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Williams v The Commissioner of Police QDC 86
DISTRICT COURT OF QUEENSLAND
Williams v The Commissioner of Police  QDC 86
WILLIAMS, Daniel Purua Tomasi
THE COMMISSIONER OF POLICE
DC 3536 of 2018
Appeal against sentence
Magistrates Court at Wynnum
31 May 2019
3 May 2019
LOURY QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to driving whilst disqualified and driving whilst over the general alcohol limit – where the appellant committed these offences whilst serving a suspended sentence – where the appellant was sentenced to three months imprisonment followed by 18 months probation and a disqualification from holding or obtaining a driver’s licence for two years – where the suspended sentence was activated – whether the learned Magistrate failed to give sufficient reasoning as to the sentence imposed – whether the learned Magistrate erred by not considering the mitigating factors pertaining to the appellant – whether the sentence imposed was manifestly excessive
Justices Act 1886 (Qld)
Penalties and Sentences Act 1992 (Qld)
House v The King (1936) 55 CLR 499, cited
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, cited
R v Dullroy and Yates; ex parte Attorney-General  QCA 219, cited
R v Gray  QCA 161, cited
R v Moss  QCA 426, cited
J P FEELY for the appellant
E J JARY, legal officer, for the respondent
Fuller & White Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- The appellant pleaded guilty on 28 September 2018 to having driven whilst disqualified and whilst over the general alcohol limit on 8 March 2018. Those offences were committed in breach of a suspended sentence. The sentences imposed by the learned Magistrate were: (1) activate the suspended term of imprisonment of three months; (2) three months imprisonment followed by 18 months probation for the offence of disqualified driving; and (3) 18 months probation for the offence of drink driving with a special condition that the appellant submit to such medical, psychiatric or psychological assessment and treatment as directed by an authorised corrective services officer; and (4) the appellant was disqualified from holding or obtaining a driver’s licence for a period of two years.
- The appellant was released on bail pending the hearing of his appeal on 12 October 2018. He has served 15 days of the sentence.
Circumstances of the offences
- The appellant was intercepted by police driving a vehicle into the carpark of the Wynnum Tavern. He was required to provide a specimen of his breathe, which at 11.09pm upon analysis, revealed that his breathe alcohol concentration was 0.063 grams of alcohol per 210 litres of breathe. The appellant admitted to police that he had consumed approximately 15 pints of beer during the course of the previous evening. He also admitted that he was disqualified from driving.
- The police prosecutor in submissions, indicated that the appellant was intercepted by police at 12.20pm, the appellant’s representative said he was intercepted at midday. The certificate of analysis reveals that the breathe sample was taken and analysed at 11.09pm. It is impossible to reconcile this inconsistency as to when the appellant was intercepted by police however, little turns on it as there was no dispute as to the result of the analysis.
- The appellant was 22 at the time of the offence and 23 at sentence. He had no criminal history, however, he had a significant and relevant traffic record. On 28 February 2017 the appellant was convicted of driving with a breathe alcohol concentration of 0.078 percent. He was the holder of a learner’s licence at the time of that offence and was driving without a licensed driver directing him. He had also failed to display his “L” plates. The appellant was fined a total of $890 for that offending. He was further disqualified from holding or obtaining a driver’s licence for three months. Whilst subject to that disqualification period, the appellant drove an unregistered vehicle on 7 April 2017. Two days later, on 9 April 2017, the appellant was again caught driving a motor vehicle whilst disqualified. He was sentenced on 15 May 2017, in relation to his offending on 7 and 9 April 2017 to three months imprisonment wholly suspended for an operational period of two years. He was fined $1300 and was disqualified from holding or obtaining a licence for two years.
- The offences before the learned Magistrate on 28 September 2018 were committed 10 months into the operational period of that suspended sentence.
The appellant’s personal circumstances
- The appellant was represented at the sentence. It was submitted on his behalf that he had been driven to the Tavern by a friend. He realised when he got there that he’d left his wallet at home. He made the foolish decision to drive his friend’s car home to retrieve his wallet before returning to the Tavern.
- The appellant has three children aged between one and six years. One of those children was said to have special needs, namely autism. The appellant separated from the mother of his children in 2017. He struggled to come to terms with the separation and used alcohol as a coping mechanism. He self-reported to his General Practitioner and was provided with a Mental Health Care Plan on 19 July 2018. He presented at his doctor because of his binge-drinking. He reported using alcohol to cope with his problems and said that when he would binge-drink he would lose count and lose control. The provisional diagnosis was a major depressive episode and alcohol abuse.
