Ghane v Queensland Police Service
[2023] QDC 251
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- Unreported Judgment
- Ghane v Queensland Police Service[2023] QDC 251
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Ghane v Queensland Police Service[2023] QDC 251
Ghane v Queensland Police Service[2023] QDC 251
DISTRICT COURT OF QUEENSLAND
CITATION: | Ghane v QPS [2023] QDC 251 |
PARTIES: | GHANE, Moslen (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 2257/23 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Wynnum Magistrates Court |
DELIVERED ON: | 23 October 2023 (delivered ex tempore) |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 23 October 2023 |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant appeals on the ground that the sentence was manifestly excessive – where the appellant was sentenced to 12 months imprisonment – where the appellant had previously been charged with disqualified driving – where the appellant was not an Australian citizen – where the appellant was facing deportation – whether the learned magistrate had sufficient regard to all of the effects of imposing a period of 12 months imprisonment |
COUNSEL: | Appellant in person / S Josey as FOTC E Zambas for the respondent |
SOLICITORS: | Appellant in person / Fuller & White Lawyers (FOTC) for the appellant Office of the Director of Public Prosecutions for the respondent. |
- Introduction
- [1]The appellant, Moslen Ghane, seeks to appeal the sentences imposed in the Wynnum Magistrates Court on 24 July 2023 in respect of the following offences:
MAG-00194797/22(2):
Charge 1 - drive motor vehicle whilst of the middle-alcohol limit, but not over high-alcohol limit, on 20 October 2022;
Charge 2 - driving without a licence disqualified by a court, on 20 October 2022.
MAG-0008409/23(5):
Charge 1 - keeping a safe distance behind vehicles on 11 May 2023;
Charge 2 - fail to comply with duties of driver involved in a crash and give the driver’s required particulars to any other driver involved on 11 May 2023;
Charge 3 - driving without a licence disqualified by a court on 11 May 2023; and
Charge 4 - contravene direction required of a police officer on 11 May 2023.
- [2]In regard to the offending on 20 October 2022, the appellant was sentenced to six months’ imprisonment and a 12-month licence disqualification period in relation to charge 1, and nine months’ imprisonment and a three-year licence disqualification period in relation to charge 2.
- [3]In regard to the offending on 11 May 2023 the appellant was sentenced to 12 months imprisonment with a parole eligibility date on 25 September 2023 and was disqualified from holding or obtaining a driver’s licence for a period of three years in relation to charge 3. The appellant was otherwise convicted and not further punished in relation to charges 1, 2 and 4.
Ground of Appeal
- [4]The sentence imposed is manifestly excessive in all of the circumstances.
The Law - Appeals
- [5]The appeal proceeds, pursuant to Justices Act 1886 (Qld) (JA) s. 222(1) & (2)(c). Having pleaded guilty to all charges, the right to appeal proceeds:
On the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.
- [6]Pursuant to JA s. 223(1), the appeal is by way of re-hearing on the evidence in the Magistrates Court, but the District Court may give leave to adduce fresh, additional or substituted evidence, if the court is satisfied there are special grounds for giving leave.[1] The appeal then proceeds by way of re-hearing on the original evidence and the new evidence.[2]
- [7]During the hearing of this appeal, I granted leave for the correspondence between the Department of Home Affairs and the appellant (exhibit 4) to be adduced as new evidence on the appeal. This correspondence evidences the appellant’s refugee visa cancellation on 28 August 2023, and the consequent refusal of his application for Australian citizenship.
- [8]It is necessary for the appellant to succeed on an appeal in respect of sentence on a re-hearing that he demonstrate a legal, factual or discretionary error.[3] As Sofronoff P observed in Commissioner of Police v Punchard [2021] QCA 166, [36]:
… the sole ground for appeal under s. 222(2)(c) where a defendant has pleaded guilty is that the punishment was excessive. Chowdhury DCJ considered a number of authorities on the approach that should be taken in the District Court to an appeal, pursuant to s. 222 of the Justices Act against sentence and, even though the ground of appeal is expressed in terms that the punishment was excessive (in conformity with the wording of s. 222(2)(c)), concluded (at [48] of the reasons) that the appeal was against a discretion exercised by the sentencing Magistrate, so the principles in House v The King (1936) 55 CLR 499, 504-505 applied. The question therefore was whether the sentence was manifestly excessive. No issue was taken, or could be taken on the application to this court to his Honour’s conclusion that the approach to be taken on the appeal to the District Court was to discern whether there was error in the exercise of the sentencing discretion by the magistrate.
