Buse v Commissioner of Police [2018] QDC 90

DISTRICT COURT OF QUEENSLAND CITATION: Buse v Commissioner of Police [2018] QDC 90 PARTIES: JAMIE KYLE BUSE (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 3106/17 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Brisbane DELIVERED ON: 24 May 2018 DELIVERED AT: Brisbane HEARING DATE: 11 May 2018 JUDGE: Farr SC DCJ ORDER: 1. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where appellant convicted of one charge of driving a motor vehicle without a driver licence while licence was suspended and one charge of driving under the influence of liquor – where appellant sentenced to twelve months imprisonment suspended immediately with a five year operational period on charge two – where appellant sentenced to two and a half years disqualification from holding or obtaining a driver licence on each charge served cumulatively – whether sentence imposed was manifestly excessive – whether sufficient weight given to allowing the offender to remain in the community – whether excessive weight given to the appellant’s traffic history – whether weight erroneously given to an uncharged act of the appellant Justices Act 1886 (Qld) s 222 Transport Operations (Road Use Management) Act 1995 (Qld) s 78, s 79 House v The King (1936) 55 CLR 499 Lowe v McMonagle [2011] QDC 109 R v de Simoni (1981) 147 CLR 383 R v Tout [2012] QCA 296 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong v The Queen (2001) 207 CLR 584 -- 1 of 12 -- 2 COUNSEL: R Cavalli (sol) for the appellant A Ballantyne (sol) for the respondent SOLICITORS: Legal Aid Office Queensland for the appellant Office of the Director of Public Prosecutions for the respondent [1] The appellant pleaded guilty in the Brisbane Magistrates Court on 7 August 2017 to the following charges: Charge 1: Driving a motor vehicle without a driver licence as licence was suspended under section 79B Transport Operations (Road Use Management) Act 1995:1 Charge 2: Driving under the influence of liquor or a drug on 2 May 2017:2 [2] On Charge 1 he was sentenced to six months imprisonment with a parole release date set at 7 November 2017. On Charge 2 he was sentenced to twelve months imprisonment which was suspended immediately with an operational period of five years. [3] On each charge he was disqualified from holding or obtaining a driver licence for a period of two and a half years and each disqualification period was ordered to be served cumulatively. [4] He now appeals against the severity of the sentence imposed in respect to Charge 2 and to the length of the licence disqualification period in respect to both charges. Circumstances of offences [5] At 9:45pm on 2 May 2017, police responded to a single vehicle collision at the intersection of Gympie Road and Murphy Road in Chermside. The appellant’s vehicle was stuck in a ‘dip’ located between the roadway and a building at that location. The vehicle was missing its front bumper bar. [6] As police arrived at the scene, the appellant entered the driver’s door of the vehicle and reversed the vehicle a short distance. He was unable to drive the vehicle from the scene due to the vehicle being stuck in the ‘dip’. Police approached the appellant’s vehicle, and stopped the vehicles engine and extracted the appellant from the vehicle. [7] The appellant was sweating profusely, had dilated pupils, spoke very rapidly, was incoherent, was drowsy, was disorientated, was falling asleep and was only able to state his name and address as replies to all questions asked by police. He was transported to the Prince Charles Hospital where he provided a specimen of blood. [8] The appellant’s blood contained amphetamine, methamphetamine, gamma-hydroxy butyric acid, nordiazepam, tadalafil and benzocaine. Police inquiries revealed that the appellant was not authorised to drive that day as his licence had been suspended since 24 March 2017. The appellant was subsequently issued with a notice to appear for the offences. 1 S 78(1) and (3)(i)(ii). 2 S 79(1)(A) TORUM. -- 2 of 12 -- 3 Grounds of appeal [9] The appellant’s grounds of appeal are as follows: 1. The sentence imposed was manifestly excessive; 2. The learned sentencing magistrate erred by failing to give sufficient weight to the principle of imposing a sentence which would allow the offender to remain in the community; 3. The learned sentencing magistrate erred by placing too much weight on the appellant’s traffic history resulting in a sentence disproportionate to the criminality involved; and 4. The learned sentencing magistrate erred by placing weight on an uncharged Act. Standard to be met on appeal [10] Section 222(1) of the Justices Act 1886 provides the appellant’s right of appeal to the District Court. Sub-section (2)(c) provides that if a defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty was excessive or inadequate. Section 223 provides that such an appeal, relevant to this matter, is by way of rehearing on the original evidence on the record. Section 225 empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just. [11] The principles governing when an appellate court may interfere with the exercise of a sentencing discretion are well-established: “The manner in which an appeal against an exercise of a discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion and substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”3 [12] To demonstrate that a sentence is excessive, an appellant must do more than show that other offenders have received lesser sentences for similar conduct. In R v Tout4 Justice Fraser held: 3 House v The King (1936) 55 CLR 499 at 505 (per Dixon, Evatt and McTiernan JJ). 