Wright v Doherty[2022] QDC 277

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 11 November 2022 the appellant pleaded guilty to an offence of driving whilst a relevant drug was present in her saliva.  She was sentenced to three months imprisonment. She had committed the offence in breach of suspended sentences imposed on 26 November 2020 and those suspended sentences were activated in full.  The activated suspended sentence of 12 months imprisonment was ordered to be served cumulatively on the three month sentence imposed for drug driving.  A parole release date was set at 10 February 2023 (after serving three months of the sentence). Additionally, the appellant was disqualified from driving for a period of nine months.  
2. [2]
   The appellant has appealed against the severity of her sentence.  The principles relevant to such an appeal are well settled.  The appeal is by way of rehearing on the evidence before the learned Magistrate and any new evidence adduced with the leave of the court.  It is necessary for the appellant to demonstrate that the decision of the Magistrate was affected by some error. 

Circumstances of the offending

3. [3]
   On 27 August 2022 the appellant was intercepted by police when she was driving her car. She underwent a drug test which returned a positive result for methylamphetamine. The appellant admitted to police that she had used methylamphetamine two days prior to being intercepted.

The appellant’s antecedents

4. [4]
   The appellant has a significant criminal and traffic history.  On 18 December 2018 the appellant was convicted of trafficking in dangerous drugs over a three month period in 2017. She was also convicted of five counts of supplying schedule 1 and 2 drugs; possessing dangerous drugs in excess of the third schedule; and other drug related offences.  She was sentenced to four years imprisonment for trafficking in dangerous drugs and given a parole eligibility date of 8 May 2019 after she had served approximately 16 months of the sentence. There is no information before me as to when she was released on parole. Her traffic history however would suggest that she was driving at least as early as 18 June 2019. 
5. [5]
   On 14 May 2020 (whilst on parole) the appellant was found driving with a relevant drug present in her saliva. She was fined $350.  There was no evidence before the learned Magistrate or before myself as to whether her parole was suspended or cancelled as a result of the commission of this offence. 
6. [6]
   The appellant was then convicted on 26 November 2020 of further drug offences also committed whilst she was subject to parole.  She was convicted of two counts of possessing dangerous drugs; two counts of possessing anything for use in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld); two counts of possessing property suspected of having been used in connection with the commission of a drug offence and possessing utensils.  That offending occurred on 11 June 2020 and 7 July 2020. The appellant was sentenced to concurrent terms of imprisonment with a head sentence of 12 months imprisonment all suspended for an operational period of two years.  Those sentences, having been wholly suspended, would not have resulted in automatic cancellation of the appellant’s parole.  There was no evidence before the learned Magistrate or before myself as to whether her parole was suspended or cancelled as a result of that offending.   
7. [7]
   On 15 August 2021, whilst subject to the suspended sentences, the appellant committed an offence of driving whilst a relevant drug was present in her saliva.  She was sentenced on 8 October 2021 to probation for 12 months.  The suspended sentences were extended for a period of six months. 
8. [8]
   It is against that background that the appellant committed the offence of driving whilst a relevant drug was present in her saliva which is the subject of the appeal before me. 
9. [9]
   In her favour, the following submissions were advanced at the sentence on the appellant’s behalf.  She was 37 years of age and had two dependant children aged 10 and 12 years.  Those children were “recently” returned to her care after she had served the term of imprisonment imposed for trafficking in dangerous drugs.  The appellant was studying to become a domestic violence support worker.  There was ongoing domestic violence in her relationship with her children’s father despite having been separated for a lengthy period of time.
10. [10]
    It was submitted that there were significant stressors in her life around the time of her offending relating to issues of domestic violence. The appellant completed the probation order.  The appellant had been seeing a counsellor since May 2019.  A short letter from her counsellor indicated that since her release from jail in 2021^[1] she had shown significant improvement in her coping strategies. She was said to be under significant stress as a result of the harassment from her ex-partner. He was said to have engaged in coercive controlling behaviours towards herself and her daughters.    The appellant had also enrolled in and paid for the Queensland Traffic Offenders Program.  She had completed two out of the three sessions as at 11 November 2022. 
11. [11]
    An officer from Community Corrections informed the learned Magistrate that the appellant had returned a positive drug test whilst subject to the probation order. 

The learned Magistrate’s decision

12. [12]
    The learned Magistrate said that he had taken into account the appellant’s plea of guilty and reduced the penalty that he would otherwise have imposed.  He referred to the appellant having breached the probation order and the suspended sentences imposed.  He indicated that the appellant had not responded to parole or probation because she had been returning “dirty urine tests throughout”. He considered that the appellant had used up all the opportunities for lenience that she could expect.  She had engaged in a persistent attitude of disobedience of the law for a number of years. 
13. [13]
    The learned Magistrate referred to drug driving as being an antisocial offence that puts the lives of other road users in danger. He referred to the need for a sentence that punishes, provides a deterrent to others and protects the community.  
14. [14]
    He considered that there was only one sentencing option that was appropriate in the circumstances, which was imprisonment.   

