Colley-Presnell v Commissioner of Police [2023] QDC 63

DISTRICT COURT OF QUEENSLAND CITATION: Colley-Presnell v Commissioner of Police [2023] QDC 63 PARTIES: JACOB SHANE COLLEY-PRESNELL (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 2954/2022 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: 19 April 2023 DELIVERED AT: Bundaberg HEARING DATE: 14 April 2023 JUDGES: Smith DCJA ORDER: 1. The appeal is allowed. 2. The sentences imposed by the Magistrates Court are set aside. 3. In lieu thereof the appellant is convicted and fined the sum of $1,000. The fine is referred to the State Penalties Enforcement Registry. 4. The appellant is disqualified from holding or obtaining a driver licence for the period of six months dating from 4 November 2022. CATCHWORDS: APPEAL – CRIMINAL LAW – SENTENCE – whether penalties manifestly excessive – whether Magistrate fettered the sentencing discretion for the sake of consistency – whether the Magistrate took into account all the relevant mitigating factors – whether the Magistrate erred in taking into account prevalence - whether the Magistrate erred in stating he was not bound by decisions of the District Court Justices Act 1886 (Qld) s 222 Magistrates Courts Act 1921 (Qld) s 45 Bertilone v R [2009] WASCA 149; 197 A Crim R 78; 231 FLR 383, cited Broome v Cassell & Co Limited [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801, applied Hili v R [2010] HCA 45; (2010) 242 CLR 520, cited -- 1 of 7 -- 2 Johnson v QPS [2015] QDC 264, cited Lowe v R [1984] HCA 46; (1984) 154 CLR 606, cited Makarian v R [2005] HCA 25; (2005) 228 CLR 357, cited Miliangos v Frank (Textiles) Ltd [1976] AC 443; [1975] 3 WLR 758; [1975] 3 All ER 801, applied Parker v Commissioner of Police [2016] QDC 354, cited R v Coleman 25 May 2015, Judge Sheridan R v Elias [2013] HCA 31; (2013) 248 CLR 483, cited R v Lui [2009] QCA 366, applied R v Osborne [2014] QCA 291; 69 MVR 45, applied R v Plath [2003] QCA 567, cited Sutcliffe v QPS [2022] QDC 135, applied Telstra v Treloar (2000) 102 FCR 595, applied Wong v R [2001] HCA 64; (2001) 207 CLR 584, cited COUNSEL: A McDougall for the appellant R Minuti for the respondent SOLICITORS: Fraser Lawyers for the appellant Office of the Director of Public Prosecutions (Qld) for the respondent Introduction [1] The appellant appeals the penalties imposed on him in the Richlands Magistrates Court on 4 November 2022. The appellant pleaded guilty to dangerous operation of a motor vehicle. He was fined the sum of $2,000 and disqualified from holding or obtaining a driver licence for the period of 12 months. Proceedings below [2] The prosecutor informed the court that on 21 May 2022, a white Holden Commodore driven by the appellant heavily accelerated in a cul-de-sac, jolting forward with the rear wheels losing traction. It then drifted, flicking left and then did a 360-degree turn. The incident was witnessed by 200 people. The area where this occurred was known as a “hooning” area. [3] The appellant had a minor irrelevant criminal history. He also had a traffic history including entries for speeding and unlicensed driving. [4] The defence lawyer informed the court the appellant was 24 years old and 23 at the time of the offence. He had a nine month old child and two stepchildren. He had gone to year 10 at school. He worked as a concreter and needed his licence for his employment. He’d initially gone to the scene only to observe but was persuaded by others to “hoon”. His vehicle was impounded as a result and he had to pay the costs for release. He fully co-operated with the police, making full admissions. There was an early plea of guilty. He had no previous “hooning” entries on his history. It was submitted that the disqualification period should be six months. The defence lawyer referred to Sutcliffe v Queensland Police Service.1 1 [2022] QDC 135. -- 2 of 7 -- 3 [5] He tendered a QTOP report, a letter of apology and two good character references which indicated that the offending was out of character. Decision [6] The Magistrate said that he took into account the plea of guilty and the QTOP program. He made no reference to the good character references, the antecedents of the appellant or the letter of apology. He did not refer to the submissions made by the defence solicitor. He noted that hooning was a problem in the district and deterrent penalties were necessary. He said there was no fettering of any sentencing discretion but then said “you’re all to be treated exactly the same.” As regards to the decision of Sutcliffe referred to above, the Magistrate noted that hooning was not a problem in the District Court but it was a problem in the Richlands district. He indicated he was not bound to follow the District Court decision because a single District Court judge was at a disadvantage as compared to him. Appellant’s submissions [7] The appellant submits the penalties are manifestly excessive. It is submitted the Magistrate ignored the decision of Sutcliffe v QPS. It is submitted the cases show that the penalty imposed was manifestly excessive and the fine should more rather be $1,000 and the disqualification period should be six months. It is submitted the Magistrate erred in relying on prevalence without statistics being placed