4 [2012] QCA 296 at [8]. -- 3 of 12 -- 4 “….a contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’”. (Footnotes omitted). Antecedents Age [13] The appellant was 29 years of age at the time of offending and at the time of sentence. Traffic history [14] Prior to being sentenced on 7 August 2017, the appellant had appeared before a magistrate on five separate occasions between 2005 and 2017 in relation to eight offences of driving under the influence or unlicensed driving. [15] He was sentenced to terms of imprisonment on three of those occasions in relation to six offences. On the first occasion, imprisonment was ordered to be served via an intensive correction order. On the subsequent two occasions, he was immediately released on parole. 2005 conviction [16] On 20 April 2005, the appellant was sentenced in respect of an offence of driving a motor vehicle whilst over the general alcohol limit but not over the high alcohol limit and was fined $750.00 and disqualified from driving for a period of six months. 2006 conviction [17] On 17 July 2006, the appellant was sentenced in respect of three traffic related offences;  Driving without a licence disqualified by a court order on 17 May 2006;  Driving a motor vehicle whilst under the influence of liquor or a drug on 20 May 2006;  Driving without a licence disqualified by a court order on 20 May 2006. [18] The appellant was sentenced to a term of twelve months imprisonment in relation to each of those charges, to be served concurrently. [19] The terms of imprisonment were ordered to be served via an intensive correction order. [20] He was disqualified from driving for a two year period in relation to the offence committed on 17 May 2006 and for a two year period in relation to the driving under the influence charge on 20 May 2006 and for a two and a half year period in relation to the remaining charge. 2008 conviction -- 4 of 12 -- 5 [21] On 3 December 2008, the appellant was sentenced in respect to two driving related offences:  Driving without a licence disqualified by a court order repeat offender on 26 September 2008;  Driving a motor vehicle whilst over the general alcohol limit but not over the high alcohol limit. [22] He was sentenced to twelve months imprisonment in relation to each charge to be served concurrently with an immediate parole release date. [23] He was also disqualified from driving for a period of eighteen months in relation to the charge of driving under the influence and for a period of three years in relation to the other charge. The disqualification periods were ordered to take affect commutatively making a total disqualification period of four years and six months. 2013 conviction [24] On 26 June 2013, the appellant was sentenced in respect to a charge of driving without a licence disqualified by a court order on 26 January 2013. [25] He was sentenced to nine months imprisonment with an immediate parole release date and was disqualified from driving for a period of two years. 2017 conviction [26] On 20 July 2017, the appellant was sentenced in respect of one charge of driving under the influence of liquor or a drug on 23 March 2017. He was fined $950.00 and disqualified from driving for a six month period.5 Remaining traffic offences [27] The remainder of the traffic offences committed between 2005 and 2017 can be summarised as follows:  Permitting another person to drive unlicensed in 2005;  Failing to stop at a red light in 2005;  Exceeding the speed limit on five occasions in 2005, 2006, 2016 and 2017;  Wilfully driving a motor vehicle in a way that makes unnecessary noise and smoke on three occasions in 2005, 2006 and 2016;  Unlawfully making a U-turn on two occasions 2005 and 2006;  Driving a defective motor vehicle in 2006;  Driving when a passenger was not wearing a seatbelt in 2012;  Travelling in a motor vehicle with a part of the body outside the window or door of the vehicle in 2015;  Not having proper control of a motor vehicle in 2016; 5 It is to be noted that this offence occurred prior to the commission of the offences the subject of this appeal whilst his sentence hearing occurred after those offences were committed. -- 5 of 12 -- 6  Failing to comply with a condition on