Sisodia v Commissioner of Police
[2021] QDC 165
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Sisodia v Commissioner of Police[2021] QDC 165
- Add to List
Sisodia v Commissioner of Police[2021] QDC 165
Sisodia v Commissioner of Police[2021] QDC 165
DISTRICT COURT OF QUEENSLAND
CITATION: | Sisodia v Commissioner of Police [2021] QDC 165 |
PARTIES: | ANKIT SISODIA (appellant) v COMMISIONER OF POLICE (respondent) |
FILE NO: | 1693/21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Richlands |
DELIVERED ON: | Orders delivered ex tempore 30 July 2021. Reasons delivered 6 August 2021. |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 July 2021 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – APPEAL AGAINST CONVICTION – Whether Magistrate should have advised the prosecutor to lay a charge of disqualified driving – Where the appellant pleaded guilty to the charge but the submissions by the defence lawyer raised a defence to the charge – error in proceedings below – appellant resentenced |
LEGISLATION: | Justices Act 1886 (Qld) s 222 Transport Operations (Road Use Management Act 1995 (Qld) ss 78, 79 |
CASES: | Ajax v Bird [2010] QCA 2, applied Barton v R [1980] HCA 48; (1980) 147 CLR 75, applied Borchardt v Queensland Police Service [2021] QDC 101, cited Brookes v Spasovski [2004] QDC 471, cited McNamara v Queensland Police Service [2013] QCA 100, applied Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, applied Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, considered R v Hennessy & Ors [2010] QCA 345, applied R v GV [2006] QCA 375, applied Tsavalas v Police [2016] SASC 103; 76 MVR 298, cited Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37, cited |
COUNSEL: | Self-represented appellant Mr R Byrne for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the Crown |
Introduction
- [1]This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) by the appellant against his conviction on one count of driving without a licence disqualified by Court order[1] and further, an appeal against the severity of the sentence imposed on him for that offence and for the offence of being in charge of a motor vehicle under the influence of liquor.[2]
- [2]The appellant received the following penalties:
- (a)On the UIL charge he was sentenced to 9 months imprisonment and was disqualified absolutely from holding or obtaining a driver’s licence.
- (b)On the disqualified driving charge, he was sentenced to 9 months imprisonment and was disqualified absolutely from holding or obtaining a driver’s licence.
- (c)A suspended sentence of 12 months imprisonment imposed on 9 December 2019 was activated.
- (d)The terms of imprisonment on the two charges were ordered to be served concurrently with each other but cumulatively on the activated suspended sentence.
- (e)A parole release date as at 20 September 2021 was fixed.
- (a)
- [3]The grounds of appeal are that the conviction on the disqualified driving charge was not a proper plea and not attributable to a genuine consciousness of guilt and the sentence was manifestly excessive.
Background
- [4]On 21 May 2021, the appellant pleaded guilty in the Richlands Magistrates Court to one charge of being in charge of a vehicle whilst under the influence of liquor or a drug on 3 March 2021.
- [5]The police prosecutor informed the Magistrate that at 4.10pm on 3 March 2021 police attended an address at Drewvale. They located a motor vehicle with heavy brake marks on the road leading to the vehicle and the defendant was asleep in the vehicle with his head on the passenger side. Keys were in the ignition but both doors were locked. The appellant was woken up and police detected a strong smell of liquor on his breath. He was taken to the Calamvale Police Station and a certificate was issued showing .267 grams of alcohol per 210 litres of breath.
- [6]I note that the appellant’s traffic history was on the court file transferred to this court. It was not tendered by either the prosecution or defence, however the transcript reveals the Magistrate had the history.[3]
- [7]The defence solicitor informed the Magistrate that the appellant suffered serious medical conditions. The night before arrest he was in severe pain. He was homeless living in his car and was not able to go to his usual medical centre. The Magistrate then interrupted the defence submissions and asked:
Bench: Senior has anyone bothered to even notice the fact that he was disqualified as well?
Officer: It doesn’t appear so your Honour. I was just looking at this this morning.
Bench: Unbelievable.
Officer: There’s not much I can say.
Bench: Were you intending to proffer an additional charge?
Officer: I would your Honour.
Bench: Mr Tran I’m going to stand down the matter for half an hour because your client was disqualified from driving at the time he committed this offence as well. So I’ll stand it down while the prosecution organises another bench charge sheet. And he was also a suspended sentence as well. So I’ll stand it down for half an hour. In the meantime, he is remanded in custody.
- [8]The court adjourned for about two and half hours and then resumed. The defence lawyer informed the Magistrate that he had difficulties appearing in the matter because whilst the appellant was guilty of being in charge of the motor vehicle for the purposes of the first charge, his instructions were that the appellant did not drive and was sleeping in the car and he was not guilty of the disqualified driving charge. Also the defence solicitor informed the Magistrate that he only had a legal aid grant for the first charge and not for the second and he was not sure whether the court would accept the plea of guilty to the first one or adjourn both.