before the court as to the prevalence of the offence and the Magistrate failed to give adequate warning on this point. It is submitted the Magistrate failed to take into account all of the relevant mitigating factors. Respondent’s submissions [8] The respondent concedes the sentence was manifestly excessive and the appellant should be resentenced afresh. It is agreed that the Magistrate failed to take into account all of the mitigating factors, failed to have regard to Sutcliffe and fettered his sentencing discretion. [9] It is submitted having regard to the comparable decisions, a penalty in the order of $1,000 and a disqualification period of six to nine months was more appropriate. Discussion [10] I will repeat what I said in Sutcliffe v QPS.2 [11] There is no doubt that it is desirable there be some consistency in the imposition of punishment3 but in Wong v R4 the majority observed that to attempt a statistical analysis of sentences for an offence which encompasses a wide range of conduct and criminality is fraught with problems. The fact is that a sentencing court not only considers the seriousness of the offence but also the individual circumstances of the offender.5 Neither principle nor any grounds of appellate review dictate the particular 2 [2022] QDC 135 at [26]. 3 Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at p 610. 4 [2001] HCA 64; (2001) 207 CLR 584 at [66]. 5 Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [10]. -- 3 of 7 -- 4 path that a sentence must follow, as the judgment is a discretionary one and there is no single correct sentence.6 [12] Also, while reasonable consistency (certainly as to Commonwealth offences) might be important, such an object cannot fetter the sentencing judge’s discretion.7 There should be no “norm” or starting point.8 However there is nothing wrong with a court looking at comparable cases and taking them into account in determining the appropriate penalty. [13] There is bound to be a degree of inconsistency in sentencing as this is a discretionary decision.9 [14] The Magistrate failed to apply these principles in reaching his decision. He fettered his sentencing discretion. He blindly applied the penalty to send a consistent sentencing measure message “so you are all treated the same.” He failed to take into account the individual circumstances of this appellant. He failed to take into account the apology and the good character references. [15] The Magistrate suggested he was not bound by a District Court decision. Even if the Magistrate disagrees with the decision he is bound by it. The principle of stare decisis applied here. [16] In Broome v Cassell & Co Limited10 the House of Lords in rebuking the Court of Appeal noted that in the hierarchal system of courts it was necessary for courts of a lower tier to accept loyally the decisions of higher tier courts. [17] In Miliangos v Frank (Textiles) Ltd11 Lord Simon noted that if a subordinate court fails to abide loyally by the judgment of its superior court then the decision of the subordinate court is likely to be appealed to the superior court which is likely to vindicate its previous decision. This would add to the cost of litigation. This is what has happened here. Both parties have had to bear the cost of this appeal. [18] In Telstra v Treloar12 the majority of the Full Court of the Federal Court noted that the rationale of the doctrine is that it promotes the appearance of justice by creating impartial rules of law not dependent upon the personal views or biases of a particular judge. It achieves this result by impersonal and reasoned judgments. [19] In this matter the Magistrates court was lower in the hierarchy of courts with the District Court above it.13 The Magistrate was not at liberty to refuse to apply the ratio decidendi of a District Court authority directly relevant to the matter. He was certainly not at liberty to refuse to apply the High Court authorities cited therein. 6 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27]. 7 Bertilone v R [2009] WASCA 149; 197 A Crim R 78; 231 FLR 383 at [38]. 8 Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [38]. 9 R v Elias [2013] HCA 31; (2013) 248 CLR 483 at [28]. 10 [1972] AC 1027 at page 1054; [1972] 2 WLR 645; [1972] 1 All ER 801. 11 [1976] AC 443 at pages 478-479; [1975] 3 WLR 758; [1975] 3 All ER 801. 12 (2000) 102 FCR 595. 13 An appeal from the Magistrates Court is to the District Court in criminal matters under section 222 of the Justices Act 1886 (Qld) and in civil matters under section 45 of the Magistrates Court s Act 1921 (Qld). -- 4 of 7 -- 5 [20] As to the comments he made about prevalence, in R v Lui,14 the Court of Appeal considered a case where the Trial Judge had alleged in his report that the particular offence dealt with was prevalent in the Cairns area. The court noted that where prevalence is to be a factor to be considered in the sentence, the parties should be given the opportunity to be heard on this issue and to produce statistics or other evidence to justify such a conclusion. A judge’s belief does not exonerate him from procedural fairness. [21] In the present case, the parties were not given the opportunity to place that evidence before the court. This was also a material