D v Commissioner of Police[2023] QDC 261

QUEENSLAND COURTS AND TRIBUNALS

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE HEATON KC

No 3531 of 2023

Mr D Appellant

and

COMMISSIONER OF POLICE Respondent

BRISBANE

11.27 AM, THURSDAY, 21 DECEMBER 2023

DAY 1

JUDGMENT

HIS HONOUR:   All right.  This is an appeal by the appellant against a sentence imposed upon him in the Maroochydore Magistrates Court on the 21^st of February, whereby he was sentenced to a total head sentence of two and a-half years imprisonment, suspended after he had served 10 months - that is, on the 26^th of November 2023.  The appellant entered pleas of guilty to 16 offences, the most serious of which was the dangerous operation of the motor vehicle.  

The appeal is pursuant to section 222 of the Justices Act 1886.  Relevantly, section 222, subsection (2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive.  An appeal pursuant to section 222 is by way of rehearing on the evidence given in the proceedings before the Magistrate.  By notice filed on the 1^st of  December 2023, the appellant contends that the sentence imposed is manifestly excessive.  

An extension of time is required, pursuant to section 224, subsection (1), of the Justices Act.  An extension of time should be granted if there is good reason demonstrated for the delay and if the interests of justice require it.  The reasons advanced in relation to this appeal relate to, essentially, a lack of understanding of the particular error, which requires an understanding of the operation of the sentencing and parole regimes, and the failure then to seek proper legal advice.  In that regard, I note as well that Mr D was unrepresented at the sentencing hearing.

The interests of justice focus on the merits of the appeal.  Here, it is said that the error is, in essence, the incongruity between the clearly stated intention of the sentencing Magistrate and the legal effect of the order that he made.  The contention of the appellant is, in essence, that the sentencing Magistrate erred in that he misunderstood the legal effect of the sentence he imposed, which has resulted in the appellant serving a longer period in custody than was the clear intention of the sentencing Magistrate.  It is said, in essence, that if the Magistrate had understood the effect of the sentence he was imposing, he would have approached the structure of the sentence differently so as to achieve the stated intent.

The error in the exercise of the sentencing discretion is compounded by the fact that the period of pre-sentence custody, a period of 26 days, was formally declared, pursuant to section 159A of the Penalties and Sentences Act.  The flaw in the order of the learned Magistrate is demonstrated by the decision in R v Braeckmans [2022] QCA 25.  The intention of the Magistrate was made clear in his calculation of 10 months from 26 January, that is, 26 days preceding the sentencing hearing on the 21^st of February.  That is, whilst the sentence was ordered mandatorily to be served cumulatively upon the sentence he was then serving, and that was understood, the intention was that the appellant serve 10 months from the date of the sentence, which was calculated to have commenced on the 26^th of January and thereby had the effect of running concurrently with the present sentence.  That was not an order which was permissible under the regime that applied.  Consequently, error is conceded by the respondent, and in my view, properly so.

The Court is empowered to set aside or vary the appealed order or to make any other order that the Court considers just.  Those powers are exercisable upon the demonstration of some legal, factual or discretionary error.  I am satisfied that error is demonstrated and that the appellant thereby falls to be resentenced.  Given that his other sentence has now expired, the range of sentencing options is perhaps more straightforward.  It seems, since the 20^th of September 2023 until the 20^th of December 2023, a period of 92 days, the appellant has been serving only a period of imprisonment as a result of the order of the Magistrate on the 21^st of February 2023, that is, the sentence which is presently under appeal.

The appellant is a recidivist offender.  His traffic history, which comprises most of his criminal offending is comprised of driving offences.  His traffic history records disqualified driving on many occasions and dangerous operation of a motor vehicle with an intoxicating substance on the 15^th of March 2021.  His criminal history is also extensive, and he has received a variety of Court orders, most of which have been breached, including suspended sentences.  As observed by the Prosecutor at first instance, he has criminal history and traffic history in five different states.  His New South Wales history commenced in 1976, Victorian history in 1987, his history in the Australian Capital Territory in 1991, and in Queensland in 1993 and in the Northern Territory in 2002.

Significantly, the offending for which he is now to be sentenced is aggravated by the fact that he committed the offence whilst on parole for an offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance.  That offence was committed eight months after he was released on parole and subject to the strictures of a parole order - that is, that parole order did nothing to curb his somewhat unnecessary offending.  The dangerous operation, the most serious of the offences for which he pleaded guilty on the 21^st of February 2023, involved him being pulled over by a police officer, and then once the police officer had opened the door in order to get out of the car, the appellant reversed sharply, colliding with the front of the police car, and then he took off.  Of course, that created a significant risk to the health and safety of the officer, who was then still inside that car.

Otherwise, his offending on that day consisted of offences of serious assault of a police officer, evasion of police, driving without a licence whilst disqualified by Court order, driving without a licence by Court order six further times, four counts of stealing, unlawful use of a motor vehicle, and enter premises and commit an indictable offence.  He was sentenced to concurrent terms for each of those other offences.

I have been provided with a case of R v Stansbury [2003] QCA 48 in support of the submissions by the respondent that the sentence should extend to as much as three years in the circumstances of this offending.  Whilst I acknowledge the force of that submission, it seems to me that given the circumstances which have transpired since, that the sentence of two and a-half years, which was otherwise an appropriate sentence although affected by the error that I have identified, is an appropriate sentence for me to impose in the circumstances here.

