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Hoang v Commissioner of Police[2021] QDC 69

Hoang v Commissioner of Police[2021] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoang v Commissioner of Police [2021] QDC 69

PARTIES:

CHIEN THONG HOANG

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO:

412/21

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

23 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2021

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is allowed.
  2. I set aside the order made on Charge 1 and in lieu thereof the appellant is convicted and sentenced to three months’ imprisonment.
  3. I set aside the order made on Charge 2 and in lieu thereof the appellant is convicted and sentenced to 12 months’ imprisonment.  
  4. The penalty on Charge 1 is be served concurrently with the penalty imposed on Charge 2 (the dangerous operation charge).
  5. I set aside the parole release date fixed as at 9 August 2021 and in lieu thereof I fix the parole release date as at 23 April 2021.
  6. Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) I declare the appellant has served 72 days in pre-sentence custody. I state the dates are between 10 February 2021 and 23 April 2021 and I declare that time to be time already served under the sentence. 
  7. The other orders made by the magistrate are confirmed.

CATCHWORDS:

CRIMINAL LAW– JUDGMENT AND PUNISHMENT – whether sentences imposed in the Magistrates Court for driving under the influence and dangerous operation of a vehicle adversely affected by an intoxicating substance are manifestly excessive – whether sentence exceeded the maximum penalty for the drink driving charge where circumstance of aggravation not pleaded – whether the election rights were sufficiently explained to the appellant 

LEGISLATION:

Criminal Code 1899 (Qld) ss 328A, 564, 552B, 552I

Justices Act 1886 (Qld) ss 47, 222

Transport Operations (Road Use Management) Act 1995 (Qld) s 79

CASES:

AB v R [1999] HCA ; (1999) 198 CLR 111, applied

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, applied

R v Doig [2016] QDC 320, considered

R v Fanning [2005] QCA 267, cited

R v Harvey-Sutton [2003] QCA 229, considered

R v Hull Judge Harrison 9 December 2015, considered 

R v Neil [2001] QCA 41, considered

R v Parker [2003] QCA 316, considered

R v Rochow [1983] 1 Qd R 184; (1983) 8 A Crim R 37, applied

R v Ross [1980] Qd R 24; (1979) 1 A Crim R 363, applied

R v Simpson [2001] QCA 109, considered

R v Smith [2004] QCA 126; (2004) 145 A Crim R 397,

considered

COUNSEL:

Mr E Engwirda for the appellant

Ms K Thomas for the respondent

SOLICITORS:

Solis Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal by the appellant pursuant to s 222 of the Justices Act 1886.  The appeal alleges that the sentences imposed on the appellant were manifestly excessive. It is further alleged that there were errors in the sentencing process.

Summary 

  1. [2]
    On 18 January 2021 the appellant pleaded guilty to one charge of driving a motor vehicle under the influence of liquor contrary to s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”) and one charge of dangerously operating a motor vehicle whilst adversely affected by an intoxicating substance contrary to s 328A of the Criminal Code 1899 (Qld)
  2. [3]
    On 10 February 2021 the magistrate sentenced the appellant to 12 months imprisonment on Charge 1 and 18 months’ imprisonment on Charge 2, with a parole release date fixed as at 9 August 2021 (after six months) and disqualified the appellant from holding or obtaining a driver license for a period of three years. 
  3. [4]
    The sentence was re-opened on 23 February 2021 to impose two years disqualification on the driving under the influence charge and one years disqualification on the dangerous operation charge.

