Farrell v Queensland Police Service [2018] QDC 233

DISTRICT COURT OF QUEENSLAND CITATION: Farrell v Queensland Police Service [2018] QDC 233 PARTIES: LUKE AARON FARRELL (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 3217/2018 DIVISION: Appellate PROCEEDING: Appeal pursuant to section 222 of the Justices Act 1886 (Q) ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: Ex Tempore reasons delivered 26 October 2018 DELIVERED AT: Brisbane HEARING DATE: 26 October 2018 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed. 2. The orders made in the Magistrates Court at Richlands are set aside and in lieu thereof the following orders are made. 3. With respect to the sentences imposed in the Magistrates Court on 8 February 2018 I find the Appellant has been convicted of an offence punishable by imprisonment committed during the operational period of the suspended sentence. I order the appellant serve 9 months imprisonment with respect to the receiving of tainted property charge and 3 months imprisonment with respect to the possessing dangerous drugs charge. These terms of imprisonment are to be served concurrently with each other. 4. With respect to the charge of driving whilst a drug is present in the system a conviction is recorded and I order the appellant be imprisoned for one month. This term of imprisonment is to be served cumulatively on the activated suspended sentences. I further order the appellant be disqualified from holding or obtaining a driver licence for the period of six months. The disqualification period dates from the 17th August 2018. -- 1 of 5 -- 2 5. I order that the date the defendant be released on parole be fixed at 26th October 2018. 6. The appellant is required to report to the Probation and Parole Office as required under the Corrective Services Act 2006 (Qld) within 24 hours of his release from custody. 7. If the appellant fails to do so he will be unlawfully at large. 8. The appellant’s legal representatives have undertaken to inform him of his obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Qld). 9. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared the appellant has spent 71 days in presentence custody. I state the dates are between the 17th of August 2018 and the 26th October 2018 and I declare that to be time already served under the sentence. 10. No order as to costs. CATCHWORDS: CRIMINAL LAW- JUDGMENT AND PUNISHMENT- Whether the Magistrate erred in his approach to the matter- where disqualification period exceeded the maximum- where the maximum penalty was imposed- where the Crown concedes errors made below Corrective Services Act 2006 (Qld) Penalties and Sentences Act 1992 (Qld) ss 9, 147, 160G Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(2AA), 86 COUNSEL: Mr A Beard for the appellant Ms L Barron for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent [1] This is an appeal against sentences imposed at the Magistrates Court at Richlands. [2] The grounds of appeal are that a number of errors occurred and/or the sentence is excessive. [3] The appellant was born on the 26th of January 1985. He is now 33 years of age. His criminal history started in October of 2003. He has had drug convictions. He was sentenced to two years imprisonment in January 2014 for robbery; in June 2016 for drugs; and in May 2017 for entering premises, unlawful possession and failing to dispose of a needle and syringe. [4] On the 8th of February 2018, he received tainted property and possessed drugs. He received nine months’ imprisonment for the receiving tainted property, suspended for -- 2 of 5 -- 3 18 months, concurrently with three months for the possessing dangerous drugs, suspended for 18 months. [5] Despite that consideration, on the 23rd of May 2018, he was charged with driving whilst a relevant drug was present in his body. That is the sentence which is being appealed, together with the activation. [6] The magistrate, in this case, activated both suspended sentences. He imposed three months imprisonment, which is the maximum penalty, cumulatively on the activation, and disqualified the appellant from holding or obtaining a driver license for the period of 12 months. He was required to serve all of the three month sentence. [7] Turning to the proceedings below, the appellant entered a plea of guilty. No schedule of facts was tendered but the prosecutor informed the magistrate the appellant’s vehicle was intercepted for a random vehicle test. The test showed the presence of a relevant drug. He was detained and a second sample showed the presence of both methylamphetamine and THC. The prosecutor did not make any submission as to penalty. [8] The Defence Solicitor informed the magistrate that the appellant was working part time. He was the sole income earner for a family of six. He was supported by his wife in Court that day. He accepted he had used cannabis actively in the period. It was submitted he had not been actively using methylamphetamine, but he might have ingested the substance involuntarily. He denied using drugs on the day of the driving. He had previously struggled with a methylamphetamine addiction and, in the circumstances, the appropriate penalty was a fine rather than imprisonment, and if that submission was not accepted, the magistrate ought to release him immediately. [9] The magistrate rejected the submission the methylamphetamine could have made its way into