- The appellant had attended drug and alcohol counselling with “Headspace”, a counselling service for young people. A report tendered indicated that the appellant had acknowledged that he had become dependent on alcohol and recognised the harm he had caused others and himself as a result of his alcohol use. A reference tendered under the hand of the appellant’s mother indicated that the appellant was actively implementing the strategies that he had been taught through counselling.
- Other references tendered included one from the appellant’s grandfather, which indicated that the appellant has been raised in a Christian environment. He was described as a loving and caring father to his three children. The Director of a Childcare Centre where one of the appellant’s children attended provided a reference in which she said that the appellant volunteered his time at fundraising activities run by the centre. He was described as decent, hardworking and trustworthy. A letter from the appellant’s employer described him as an industrious young man with a strong work ethic and a friendly, outgoing personality. He was described as a positive role model to his fellow work colleagues.
- The appellant completed the Queensland Traffic Offenders Program on 19 September 2018. A worksheet completed by him was tendered which included the following statements, “The benefits have been overwhelming and eye opening. I never thought about the impact my bad decision could have on my own family. It’s showed me how selfish my choices have been and has given me a head start on identifying the problems I need to work on in order to better myself for my family, my job and my overall lifestyle. The risk truly is not worth it”. It was said in submissions that a confronting aspect to the program for the appellant was meeting and talking to a gentleman who had sustained serious injuries in a car accident where the driver of the car in which he was a passenger had been drinking. Those injuries left the gentlemen permanently requiring the use a wheelchair.
- The learned Magistrate took into account the appellant’s plea of guilty indicating that it demonstrated remorse and co-operation with the administration of justice. He indicated that one of the ways in which he intended to reflect the plea of guilty was to only impose the minimum licence disqualification period of two years.
- The learned Magistrate referred to the appellant’s traffic history. He said that it was less than one year into the operational period that the appellant breached the suspended sentence. He said that what aggravated the circumstances of the offending was that not only was the appellant driving contrary to a court order disqualifying him from driving but he was also driving with alcohol in his system. This was the third such breach of a court order.
- The learned Magistrate referred to the appellant’s personal circumstances and said that it appeared that he had in recent times been taking some active steps to address those issues.
- The learned Magistrate indicated that he intended to activate the entirety of the suspended term of imprisonment but order it to be served concurrently with the term of imprisonment imposed on the offence of disqualified driving. He indicated that Courts have to impose heavy penalties when people are defiant of Court orders.
- The appellant appeals, pursuant to section 222 of the Justices Act 1886 (Qld) on the ground that the sentence was excessive. Such an appeal is by way of re-hearing on the original evidence given in the court below. That requires this Court to conduct a real review of the evidence and the reasons for sentence by the Magistrate to determine whether he has erred in fact or law. If this Court concludes that there has been an error, it is required to make its own findings of fact and to formulate its own reasoning for sentence.
- 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.
“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.”
- The appellant argues that the sentence imposed was manifestly excessive. He relies upon a number of errors which he contends the learned Magistrate made. In particular, he argues that the learned Magistrate failed to impose a parole release date on the last day of the activated suspended sentence. He further argues that the learned Magistrate gave insufficient reasons for requiring the appellant to serve the whole of the suspended term of imprisonment. He argues that the learned Magistrate placed undue weight on statistics, that he placed insufficient weight on the personal circumstances of the appellant and that he proceeded on an erroneous factual basis.
- The appellant’s legal representative at sentence did not submit that it would be unjust to activate the entirety of the suspended term of imprisonment. Her submission was that for the offences of drink-driving and disqualified driving that the learned Magistrate should impose a global sentence of six months imprisonment to be served either concurrently with or cumulatively upon the activated suspended sentence. Her submissions were otherwise primarily directed towards persuading the learned Magistrate that the appellant ought to be released on immediate parole.
- The appellant contends that the learned Magistrate was required to impose a parole release date on the activated suspended sentence, even if that date was the full-time date of that term of imprisonment. He relies upon the decision of R v Gray. In that case the judge at first instance failed to consider the prospect of setting a parole release date prior to the expiration of the term of imprisonment activated as a result of a breach of a suspended sentence. It was the failure to adopt an integrated approach to the consideration of activating the suspended sentence which gave rise to the error. R v Gray does not stand as authority for the requirement that a parole release date must be imposed on the last day of the activated suspended term of imprisonment. The then Chief Justice referred to the odd situation where, if a court were to consider that an offender should actually serve in full the balance of a suspended term, that Division 3 Part 9 of the Penalties and Sentences Act 1992 (Qld) tended to suggest that the court would be statutorily obliged to set a parole release date on the final day of the sentence. He commented on the wholly artificial nature of that exercise. Atkinson J commented that fixing a parole release date at the date on which the appellant was to be released after serving the whole of the suspended sentence would mean that it was not in fact a parole release date at all because the appellant would not be released on parole after he had completed his sentence.
