Benson v Commissioner of Police [2021] QDC 98

DISTRICT COURT OF QUEENSLAND CITATION: Benson v Commissioner of Police [2021] QDC 98 PARTIES: ALLAN JOSEPH BENSON (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: 3173 of 2020 DIVISION: Appellate PROCEEDING: Appeal pursuant to section 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: 4 June 2021, ex tempore DELIVERED AT: Brisbane HEARING DATE: 4 June 2021 JUDGE: Loury QC DCJ ORDER: 1. The appeal is allowed. 2. The sentence for the offence of disqualified driving is set aside. 3. A sentence of 12 months imprisonment to be served cumulatively upon the sentence imposed on 7 May 2020 is imposed. 4. The appellant is to be released on parole on 4 June 2021. COUNSEL: N Edridge for the appellant, appearing pro bono N Hopper for the respondent SOLICITORS: Hans Legal for the appellant Office of the Director of Public Prosecutions for the respondent [1] On 19 October 2020, the appellant was convicted, after a trial in the Magistrates Court, of five traffic offences. He was sentenced as follows: -- 1 of 6 -- 2 The term of imprisonment of 16 months was ordered to be served cumulatively upon the appellant’s existing sentence and his parole release date was fixed at 18 June 2021 (after he had served eight months). Convictions were recorded for each offence and the appellant was disqualified from driving absolutely. [2] On 31 January 2020 the appellant was sentenced to 9 months imprisonment for one charge of disqualified driving, with a cumulative period of 9 months imprisonment imposed upon the activation of a suspended term of imprisonment, and a further cumulative period of one month imprisonment imposed in respect of an offence of failing to appear. The accumulation of the sentences imposed on 31 January 2020 was not apparent on the appellant’s traffic or criminal histories. Verdict and judgement records have confirmed that to be the case. [3] On 7 May 2020 the appellant was dealt with in the District Court at Ipswich for a breach of a suspended sentence. That suspended term of 18 months imprisonment for an offence of arson was wholly activated and ordered to be served concurrently with the sentences imposed on 31 January 2020. The order for release on parole remained at 31 July 2020. [4] Each of the terms of imprisonment imposed on 31 January 2020, 7 May 2020 and 19 October 2020 were overlapping, none having expired prior to the imposition of the sentences imposed by the learned Magistrate on 19 October 2020. The further cumulative term of 16 months imprisonment imposed by the learned Magistrate caused the appellant to be subject to a period of imprisonment of three years, two months and 7 days.1 1 Penalties and Sentences Act 1992 (Qld) section 4. Date of Offence Offence Sentence 3 October 2019 Disqualified driving 16 months imprisonment 3 October 2019 Drive unregistered vehicle Convicted and not further punished 3 October 2019 Drive uninsured vehicle Convicted and not further punished 3 October 2019 Number plate attached when registration has been cancelled Convicted and not further punished 3 October 2019 Fail to remain at a place Convicted and not further punished -- 2 of 6 -- 3 [5] The appellant filed a Notice of Appeal in the District Court registry on 12 November 2020. The appellant no longer pursues ground one of the appeal, that being that the conviction was unreasonable and unsupported by the evidence. The appeal instead is against the sentence imposed by the learned Magistrate on the ground that the sentence imposed was manifestly excessive. [6] The appeal is pursuant to section 222 of the Justices Act 1886. Such an appeal is to be conducted as a rehearing on the evidence below,2 that is, a review of the record of proceedings rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a great deal of weight on the Magistrate’s view.3 In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.4 [7] Sentencing involves the exercise of a discretion. Accordingly, the principles referred to in House v The King5 are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because he has allowed irrelevant matters to affect him, mistaken the facts or failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh. The circumstances of the offending [8] The circumstances of the offending were revealed in the evidence of Senior Constable Kressibucher at trial.6 On 3 October 2019 the appellant was stopped by police for the purpose of a licence check and random breath test. The appellant returned a negative test result on the breath test but was unable to produce a driver’s licence. He provided his name and date of birth, enabling police to conduct checks and revealing that his licence was disqualified. Police requested that he step out of the car, at which point he drove away, ignoring the directions of police to stop. The vehicle was uninsured and unregistered and had registration plates affixed to it which had been cancelled. Police were unable to locate him immediately and issued a warrant for his arrest. 2 Justices Act 1886 s 223. 3 Robinson Helicopter Co Inc v McDermott (2016) 90 QLJR 679, 686 at [43]. 4 Allesch v Maunz (2000) 203 CLR 172 at [22]-[23]. 