the appellant’s system without his knowledge, which does not seem to be an unreasonable approach by the magistrate. The magistrate noted the number of drug offences, the previous penalties and said that the only appropriate penalty was one of imprisonment and imposed the penalties I have mentioned. [10] It is submitted that a number of errors occurred here, such that the sentence should be set aside. [11] Mr Beard, on behalf of the appellant, submits that, in the circumstances there should not have been an activation of the tainted property sentence, but in any event, even if there is, the penalty for the driving offence should be made concurrent and the appellant should be released today. [12] The Crown concedes here that there were three errors. Firstly, the imposition of the maximum penalty in light of the appellant’s traffic history was not warranted1. Secondly, the disqualification period of 12 months imposed exceeded the maximum allowable2. Thirdly, there was no benefit for the plea of guilty, in the sense that the whole three months had to be served. [13] I am satisfied that each of those concessions by the prosecution are accurate and in those circumstances I should resentence the appellant. 1 Section 79(2AA) of Transport Operations (Road Use Management) Act 1995 (Qld). 2 Section 86(1) of the Transport Operations (Road Use Management) Act 1995 (Qld). -- 3 of 5 -- 4 [14] Now, in sentencing him, I have regard to the principles of sentencing mentioned in s 9(1) of the Penalties and Sentences Act 1992 (Qld). I also have regard to the relevant provisions of s 9(2) of the Penalties and Sentences Act 1992 (Qld). With regard to the breaches of suspended sentences, I have regard also to the matters mentioned in s 147 of the Penalties and Sentences Act 1992 (Qld). [15] Having regard to the fact that the appellant had a number of chances, in particular, the conviction for robbery and the suspended sentences were only imposed three months before the relevant driving, I do not think it is unjust to activate both suspended sentences. I particularly bear in mind the driving involved drugs being in the appellant’s system, and of course, drugs are involved, at least in part, in the offences from February 2018. [16] The next question is what I should do about the traffic matter. I agree that the maximum penalty was too great. On the other hand, the appellant had quite a lengthy traffic history, including a number of suspensions. There has been a previous unlicensed driving offence. He had a previous BAC offence in 2002. However he had no previous driving with a drug in his system offences. [17] In the circumstances, I consider jail is appropriate in light of the criminal history, but it seems to me that one months’ imprisonment is appropriate. The next question is whether that should be imposed cumulatively or concurrently. It is separate offending to that which was imposed in February. I have adopted totality in reaching the one month conclusion. I think in all of the circumstances it should be a cumulative sentence. [18] The next issue is when he should be released. The Crown submits after a third, the 18th of November 2018. There was an early plea of guilty here. The man has a family to support. I cannot ignore that. In all of the circumstances, I am persuaded to impose an immediate parole release date and to declare the time that he has served as time already served under the sentence. [19] The parties have agreed there should be no order as to costs. [20] So in light of my reasons, the orders will be as follows: 1. The appeal is allowed. 2. The orders made in the Magistrates Court at Richlands are set aside and in lieu thereof the following orders are made. 3. With respect to the sentences imposed in the Magistrates Court on 8 February 2018 I find the appellant has been convicted of an offence punishable by imprisonment committed during the operational period of the suspended sentence. I order the appellant serve 9 months imprisonment with respect to the receiving of tainted property charge and 3 months imprisonment with respect to the possessing dangerous drugs charge. These terms of imprisonment are to be served concurrently with each other. 4. With respect to the charge of driving whilst a drug is present in the system a conviction is recorded and I order the appellant be imprisoned for one month. This term of imprisonment is to be served cumulatively on the activated suspended sentences. I further order the appellant be disqualified from holding or obtaining a driver licence for the period of six months. The disqualification period dates from the 17th August 2018. -- 4 of 5 -- 5 5. I order that the date the defendant be released on parole be fixed at 26th October 2018. 6. The appellant is required to report to the Probation and Parole Office as required under the Corrective Services Act 2006 (Qld) within 24 hours of his release from custody. 7. If the appellant fails to do so he will be unlawfully at large. 8. The appellant’s legal representatives have undertaken to inform him of his obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Qld). 9. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared the appellant has spent 71 days in presentence custody. I state the dates are between 17th August 2018 and 26th October 2018 and I declare that to be time already served under the sentence. 10. No order as to costs. -- 5 of 5 --