KECJ v Commissioner of Police
[2022] QDC 190
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- Unreported Judgment
- KECJ v Commissioner of Police[2022] QDC 190
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KECJ v Commissioner of Police[2022] QDC 190
KECJ v Commissioner of Police[2022] QDC 190
DISTRICT COURT OF QUEENSLAND
LOURY QC DCJ
DC No 1759 of 22
KECJ Appellant
and
COMMISSIONER OF POLICE Respondent
BRISBANE
FRIDAY, 19 AUGUST 2022
EX TEMPORE JUDGMENT
LOURY QC DCJ:
- [1]On 3 May 2022 the appellant pleaded guilty to three offences of: dangerous operation of a vehicle and wilful damage, both averred to be domestic violence offences; and unlicenced driving. The three offences all occurred on the same day, 1 May 2022. The appellant was sentenced to 15 months imprisonment for the offence of dangerous operation of a vehicle and a concurrent 12 months imprisonment for the offence of wilful damage. The learned Magistrate convicted but did not further punish the appellant for the offence of unlicenced driving. He declared three days of pre-sentence custody from 1 May 2022 to 3 May 2022 as time served under the sentences and ordered that the appellant be released on parole on 1 October 2022 (after serving five months imprisonment). On the unlicenced driving charge the appellant was disqualified from driving for a period of six months.
- [2]On 1 June 2022 the appellant’s sentence was re-opened. It appears that the basis of the application to re-open the sentence was that no disqualification period was ordered for the offence of dangerous operation of a vehicle. The learned Magistrate disqualified the appellant from holding or obtaining a licence for a period of 11 months.
- [3]The appellant’s Notice of Appeal indicates that the ground of appeal is that the sentence is manifestly excessive. At the hearing of the appeal the appellant sought leave to adduce two further grounds of appeal alleging specific error. No objection was taken to an amendment of the grounds of appeal. The grounds of appeal are now:
- The learned magistrate misapplied the principle that imprisonment should only be imposed as a last resort thereby rendering the sentence excessive;
- The learned Magistrate failed to take into account a material consideration, namely that the appellant was not an Australian citizen; and
- The sentence is manifestly excessive in all the circumstances.
- [4]Leave is also sought to adduce new evidence in the form of correspondence from the Department of Home Affairs notifying the appellant of the cancellation of his visa.
Nature of the appeal
- [5]The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination, giving due deference to and placing a good deal of weight on the Magistrate’s view.[1] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]
- [6]As the appellant’s appeal is against his sentence, that involves the exercise of a discretion. Accordingly, the principles referred to in House v The King[3] are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because he acted upon a wrong principle; has allowed irrelevant matters to affect him; has mistaken the facts; or, has failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh.
The circumstances of the offences
- [7]At around 10.15 am on Sunday 1 May 2022 the appellant drove a vehicle to an address where it seemed his former partner, the complainant, was living. He collided with the rear of the complainant’s vehicle which was parked in the driveway, causing some damage to it. He then used a mallet to strike the driver side mirror causing it to break. He collected a bag of his belongings from the front patio before striking the passenger side mirror of the complainant’s car also causing it to break. The appellant then reversed out of the driveway before driving forward at speed and colliding with the complainant’s car with such force that it lurched forward, in turn colliding with a stationary trailer. The trailer and car were pushed through a side fence. The complainant and her daughter were inside the residence at the time and feared for their safety.
- [8]The appellant was unlicenced at the time by virtue of the suspension of his licence due to the accumulation of demerit points. When spoken to by police the appellant said that when he checked the bag he was collecting, all of his belongings were not present and he became angry. He claimed not to remember the events after that point.