5 (1936) 55 CLR 499. 6 Transcript of Magistrates Court proceedings, page 3, line 28 to page 12, line 45. -- 3 of 6 -- 4 The appellant’s antecedents [9] The appellant was 54 years of age at the time of the offences, and 55 years of age at the time of sentence. He has a considerable criminal history and an appalling and highly relevant traffic history. His traffic history commenced in 1983 and includes 19 convictions for disqualified driving. The appellant has been sentenced to terms of imprisonment for disqualified driving on eight occasions, ranging from two months to nine months imprisonment. The most recent of those convictions was on 31 January 2020 when the appellant was sentenced to nine months imprisonment to be served cumulatively upon an activated suspended sentence of nine months imprisonment with a parole release date after he had served six months imprisonment. A further sentence of one month imprisonment imposed for an offence of failing to appear was also ordered to be served cumulatively with the two nine month terms. The offences for which the learned Magistrate imposed sentences were committed prior to the activation of the suspended sentences. It is unclear on the face of the traffic and criminal history whether the appellant was nonetheless subject to a suspended sentence at the time of the commission of the offences. Legal Error [10] Whilst it is articulated that the learned Magistrate erred by imposing a parole release date and failing to impose a parole eligibility date, properly understood the error is that the learned Magistrate failed to take into account a material consideration, that being that the period of imprisonment that the appellant was liable to serve was more than three years imprisonment. Accordingly a parole release date could not be imposed. [11] The learned Magistrate was misinformed that the appellant was serving a period of imprisonment of 18 months of which he had served six months in custody. It was submitted by the appellant’s representative that a cumulative sentence of 12 months imprisonment ought to be imposed for the offences before the learned Magistrate. It was further submitted that the authorities referred to demonstrated that the range would extend down to an order for immediate release on parole.7 7 Johnstone v The Commissioner of Police [2019] QDC 109; Robson v Commissioner of Police [2019] QDC 178. -- 4 of 6 -- 5 [12] The difficulty which I am faced with now is that the appellant has served approximately seven and one-half months of the cumulative term which he now appeals. Had this error been brought to the learned Magistrate’s attention by re- opening the sentence, it could have been corrected at a much earlier time. [13] I must take into account in re-exercising the sentencing discretion the matters set out in section 78(2) of the Transport Operations (Road Use Management) Act 1995 which relevantly include all the circumstances of the case including any circumstances of aggravation or mitigation; the public interest; the appellant’s criminal and traffic histories, and whether the offences were committed in association with other offences and the nature of those other offences. An aggravating feature of the appellant’s offending was the fact that he drove away from the police upon their identifying him as a disqualified driver, indicating his lack of remorse. The appellant does not have the benefit of having pleaded guilty to the offences. He has an appalling traffic history for driving whilst disqualified. Whilst the other offences of which the appellant is charged are less serious, in that they do not carry imprisonment as a sentencing option, they are nonetheless relevant. Ordinarily a fine would be imposed for such offending however the appellant was convicted and not further punished in relation to each of those. [14] Deterrence, both general but more particularly personal deterrence are important features to the exercise of my discretion. The offending is serious. While not aggravated by speeding or intoxication, it involved the appellant evading police arrest for disqualified driving by again driving while disqualified. The appellant is not a youthful first offender to whom leniency would or should be extended. He is a mature man with a longstanding history of driving offences who has demonstrated a persistent disregard for the orders of the court. [15] A sentence of twelve months imprisonment imposed cumulatively on the sentence imposed on 7 May 2020 (as submitted by the appellant’s legal representative at trial) properly reflects the serious nature of the offending and sees the appellant sentenced to a period of imprisonment of less than three years. Given that the appellant has now served more than six months of that term of imprisonment I would impose a parole release date of today. -- 5 of 6 -- 6 [16] Orders: 1. The appeal is allowed. 2. The sentence for the offence of disqualified driving is set aside. 3. A sentence of 12 months imprisonment to be served cumulatively upon the sentence imposed on 7 May 2020 is imposed. 4. The appellant is to be released on parole on 4 June 2021. -- 6 of 6 --