Suttie v Commissioner of Police
[2024] QDC 185
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- Suttie v Commissioner of Police[2024] QDC 185
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Suttie v Commissioner of Police[2024] QDC 185
Suttie v Commissioner of Police[2024] QDC 185
DISTRICT COURT OF QUEENSLAND
CITATION: | Suttie v Commissioner of Police [2024] QDC 185 | ||||||||||
PARTIES: | NIEL JAMES SUTTIE (applicant/appellant) v COMMISSIONER OF POLICE (respondent) | ||||||||||
FILE NO: | 84 of 2024 | ||||||||||
DIVISION: | Appellate | ||||||||||
PROCEEDING: | Appeal against sentence | ||||||||||
ORIGINATING COURT: | Magistrates Court at Normanton | ||||||||||
DELIVERED ON: | 19 September 2024 ex tempore | ||||||||||
DELIVERED AT: | Cairns | ||||||||||
HEARING DATE: | 19 September 2024 | ||||||||||
JUDGE: | Fantin DCJ | ||||||||||
ORDER: |
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CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where applicant convicted on pleas of guilty of various offences committed in 1991 as a 17 year old including dangerous operation of a motor vehicle – where appellant was sentenced to a head sentence of 15 months’ imprisonment with parole release after serving 5 months in actual custody – whether the Magistrate failed to adequately take into account mitigating factors – whether the Magistrate erred by failing to consider and apply the parity principle – whether the Magistrate placed too much weight on subsequent offending – where the Magistrate made an error of fact – where the Magistrate erred in law by imposing a sentence greater than the maximum penalty Legislation Criminal Code s 328A(1) Justices Act 1886 (Qld) ss 222, 223 Youth Justice Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld) s 159A Cases R v Illin [2014] QCA 285 R v Lawson [1996] QCA 84 R v Pahoff [2002] QCA 525 R v Pearce [2010] QCA 338 | ||||||||||
COUNSEL | A Dunkerton for the appellant N Anderson (legal officer) for the respondent | ||||||||||
SOLICITORS | Osborne Butler Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
FANTIN DCJ (ex tempore):
- [1]On the 15th of July 2024, the appellant pleaded guilty in the Magistrates Court at Normanton to a number of offences. There were five offences committed on the 30th of May 1991, some 33 years earlier. They were two charges of wilful damage, one charge of unlawful use of a motor vehicle, one charge of stealing, and one charge of dangerous operation of a motor vehicle.
- [2]The learned Magistrate convicted the appellant and sentenced him to a head sentence of 15 months’ imprisonment on the dangerous operation of a motor vehicle charge, with lesser, shorter terms of imprisonment for the other offences. He imposed six months’ imprisonment for each of the wilful damage charges, nine months’ imprisonment for the unlawful use of a motor vehicle, and three months’ imprisonment for the stealing.
- [3]The defendant had also pleaded guilty on the same day to two other minor charges. One was possessing utensils that had been used in the commission of an offence, a drug offence. That was committed on the 5th of June 1991, so it was also extremely dated. The final summary charge was one of stealing. It was the only charge which was relatively contemporary, committed on the 26th of February 2024. For each of those latter charges, the defendant was convicted and not further punished.
- [4]The appellant was given a parole release date after serving five months in actual custody. There was no pre-sentence custody to declare.
- [5]The appellant appeals against his sentence for each offence pursuant to section 222 of the Justices Act 1886 (Qld) (‘Justices Act’), on a number of grounds. The first is that the Magistrate erred by failing to take into account the appellant’s young age, (he was 17 years of age at the time of the offending), his lack of criminal history, and his cooperation with the police investigation. The second ground was that the Magistrate erred by failing to consider and apply the parity principle. The third ground was that the Magistrate erred by placing too much weight upon the appellant’s subsequent offending. The fourth ground was that the Magistrate made an error of fact in sentencing the appellant on the basis that he was the driver of the vehicle for the dangerous operation of a motor vehicle charge. The fifth ground was that the Magistrate erred in law by imposing a sentence greater than the maximum penalty.
- [6]I am satisfied, having heard oral submissions and considered the written outlines of submissions and the material, that it is appropriate to allow the appeal. All of the grounds of appeal are made out. The Crown concedes the appeal. That, of course, is not determinative, but it is a relevant consideration.
- [7]Having considered the matter, it is, in my view, appropriate for the Crown to take that position, because the Magistrate erred in law and in fact, and the sentence imposed was manifestly excessive.
