Brennan v Queensland Police Service [2023] QDC 259

DISTRICT COURT OF QUEENSLAND CITATION: Brennan v Queensland Police Service [2023] QDC 259 PARTIES: KYLIE BRENNAN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: BD 2724/2023 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Charters Towers DELIVERED ON: 30 November 2023 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 30 November 2023 JUDGE: Allen KC DCJ ORDER: 1. The application for an extension of time to appeal against sentence is granted. 2. The appeal against sentence is allowed. 3. The sentence imposed by the Magistrates Court on 31 July 2023 is set aside and a sentence of 6 months imprisonment, wholly suspended for an operational period of 18 months, is substituted. 4. The order of disqualification for two years from obtaining or holding a driver’s license is confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appeals against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to one offence of disqualified driving – where the appellant was sentenced to 6 months imprisonment cumulative upon other sentences with a parole eligibility date of 1 March 2024 and disqualified from holding or obtaining a driver’s licence for 2 years – where the appellant had lengthy prior criminal and traffic history – whether the learned Magistrate erred in excluding -- 1 of 7 -- 2 rehabilitation as a sentencing purpose – whether the sentence imposed was manifestly excessive Corrective Services Act 2000 (Qld), s 209 Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9 Police Powers and Responsibilities Act 2000 (Qld), s 754 Transport Operations (Road Use Management) Act 1995 (Qld), s 78 House v The King (1936) 55 CLR 499 APPEARANCES: Appellant self-represented T L Little for the respondent Office of the Director of Public Prosecutions for the respondent [1] The appellant seeks an extension of time to appeal against a sentence imposed in the Magistrates Court at Charters Towers on 31 July 2023. On that date, the appellant pleaded guilty to one offence of driving a motor vehicle without a driver’s license, while disqualified by a court order, on 10 April 2023, contrary to section 78 (1) and (3) of the Transport Operations (Road Use Management) Act 1995. She was sentenced to six months’ imprisonment, cumulative upon other sentences she was then serving. The sentencing Magistrate ordered a parole eligibility date of 1 March 2024., Although it does not appear by way of an order in the transcript of the Magistrate’s reasons, the court file and Verdict and Judgment Record also records a two years’ driver’s license disqualification which was the mandatory minimum disqualification in the circumstances. [2] The appellant has explained that an error with paperwork led to a delay in filing the notice of appeal. In the circumstances, the applicant should be granted an extension of time to appeal. [3] The appeal against sentence, pursuant to section 222 of the Justices Act 1886, is by way of a rehearing on the record. The onus is upon the appellant to show that there has been some error in the decision under appeal. The appeal against sentence is against the exercise of discretion, and so the principles in House v The King [1936] 55 CLR 499 at 504-505 apply. A court must not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to penalty. To succeed on the appeal, the appellant must satisfy the -- 2 of 7 -- 3 appellate court that the sentence imposed is outside the acceptable scope of judicial discretion. Often such is established by reference to comparative decisions. Even if an appellate court finds that the sentence was at the top end of a permissible range, or has a different view as to how the discretion should have been exercised, that is not of itself sufficient justification for interference with sentence. The court should only interfere upon being satisfied of manifest excess of sentence, an error of the second type referred to in the earlier cited passage of House v The King. [4] The circumstances of the offending are that, at about 2.36 am on 10 April 2023, police conducting patrols on Stuart Drive, Townsville, intercepted a motor vehicle for a random breath test and license check. Upon approaching the vehicle, the police observed the defendant seated in the passenger seat as the only person in the vehicle. The defendant initially denied that she had been driving and nominated someone else as the driver. When questioned further, she admitted to driving the vehicle to go get a coffee from McDonald’s. The appellant was disqualified by court order from holding a driver’s license at that time. [5] The appellant was aged 38 years at the time of sentence. She has a lengthy criminal history and an appalling traffic record. The criminal history extends over the past 20 years, including numerous convictions in relation to drug offences, includes intensive drug rehabilitation orders made by the Drug Court and sentences of imprisonment imposed in that Court upon failure to successfully complete such rehabilitation. She has some convictions for offences of violence and numerous convictions for offences of dishonesty. [6] The appellant was sentenced in the Supreme Court at Townsville on 6 December 2016 for drug offences, including possession of a schedule 1 dangerous drug exceeding the quantity in schedule 3, but less than schedule 4, for which she was sentenced to three years’ imprisonment with an immediate parole release date. She was also sentenced at that time for an offence of disqualified driving. That was not the appellant’s first conviction for unlicensed driving or disqualified driving, having been convicted of those offences and many other traffic offences during the preceding 14 years. [7] On the 27th of August 2019, in the Magistrates Court at Townsville, the appellant was sentenced for other criminal offences involving motor vehicles, including offences of failing to stop a motor vehicle, contrary to section 754 of the Police -- 3 of 7 -- 4 Powers and Responsibilities Act 2000, unlawful use of a motor vehicle, and disqualified driving. She was sentenced to wholly suspended terms of imprisonment for those offences and other relatively minor drug offences. The effective sentence was that which attached to the offence of disqualified driving, which was 18 months imprisonment, wholly suspended. [8] On the 21st of September 2022, the appellant appeared in the Magistrates Court at Townsville and was sentenced to concurrent terms of imprisonment for drug offences, wilful damage, dangerous operation of a motor vehicle and possession of tainted property, the longest of those concurrent terms being 12 months’ imprisonment for the dangerous operation of a motor vehicle. It seems that effective sentence of 12 months’ imprisonment for those offences was made cumulative upon an activation of the suspended sentences which had been imposed in the Magistrates Court on 27 August 2019, thus resulting in a total head sentence of two and a-half years’ imprisonment, with a parole release date of 2 March 2023. The appellant