error. [22] In all of the circumstances, the appellant is to be sentenced afresh. Resentencing [23] In my view, the dangerous operation was at the low end of the range. There was no injury and no circumstances of aggravation. There was no accident. The appellant had no previous dangerous operations on his history. There was an early plea of guilty and he cooperated with police. [24] In Sutcliffe, a number of dangerous operation cases were examined. It is necessary to examine these decisions again. [25] In R v Plath15 the applicant was found guilty after a trial of dangerous operation of a vehicle causing grievous bodily harm. The applicant struck the complainant by failing to keep a proper lookout, overtaking another vehicle when it was unsafe to do so, driving on the incorrect side of the roadway and driving too close to the vehicle in front. The applicant had a not insignificant traffic history including a conviction for careless driving and a minor traffic history. He was sentenced to 18 months imprisonment suspended after six months and disqualified for five years. The court reduced the disqualification period to 12 months. At [18] it was noted the applicant was in regular employment and his inability to hold a licence would cause significant hardship. His rehabilitation would be dependent on his finding gainful employment. In my view that case was more serious than the present one. [26] In Johnson v Queensland Police Service,16 the appellant was convicted of an offence of dangerous operation of a vehicle and was fined $2,000, ordered to pay compensation and disqualified for 12 months. On appeal, the disqualification period was reduced to seven months. In that case, the appellant drove a vehicle with a 16- year-old female passenger at least 100 kilometres per hour in a 50 kilometre per zone, driving through a roundabout and losing control and crashing into a carport. The appellant was 22 years of age with no criminal history and a limited traffic history. I also consider that case to be more serious than the present one. [27] In Parker v Commissioner of Police,17 the appellant was convicted of the offence of dangerous operation of a vehicle in the Magistrates Court at Caloundra and was fined $1,800, disqualified from holding or obtaining a driver licence for six months and a conviction was recorded. On appeal, the recording of a conviction was set aside. In 14 [2009] QCA 366. 15 [2003] QCA 567. 16 [2015] QDC 264. 17 [2016] QDC 354. -- 5 of 7 -- 6 that matter, the Toyota van was travelling on the Bruce Highway when it left the road and crashed into a culvert. There were three occupants in the vehicle which seated only two people. The appellant told police the crash occurred when the appellant and the front passenger attempted to swap seats whilst the vehicle was still in motion. A passenger was thrown about the cabin and suffered injury. The appellant was 34 years old with a criminal history with no convictions recorded and a dated traffic history. I consider that case to be more serious than the present one. [28] In R v Coleman,18 the defendant was convicted of the offence of dangerous operation of a vehicle, ordered to perform 100 hours of community service and disqualified from holding or obtaining a driver licence for the period of six months. This offending occurred when the complainant attended the defendant’s property to collect her horses and an argument ensued. The defendant did a U-turn, drove back down the driveway towards a gate and slowly used his car to push the gate shut. This hit the complainant. The complainant suffered minor bruising and a torn toenail. The defendant was 41 years of age with no criminal history but an unimpressive traffic history. I consider that case to be more serious than the present one. [29] In light of the penalties in those cases, a fine of $2,000 and the disqualification of 12 months was excessive. [30] I consider a fine of $1,000 to be far more appropriate. [31] As to the disqualification period, one must have regard to the principles expressed in R v Osborne.19 At [57] it was said: “However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include: - the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so; - the consequences of the disqualification upon the offender’s future employment prospects; - the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; - the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.” (Footnotes omitted) [32] Bearing in mind the dangerous operation was at the low end of the scale and the work and family situation of the appellant, to my mind a six-month disqualification should have been imposed. [33] I consider a six-month disqualification provides an adequate deterrent in this case. Conclusion [34] In the circumstances, the following orders are made: 1. The appeal is allowed. 18 Judge Sheridan 25 May 2015. 19 [2014] QCA 291; 69 MVR 45. -- 6 of 7 -- 7 2. The sentences imposed by the Magistrates Court are set aside. 3. In lieu thereof the appellant is convicted and fined the sum of $1,000. The fine is referred to the State Penalties Enforcement Registry. 4. The appellant is disqualified from holding or obtaining a driver licence for the period of six months dating from 4 November 2022. -- 7 of 7 --