- The learned Magistrate in discussions, indicated that if he was to activate the suspended term of imprisonment and impose a term of imprisonment for the new offences and release the appellant on parole, that the period of time that the appellant was on parole would only be “minuscule”. He considered that the appellant needed a much longer period of supervision, well beyond six months.
- There is nothing in the remarks that indicate that the learned Magistrate did not take an integrated approach to sentencing and did not consider the possibility of release on parole at an earlier time than three months. It is clear from the discussions with the appellant’s representative that he was cognisant of the possibility of releasing the appellant on parole. He fashioned a sentence which required the appellant to serve three months in actual custody prior to release on probation. He did that in order to provide the appellant with a lengthy period of supervision in the community.
- The appellant argues that the learned Magistrate did not provide sufficient reasons for requiring the appellant to serve the whole of the activated term of imprisonment. The appellant’s counsel at sentence did not submit that it would be unjust to activate the whole of the suspended sentence. Her submissions were directed to the global penalty that ought to be imposed for all of the offending. The activated suspended sentence was subsumed into those submissions as its activation did not impact upon the head sentence likely to be imposed for the new offences. In those circumstances, it was unnecessary for the learned Magistrate to address in length the matters set out in section 147(3) of the Penalties and Sentences Act 1992 (Qld). Whilst the learned Magistrate did not canvas those matters in detail, it is obvious that he had regard to them, as he did to the position taken by the appellant’s representative, that it wasn’t unjust to activate the whole of the suspended sentence.
- A consideration of the factors referred to in section 147(3) supports the conclusion that it was not unjust to activate the whole of the suspended sentence. The subsequent offending could not, in any way, be considered trivial. The appellant committed exactly the same offence in more serious circumstances being that he was under the influence of alcohol. Further, it was not contended, at the hearing of the appeal that it would be unjust to activate the whole of the suspended sentence. The submissions made were directed to the time the appellant should have to serve in actual custody. That requires a consideration of the sentence imposed for the new offences.
- In relation to the new offences, the appellant argues that the learned Magistrate placed undue weight on statistics. In his sentencing remarks, the learned Magistrate did not refer at all to any statistics. He did not refer to the prevalence of the offences. During the course of submissions, the learned Magistrate did refer to the number of people who had died on the roads as at the date of sentence. That statistic was 193. His statements about this statistic during the course of submissions seems to me to have been designed to bring home to the appellant the seriousness of his drink- driving and the potential consequences of his having done so. As a young man, the appellant had an unenviable traffic record which indicated that he had never obtained a driver’s licence and that he drove whenever and in whatever state, without giving thought to the consequences.
- The appellant obliquely makes reference to the fact that the document to which the learned Magistrate was referring was not provided to the parties at sentence. However, the “Queensland Road Crash Weekly Report” is a publicly available document which sets out such details. The appellant does not argue that the statistic referred to by the learned Magistrate was incorrect. Rather, the appellant argues that the learned Magistrate used this statistic to influence him as to the importance of general deterrence to the exercise of his discretion.
- The potential consequences to the lives of innocent road-users from those who drive whilst under the influence of alcohol is well known. That the learned Magistrate considered general deterrence to be of particular importance to the exercise of his discretion is not an error. The appellant’s traffic record considered against the fact that he had never held a driver’s licence and his breaching of multiple court orders all tended to indicate that the sentence imposed needed to reflect the danger to the road-using public that the appellant presented, the community’s concern at his offending and the need for both personal and general deterrence.
- The appellant argues that the use of statistics has been held to amount to an appealable error. The appellant relies upon R v Moss. The learned judge at first instance in Moss used some informal statistics to initiate an increase in what he considered to be the appropriate sentence for the offence of armed robbery. The error in his use of the statistics, was that they did not demonstrate a perceptible increase in the commission of the offence of armed robbery to justify the substantially increased sentence that he imposed.
- The appellant in this case does not argue that the learned Magistrate increased the penalty that he imposed because of a perception on his part that there was a recent increase in the prevalence of the offences. Nor does he argue that the sentence imposed was a marked increase in the sentences otherwise being imposed for driving under the influence of alcohol and disqualified driving.