There have been some significant changes in the circumstances of Mr D since he was then sentenced.  He has, in recent times, been diagnosed as suffering from lung cancer, for which he is receiving treatment and will require further treatment.  Whilst I am told that the facilities are sufficient within the custodial setting for him to receive that treatment, it also seems to me that his time in jail will be more onerous and more uncomfortable for him despite the availability of treatment within the custodial setting.  I am told as well that he has recently suffered the death of his mother, such that he has no longer any contacts or reason to stay in Queensland and intends instead to return to the Northern Territory, where, with some financial support that comes from an inheritance that he will, or has, received from his mother’s estate, will be able to set him up and hopefully overcome some of the disadvantage that he has experienced throughout his life.  That will be more readily achieved if he is not therefore subject to the constraints of a parole release order. 

Given the offending was committed whilst he was on a parole order, the sentencing regime that applies does not permit for a parole release order but instead would require a parole eligibility order.

I note as well, in his antecedents, that during the term of the previous imprisonment, he essentially served the entirety of it and was not granted release on parole during that order.  The reasons for that are not clear to me, but one can infer that his lack of support in the community and having a stable home to go to would not have been well viewed by the Parole Board in determining his suitability for release.  That is a circumstance which, given the recent death of his mother, has changed for him.

In my view, a sentence of two and a-half years’ imprisonment, with release on a suspended sentence after he has served 92 days, is the appropriate sentencing option in circumstances of this case.  

Consequently, my orders are these.  I extend the time within which to appeal to the 1^st of December 2023.  I grant leave to appeal against the sentence imposed.  I find that the sentence was affected by error, and I therefore set aside the sentence imposed in the Magistrates Court in Maroochydore on the 21^st of February.

I resentence the appellant to a term of two and a-half years’ imprisonment for the offence of dangerous operation of a motor vehicle.  I impose concurrent terms of imprisonment as follows for the other offending:  for the serious assault of a police officer, 12 months’ imprisonment; for the offence of evasion, 12 months’ imprisonment; on all driving whilst disqualified charges, of which there are seven, 12 months’ imprisonment; on all stealing charges, of which there are four, one month; unlawful use of a motor vehicle, 12 months; and the offence of enter premises and commit indictable offence by break, six months.  

I declare that the time from the 20^th of September 2023 until the 20^th of December 2023, a period of 92 days, is time served under this sentence that I am imposing today.  I order that the sentence be suspended after those 92 days, that is, from today, for an operational period of three years.

In relation to the offence of dangerous operation of a motor vehicle, I order that the appellant be disqualified from obtaining or holding a driver’s licence for a period of two years.  In relation to each of the other driving without a licence offences, of which there are seven, I order that he be disqualified from holding or obtaining a licence for a period of two years.  Does the unlawful use of a motor vehicle also come within that mandatory disqualification? 

MS PINKERTON:   If I could have a moment, your Honour.

HIS HONOUR:   It is not so much a driving offence as a ‑ ‑ ‑

MR RAWLINGS:   I do not – I do not believe so, your Honour, but I believe the evade will require a suspension.

HIS HONOUR:   All right.  In relation to the offence of evade, pursuant to section 754, subsection (2), of the Police Powers and Responsibilities Act, I order that the sentence of 12 months be suspended after 92 days.  I declare that the period from the 20^th of September 2023 until the 20^th of December 2023, a period of 92 days, is time served as part of the sentence which I have imposed.  Does that cover it, Mr Rawlings? 

MR RAWLINGS:   Yes, your Honour.  I think you do have to impose this disqualification as to licence as well ‑ ‑ ‑

HIS HONOUR:   Okay. 

MR RAWLINGS:   ‑ ‑ ‑ for that offending.

HIS HONOUR:   On the evade offending. 

MR RAWLINGS:   Yes.

HIS HONOUR:   And is that a minimum? 

MR RAWLINGS:   I do not believe it is affected by a minimum in these 30 circumstances.

HIS HONOUR:   All right. 

MR RAWLINGS:   But your Honour can just ‑ ‑ ‑

HIS HONOUR:   Well, I will make that the same. 

MR RAWLINGS:   ‑ ‑ ‑ make it two years to ‑ ‑ ‑

HIS HONOUR:   Yes.  In relation to the evade offence, I also order that he be disqualified from holding or obtaining a licence for a period of two years.  Does that cover everything? 

MR RAWLINGS:   Your Honour, at first instance, whilst we did not address it here, his Honour did deal with a suspended sentence where he chose to take no action.

HIS HONOUR:   Yes.  And I will do the same thing.  Where is that sentencing history?  Is that the one on the 7^th of August 2020? 

MR RAWLINGS:   Yes, your Honour.

HIS HONOUR:   All right.  In relation to the suspended sentence imposed on the 7^th of August 2020, I will take no action in relation to that breach.  Does that cover it? 

MR RAWLINGS:   Yes, your Honour.  Your Honour, if I could just take this opportunity to thank the Court for bringing this matter on as quickly as you did, and also Ms Pinkerton who has been awfully reasonable and accommodating.

HIS HONOUR:   Not at all. 

MR RAWLINGS:   Thank you, your Honour.

HIS HONOUR:   All right.  Is that everything from your point of view? 

MS PINKERTON:   Yes.  Thank you, your Honour.

HIS HONOUR:   All right.  Thank you, then. 

MR RAWLINGS:   Thank you, your Honour. 

MS PINKERTON:   Your Honour, if I might be excused?

HIS HONOUR:   Yes, of course. 

MS PINKERTON:   Thank you.