Wahlheim v Commissioner of Police
[2023] QDC 64
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- Wahlheim v Commissioner of Police[2023] QDC 64
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Wahlheim v Commissioner of Police[2023] QDC 64
Wahlheim v Commissioner of Police[2023] QDC 64
DISTRICT COURT OF QUEENSLAND
CITATION: | Wahlheim v Commissioner of Police [2023] QDC 64 |
PARTIES: | JACOB BLAINE WAHLHEIM (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 2955/2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Richlands Magistrates Court |
DELIVERED ON: | 19 April 2023 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 14 April 2023 |
JUDGES: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | APPEAL – CRIMINAL LAW – SENTENCE – whether penalties are manifestly excessive – where the appellant pleaded guilty to two charges only but a penalty was imposed on three charges – whether Magistrate fettered the sentencing discretion for the sake of consistency – whether the Magistrate took into account relevant mitigating factors – whether the Magistrate was entitled to take into account the prevalence of the offending Broome v Cassell & Co Limited [1972] AC 1027, applied Colley-Presnell v Commissioner of Police [2023] QDC 63, applied R v Osborne [2014] QCA 291; 69 MVR 45, applied Sutcliffe v QPS [2022] QDC 135, applied |
COUNSEL: | Mr A McDougall for the appellant Ms E Zambas for the respondent |
SOLICITORS: | Fraser Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant appeals the sentence imposed on him in the Richlands Magistrates Court on 4 November 2022. The appellant pleaded guilty to one charge of dangerous operation of a vehicle and one charge of driving without a licence which offences occurred on 21 May 2022. Convictions were recorded on each count and despite the pleas to two charges only, penalties were imposed on three charges.
- [2]He was convicted on each charge and fined a total of $3,500. He was disqualified for 18 months on charge 1, eight months on charge 2 and six months on charge 3.
- [3]The appellant says that these sentences are manifestly excessive.
Background
- [4]The prosecutor informed the court that the offence location was Viking Drive, Wacol. At 8.43pm on 21 May 2022 the appellant’s black Holden Commodore did 360 degree and 180 degree manoeuvres and fishtailed. People were seen metres from the vehicle. As the vehicle got half-way up the drive it swerved to the left to avoid another vehicle (charge 1).
- [5]Charge 2 occurred at 9.20pm. The vehicle did a 360 degree spin, a 180 degree spin and drifts. People were close to the vehicle. The appellant was unlicenced (charge 3). His licence had expired but he told police he did not realise this. A video of the incident was played and tendered. A factual sentencing schedule was tendered together with a traffic history. The traffic history was minor containing a number of entries for speeding. He had not been disqualified before. He had no criminal history.
- [6]The defence solicitor tendered a letter of apology, two character references and a QTOP report. The appellant was 24 years old. He had two children aged 3 and 7 months. The seven month old had a rare chromosome condition and required significant medical treatment including surgery. The appellant went to year 10 at school and had been working as a mechanic for two years. At the time of the offences, he was struggling emotionally after the death of his father and his brother. The appellant was remorseful. It was an early plea of guilty. The appellant had no history of a like nature. It was submitted that the disqualification should be no longer than six months because of the impact it would have on his family.
- [7]The Magistrate was referred to the decision of Sutcliffe v QPS.[1] The Magistrate said it was not binding on him and indeed he was critical of the District Court. The defence lawyer submitted that the vehicle had been impounded and the appellant had to pay the costs of releasing it.
Decision
- [8]The Magistrate said that he took into account the plea of guilty and said that he would reduce the sentence. It is not clear how he did this. The Magistrate said that charge 3 was an aggravating feature. The Magistrate said the only mitigating feature was the plea of guilty and the QTOP report. The Magistrate made no reference to the appellant’s family situation or the character references. The Magistrate said that the hoon meet ups were all organised and he dealt with hoons all of the time and the appellant was in a target group. He imposed the penalties I mentioned earlier.
Appellant’s submissions
- [9]The appellant submits a number of errors occurred here. First, the appellant pleaded guilty to only two of the charges and not three but was sentenced on three. Secondly, the Magistrate fettered his sentencing discretion and relied on prevalence without notice. Thirdly, he failed to take into account all of the relevant mitigating factors.
Respondent’s submissions
- [10]The respondent concedes the appeal. It agrees the pleas were to only two offences and therefore a fundamental error occurred here. The respondent accepts the Magistrate failed to take into account the relevant mitigating features and failed to accord procedural fairness to the appellant as to prevalence. It is accepted that the Magistrate failed to have regard to appropriate authority. It is also accepted that the Magistrate fettered his sentencing discretion in this matter.
Discussion
- [11]In Colley-Presnell v Commissioner of Police[2] I discussed the principles to be applied. I do not propose to repeat them.
- [12]In my view, a number of crucial errors occurred here. There is no doubt the appellant was sentenced for an offence to which he had not pleaded guilty. Also, the Magistrate failed to take into account the relevant mitigating factors which I have mentioned. He failed to accord procedural fairness concerning prevalence. This was an error. He failed to consider himself bound by District Court decisions. The principle of stare decisis[3] applied here. His Honour was not of liberty to refuse to apply District Court authority directly relevant to the matter. He failed to consider the individual circumstances of the offender as distinct from consistency in sentencing.
- [13]As to the error concerning the charges this was regularised before me on 14 April 2023 with the Appellant pleading guilty to the third charge.
- [14]I have regard to the comparable decisions I referred to in Colley-Presnell and the principles in R v Osborne.[4]
- [15]It must be borne in mind that there were three charges here, although the second dangerous operation was shortly after the first.
- [16]This dangerous operation was at the lower end of the range - there is no circumstance of aggravation, there was no accident and no injury was caused.
- [17]The appellant had no criminal history and was youthful. He had no “hooning” offences on his history. It was an early plea of guilty and he co-operated with the police. He had good character references and was remorseful for the offending. He needed to support his family.
- [18]I consider a total fine of $1,500 together with a disqualification of six months is appropriate in this case.
Conclusion
- [19]In the circumstances, the following orders are made:
- The appeal is allowed.
- The orders made by the Magistrate are set aside.
- With respect to each charge a conviction is recorded and a global sum of $1,500 is imposed. The fine is referred to the State Penalties Enforcement Registry.
- With respect to each of charges 1 and 2, the appellant is disqualified from holding or obtaining a driver licence for the period of six months to date from 4 November 2022. The disqualification is to be served concurrently.
- The respondent is to pay the appellant’s costs fixed in the sum of $1,500.