- [9]At that point, the Magistrate told the appellant to stand, he read the charge to him and the appellant pleaded guilty to the charge.
- [10]The defence solicitor repeated his instructions that the appellant was homeless and used his car as his home and slept in the car. The car was parked at the Cannon Hill Shopping Centre and the Morningside and Wynnum Police were familiar with this and this is why they never charged him with the disqualified driving. What happened was that some other police drove past and charged him. The defence lawyer submitted the client was 34 years of age, but he had a DVO against him and had been kicked out of the family home. He had serious medical conditions such as pancreatitis. The submission was repeated that the police did not get him when he was driving. He was only in the car and “take me ages to explain to him he’s in the car and control of the car …”
- [11]The Magistrate, in his sentencing remarks, referred to the plea of guilty and noted that this was the fourth time in two years where he had been before the court with a blood alcohol concentration of above .2. The Magistrate pointed out that he breached a suspended sentence of 12 months for disqualified driving. The Magistrate pointed out that the commission of these offences whilst on a suspended sentence aggravated the offending significantly. He found he would not be unjust to activate the entire suspended sentence and activated the 12 months imprisonment. He then sentenced the appellant on each charge to nine months imprisonment which was to be served cumulatively on the activated suspended sentence, i.e. a total of 21 months with a parole release date fixed as at 20 September 2021 (after four months). He was disqualified absolutely on the UIL charge and the disqualified driving charge.
Submissions
- [12]When the matter became before me, the appellant was self-represented. He had been refused legal aid.
- [13]The respondent however prepared written submissions. In the written submissions, the respondent concedes that the appellant did not enter an unequivocal plea of guilty. It is submitted that the offence of disqualified driving was not made out on the facts that were alleged by the prosecution. It is submitted that a plain reading of s 78(1) of the TORUM Act requires a person to be operating the vehicle in order to commit the offence. It differs from a charge under s 79(1)(c) of the TORUM Act. The prosecution alleged that the appellant was found asleep in the car and the appellant’s solicitor told the Magistrate that he had not driven the vehicle. The Magistrate should not have accepted the plea of guilty in those circumstances.
- [14]With respect to the sentence, it was submitted by the prosecution that by reason of the quashing of the disqualified driving charge, a resentencing should occur. It was submitted that it was open to the court to activate the suspended sentence imposed in the Wynnum Magistrates Court on 9 December 2019 (12 months) and the court should sentence the appellant to 70 days imprisonment and declare that 70 days had been served. Without any specific order the appellant would be automatically disqualified from driving for a period of two years.[4]
Discussion
- [15]Where a person pleads guilty to an offence in the Magistrates Court, the usual rule is that a person may only appeal on the ground that the fine penalty, forfeiture or punishment is excessive or inadequate.[5]
- [16]In Ajax v Bird,[6] the Queensland Court of Appeal said that it is quite clear where a defendant enters an unequivocal plea of guilty there is no right of appeal against conviction under s 222 of the Justices Act.
- [17]However the court acknowledged that s 222(2)(c) may not preclude an appeal against conviction where the plea is equivocal, amounts to a plea of not guilty or the appellant has entered a plea to a charge that does not exist in law.[7]
- [18]For example in R v Hennessy & Ors,[8] the Court of Appeal allowed an appeal against conviction where it appeared the appellant had entered a plea of guilty without a proper understanding of what was entailed in that plea so far as an acknowledgment of criminal responsibility was concerned and where the defence of unsoundness of mind was available. At [40] it was accepted that a District Court does have jurisdiction to consider an appeal against conviction where it may be the plea of guilty was not an unequivocal one.
- [19]Another example is to be found in McNamara v Queensland Police Service.[9] In that case the applicant pleaded guilty to a charge of speeding. He had however raised the defence of extraordinary emergency in the document he provided to the court. Douglas J found there was an equivocal plea of guilty and the District Court had the power to set it aside. The Magistrate ought to have rejected the plea and granted leave to withdraw it.
- [20]In Meissner v The Queen,[10] the High Court stated that a court may act upon a plea of guilty where the plea “is entered in the exercise of a free choice in the interests of the person entering the plea.”
- [21]However, pleas of guilty can be set aside on appeal where it would be a miscarriage of justice to allow the plea to stand.[11]
- [22]In this case, there were material irregularities concerning the taking and acceptance of the plea of guilty.
- [23]Firstly, a judicial officer should be careful not to advise a prosecuting authority to lay a charge which is not before the court.
- [24]The decision to lay or not lay charges is a matter for the prosecuting authority and not for the courts. In Barton v R[12] the High Court said that the courts exercise no control over the Attorney-General’s decision to commence criminal prosecutions.
- [25]The issue was further considered by the High Court in Maxwell v The Queen.[13] In that case it was said that a trial Judge has no power to review the making of an election by a prosecutor to accept a plea of guilty to a lesser offence nor to intervene and reject the plea save to prevent an abuse of process.