Consideration

15. [15]
    The learned Magistrate was not directed to any of the considerations in section 147 of the Penalties and Sentences Act 1992 (Qld). The submissions made by the appellant’s representative, which were to the effect that the appellant should be sentenced to probation or a wholly suspended sentence, suggest to me that he did not appreciate the significance of the offence having been committed whilst the appellant was subject to a suspended sentence. Section 147 only provides for three options when activating a suspended sentence and those options do not include probation or another suspended sentence. 
16. [16]
    Despite the absence of any assistance from the parties, the learned Magistrate took into account the relevant considerations in determining whether to activate the suspended sentence. Whilst the breaching offence is, by virtue of the maximum penalty available, less serious than the original offences for which the appellant received the suspended sentences, there were factors which favoured activation.  In particular, that this was the second occasion on which the appellant had breached the suspended sentences by drug driving.  She was given the benefit of an extension of the operational period of the suspended sentence and the assistance of probation when previously having breached the suspended sentences. There was little to suggest that the appellant had taken steps to deal with her drug problem. It was not in all the circumstances, unjust to activate the whole of the suspended sentences imposed being a period of 12 months imprisonment given the appellant’s repeated breaches of the suspended sentences by committing the same offence. 
17. [17]
    Section 148 of the Penalties and Sentences Act 1992 (Qld) requires that the activated suspended sentence be served immediately unless the court orders otherwise.  The learned Magistrate made an order that displaced that provision by ordering that the activated suspended sentence be imposed cumulatively on the sentence imposed for drug driving. 
18. [18]
    The sentence imposed for drug driving was the maximum penalty that could be imposed.  As a result of the accumulation of the 12 month term of imprisonment on the maximum penalty for the offence of drug driving, it is difficult to see how the learned Magistrate took into account the appellant’s guilty plea by reducing the penalty that he would otherwise have imposed.    The learned Magistrate, in addition to sentencing the appellant to the maximum sentence available, also imposed the maximum disqualification period available. 
19. [19]
    There is another matter that arose during the course of the hearing and that is the learned Magistrate’s reference to returning dirty urine tests throughout the period of probation.  The statement of the officer from Community Corrections at the hearing of the sentence was to a single drug test which was positive.  The appellant’s representative was able to obtain some information from Community Corrections which although not in proper form, the respondent did not object to my receiving as new evidence.  That evidence indicates that the appellant was referred to Drug ARM for counselling however due to the extensive wait lists, she was not accepted into the program.  She self-reported engagement with AODS and inquired about counselling.  She was referred to the Brisbane Domestic Violence Service and had ongoing phone contact with that service.  No formal breach action was taken despite her conviction for the offence of drug driving as her order had recently expired and she had not committed any other offences during the currency of the order.  She reported on all occasions as directed.  There were two urine tests completed which returned positive indications for methylamphetamine. Those tests were undertaken in October 2021 and February 2022.  I do not consider that it was correct to refer to the appellant as returning dirty urine tests throughout the period. 
20. [20]
    I consider that the learned Magistrate erred, as despite indicating that he intended to reduce the sentence to take account of the plea of guilty, he did not impose a sentence which can be seen to have properly taken it into account. Additionally, I consider that he erred in characterising the appellant’s performance on probation as having returned dirty urine tests throughout the period of the probation order. 
21. [21]
    The respondent conceded the appeal and submitted that I ought to re-sentence the appellant. She has now spent 25 days serving the sentence imposed.   The respondent conceded that ordinarily a court would either reduce the sentence to be imposed if it was to be served cumulatively or order it be imposed concurrently to take account of the plea.  The appellant submits that I ought to re-sentence the appellant to one month imprisonment and order an immediate parole release date.   
22. [22]
    As the appellant pleaded guilty to the offence of drug driving and given that she was not intercepted by police because her manner of driving indicated that she was affected by drugs, but rather for a random drug and licence check, I would not impose the maximum penalty of three months imprisonment together with the maximum disqualification period. The serious feature of the offence is that it was committed in breach of a suspended sentence and in breach of a probation order.  The circumstances of the offence itself however do not fall within the worst category of the offence and do not warrant the maximum penalty being imposed.  In the circumstances I would impose a sentence of six weeks imprisonment for drug driving. 
23. [23]
    The decision by a sentencing court of how much of a suspended sentence to activate and when within that activated term of imprisonment to set a parole release date is “a single exercise of discretionary judgment”.^[2] The setting of a parole release date is something to take account of in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment.  It is not a separate and independent exercise of discretion arising once a decision is made that it is not unjust to require the offender to serve the suspended imprisonment. 
24. [24]
    To take account of the mitigating factors favourable to the appellant, I would order that the term of six weeks imprisonment be served concurrently with the activated suspended sentences and order that she be released on parole as at the date that this decision is published. 
25. [25]
    In the appellant’s favour is her continued counselling and her undertaking the Queensland Traffic Offenders Program. She is the mother of two young children. Her incarceration meant that her children had to be placed in care. No submissions were made to the learned Magistrate about the care arrangements for her children. No evidence was adduced before me as to the care arrangements for her children. Whilst this is not a matter that should overwhelm the other sentencing considerations including the punishment that would otherwise be appropriate, nonetheless, it is a relevant consideration that her children were required to be removed from her care.  The principles relevant to the issue of hardship are as set out most recently in R v Hannan; ex parte Attorney-General (Qld).^[3]
26. [26]
    Despite what is clearly a relevant consideration, no submissions were directed to the learned Magistrate towards this point and no evidence was adduced before me. As best as the material provides, the appellant was the primary carer for her two young daughters. The report from the counsellor indicated that the children had refused to return to their father’s home. There is a suggestion of coercive controlling behaviour by him towards the appellant and her children.  
27. [27]
    A reference provided by the appellant’s cousin suggests that she has some support in the community but the extent of that support for her children is not known to me.  There is no material from the children as to the impact of their second separation from the appellant on them in the face of what seems to be a difficult relationship with their father. 
28. [28]
    Despite the absence of any material, it would be surprising if the separation of the appellant from her daughters had no impact. It is impossible to know whether that impact would have the exceptional features which are a hallmark of the applicable principles because of the failure to adduce any evidence about it
29. [29]
    Balancing up all of the features necessary, the seriousness of the offence and the need for punishment and deterrence is appropriately reflected in a parole release date that sees the appellant released on the date of publication of this judgment. I would further order that she be disqualified from driving for 6 months.