- [9]This court can only interfere if the sentence is manifestly excessive, i.e. unreasonable or plainly unjust, and outside the acceptable scope of judicial discretion.[4] If error is established, this court must form its own view and sentence afresh, unless it finds in the separate exercise of its own sentencing discretion, that no different sentence should be imposed.[5]
Magistrates Court Proceedings
- [10]In respect of the charges arising from 20 October 2022, police intercepted the vehicle driven by the appellant at 9.30 am when it veered into another lane after turning a corner. The appellant had been disqualified from driving by court order on 13 October 2022, and a breath test showed a blood-alcohol concentration of 0.131 per cent.[6] In respect of the charges arising from 11 May 2023, the appellant was the driver of a vehicle involved in a three-car collision at Rocklea at 5.50 pm.
- [11]The appellant was following too closely (charge 1); failed to comply with the duty of a driver in a crash and give required particulars (charge 2); drove while disqualified (charge 3); and contravened a police direction to give particulars of the driver licence (charge 4).[7]
- [12]On 13 October 2022, the appellant had been sentenced to six months’ imprisonment on each charge in respect of charges of disqualified driving and driving under the influence of liquor (.20 per cent). On 12 April 2021, the appellant was sentenced to three months’ imprisonment on a disqualified driving charge.
- [13]On 14 January 2021, the appellant was fined $700 for disqualified driving and fined $300 for drink driving (0.098 per cent).
- [14]On 19 June 2020, the appellant was fined $750 for drink driving (0.144 per cent). The appellant’s licence has effectively been disqualified since that date.[8]
- [15]At the hearing on 24 July 2023, the subject of this appeal, it was submitted by the prosecutor that the appellant should be sentenced to 12 months’ imprisonment for the disqualified driving charges, given the three previous disqualified driving convictions. [9] The prosecutor also identified, correctly, that the appellant was on parole at the time of the 20 October 2022 charges.[10]
- [16]During the course of submissions by Ms Josey for the appellant, the learned magistrate stated (incorrectly as I understand it):[11]
If he gets more than 12 months [imprisonment] would he be looking at deportation …
- [17]And the prosecutor responded:
Quite possibly, if he’s not an Australian citizen -
- [18]The appellant’s counsel at the original sentence submitted for a suspended prison sentence and concurrent probation.
Consideration
- [19]Ms Josey, who has kindly appeared pro bono as a friend of the court for the appellant on this appeal, and provided at very short notice, helpful, written submissions, identifies the following matters on which it is submitted that the learned magistrate has (effectively) erred in his sentencing discretion by a failure to place sufficient weight on various matters. Without reproducing the full text of those submissions, Ms Josey submits that the learned magistrate did not place sufficient weight on the total effect of the head sentence, especially given the prospect of deportation if the appellant was sentenced to an actual term of imprisonment of 12 months or more; the learned magistrate did not place sufficient weight on the fact that the appellant’s rehabilitation will be significantly impaired if placed in immigration detention pending deportation; the learned magistrate did not place any weight on the root cause of the offending and the attempts to deal with the offending behaviour; the learned magistrate erroneously assumed an opioid addiction; the learned magistrate did not place sufficient weight on the total effect of the sentence imposed, making the overall effect far more serious than intended.
- [20]The appellant notes that his visa was automatically cancelled on 28 August 2023, and his application for Australian citizenship lodged 3 June 2020 was refused on 5 October 2023, because he did not have a visa as a permanent resident of Australia. The learned magistrate did not take into consideration that on entering prison, the previous parole period would be added to the head sentence imposed due to the automatic cancellation of the six-month parole order imposed on 24 July 2022.
- [21]The learned magistrate set a parole eligibility date of 25 September 2023, which is effectively unable to be met until a new visa is granted, which may take more than 12 months, and currently the full-time discharge date is 23 July 2024. The learned magistrate did not place sufficient weight on the benefit of additional supervision in the community and failed to set a head sentence below the automatic cancellation of a 12-month custodial sentence. The learned magistrate did not place sufficient weight on the restrictions the appellant faced in getting appropriate professional psychological support.
- [22]The learned magistrate did not place any weight on the consequence of the appellant not being insured at the time of the accident and having to pay repair costs.[12] The respondent accepts that the learned magistrate was mistakenly informed that an eligibility date for the offending on 11 May 2023 was mandated, but it was later clarified during the hearing that the six-month parole order would have expired at the time of the commission of the second set of offences. The respondent notes that it was not in contest that a period of actual imprisonment was required.