- [26]At page 153 it was said:
“The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the court. Indeed, the court would seldom have the knowledge of the strengths and weaknesses of the case of each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect as in many others is such that it can not be shared with the Trial Judge without placing in jeopardy the essential independence of that office in the adversary system.”
- [27]As it turned out there were good reasons for the police not to originally charge the appellant as the defence solicitor mentioned in his submissions.
- [28]Next, the entry of the plea of guilty was equivocal. Indeed, the defence lawyer raised a defence to the charge. In those circumstances, the appropriate course for the Magistrate was to direct that a plea of not guilty be entered despite the plea of guilty and the matter should have been listed for trial.
- [29]In Maxwell v R[14] it was noted by Gaudron and Gummow JJ that where the plea is equivocal or does not constitute a confession of guilt then the plea should be rejected and leave granted to withdraw the plea.
- [30]An example may be found in the Queensland Court of Appeal decision of R v GV.[15] In that case the appellant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm. Submissions made in sentencing indicated the appellant had the defence of extraordinary emergency under section 25 of the Code.
- [31]At [31] the court noted that a Trial Judge has a duty to ensure that the facts on which the Judge sentences are in fact and in law sufficient to prove guilt of the offence to which an offender pleads guilty. If they are not, then the Judge has the power to reject the plea of guilty. The court has the power to reject a plea a guilty at any time prior to the passing of sentence.
- [32]At [40] it was said:
“When it became apparent to the Judge that the facts on which he was being asked to sentence the applicant showed that he had, at least arguably, a complete defence to the charge, the Judge should have directed that a plea of not guilty be entered in place of the plea of guilty. In those circumstances the applicant was unfairly denied a fair opportunity of acquittal and he should be given leave to withdraw his plea of guilty and a plea of not guilty entered in its place.”
- [33]In this case, the prosecution was required to prove that the appellant drove a motor vehicle on a road. A plain reading of s 78(1) of the TORUM Act is that a person must be operating the vehicle in order to commit the offence. This was denied by the appellant.
- [34]It differs from a s 79(1)(c) offence where criminal liability can be established if the offender is in charge of the vehicle. To be “in charge” of a motor vehicle incorporates a much broader set of circumstances than driving a motor vehicle.[16]
- [35]In this case, it was clear that the Magistrate ought not to have continued with acceptance of the plea of guilty. The respondent here concedes that there is no case to answer on the disqualified driving charge and concedes that it should be quashed.
- [36]In the circumstances I considered that a resentencing should occur and accept the respondent’s submissions as being correct as to the penalties which should be imposed, particularly bearing in mind the appellant was not actually driving the vehicle.[17]
Conclusion
- [37]For the forgoing reasons the court made the following orders on 30 July 2021:
- The appeal is allowed.
- The conviction on the disqualified driving charge is quashed and the charge is dismissed.
- The sentence imposed on the s 79(1)(c) charge is set aside and in lieu thereof the appellant is sentenced to 70 days imprisonment and the appellant is disqualified from holding or obtaining a driver’s licence for two years.
- Pursuant to s 159A of the Penalties and Sentences Act it is declared the appellant has served 70 days imprisonment. The dates are between 25 May 2021 and 29 July 2021 and it is declared that this be time already served under the sentence.
- The date the appellant is to be released on parole is fixed as at 30 July 2021.
- The 70 days imprisonment is to be served concurrently with the activated suspended sentence.
- The appeal is otherwise dismissed.
Footnotes
[1]Section 78(1) and (3)(a) of the Transport Operations (Road Use Management Act 1995) (Qld).
[2]Section 79(1)(c) of the Transport Operations (Road Use Management Act 1995) (Qld).
[3]See Borchardt v Queensland Police Service [2021] QDC 101 at [25] as to the importance of the tendering of such documents in open court.
[4]Section 86(1B) of the TORUM Act.
[5]Section 222(2)(c) of the Justices Act.
[6][2010] QCA 2 at [4].
[7]Ajax v Bird [2010] QCA 2 at [5].
[8][2010] QCA 345.
[9][2013] QCA 100 at [20].
[10][1995] HCA (1995) 184 CLR 132 at p 157.
[11]R v Hennessy & Ors [2010] QCA 345 a [36]-[38]; Wong v Director Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 at p 41-42; Tsavalas v Police [2016] SASC 103; 76 MVR 298.
[12][1980] HCA 48; (1980) 147 CLR 75 at p 96.
[13][1996] HCA 46; (1996) 184 CLR 501.
[14][1996] HCA 46; (1996) 184 CLR 501 at p 531.
[15][2006] QCA 394.
[16]See for example Brookes v Spasovski [2004] QDC 471.
[17]I note for the UIL offence that the maximum was 18 months imprisonment and that the court is required to impose a period of imprisonment as all or part of the sentence because of the appellant’s previous convictions- see section 79(1A) and (1C) of the TORUM Act.