. In Prew, the appellant, who had significant traffic history including charges of disqualified driving, successfully varied their head sentence to 4 months imprisonment for disqualified driving and 1 month’s imprisonment for breach of a community service order, to be served concurrently. This was suspended after serving 7 days (time already served) for an operational period of 2 years. The appellant was also disqualified from holding or obtaining a drivers’ licence for 2 years.
- Considering the comparable cases, the respondent submits that a wholly suspended sentence of 3 months coupled with disqualification is appropriate. The respondent does not dispute an order as to costs.
Discussion and Conclusion
- It is common ground that the sentence imposed by the learned Magistrate was excessive. In my view, this is a proper concession by the respondent and the conclusion reached by the learned Magistrate was incorrect. The fact that the sentencing discretion miscarried is demonstrated by the excessive result as outlined above - the conclusion that there was a misapplication of principle is unavoidable. It was true that the appellant’s driving history was unattractive. However he was a relatively young man, self-employed with employees; supporting his family; driving in circumstances of medical necessity for support of his pregnant sister rather than capriciously or in any way dangerously; he caused no harm; and he had entered an early plea of guilty. In these circumstances the failure to properly consider the import of s 9(2)(a) of the Penalties and Sentences Act 1992(Qld), that imprisonment is a last resort and community based sentencing is preferable, represents an error in the sentencing process.
- The Magistrate also failed to explain how the plea of guilty was being taken into account as required by s 13(3) of the Penalties and Sentences Act 1992. While this does not, of itself, necessarily invalidate the sentence, nevertheless it does not add to the clarity of the reasons. Added to these aspects is the aspect that the sentence for the drug offence seems not to be according to law, in that the parole release date was the day after the sentence had expired. Overall, the appeal should be allowed and the appellant resentenced.
- Appeal Allowed
- Respondent to pay the appellant’s costs in the sum of $1,800
- Sentences below set aside and appellant resentenced as follows:
- For possession of dangerous drugs the appellant is fined the sum of $750 to be paid within 2 months and in default of payment to be referred to SPER.
- For disqualified driving the defendant is sentenced to 3 months imprisonment wholly suspended for an operational period of 3 months. The appellant is also disqualified from holding or obtaining a driver’s licence for 2 years.
- Convictions recorded.
 As discussed in Rongo v Commissioner of Police  QDC 258 at -
 Forrest v Commissioner of Police  QCA 132.
 (1936) 55 CLR 499 at 504 – 5.
 Respondent’s Outline of Submission, para 5.1.
 Ibid, para 5.2.
 Ibid, para 5.3.
 Ibid, para 5.4.
 Transcript of sentence submissions, page 3, line 40-45.
 Ibid, page 3, line 1 and page 6, line 7-20.
 Ibid, page 4, line 15-25.
 Ibid, page 4, line 39-45.
 Ibid, page 5, line 15-25.
 Ibid, page 7, line 1-10.
 Ibid, page 8 line 10 to page 9, line 25.
 Ibid, page 9 line 25-40.
 Ibid, page 4, line 1-15.
 Ibid, page 4, line 3-6.
 Ibid, page 7, line 40-45.
 Transcript of sentence submissions, page 5, line 35-40.
 Ibid, page 7, lines 15-35.
 Appellant’s Outline of Submissions, para 22.
 Appellant’s Outline of Submissions, paras 24- 29.
  QDC 222.
 Appellant’s Supplementary Outline of Submissions, para 10.
 Ibid, para 11.
 Respondent’s Outline of Submissions, para 7.1.
 Ibid, para 7.2.
  QDC 222.
  QDC 178.
 Respondent’s Outline of Submission, para 7.3 – 7.5.
 Ibid, para 7.3.
 Wong v The Queen (2001) 207 CLR 584 at 
 R v Mallon (QCA 480 of 1996, 21 March 1997, unreported); R v Safi  QCA 13 at ; R v NQ  QCA 402
- Published Case Name:
Williamson v The Commissioner of Police
- Shortened Case Name:
Williamson v The Commissioner of Police
 QDC 56
17 Apr 2019