a Queensland licence in 2016; and  Two offences of failing to comply with the rules relating to ‘learner’ drivers in 2016. Submissions made to the Magistrate’s Court [28] In the court below the appellant’s legal representative made the following submissions: (a) The defendant had pleaded guilty at the first available opportunity6; (b) The defendant’s driving involved a single vehicle accident where no one was injured and where there was no property damage other than to the defendant’s own vehicle7; (c) Three of the drugs found in the defendant’s blood were as the result of him taking prescription medication8; The defendant offended in circumstances where he had taken his medication, then attended upon a friend’s premises where he consumed one illicit drug. It was submitted that the drug contained the three remaining drugs found in his blood. The defendant recalled entering his vehicle to drive home but had no recollection of the accident itself or of speaking to police. It was also submitted that he only had a slight recollection of recognising one of the officers who spoke to him when he was at the hospital9; (d) The defendant was out of pocket to the sum of $25,000 being the value of his motor vehicle, as his offending behaviour invalidated his insurance cover10; (e) The defendant has been unable to continue his usual employment as a concreter as his licence was suspended11; (f) The defendant is relying on his savings as income12; (g) He lived in a de facto relationship and with his father for both financial and transportation assistance13; (h) Apart from a similar offence occurring in March of 2017, the defendant’s last drink driving offence was in 200814; (i) The defendant had issues with alcohol about 10 years earlier15; (j) The defendant’s previous parole orders kept him “on the straight and narrow” for a significant period of time16; (k) The defendant had been under stress between March and May of 2017 both with work and in his relationship17; 6 Transcript p 6, l 7. 7 Hearing transcript p 6, ll 13-16. 8 Hearing transcript p 6, ll 22-24. 9 Hearing transcript, p 6, ll 38-46. 10 Hearing transcript, p 7, ll 3-4. 11 Hearing transcript, p 7, ll 19-20. 12 Hearing transcript p 7, ll 22. 13 Hearing transcript p 7, ll 24-26. 14 Hearing transcript p 7, ll 35-37. 15 Hearing transcript p 8, ll 8-9. 16 Hearing transcript p 8, ll 36-38. 17 Hearing transcript p 10, ll 21-24. -- 6 of 12 -- 7 (l) The defendant does not have a drug problem but did “fall by the wayside for a period of time”. He has since attended upon his GP. He is still taking his prescription medication and is getting his life back on track particularly now he has moved back in with his father18; (m) The court should consider an order allowing an immediate release on parole19; (n) The court could consider the imposition of a wholly suspended sentence on one charge and immediate release on parole for the other with the operational period of the suspended sentence to run for a similar time with the disqualification period of his driver’s licence20; and (o) Alternatively, the court could impose a period of imprisonment on one charge and a lengthy period of probation on the other such that the defendant is not sentenced to actual imprisonment.21 Prosecutions submissions [29] The prosecutor made no submissions on sentence. Sentence anomaly [30] An anomaly arose when the sentence for Charge 1 was imposed when the learned magistrate ordered that the appellant would be required to serve one third of the six month period of imprisonment, but erroneously set the parole release date at 7 November 2017 which was after half the sentence had passed. Submissions from the appellant’s solicitor before me suggest however that that anomaly was rectified at some later time and she then confirmed that her client was in fact released after serving only one third of the sentence. [31] Given that fact, nothing turns upon the error and, of course, that part of the sentence is not the subject of this appeal. Consideration of grounds of appeal Ground 2 [32] Given that this appeal is against the severity of a fully suspended sentence and the length of licence disqualification periods, Ground 2 (i.e. insufficient weight was given to the principle of imposing a sentence which would allow the offender to remain in the community) is irrelevant and requires no further consideration. The appellant’s solicitor conceded that point during her oral submissions. Grounds 1 and 3 [33] The relevant penalties for these charges are: Charge 1: Two years minimum licence disqualification and a five year maximum disqualification22. 18 Hearing transcript p 10; ll 24-28. 19 Hearing transcript p 10, ll 3-6. 20 Hearing transcript, p 10, ll 11-15. 21 Hearing transcript, p 10, ll 30-36. 