The appellant’s antecedents
- [9]The appellant was 38 years of age at the time of the offending. The appellant has a criminal history. In 2002 when aged 18 the appellant was convicted of wilful damage and an offence involving unlawful conduct with a weapon in a public place. He was fined on each of two occasions he came before the court. In 2003 the appellant was convicted of contravening a direction or requirement; burglary; and, receiving stolen property. On each occasion he was fined. The appellant was convicted of an offence of committing a public nuisance in 2005, again for which he was fined. The appellant then did not reoffend until 2018 when aged 34. He was, in 2018, convicted of an offence of common assault while adversely affected by an intoxicating substance and wilful damage. He was sentenced to 18 months probation and ordered to perform 60 hours of community service. The community service order was revoked two months later. No further action was taken. Again in 2018 the appellant was convicted of possessing dangerous drugs. He was sentenced to a good behaviour order for six months and referred to a drug diversion program. In January 2020 the appellant was convicted of contravening a direction or requirement and fined a very small sum.
- [10]The appellant’s traffic history reveals he has previously been convicted of disqualified driving (in 2008); unlicenced driving (in 2020) and drink driving (in 2012 and 2014). Between 2021 and 2022 he was convicted of speeding on four occasions. His licence was suspended on 20 April 2022 due to the accumulation of demerit points.
- [11]The appellant’s legal representative at sentence submitted that the appellant worked as a painter from 2005 through until 2018, the period through which he did not offend. The appellant sustained an injury to his right arm which led to him receiving the disability support pension, assumedly from sometime around 2018.
- [12]The appellant was struggling with an addiction to methylamphetamine. He had instructed that he received regular depot injections to treat schizophrenia. He received his last injection on 28 April 2022 just prior to his offending. He had “dabbled” in methylamphetamine around the time of that injection. He had attended upon the Alcohol, Tobacco and Other Drugs Service however relapsed into methylamphetamine use from time to time.
- [13]The appellant was no longer in an intimate relationship with the complainant.
The learned Magistrate’s decision
- [14]The learned Magistrate considered the nature and circumstances of the offending to be serious. He referred to the event being a frightening one for the complainant which would have caused her distress. He also referred to the cost that the complainant was left to bear as a result of the appellant’s conduct. He referred to the need for denunciation and for domestic violence offences such as these ones being met with serious consequences. He reduced the sentence by virtue of the appellant’s plea of guilty. He referred to section 9[4] and 11[5] of the Penalties and Sentences Act 1992 (Qld). He had particular regard to section 9(10A) of the Penalties and Sentences Act 1992 (Qld) which required him to treat the fact that the offences were domestic violence offences as an aggravating feature of the offending.
- [15]The learned Magistrate imposed a head sentence on the offence of dangerous operation of a motor vehicle which was intended to reflect all of the offending.[6] He considered that the appropriate sentence was one of imprisonment in order to reflect the need for personal and general deterrence.
- [16]The transcript of the decision (which is unrevised) states as follows:
“In particular, I have turned my mind to section 9(2A) of the Penalties and Sentences Act and I have already indicated that I am very much aware of the aggravating feature as set out in section 9(10A) of the Penalties and Sentences Act 1992.”
The application for an extension of time
- [17]The appellant seeks an extension of time within which to appeal, with his application and Notice of Appeal having been filed on 25 July 2022. Whilst the material filed does not fully explain the delay, the respondent does not oppose the extension being granted. Accordingly, I will extend the time for appealing until 25 July 2022.
Consideration
- [18]The appellant argues that the learned Magistrate misapplied the principle that imprisonment should only be imposed as a sentence of last resort and wrongly applied section 9(2A) of the Penalties and Sentences Act 1992 (Qld) which applies to offences that involve the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person or to offences that result in physical harm to another person. Reliance is placed upon the unrevised transcript which records the learned Magistrate as referring to section 9(2A).
- [19]Further, the appellant argues that, by the learned Magistrate stating at the commencement of the appellant’s representative’s submissions “why wouldn’t I sentence you [indistinct] imprisonment?” and later indicating that the appellant would be serving a term of imprisonment, that he failed to apply the principle set out in section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).
- [20]In my view the learned Magistrate was doing no more than indicating what his tentative view was of the appropriate sentence and giving the appellant’s solicitor the opportunity to address it. Later in the exchange the learned Magistrate said to the appellant’s solicitor “…I’m listening keenly to your submissions but I just can’t see, realistically, how you can submit anything other than a term of imprisonment.” He referred, in particular, to the gravity of the offending. A little later he referred to the matter as an unusual one querying whether there would even be any sentencing comparatives available.