- [8]The most serious offence was the dangerous operation of a motor vehicle. It was part of the offences committed on the 30th of May 1991. At that time, the appellant was 17 years of age. A proceeding against him for the offences had been commenced in 1991. He failed to appear and left the jurisdiction. The explanation for the long delay is, it appears, because he was living interstate during that time, and only returned to Queensland late in 2023 or early in 2024.
- [9]According to the legislative regime at the time, in 1991, the defendant was an adult. The transitional provisions of the Youth Justice Act 1992 (Qld), which took effect in 2018, which have the effect that a person who commits an offence as a 17 year old is taken to have committed the offence as a child, do not apply. Therefore, he is to be sentenced as an adult. Nonetheless, he was an extremely youthful first offender, and that was clearly a relevant consideration in sentencing him.
- [10]The May 1991 offences involved the 17 year old appellant being in the company of a co-offender who was, it appears, two years older than him. The appellant was a passenger in a stolen car. At one point, the car was parked in a carpark, and the appellant was moving between that car, and attempting to get into another car for the purposes of stealing a car stereo. The other car was broken into. A cosmetic bag was stolen. The charges of wilful damage related to damage to the car stereo and the window. When police arrived, the vehicle accelerated away, and then drove dangerously at high speed to evade police. It is clear from the transcript at the hearing and the account, at least initially, put forward by the police prosecutor, that the appellant was, at all times, the passenger in that vehicle, and that the vehicle was being driven by the co-offender, the older man.
- [11]The car was driven at very high speeds in open areas for some time. That included being driven at 110 kilometres an hour in a 60 kilometre an hour zone, and being driven on a major road at speeds of up to 200 kilometres an hour. It is not entirely clear how long the driving occurred for. It seems to have commenced shortly after 7.30 pm. A short time later, after the driving referred to, the vehicle was located with apparent damage to the front wheels.
- [12]The defendant, now the appellant, cooperated in full. He participated in an interview with police shortly afterwards, and he admitted to being in the vehicle. He made full admissions. He was subsequently charged.
- [13]The offence on the 5th of June 1991 involved him being in possession of a pipe for smoking cannabis.
- [14]The offending in February of 2024 involved him attending a service station, putting 15 litres of fuel into his car, going into the business, advising the attendant he did not have the money to pay, and asking if he could hotspot his phone to be able to call someone and ask them to pay. When the attendant advised that the store was about to close but he would try to help the defendant, the appellant became agitated, swore at the attendant, told him to tell police, and left the business without paying. It was said at the hearing that the appellant did attempt to pay by telephoning the business the following day.
- [15]That is, in summary, the circumstances of the offending.
- [16]Despite initially identifying the appellant correctly as a passenger in the vehicle, later in the hearing, the police prosecutor made an inadvertent slip, and referred to the appellant being the driver of the vehicle. In doing so, he led the Magistrate into a factual error. That error was not corrected by any party during the hearing. That had the unfortunate result that the Magistrate clearly sentenced the appellant on the basis that he was driving the car, including at up to 200 kilometres per hour on the wrong side of the road for periods.
- [17]The Magistrate referred to it as high-end offending. He clearly placed significant weight on the fact that the appellant, in the subsequent years, did have criminal convictions including illegal use of motor vehicles and evasion type offences.
- [18]The Magistrate referred to an authority, which was not referred to by any of the parties at the sentencing hearing, in which a sentence of 18 months imprisonment had been imposed.
- [19]During the sentencing hearing, the police prosecutor did not make any submissions to assist the Magistrate on the maximum penalty for the offence, notwithstanding that the offence was extremely dated, nor did they assist with any submissions on an appropriate penalty range for the offending, nor any information about the penalty imposed on the co-offender.
- [20]I accept that the sentence proceeded in what would have been a busy Magistrates Court jurisdiction, and the parties did not have the luxury of time.
- [21]However, had the details of the sentence imposed on the co-accused been placed before the Magistrate, I am satisfied it is likely to have resulted in a different outcome.
- [22]In the Magistrates Court the defendant’s solicitor made submissions on sentence.
- [23]The Magistrate foreshadowed that he was considering sentencing the appellant to imprisonment, placing emphasis on the fact that the appellant fled the jurisdiction. The solicitor emphasised the appellant’s extreme youth. She fairly conceded that his driving history was chequered. She pointed to the fact that, when the appellant returned to Queensland, he, of his own volition, attended at the police station in Brisbane to surrender, to have the matters dealt with. Police were too busy to deal with the matter at the time. He was subsequently arrested and taken into custody briefly, before being given bail. The solicitor submitted that he was not a flight risk, that he was now a mature man and could demonstrate a change in circumstances. The solicitor emphasised that the appellant was now in employment. He had a family, including adult children. The solicitor pointed to the fact that much of his criminal history was quite dated, and that there were periods where there were several years without any offending in it. That solicitor did not refer to any sentence imposed on the co-accused. Perhaps that information was not available at the time.