22 Sections 78(1)(b) and (3)(i)(i) TORUM -- 7 of 12 -- 8 Charge 2. Eighteen months imprisonment. Disqualification of a driver licence ranging from a minimum period of 12 months to a maximum period of absolute disqualification.23 [34] In respect of Charge 2 the appellant submits that the sentence imposed was excessive and that a fully suspended sentence of six months’ imprisonment with an operational period of two years should be preferred and that the licence disqualification period should have been restricted to 18 months. [35] In respect of Charge 1 the appellant submits that a disqualification period of two years should have been preferred. [36] In support of these submissions the appellant relies heavily on just one single judge decision: Lowe v McMonagle [2011] QDC 109. [37] In that matter the offender pleaded guilty to one charge of driving under the influence and one charge of driving whilst disqualified by court order. He was sentenced at first instance in respect of each charge to six months imprisonment suspended after he had served two months. He was also disqualified from driving for a period of two years on each charge with each period to be served cumulatively. Both charges carried a maximum penalty of eighteen months’ imprisonment. On appeal, the two month period of imprisonment was reduced to 14 days. [38] The relevant facts relating to that matter are as follows: “[4] The offences occurred at about 10.40 am on 12 September 2010 when the appellant (who was born on 17 October 1971 and is now 39 years old] was driving a black Ford utility, which he had borrowed from a friend, on Cottonwood Street, Mudjimba, when he collided with the rear of a silver Subaru Forester parked outside the Mudjimba caravan park. The appellant contacted triple zero and sought the attendance of emergency services. Fortunately there was no occupant in the silver Subaru Forester and the appellant was not significantly injured. [5] Subsequent analysis of the appellant’s blood specimen revealed a blood alcohol content of .179 per cent and also the presence of amphetamine, methyl amphetamine and morphine. [6] When interviewed on 15 January 2001, after voluntarily attending at the Maroochydore Police Station for this purpose, the appellant admitted his offending. He explained that he had been fishing over the weekend with mates at Mudjimba and consuming alcohol. Then and after returning to a friend’s house for a few hours early on the morning of 12 January 2001, he left in the black Ford to return to his own residence at Mudjimba. He stated that he remembered driving down Cottonwood Street, Mudjimba but that he must have blacked out because the next thing he knew was that he 23 Section 86(5) TORUM. -- 8 of 12 -- 9 had collided with the parked Subaru. The appellant also told the investigating police that he had not had a driver’s licence for over three years and had lost if for a drive under the influence of liquor offence about two years before. He refused to answer any questions in relation to the drugs found in his blood specimen. [7] Accordingly and in addition to the offence of driving under the influence and the involvement in the collision with the parked car as a consequence of that, there was also the serious aspect of disqualified driving. That feature was present as a consequence of a long and concerning history of driving offences on the part of the appellant. [8] In summary that history demonstrated that in a period between 12 June 1991 and 18 February 2010 the appellant had committed: (a) three offences of driving under the influence of liquor (with readings between .158 and .205); (b) five offences of driving with a prescribed blood alcohol content (with readings ranging from .077 to .148); (c) three offences of disqualified driving; (d) five offences of using an unregistered vehicle; (e) two offences of being an unlicensed driver; (f) two offences of failing to wear a seat belt; and (g) two offences of speeding. [9] For this offending the appellant had been: (a) fined sums between $240 and $2,500; (b) disqualified from holding or obtaining a driver’s licence 12 times; and (c) placed on probation once. … 11. However, and as is apparent from what has been set out so far, the particularly concerning aspect of this serious combination of offending circumstances is that it not only occurred in the context of that history of driving offences but also less than seven months after the most recent entry resulting in the disqualification of the appellant’s drivers licence, by court order.” [39] In that matter the offender presented a favourable pre-sentence report to the court and he had successfully completed an Alcohol Court Diversion Program and had sought assistance from a program with Drug-Arm. [40] Of course, whilst that decision is not binding, it nevertheless provides some assistance when determining whether the sentence imposed in the current matter is excessive. There are however some important distinguishing features between that matter and this: -- 9 of 12 -- 10 (a) in that matter the offender did not attempt to continue to drive his