Proceedings below

  1. [5]
    The matter first came on before the magistrate on 18 January 2021.  On that occasion the appellant pleaded guilty to each charge.  The appellant was advised that he had exposed himself to a term of imprisonment and the sentence was adjourned until 10 February 2021 so that he could get legal advice.
  2. [6]
    On 10 February 2021 the sentence proceeded.  The schedule of facts was tendered as Exhibit 1.  This revealed that on Monday, 21 December 2020 at about 9.40pm a white Toyota driven by the appellant, was observed by a witness to be driving erratically on Acanthus Street, Darra.  The vehicle was swerving over the road and it then failed to stop at a red traffic light.  It then approached the intersection of Boundary Road and Acanthus Street and failed to negotiate the intersection and crashed through bollards, coming to a rest in a park.  The witness approached the Toyota to render assistance to the appellant.  The appellant smelt of alcohol.  The appellant refused to hand his keys to the witness.  He then restarted the vehicle, drove forwards and struck the witness in the right leg as he drove away.  The witness yelled at the appellant who continued to drive around the park.  The appellant then turned the vehicle back towards the witness and the witness tried to jump out of the vehicle’s way but was struck again causing him to stumble.  Police then pulled the appellant over.  The appellant produced his Queensland driver license.  He provided a specimen of breath after direction which produced a positive result.  He was detained and taken back to the Inala Police Station.  He told police he had had about four to five Corona beers between 6.00pm and 9.30pm and gave no emergent reason for his driving other than trying to get home.  At about 10.50pm a requirement was made for him to provide a specimen of breath and he did so.  The certificate disclosed .191 per cent.  On 11 January 2021 police attended the appellant’s address at which time he was intoxicated and not able to be interviewed.  A notice to appear was issued.
  3. [7]
    The traffic history of the appellant showed that he had a number of traffic convictions for speeding.  Importantly though, on 30 March 2016 he had pleaded guilty to driving over the general limit - .071 per cent; on 9 February 2015 he had pleaded guilty to driving over the general limit - .125 per cent and in 2004 he had pleaded guilty to a prescribed concentration of alcohol offence.
  4. [8]
    The defence lawyer tendered a letter concerning the appellant’s mother.  She was 86 years of age, who was in the PA Hospital following a fall and several fractures.  The appellant was receiving a carer’s allowance for caring for her.
  5. [9]
    Reverend Vu, the chaplain of the Vietnamese Catholic community of Brisbane also provided a reference.   He and his family were parishioners of the local parish.  He attends mass and was a handyman and involved with many church projects.
  6. [10]
    There was a further letter from John Nguyen, an assistant priest, who had known the appellant for 21 years.  He confirmed the appellant was an active participant in the activities of the Vietnamese Catholic community. 
  7. [11]
    The defence lawyer submitted there was no utility in incarcerating the appellant.  He had a strong work history and a family reliant on him.  He was 56 years old, born in Vietnam.  He moved to Australia and started working at Toyota on the assembly line.  He is employed as a still machine operator.  He had two children aged 30 and 22.  His mother was ill and she required his assistance.  On the evening of the offence the appellant drank five to six Coronas before falling asleep on his friend’s lounge.  He thought he would be clear to drive.  It was submitted that 18 months’ imprisonment was not appropriate and perhaps an intensive corrections order would be appropriate.  It was submitted that immediate parole release would also be suitable. 

Decision

  1. [12]
    The magistrate, in his decision, took into account the plea of guilty.  He took into account the reading.  He took into account the conduct of the appellant in his vehicle in the park.  The magistrate referred to R v Fanning.[1]  The magistrate referred to the references but found the appellant to be a repetitive and persistent drink driver and considered that an actual custodial sentence was appropriate.  In the circumstances the penalties I have already mentioned were imposed.

Appellant’s submissions

  1. [13]
    The appellant firstly submits that the magistrate failed to comply with s 552I of the Criminal Code in that the Magistrate failed to properly explain the appellant’s right to elect to go to the District Court.  The appellant points out that he was entitled to elect to be dealt with on indictment.[2]  It is submitted that although the magistrate did refer to the election, the appellant was an unsophisticated client and insufficient explanation was given to the appellant.  It is submitted that the election or an arraignment should have been taken after the appellant had been given the opportunity to seek legal advice.
  2. [14]
    It is secondly submitted that the sentence imposed for the offence under s 79 of TORUM exceeded the maximum penalty and the sentences were manifestly excessive in all of the circumstances.  It is submitted that s 79 of TORUM provides for a penalty not exceeding 28 penalty units or for a term of imprisonment not exceeding nine months.  None of the circumstances of aggravation were charged in the complaint.  Also the appellant was not given a notice pursuant to s 47(5) of the Justices Act
  3. [15]
    It is further submitted that the magistrate failed to give consideration to the personal circumstances of the appellant.  He did not make any reference to the reliance of the appellant’s mother upon him.  With respect to the dangerous operation charge, it is submitted that the incident did not involve any injury and by reference to R v Fanning the penalty was too high.  Comparable decisions relied upon tend to indicate that a far lower penalty should have been imposed.

Affidavit of Thanh Nguyen

  1. [16]
    In an affidavit filed 14 April 2021 Mr Nguyen, the solicitor for the appellant, swears that the appellant has been in custody since 10 February 2021.  The appellant was born in Vietnam and is 56 years of age.  He escaped Vietnam by boat to Indonesia in 1984 and went to a refugee camp.  He has been in Australia since 1986.  He has been married since 1987 with two children.  He has a good work history.  His mother suffers from multiple medical conditions including dementia.  She had a fall on 25 December 2020 which resulted in her hospitalisation until 5 February 2021.  The appellant’s wife could not continue working after the appellant was sent to prison. 
  2. [17]
    The mother requires 24 hour supervision and it is very difficult for the appellant’s wife to leave the house.