- [24]The solicitor emphasised the evidence of progress towards rehabilitation, insight and remorse, and a de-escalation in his offending in recent years.
- [25]In the face of the Magistrate’s strong indication that he intended to impose a term of imprisonment, the solicitor submitted that it ought to be wholly suspended or with an immediate parole release date.
- [26]The Magistrate’s sentencing remarks were brief. They made no reference to the appellant’s youth at the time of the offences, or the absence of his criminal history. They made no reference to the very dated nature of many of his convictions that post-dated the offending.
- [27]On appeal, the appellant sought leave pursuant to section 223(2) of the Justices Act to adduce new evidence in the form of the co-accused’s criminal history.
- [28]I am satisfied that there are special grounds for giving leave to adduce fresh additional or substituted evidence for the hearing of the appeal, although that evidence could, with reasonable diligence, have been produced by the accused at sentence if their solicitor had made those inquiries, and that did not occur. The evidence is credible, and the evidence might reasonably have led the tribunal of fact to return a different verdict or result. That is because the co-accused’s criminal history shows that he was sentenced in the Brisbane District Court on the 6th of March 1992 for the offences committed on the 30th of May 1991. They include: dangerous driving; attempted stealing, two charges; wilful destruction of property; and unlawful use of the motor vehicle, with a circumstance of aggravation. There were also stealing charges, and wilful and unlawful damage to property charges.
- [29]That co-accused was sentenced for a larger number of summary charges. He was older. He was more morally culpable because he was the driver of the vehicle. He received a sentence of three years’ probation, and 240 hours community service as well as disqualification of his licence. I will return to the question of parity.
- [30]I accept that the first ground of appeal is made out. I am satisfied that the Magistrate erred by failing to take into account the appellant’s very young age, his lack of criminal history and his cooperation with the police investigation.
- [31]I am satisfied that the second ground of appeal is made out in that the Magistrate erred by failing to consider and apply the parity principle.
- [32]I am satisfied that the third ground is made out, that the Magistrate erred by placing too much weight on the appellant’s subsequent offending.
- [33]I am satisfied that the fourth ground is made out, that the Magistrate erred by mistaking the facts because he was led into error by the police prosecutor.
- [34]I am satisfied that the fifth ground is made out, that is, that the learned Magistrate erred by imposing a sentence greater than the maximum penalty. No party at sentence assisted the Magistrate with information about what the maximum penalty actually was. The Magistrate never referred to the maximum penalty. It is accepted on appeal that the maximum penalty for the offence of dangerous operation of a motor vehicle which applied in 1991 was a fine of 40 penalty units or imprisonment up to 12 months. That is, the version of section 328A(1) of the Criminal Code, which was in effect at the date of the offending in May 1991, provided that, where a person was summarily convicted in the Magistrates Court, the maximum penalty that could be imposed was 12 months’ imprisonment. The Magistrate imposed a sentence of 15 months’ imprisonment. That was a clear error of law.
- [35]The appeal must be allowed, and the appellant resentenced.
- [36]The authorities referred to by the parties would ordinarily (in this case) support a head sentence on the dangerous operation of the motor vehicle offence in the form of a community-based order.
- [37]The case of R v Pearce [2010] QCA 338, referred to by the Magistrate in his sentencing remarks was distinguishable. It involved a 50 year old offender who pleaded not guilty, and had a criminal and traffic history. It involved dangerous driving where the offender used their car as a weapon to chase down an individual, mount a kerb and drive over the individual’s scooter repeatedly. That decision was not in any way comparable to the factual circumstances of the case, and the offender’s antecedents, age and character were distinguishable.
- [38]R v Pahoff [2002] QCA 525 and R v Lawson [1996] QCA 84 are more factually comparable, and both support a sentence being imposed, in the first instance, of a community-based order, or at the highest, a term of imprisonment with no actual time to be served in custody unless the offender reoffended before any considerations of parity are taken into account.
- [39]In addition, both those decisions involved persons who were the principal offender in the sense of being the driver, and therefore having a higher degree of moral culpability than the appellant in this case.