- [23]The respondent accepted that the learned magistrate did not have explicit regard to the relevant principles in the Penalties and Sentences Act s. 9(1), but during the course of submissions, explicitly noted regard was had to the early plea and possible deportation, and during sentencing remarks, identified relevant issues in respect of deportation.
- [24]The learned magistrate did have regard to the cumulative effect of the disqualification periods and identified the opportunity for an application to the court at some time in the future, and further, the learned magistrate afforded the defendant procedural fairness.[13]
Discussion
- [25]With respect, although the learned magistrate was clearly dealing with a difficult and challenging sentencing exercise, for an appellant then facing his fourth and fifth disqualified driving offences, the fourth such offence being committed on parole and only one week after a previous court appearance (and disqualification), it does appear that the learned magistrate was in error during submissions in identifying deportation flowing from a sentence of more than 12 months. As exhibit 4 demonstrates clearly, there is in this case a cascading series of consequences (visa cancellation and citizenship refusal), which flowed directly from the actual effective sentence imposed of 12 months’ imprisonment.
- [26]I have no hesitation, in concluding, at the least, that the learned magistrate has failed to place sufficient weight on the total effect of the head sentence imposed (perhaps, although it is not entirely clear, in error about the consequence of a 12-month period of imprisonment), and as a subsidiary of that, I also accept that the total effect of that effective 12 months’ imprisonment sentence, ordered to be served as it was by way of a parole eligibility date, had an overall effect or consequence as a sentencing exercise more serious than the learned magistrate appeared to intend. There is, of course, also the further consequence of the automatic cancellation of the six-month parole period.
- [27]The learned magistrate also, in my view, erred further in failing to consider with sufficient weight the benefit of additional supervision by a lengthy probation period rather than a relatively short parole period, which, of course, may well not have been effective at all if the consequence of a sentence involving a parole period at 12 months was a loss of visa, and therefore, effectively a loss of opportunity for parole.
- [28]It follows that, in my view, the learned magistrate has fallen into discretionary error, and as a consequence, the sentence imposed (although, in my view, not intended in this way) was manifestly excessive.
Order
- [29]Consequently, it is open to this court to re-sentence the appellant, and that re-sentence will be as follows.
- (1)Vacate the sentences imposed on 24 July 2023, to this extent, in respect of:
- (a)disqualified driving (20 October 2022) - the sentence of nine months’ imprisonment;
- (b)driving a motor vehicle, tram, train or vessel whilst over middle-alcohol limit, learners/prob/provisional licence (on 20 October 2022) - six months’ imprisonment;
- (c)disqualified driving (11 May 2023) - 12 months’ imprisonment.
- (2)Re-sentence as follows:
- (a)disqualified driving (20 October 2022) - sentenced to eight months’ imprisonment, suspended after serving 91 days with an operational period of three years;
- (b)driving a motor vehicle with the middle-alcohol limit (on 20 October 2022) - re-sentence 91 days’ imprisonment and three years’ probation (subject to the appellant’s consent);
- (c)disqualified driving (on 11 May 2023) - 10 months’ imprisonment suspended after 91 days with an operational period of three years.
- (3)All other sentences imposed on 24 July 2023, affirmed.
- (4)All disqualification periods imposed in respect of all charges on 24 July 2023, affirmed.
- (5)All prison sentences to be served concurrently.
- (6)Declare the period of 91 days between 24 July 2023 and 22 October 2023 as time served in respect of all sentences.
Footnotes
[1]Justices Act 1886 (Qld) (JA) s. 223(2).
[2] JA s. 223(3).
[3]Robinson Helicopter Co Inc v McDermott [2016] 90 ALJR 679; Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
[4] House v The King (1936) 55 CLR 499.
[5]Kentwell v R (2014) 252 CLR 601, [35]; DL v R (2018) 265 CLR 215, [9].
[6] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(a) p. 6.
[7] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(a) pp. 7-8.
[8] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(c)(traffic history) pp. 31-32.
[9] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(a) pp. 8-9.
[10] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(a) p. 10.
[11] Exhibit 2 - Affidavit of Jacob Long affirmed 20 October 2023, exhibit A(a) p. 14.
[12] Exhibit 3 – Outline of submission on behalf of the appellant, [3.5 - 3.9], [3.12 - 3.21].
[13] Appeal exhibit E [5.1] - [5.6].