- [21]Again later in the submissions he states that he was considering imposing a 15 month sentence for the dangerous operation of a motor vehicle charge and fixing parole at one-third of that sentence inviting further submissions if there were any to be made. Again he referred to the serious nature of the offending which was domestic violence related.
- [22]At no time, either during submissions or in his remarks did the learned Magistrate indicate that the offence involved violence or resulted in physical harm to the complainant. I am not persuaded that the learned Magistrate applied section 9(2A) of the Penalties and Sentences Act 1992 (Qld).
- [23]The learned Magistrate is an experienced Magistrate sitting in a metropolitan courthouse. He would be undertaking the exercise of sentencing numerous persons every day. He would be acutely aware of the provisions of section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). His reference to section 9(2A) as recorded in the unrevised transcript is in my view a reference to section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). I am fortified in that view by the fact that when the sentence was re-opened on 1 June 2022 no submissions were directed to any error in the application of section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). The appellant was again represented on 1 June 2022.
- [24]I am not persuaded that the learned Magistrate acted upon a wrong principle. He properly took into account section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).
- [25]The appellant argues the imposition of a sentence of imprisonment was manifestly excessive. The outline of argument prepared by the appellant’s legal representative (not the practitioner who appeared at the hearing) does not contain any arguments directed to any comparative decisions which might serve as yardsticks against which the sentence imposed by the learned Magistrate might be considered. Nonetheless the respondent has provided a number of decisions. The appellant’s representative at the hearing of the appeal addressed those decisions.
- [26]In R v Pearce,[7] the applicant was convicted after trial of dangerous operation of a motor vehicle and sentenced to 18 months imprisonment with a parole release date after serving nine months of that sentence. He was disqualified from driving for 18 months. The applicant had used his car to run another man, riding a scooter, off the road. There was some unexplained animosity between the two men. The complainant stopped his scooter and leapt off it. The applicant mounted the kerb and rammed the scooter three or four times. The applicant had shouted threats to kill the complainant whilst pursuing him on the scooter. He was 50 years of age and a disability pensioner. Whilst he had some prior convictions none were said to be particularly relevant. His traffic history was minimal. His only traffic offence in Queensland was for failing to stop at a stop sign some six years earlier. Reference was made in the judgment of Holmes JA (as she then was) to a decision of R v Tufuga & Kepu[8] in which Kepu was sentenced (for an offence of dangerous operation of a motor vehicle) to 12 months imprisonment suspended after five months imprisonment which was said to be at the lower end of the applicable range given that no-one was injured. He had excellent references, a good work history and no previous convictions. After another vehicle had clipped his twice on the freeway he drove alongside that car trying to force it to stop. His passenger smashed the windscreen and they continued their pursuit until the other car stopped.
- [27]There are features to the conduct of the applicant in Pearce which suggest that objectively it is more serious, in that he pursued and forced off the road, a scooter, intending to terrify the rider. However his antecedents were more favourable than the present appellant, he was not unlicenced at the time, and his offending was not a domestic violence offence. Further he was sentenced only for dangerous operation of a motor vehicle and for no other distinctly separate offending.
- [28]In R v Forsythe[9] the applicant was sentenced to two years imprisonment with an immediate parole release date and was disqualified from driving for three years for an offence of dangerous operation of a vehicle. The applicant was 35 at the time of the offence. He was driving with a child in his car when he saw the complainant walking on the footpath. The complainant had previously been in a relationship with the applicant’s former partner. The applicant swerved into a bus lane and drove his car over the kerb colliding with the complainant. He was sentenced on the basis that his conduct was a deliberate but spontaneous act. It was said that his criminal record was not significant but that he had an appalling traffic record which was significant to the disqualification of his licence. He pleaded guilty and had favourable references suggesting he was otherwise a useful member of the community. The sentence imposed was said to involve the sound exercise of the sentencing discretion.