Costs

30. [30]
    The appellant seeks her costs of the appeal in the amount of $1800 together with the costs of the provision of the transcript said to be $652.51. 
31. [31]
    The respondent opposes the making of a costs order. Firstly, the respondent argues that the transcript was provided by the respondent at no cost to the appellant.^[4]  The provision of the transcript was thus an unnecessary cost incurred by the appellant. Secondly, the police prosecutor did not lead the learned Magistrate into error so it would be unjust to order costs against the police. 
32. [32]
    Section 226 of the Justices Act 1886 (Qld) provides that a judge may make such an order as to the parties’ costs incurred in bringing an appeal under section 222 as the judge thinks just. The discretion must be exercised judicially to compensate a successful party^[5] and not by way of punishment of the unsuccessful party.^[6]
33. [33]
    The appellant is represented by the same firm of solicitors who represented her at the sentence hearing.  Paying for a transcript of the hearing was not necessary in order to give the appellant advice as to the merits of her appeal.  Given that the respondent supplied the transcript (and always does) at no cost, it was an unnecessary cost incurred by the appellant. 
34. [34]
    The police prosecutor at sentence did not make any submissions as to the appropriate penalty.  Indeed, the police prosecutor unusually tendered material on behalf of the appellant.  The appellant’s representative at the sentence hearing failed to appreciate the significance of the drug driving offence having been committed in breach of a suspended sentence.  The submissions made as to the appropriate sentence failed to take account of section 147 of the Penalties and Sentences Act 1992 (Qld) and the penalty that could be imposed when activating a suspended sentence. The submissions made did not address the appropriateness of a cumulative sentence or the making of a parole release date.  The learned Magistrate was not helped by the submissions of the appellant’s representative at sentence.  Indeed it seems that it came as a complete surprise to the appellant that she was sentenced to actual imprisonment. Some evidence of the hardship to the appellant of her incarceration ought to have been adduced before the learned Magistrate. Submissions addressing a release on immediate parole supported by evidence addressing the appellant’s performance on probation, and the possible hardship to her children, would likely have avoided the need for an appeal.
35. [35]
    The respondent took the position of conceding the appeal. The respondent was willing to obtain further evidence in the nature of a pre-sentence custody certificate and report from the probation office in order to assist the appellant despite the appellant seeking costs against it.  The respondent did not oppose the adducing of new evidence which was not in proper form.  At all times the respondent has conducted itself in an appropriate and fair manner designed to minimise the costs to the appellant. The proceeding was not complex and the merits of it were conceded by the respondent. I do not consider it would be just in the circumstances for the respondent to bear the costs of the appellant’s appeal.
36. [36]
    My orders are:

    1. (1)
       The appeal is allowed;
    2. (2)
       The sentences imposed by the learned Magistrate are set aside;
    3. (3)
       I activate the suspended sentences imposed on 26 November 2020 in the Brisbane Magistrates Court;
    4. (4)
       For the offence of drug driving the appellant is sentenced to six weeks imprisonment.  I order that term of imprisonment be served concurrently with the activated suspended sentences;
    5. (5)
       The appellant is disqualified from driving for six months;
    6. (6)
       I order that the appellant be released on parole on 6 December 2022;      
    7. (7)
       No order as to costs.