- [40]The appellant had a number of matters in his favour. They included that, at the time of the offending, he was a youthful offender with no criminal history, and entitled to the benefit of a sentence that prioritised his rehabilitation. His culpability was lower than his co-offender. He was younger, and his role in the dangerous operation of the motor vehicle was as the passenger, not the driver. In addition, he co-operated with the police at the time of the offence by participating in a record of interview, and making full admissions.
- [41]Applying the parity principle, if the appellant had been sentenced at around the same time as his co-offender, he would also have received a probation order albeit for a shorter period, and possibly a community service order, but with fewer hours required to be completed than his co-offender.
- [42]Having regard to the sentence imposed on the co-offender, there is a marked disparity in the sentences between them. The appellant’s sentence requiring a term of imprisonment, including actual custody, gives rise to a legitimate sense of grievance which clearly requires appellate intervention.
- [43]Finally, there is the issue of the long delay. In some cases, long delay can be a matter in mitigation on sentence, for example, where the time between the commission of the offending and the sentence is sufficient to enable the court to see that the offender has been rehabilitated, or that the rehabilitation process has made good progress: see R v Illin [2014] QCA 285.
- [44]This is not a case where the appellant could demonstrate complete rehabilitation in the more than 30 years since the offending. He had gone on to commit motor vehicle and drug offences in South Australia and the Northern Territory in the intervening years. However, much of that offending was quite dated, and the appellant had been sentenced for many offences only to fines, or at best, short terms of imprisonment. He had also been referred multiple times to a mental health diversion program. The appellant had a poor driving history, much of which was also dated, but it did include a recent driving offence in the Northern Territory in 2021. He had also committed the fuel stealing offence in early 2024. The latter was a low-level example of that offence, but its commission suggested that the appellant still had a tendency to act impulsively.
- [45]However, it was significant that, by the time of sentence, the appellant could point to some evidence of rehabilitation. His solicitor at sentence attempted to emphasise that to the Magistrate, and she was right to do so. That included that the appellant was now a mature man with family connections, who was in employment, or had been in employment, and was actively seeking employment at the date of sentence, and who had voluntarily returned to the jurisdiction, and surrendered.
- [46]Taking all of those matters into account, a sentence of imprisonment should never have been imposed, let alone one requiring him to serve five months in actual custody. The appropriate sentence would have been a community-based order.
- [47]However, by the time this appeal was heard, the appellant had served 66 days imprisonment in actual custody. Taking into account the time served in custody, the parties’ joint position, which I agree with, is that the appropriate order is to sentence the appellant to time served on the dangerous operation of a motor vehicle offence, and release him from custody today.
- [48]The purposes of punishment, including general deterrence and denunciation particularly, are more than adequately served by the term of imprisonment the appellant has already served in actual custody. In my view, personal deterrence and protection of the community are less significant. The appellant’s rehabilitation has been demonstrated, or at least progress towards it has been demonstrated.
- [49]Therefore, the orders I impose are these: (1) the appeal is allowed; (2) the sentences imposed by the Magistrate at Normanton on 15 July 2024 for the following offences are set aside: two charges of wilful damage, one charge of unlawful use of a motor vehicle, one charge of stealing, and one charge of dangerous operation of a motor vehicle.
- [50]On each of those charges, the appellant is resentenced as follows. For the charge of dangerous operation of a motor vehicle, the appellant is convicted and sentenced to 66 days imprisonment. On each of the charges of wilful damage, unlawful use of a motor vehicle and stealing, he is convicted and not further punished. I have taken into account those charges in fixing the sentence on the dangerous operation of a motor vehicle.
- [51]Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld), I state that the appellant has been held in pre-sentence custody from 15 July 2024 to 19 September 2024, a total of 66 days. I declare that all of that time is imprisonment already served under the sentence.
- [52]With respect to the charges of possess utensils that have been used, and were committed on 5 June 1991, and stealing, committed on 26 February 2024, the sentences are affirmed. That is, the appellant is convicted and not further punished.
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- [53]Out of an abundance of caution, I would fix today as his parole release date. It is artificial, because he has already served the full term of the imprisonment. Ordinarily, when one fixes an immediate parole release date, you have to advise the offender to report to probation and parole, but I cannot see any utility in doing that.
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- [54]I amend the orders made earlier to include the following. For the dangerous operation of a motor vehicle charge, the order made by the Magistrate at Normanton on 15 July 2024 disqualifying the defendant from holding or obtaining a driver’s licence for 12 months is set aside. The appellant is resentenced as follows. The appellant is disqualified from holding or obtaining a driver’s licence for a period of six months from 15 July 2024.