- [29]The conduct involved in Fortsythe was more serious than in the present case as the applicant drove into a person. The applicant was not however being sentenced for any other offences; his licence was not suspended at the time of the offence and he had favourable references. The aggravating feature of the offence being a domestic violence offence was not legislated at the time and was not present.
- [30]In R v Allison[10] the applicant pleaded guilty to dangerous operation of a vehicle and was sentenced to 12 months imprisonment with an immediate parole release date. He was disqualified from driving for two years and ordered to pay $6400 in compensation. The applicant’s sister had been brutally murdered by her husband. The complainant was the step-son of the murderer. He posted a comment on Facebook that the applicant’s sister “deserved it”. The applicant immediately went in search of the complainant and found him at a shopping centre 10 minutes away. He drove towards the complainant in the carpark, revving his engine loudly and accelerating. He pursued the complainant using the car as he ran away until he rammed into another car causing damage worth $6950 to that other vehicle. He continued to pursue the complainant on foot threatening to kill him until he was restrained by a bystander. The applicant had been diagnosed as suffering a mood disorder after his sister’s death. He began to abuse amphetamines but was not using them at the time of the offence but was using marijuana to “calm himself down”. He was 20 years of age, had returned to work part-time by the time of his sentence and had shown some control over his emotions. His criminal and traffic records were not particularly significant to the sentencing process. Because of the attempted use of violence against the complainant the principles in section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) did not apply. The applicant was said to have used the vehicle as a weapon, driving it into the complainant to mete out summary justice. A significant aspect of mitigation was that he had been provoked in a technical, not legal, sense. The mitigating circumstances allowed the sentencing judge to fix an immediate parole release date.
- [31]It was said by Douglas J in his judgment (with whom Fraser JA and White JA agreed) that the use of a vehicle as a means of causing fear to an individual is normally likely to be met with a sentence of imprisonment. It was held that the individual components of the sentence and their overall effect (including the compensation and disqualification orders) were an appropriate response to the applicant’s conduct and to the mitigating circumstances. It was said that the sentence imposed was appropriate.
- [32]In EPN v Queensland Police Service[11] Morzone QC DCJ found error in the characterisation of that applicant’s driving and resentenced the applicant for one offence of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance. The applicant, in contravention of a temporary protection order, went to her former matrimonial home and damaged property by throwing items. After some provocative comments by her husband, she got into her car and drove it through and over the front fence and into the front wall of the house. She reversed and rammed the wall a second and third time until the car broke through the wall and entered the lounge room of the house. The house was extensively damaged. She had a blood alcohol concentration of 0.163 percent. She was remanded in custody prior to her sentence and released on Supreme Court bail after she had served 60 days of her sentence. She was originally sentenced to 18 months imprisonment with a parole release date after serving 5 months and 11 days in custody. She was 55 years of age with no criminal history. Morzone QC DCJ found that the learned Magistrate mischaracterised her offending as falling in the most serious of categories. His Honour said:
“It seems to me that whilst the appellant used the vehicle as a weapon, it was not in the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim.”[12]
- [33]That applicant’s offending was aggravated by her intoxicated state, domestic violence and contravention of the protection order and fell to be considered against a maximum penalty of five years imprisonment. Section 9(2)(a) was relevant to the sentence to be imposed. Morzone QC DCJ said that the appellant “clearly deserved a term of imprisonment, satisfying considerations of punishment, personal and general deterrence”.[13] In re-sentencing the applicant Morzone QC DCJ referred to the applicant being socially disadvantaged by her inability to read or write English. She had migrated from Thailand. She had a good work history and favourable references (in addition to the absence of any criminal history). She had actively taken steps to rehabilitate with counselling and refraining from alcohol consumption.
- [34]Ultimately Morzone QC DCJ was not persuaded that 18 months imprisonment was outside the permissible range of sentences. He considered however that the sentence ought to be suspended “after the appellant serves a moderate time in actual custody”.[14] That was achieved by the 60 days she had spent in custody before release on bail. He re-sentenced the applicant to 18 months imprisonment suspended after she had served 60 days for two years.