was subject to that parole order when she committed the offence of disqualified driving on 10 April 2023. It is an aggravating factor of the offending that it was committed about a month after she had been released on parole for other offences, including offences of disqualified driving. [9] The parole authorities were aware that the appellant had been charged with the offence of disqualified driving but took no action to suspend the appellant’s parole as a consequence. A representative of Queensland Corrective Services told the Magistrate during the sentence hearing that that was because the appellant was undertaking intervention programs and had engaged with counselling. That is, in fact, the case. Material tendered during the sentence hearing included a letter from Lives Lived Well confirming the appellant’s attendance between 20 April and 27 July 2023 at sessions to address her mental health and drug and alcohol issues. The report from Lives Lived Well indicated that the appellant had demonstrated insight and a committed motivation to make positive changes as part of a plan moving ahead. A letter from Ms Skinner, psychologist, confirmed that the appellant had been referred to her by her general practitioner in May 2023 for mental health treatment, and that the appellant suffered from ADHD, depression and anxiety. Ms Skinner stated: Ms Brennan has recently moved to Charters Towers and is making new support networks here for a family, including settling her children -- 4 of 7 -- 5 into school. I feel she is genuinely trying to better understand herself and be a better role model for her children, and has appeared to be making positive progress. Ms Brennan has attended five sessions so far and has engaged well with therapy. We are planning to continue her therapy under a MHCP to support her self-understanding and self- management. [10] Another document tendered during the hearing was a letter from the appellant’s mother, who spoke to her significant transformation since her move to Charters Towers. [11] Those matters were referred to by the duty lawyer appearing for the appellant as showing that the appellant had “done quite a lot… to actually address her behaviour”. The sentencing Magistrate then queried what she had, in fact, done apart from moving to Charters Towers and going to see Lives Lived Well. The duty lawyer responded: Your Honour, so she’s completed quite a lot of work, and it’s my respectful submission, demonstrates a lot of insight for a lady who has gone from an otherwise chaotic life to someone who’s now on the straight and narrow. And further, your Honour, that she has two children under the age of 18 she needs to care for. [12] The contents of the letter from the psychologist received no further mention. In particular, no submission was made on behalf of the appellant as to the undesirability of a return to imprisonment interrupting, and perhaps setting back, those steps that the appellant had taken towards her rehabilitation. That point was only made by the appellant herself in remarks to the Magistrate at a stage where the Magistrate had already pronounced his sentence. [13] In his sentencing remarks, the Magistrate recited the purposes of sentence in section 9(1) of the Penalties and Sentences Act, including the purpose of rehabilitation, pursuant to section 9(1)(b). He then made remarks which seemed to confine the relevant purposes of his sentence to exclude such purpose: To be fair to you, Ms Brennan, the prospects of your rehabilitation rest wholly and solely with you. If you can make it, it will be as a consequence of your determination, not as a consequence of any orders that the Court makes. And that said, the Court is – wants you to be rehabilitated as much as anyone could. … But that ship has sailed, as far as the purpose for a sentence goes. That has already been tried, and we have failed. So the issue is deterrence. You need to know, if you break the law or orders made, consequences -- 5 of 7 -- 6 apply, and it also says to denounce that behaviour in line with community expectations. [14] In my view, the sentencing Magistrate erred in excluding considerations of rehabilitation as relevant to his sentence. Given the material before the Court, considerations of rehabilitation, and in particular, the effect that a return to prison would have upon those continuing steps toward rehabilitation, was a relevant sentencing feature. [15] It is of significance that the parole authorities took no steps to suspend or cancel the appellant’s parole, notwithstanding her being charged with the offence, but made a deliberate decision to permit her to continue her efforts towards rehabilitation, subject to such parole order. This is not a factor which appears to have been taken into account by the sentencing Magistrate. [16] Further, in my view, the sentence imposed was manifestly excessive. The sentence imposed had the effect that the appellant’s parole was cancelled because of the provisions of section 209 of the Corrective Services Act 2000, and she was then required to serve an additional period of 112 days, being the period between the commission of the offence and the cancellation of her parole. The effect of the sentence was that the appellant then would be serving a three year sentence, with a full-time discharge date of 22 August 2025, with parole eligibility from 1 March 2024. [17] Notwithstanding that one must have regard to the total criminality for which those sentences attached, the practical result was one which was unduly harsh and disproportionate to the offence for which the appellant was being sentenced on the 31st of July 2023. And as I have already said, it failed to properly reflect those steps the appellant had taken towards her rehabilitation in the period during which the parole authorities made a deliberate decision not to suspend her parole, but to permit those steps to continue. [18] One of the sentencing options contended for the appellant on her behalf at sentence was for a term of imprisonment of up to 12 months to be wholly suspended for an operational period which would have extended beyond the completion of the parole period of the previous sentences. In resentencing the appellant, I take into account that she has spent the last four months in prison as a result of her offending and the -- 6 of 7 -- 7 sentence imposed in the Magistrates Court on the 31st of July 2023 and that, during that time, the appellant has taken further positive steps towards her rehabilitation by completion of those programs available to her in prison during that period. [19] The orders of the Court are: (1) The application for an extension of time to appeal against sentence is granted; (2) The appeal against sentence is allowed; (3) The sentence imposed by the Magistrate Court on 31 July 2023 is set aside and a sentence of 6 months imprisonment, wholly suspended for an operational period of 18 months, is substituted; (4) The order of disqualification for two years from obtaining or holding a driver’s license is confirmed. -- 7 of 7 --