- The prevalence of an offence is a matter that section 9(2)(h) of the Penalties and Sentences Act 1992 (Qld) requires the sentencing court to have regard to in imposing a sentence. The use of statistics can be relevant to a consideration of whether a particular offence is prevalent. The offence of driving under the influence of alcohol is a matter which the appellant accepts routinely comes before a Magistrate. In a high-volume court such as the Magistrates Court, the learned Magistrate would be well aware of the prevalence of such an offence. The appellant does not argue that the offence is not prevalent or that this is not a factor which is relevant to the exercise of the sentencing discretion. Rather his argument is that the learned Magistrate was overawed by the statistic and did not appropriately take into account the appellant’s efforts at rehabilitation.
- The learned Magistrate did not refer to the statistics or even the prevalence of the offence in his sentencing remarks. In my view his comments were, as indicated, directed at bringing home to the appellant the seriousness of his conduct and the potential consequences to other innocent road-users from those who drive under the influence of alcohol. No error has been established.
- The appellant’s next argument is that the learned Magistrate placed insufficient weight on the personal circumstances of the appellant.
- There were strong mitigating features to the appellant’s offending. He was still a relatively young man at 23 years and he had made considerable efforts at rehabilitation, which suggested that there were good prospects of rehabilitation. The appellant had a good work history and strong family support. Whilst a considerable quantity of material which demonstrated those features was tendered at the sentence, the learned Magistrate in his sentencing remarks focused principally upon the aggravating features of the offending and the need for general deterrence. Acknowledging that in a high volume court such as the Magistrate’s Court sentencing remarks may well be less comprehensive than would otherwise be the case, the fact that the learned Magistrate did not at all refer to the appellant’s age does tend to suggest that he failed to take into account a material consideration.
- The age of an offender is an important consideration to the exercise of the sentencing discretion. It is a matter that the sentencing court is required to have regard to in accordance with section 9(2)(f) of the Penalties and Sentences Act 1992 (Qld). In R v Dullroy and Yates; ex parte Attorney-General, Yates who was then 22 years of age was considered a youthful first offender. Numerous cases, including R v Dullroy and Yates, refer to the desirability of not sending youthful first offenders to gaol when there is a real prospect of rehabilitation.
- The appellant has taken active steps to address his offending. In doing so, he has realised that he is dependent on alcohol. Additionally, there has been a provisional diagnosis that he was suffering a major depressive episode, which required treatment. The appellant now having undertaken the Queensland Traffic Offenders Program, appears to have come to some realisation that the consequences of his offending impact on his family and on other road users. In my view, the learned Magistrate failed to take into account the appellant’s young age, which has affected the exercise of the sentencing discretion and has resulted in a sentence that is excessive. It is therefore necessary for me to re-exercise that discretion.
- The 15 days that the appellant served in prison prior to his release on bail was, no doubt, a sobering experience for him. The appellant has no criminal history. Whilst he does have a significant traffic history for a young man, he has not prior to this occasion ever been sentenced to a term of imprisonment. There are now real prospects that he will reform.
- The appellant’s bail conditions since his release on appeal bail have involved a significant curtailment on his freedom. He has been subject to a curfew between the hours of 7 pm and 4 am for a period of seven months.
- I have considered the principle that a sentence of imprisonment is a sentence of last resort. In light of the appellant having breached a suspended sentence by similar conduct, the need for personal deterrence warrants a term of imprisonment being imposed. However, in the circumstances of this case, I consider that release on parole after serving 15 days properly reflects the seriousness of the offences and gives effect to the desirability of allowing the appellant the opportunity to reform.
- Finally, the appellant contends the learned Magistrate sentenced him on an incorrect factual basis. The learned Magistrate referred in submissions to his surprise that the appellant, in a drunken stupor, hadn’t killed anyone. It is unnecessary to consider whether a factual error was made in light of my decision to re-sentence the appellant.
In relation to the offence of driving under the influence of alcohol the appellant is sentenced to three months imprisonment. In relation to the offence of disqualified driving the appellant is sentenced to six months imprisonment. I activate the suspended sentence imposed on 15 May 2017. All sentences are to be served concurrently. I order that the appellant be released on parole after serving 15 days of the sentences. I further order that in relation to the offence of disqualified driving the appellant be disqualified from holding or obtaining a drivers licence for a period of two years, such disqualification to take effect from the date of the original sentence. For the offence of driving under the influence, the appellant is disqualified from holding or obtaining a drivers licence for 1 month. I declare that 15 days spent in custody between 28 September 2018 and 12 October 2018 be deemed time already served under this sentence.
- I order the respondent pay the appellant’s costs fixed at $1800.
- Published Case Name:
Daniel Purua Tomasi Williams v The Commissioner of Police
- Shortened Case Name:
Williams v The Commissioner of Police
 QDC 86
31 May 2019