Respondent’s submissions

  1. [18]
    The respondent concedes that the sentence with respect to the DUI offence was excessive as it exceeded the maximum penalty applicable.  Whilst the appellant was convicted within a period of five years before his conviction, which increased the maximum to one year’s imprisonment, this was not pleaded as a circumstance of aggravation. 
  2. [19]
    The respondent submits that the requirements of s 552I of the Criminal Code were complied with. 
  3. [20]
    It is however submitted that the penalty concerning the dangerous operation of the motor vehicle was within the sound exercise of the sentencing discretion. 
  4. [21]
    In the circumstances it is submitted the appeal should be allowed concerning Charge 1 but head sentence before the dangerous operation should be affirmed.

Discussion

  1. [22]
    It is my view that errors occurred in the sentencing process here. 
  2. [23]
    Because no circumstance of aggravation was pleaded for the DUI charge, it is my opinion that the maximum penalty was nine months’ imprisonment.  The magistrate exceeded that maximum. 
  3. [24]
    Section 79(1) of TORUM provides that the maximum prison term is nine months. If the offender has been convicted within the period of five years before the conviction of an over the general limit offence then the maximum becomes 12 months imprisonment.[3]   
  4. [25]
    If a circumstance of aggravation is to be relied on it must be pleaded because that becomes an element of the offence. That is certainly the case for indictments.[4] But it is also the case at common law.[5] 
  5. [26]
    Section 47(5) of the Justices Act is also relevant. That section requires the prosecution to serve a notice on the accused specifying the alleged previous conviction to be relied upon. This was not done here. If not served then section 47(8) of the Justices Act appears to have the effect that the accused cannot be liable to the greater penalty. The court can still rely on the previous conviction[6], but not to increase the maximum.
  6. [27]
    I now turn to whether sufficient explanation was given by the Magistrate under section 552I of the Code.
  7. [28]
    Section 552B(1)(e) of the Code provides that an offence contrary to section 328A(2) of the Code (as was the case here) must be heard and determined summarily unless the defendant elects for trial by jury.
  8. [29]
    Section 552I sets out the procedure to be applied. The section provides:

“(1)This section applies to any charge for an offence to which section 552B applies.

  1. (2)
    If the defendant is not legally represented, the Magistrates Court is required—
  1. (a)
    to state the substance of the charge to the defendant; and
  1. (b)
    to explain to the defendant that he or she is entitled to be tried by a jury and is not obliged to make any defence; and
  1. (c)
    to ask the defendant whether he or she wants the charge to be dealt with summarily.
  1. (3)
    Whether or not the defendant is legally represented, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury, the Magistrates Court must ask whether the defendant is guilty or not guilty of the offence.
  1. (4)
    If the defendant is legally represented and there is more than 1 charge before the Magistrates Court, a plea to any number of the charges may, with the consent of the defendant, be taken at the same time on the basis that the plea to 1 charge will be treated as a plea to any number of the charges if the court is satisfied—
  1. (a)
    the defendant has obtained legal advice in relation to each of the charges; and
  1. (b)
    the defendant is aware of the substance of each of the charges.
  1. (5)
    If the Magistrates Court takes a plea under subsection (4), the court is not required to state the substance of any charge before the court to the defendant.
  1. (6)
    If the defendant says ‘guilty’ the Magistrates Court must convict.
  1. (7)
    If the defendant says ‘not guilty’ the Magistrates Court must hear the defence.
  1. (8)
    After the defendant enters a plea, the Magistrates Court must then deal with the charge summarily.
  1. (9)
    Unless a defendant’s criminal history is admissible in evidence, the Magistrates Court must not have any regard to the defendant’s criminal history—
  1. (a)
    before receiving a plea of guilty or making any decision of guilt; or
  1. (b)
    for deciding whether the defendant may be adequately punished on summary conviction.”
  1. [30]
    In this case the Magistrate on 18 January 2021 said:

Magistrate:What are you doing in relation to these charges?

Appellant: I don’t know. Guilty.

Magistrate: Well, you have an election in relation to the charge of dangerous operation while you’re adversely affected or being dealt with in a District Court. Would you rather be dealt with in this court or the District Court?

Appellant: I think this court.

Magistrate:Righto. Summary election. If you’re pleading guilty I’ll take you pleas now. I will list the matter for sentence at a later date and you can get a lawyer in the meantime to appear for you at sentence.  