- [35]EPN does to my mind provide some useful guidance as to the appropriateness of the appellant’s sentence. The appellant before me deliberately used the vehicle as a weapon however he did not direct that towards any person but rather towards the complainant’s property. The appellant was not in breach of a protection order as was the applicant in EPN. The appellant’s conduct however did amount to acts of domestic violence which is an aggravating feature of his offending. The appellant’s licence was suspended at the time of the offence so he ought not to have been driving at all. His conduct can be seen to be retaliatory in nature. He fell to be sentenced, in addition, for his earlier and distinct conduct in using the mallet to smash each of the side mirrors of the complainant’s car. There was no material placed before the learned Magistrate as to the quantum of the damage caused to the complainant’s car. It is probably fair to say that it was not as extensive as that which resulted in EPN as she drove into a house repeatedly. The appellant had a recent previous conviction for wilful damage. He had a poor driving record. He was using methylamphetamine around the time of the offending. There was little to be said by way of favourable antecedents beyond his early plea of guilty. He had received a diagnosis of schizophrenia however there was no material before the learned Magistrate or before me to suggest that his condition contributed to his offending in some way.
- [36]The comparable cases referred to, particularly EPN, suggest that a term of imprisonment was the appropriate sentence despite section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). The appellant’s conduct was serious. It was retaliatory in nature and was an act or acts of domestic violence. General and personal deterrence as well as punishment and community denunciation warranted a sentence of imprisonment. It is significant however that EPN’s conduct fell to be assessed against a maximum sentence of five years imprisonment as she was intoxicated when she engaged in the conduct giving rise to the offence.
- [37]I am persuaded that the head sentence imposed of 15 months imprisonment was manifestly excessive given the additional aggravating features present in the case of EPN which are not present here, in particular her intoxication which resulted in a more serious charge being levelled against her and her being in breach of a protection order at the time of commission of the offence.
- [38]The new evidence before me demonstrates that the appellant held a permanent visa since 1994. On 29 June 2022 his visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth). The appellant has made representations to the Department of Home Affairs directed towards a revocation of the decision to cancel his visa. That has yet to be determined.
- [39]Given the status of the appellant’s visa it is not appropriate to order that he be released on parole as he is not able to comply with the requirements of such an order whilst held in immigration detention. It is appropriate therefore to suspend any sentence I impose to take account of the cancellation of his visa.
- [40]Bearing in mind the serious features of the appellant’s offending, in my view, deterrence, both general and personal together with punishment and community denunciation warrant a head sentence of 12 months imprisonment to take account of all of his conduct. The appellant has now served some three and a half months of that sentence. I will suspend his sentence after he has served 111 days for a period of 18 months in order to reflect that he pleaded guilty at the first available opportunity.
- [41]My orders are:
- Extend time within which to appeal until 25 July 2022;
- Leave given to amend grounds of appeal;
- Leave given to adduce new evidence;
- The appeal is allowed;
- I set aside the sentence imposed on the offence of dangerous operation of a vehicle;
- I set aside the order for a parole release date in relation to both dangerous operation of a vehicle and wilful damage;
- In lieu on the charge of dangerous operation of a vehicle the appellant is sentenced to 12 months imprisonment to be served concurrently with the sentence imposed for the offence of wilful damage;
- The sentences are suspended after the appellant has served 111 days of the sentence, for an operational period of 18 months.
Footnotes
[1] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].
[2] McDonald v Queensland Police Service [2018] 2 Qd R 612.
[3] (1936) 55 CLR 499.
[4] Sentencing guidelines.
[5] Matters to be considered in determining offender’s character.
[6] An orthodox approach supported by authority: see R v Nagy [2004] 1 Qd R 63.
[7] [2010] QCA 338.
[8] [2003] QCA 171.
[9] [2011] QCA 71.
[10] [2012] QCA 249.
[11] [2020] QDC 34.
[12] At [33].
[13] At [63].
[14] At [72].