Clout v Commissioner of Police [2022] QDC 234

DISTRICT COURT OF QUEENSLAND CITATION: Clout v Commissioner of Police [2022] QDC 234 PARTIES: BAILEY CLOUT (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D 8/2022 DIVISION: PROCEEDING: ORIGINATING COURT: Criminal Appeal Magistrates Court at Bundaberg DELIVERED ON: 30 September 2022 (ex tempore) DELIVERED AT: Bundaberg HEARING DATE: 30 September 2022 JUDGE: Allen KC DCJ ORDERS: 1. The appeal is allowed. 2. The order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 13 April 2022 is varied so that the appellant is disqualified from holding or obtaining a driver’s licence for a period of 12 months from 13 April 2022. 3. The sentences are otherwise confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appeal against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty to one charge unlawful use of a motor vehicle and one charge dangerous operation of a motor vehicle – where the Acting Magistrate imposed a two year disqualification period – where the Acting Magistrate was not assisted by submissions as to disqualification period – where the Acting Magistrate did not give reasons for imposing a disqualification period greater than the statutory minimum – whether the length of the disqualification period rendered the sentence manifestly excessive Justices Act 1886 (Qld), s 222, s 255 Penalties and Sentences Act 1992 (Qld), s 9 Transport Operations (Road Use Management) Act 1995 (Qld), s 86, s 131 Johnson v QPS [2015] QDC 264 -- 1 of 4 -- 2 APPEARANCES: The appellant appeared on his own behalf H Mangione, Office of the Director of Public Prosecutions (Qld), for the respondent [1] On 13 April 2022, the appellant, in the Magistrates Court at Bundaberg, was convicted on his own pleas of guilty of one charge of unlawful use of a motor vehicle and one charge of dangerous operation of a motor vehicle, both offences committed on 16 November 2021. With respect to the offence of unlawful use of a motor vehicle, the appellant was fined $500 and a conviction recorded. With respect to the offence of dangerous operation of a motor vehicle, the appellant was fined $750, a conviction was recorded, and he was disqualified from obtaining or holding a driver’s licence for a period of two years. [2] On 12 May 2022, the appellant filed a notice of appeal. The ground of appeal stated as follows: The drivers licence disqualification period of two years for the Dangerous Operation of a motor vehicle charge was manifestly excessive in all the circumstances. [3] The offences to which the appellant pleaded guilty were serious. On 16 November 2021, the complainants, who owned a mobile dog grooming business, were in the rear of their dog grooming trailer, washing a dog. The appellant stole the vehicle whilst the complainants and the dog were still in the rear of the trailer. The dog ran out of the trailer, but the complainants were left inside, when the appellant drove the vehicle away at speed. The appellant cut in front of other vehicles. Hose connections fell onto the road in traffic. The complainants were screaming for help, and both the complainants and witnesses called emergency services. The appellant parked the vehicle in a nearby street and ran from the scene. One of the complainants was taken to hospital for shock. The appellant was sentenced on the basis that he did not know that there were people in the trailer of the vehicle. [4] At the time of sentence, the appellant had a lengthy and extensive criminal history, including sentences of periods of detention and imprisonment for serious offences of violence and multiple offences of unlawful use of a motor vehicle. Of particular relevance at the time of his sentence were sentences imposed in the Magistrates Court at Bundaberg on 14 January 2022. On that date, the appellant was sentenced for offences of burglary, unlawful use of a motor vehicle and receiving tainted property. He was sentenced to periods of imprisonment concurrent with the activated terms of previously suspended sentences. An immediate parole eligibility date of 14 January 2022 was ordered. -- 2 of 4 -- 3 [5] At the time of his sentence on 13 April 2022, the appellant had spent 145 days in pre-sentence custody. The focus of submissions on sentence on 13 April 2022 were the relevance of considerations of totality, given the sentences imposed on 14 January 2022 and the pre- sentence custody. It was those considerations which led the Acting Magistrate to impose fines for the offences of unlawful use of a motor vehicle and dangerous operation of a motor vehicle. [6] The issue of any licence disqualification receives little attention. The Police Prosecutor merely stated: He will also, of course, and I neglected to mention, have that mandatory period of disqualification as well for the dangerous operation. The appellant’s solicitor made no submissions as to the length of any licence disqualification. The Acting Magistrate did not invite any further submissions as to the length of any disqualification period. The Acting Magistrate did not state any reasons for the period of two years’ disqualification. [7] The respondent concedes that the Acting Magistrate erred in failing to invite submissions as to the period of disqualification and failing to give reasons for imposing a disqualification period greater than the statutory minimum of six months.1 [8] The respondent submits, however, that given the seriousness of the offences for which the appellant was sentenced and his criminal and traffic history, the court would consider that no other disqualification period less than two years is appropriate and would dismiss the appeal. [9] The appellant contends that the period of two years disqualification is manifestly excessive, and that a period in the range of six to twelve months would be more appropriate. In written submissions, the appellant states: I really need my licence for job opportunities when I am released it makes it a lot harder to get one without it. Also if I was to lose it for six months then by the time I get out, I can get my P’s straight away and I will be able to drive around legally for the first time in my life. Most of the time I have come to jail recently have been for driving but I will be able to use my mothers spare car and drive legally so I will be a lot less likely to comit (sic) any more driving crimes. [10] The respondent submits that the disqualification period should have a punitive effect, and if it was reduced, it may well have none or little if the majority or all of such period was to expire whilst the appellant is in prison serving a sentence. 1 Transport Operations (Road Use Management) Act 1995 (Qld), s 86(3)(a), s 86(3)(b), s 86(5); Johnson v QPS [2015] QDC 264 at [12], [17] and [29]. -- 3 of 4 -- 4 [11] The purposes of sentence provided in section 9(1) of the Penalties and Sentences Act 1992 (Qld) would seem to have relevance to the imposition of a period of disqualification. Those purposes, of course, include a just punishment, but also include the rehabilitation of an offender. It is appropriate to take into account those matters contended for by the appellant and the effect upon the appellant’s ability to hold and obtain employment if and when released on parole. [12] Weighing all the circumstances in the balance, it does seem to me that the period of two years disqualification is manifestly excessive. In my view, a period in excess of the statutory minimum period of disqualification is required to meet the purposes of sentencing, but it should be one of 12 months. [13] Having regard to the powers of the Court provided by section 225 of the Justices Act 1886 (Qld) and the terms of section 131(20) of the Transport Operations (Road Use Management) Act 1995 (Qld), the court orders as follows: (1) the appeal is allowed; (2) the order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 13 April 2022 is varied so that the appellant is disqualified from holding or obtaining a driver’s licence for a period of 12 months from 13 April 2022; and (3) the sentences are otherwise confirmed. -- 4 of 4 --