  1. [31]
    Two departures from the Statute may be seen:
    1. (a)
      The Magistrate did not explain the substance of the charge to the appellant prior to the election.
    2. (b)
      The Magistrate did not explain to the appellant he was entitled to tried by jury and was not obliged to make any defence.
  2. [32]
    These were preconditions to the exercise of jurisdiction.[7] An error occurred here.
  3. [33]
    In those circumstances it is my opinion that the entire sentencing process should be considered afresh.[8]
  4. [34]
    The dangerous operation charge had some serious aspects to it, particularly the fact he struck the witness although there does not appear to have been injury caused.
  5. [35]
    The appellant was a mature man with a concerning traffic history, with three prior convictions for DUI, four prior convictions for speeding, a prior conviction for failing to stop at a stop sign and using a hand-held mobile while driving. However I do note the previous drink driving convictions were dated.
  6. [36]
    Deterrence is an important sentencing consideration.[9] 
  7. [37]
    Having said this, the material discloses that the appellant had a very important role concerning his mother.  It is clear that she has multiple health conditions and he acts as her carer. This was also an early plea of guilty.
  8. [38]
    I turn to the comparable decisions relied on, noting that the Magistrate was referred to none of these.
    1. (a)
      I consider R v Neil[10] to be more serious than the present case. Injuries were sustained by the appellant’s passenger and a head on collision was involved. 18 months was imposed in that case.
    2. (b)
      Parker[11] (also an 18 month head sentence) involved a police chase. The BAC level was higher. I thought that more serious than the present case. 18 months was imposed.
    3. (c)
      Simpson[12] (a two year head sentence) involved two kilometres of driving with a collision and the other driver sustained injuries.
    4. (d)
      Harvey-Sutton[13] (a two year head sentence) involved a higher BAC- .247%. The dangerous driving occurred over 25km on the Bruce Highway and involved swerving onto the incorrect side of the roadway forcing oncoming vehicles off the road. I thought that to be more serious.
    5. (e)
      In Smith[14] (a 15 month head sentence) the appellant drove for about 20 minutes on the Warrego Highway erratically. Other vehicles took evasive action. He had a drink driving conviction 18 months prior. His BAC was .182%. That is more akin to the present case but did involve highway driving. 
    6. (f)
      Doig[15] (a nine month head sentence) involved a BAC of .114%. The appellant was also charged with disqualified driving. There was no collision involved. I thought that case less serious.
    7. (g)
      Hull[16] (a 12 month head sentence) involved a BAC of .191%. There was a previous drink driving 20 months prior. The offending involved the offender driving home and colliding with a parked vehicle 400m from home. I consider this case comparable with the present.              
  9. [39]
    In all of the circumstances I consider the appropriate head sentence for charge 1 to be three months’ imprisonment and for charge 2, 12 months’ imprisonment.
  10. [40]
    Bearing in mind this is the appellant’s first custodial experience, the plea of guilty and the family situation I am satisfied that the appellant has spent sufficient time in custody and propose to order his release on parole today. 

Conclusion

  1. [41]
    In those circumstances I propose make the following orders:
  1. The appeal is allowed.
  1. I set aside the order made on Charge 1 and in lieu thereof the appellant is convicted and sentenced to three months’ imprisonment.
  2. I set aside the order made on Charge 2 and in lieu thereof the appellant is convicted and is sentenced to 12 months’ imprisonment.
  3. The penalty on Charge 1 is be served concurrently with the penalty imposed on Charge 2.
  4. I set aside the parole release date fixed as at 9 August 2021 and in lieu thereof I fix the parole release date as at 23 April 2021.
  5. Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) I declare the appellant has served 72 days in pre-sentence custody. I state the dates are between 10 February 2021 and 23 April 2021 and I declare that to be time already served under the sentence.   
  6. The other orders made by the magistrate are confirmed.

Footnotes

[1]  [2005] QCA 267.

[2]  Section 552B(1)(e) and (2) of the Criminal Code.

[3]  Section 79(1D) of TORUM.

[4]  Section 564(2) of the Code

[5]  See R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at page 389.

[6]  Section 47(7) of the Justices Act.

[7] R v Ross [1980] Qd R 24 at page 27G; (1979) 1 A Crim R 363; R v Rochow [1983] 1 Qd R 184 at page 187F; (1983) 8 A Crim R 37.

[8] AB v R [1999] HCA 46; (1999) 198 CLR 111 at [130].

[9] R v Smith [2004] QCA 126; (2004) 145 A Crim R 397.

[10] R v Neil [2001] QCA 41.

[11] R v Parker [2003] QCA 316.

[12]R v Simpson [2001] QCA 109.

[13] R v Harvey-Sutton [2003] QCA 229.

[14] R v Smith [2004] QCA 126; (2004) 145 A Crim R 397.

[15] R v Doig [2016] QDC 320.

[16] R v Hull Judge Harrison 9 December 2015.

Close

Editorial Notes

  • Published Case Name:

    Hoang v Commissioner of Police

  • Shortened Case Name:

    Hoang v Commissioner of Police

  • MNC:

    [2021] QDC 69

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    23 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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