vehicle after the collision as did the offender in this matter; (b) in that matter the offender contacted emergency services to notify the authorities of the collision; (c) in that matter the offender had never previously been sentenced to a term of imprisonment; (d) in this matter the appellant has been previously sentenced to terms of imprisonment (albeit with immediate release) for six driving offences that had occurred on three separate occasions. Furthermore, on two of those occasions he had been sentenced to 12 months imprisonment; (e) in that matter the offender had most recently previously offended seven months earlier. In this matter the appellant had most recently offended only two months earlier; (f) in that matter the offender had taken positive steps towards addressing his alcohol and drug problems and his rehabilitation was underway. This appellant however, has not taken any such steps other than attending at his GP and living back with his father. In fact, this appellant specifically denied having either a continuing alcohol or drug problem. Such a claim seems quite inconsistent with his offending conduct in March and May 2017. [41] Of course, it is not sufficient that a sentence only be demonstrated to be a severe one, or even unusual as a response to the general type of offending involved. As was said in Wong v The Queen:24 “… appellant intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the Appellate Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” [42] Taking all these matters into account, whilst the head sentence imposed on Charge 2 in this matter is undoubtedly heavy, I cannot conclude that it is excessive or that it is demonstrative of some error on the part of the magistrate. That is particularly so given that it was suspended in its entirety. [43] Furthermore, imposing the maximum allowable operational period is understandable given the appellant’s lengthy and serious driving history. Operational periods are designed to persuade offenders to not break the law during their duration. The appropriate length of such a period in any given case necessarily depends upon the individual features present in that case. In this matter, the appellant’s traffic history justifies a five year operational period. [44] I also note the provisions of s 9(10)(a) of the Penalties and Sentences Act 1992 that provides that the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to: 24 (2001) 207 CLR 584 at [58]. -- 10 of 12 -- 11 (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction. [45] Nor am I satisfied that the sentence imposed was disproportionate to the gravity of the offence. As was said in Veen v The Queen [No. 2]:25 “The previous criminal history of an offender may be taken into account in determining a sentence. But it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. The history is relevant to show whether the offence is an uncharacteristic aberration or whether in it the offender has manifested a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. It is legitimate to take account of the previous history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or a need to impose condign punishment to deter him and other offenders from committing similar offences.” [46] In my view, the appellant’s driving history, notwithstanding some periods of compliance with the traffic laws, demonstrate that the appellant has a “continuing attitude of disobedience of the law”. [47] It follows from all of this that I find these grounds of appeal unpersuasive. Ground 4 [48] The appellant has also submitted that the learned magistrate determined the sentences after erroneously placing weight on an uncharged act by making reference to “dangerous driving” in her sentencing remarks26 when she said: “Despite the fact that you have entered an early plea of guilty, at the end of the day, at the end of this sentence, your traffic record speaks against you too radically, in conjunction with the dangerous driving, and lack of any evidence that you have done very much to change your lifestyle from time to time.” [49] It is my view however, that the magistrate’s reference to “dangerous driving” is contextualised by her earlier statement that driving under the influence of drugs presents as a danger to other road users.27 That is a view that the magistrate was entitled to hold and is relevant to the determination of an appropriate sentence. [50] I can therefore find no evidence to support the proposition that this experienced magistrate misdirected herself by placing weight on an uncharged offence and this ground of appeal must therefore fail. [51] Finally, I turn to the disqualification periods imposed. The appellant has acknowledged that cumulative terms were mandatory,28 but submits that an overall 25 [1988] HCA 14; (1988) 164 CLR 465. 26 R v de Simoni (1981) 147 CLR 383. 27 Transcript of decision, p 2, ll 13-23. 28 Pursuant to section 90C(3) TORUM. -- 11 of 12 -- 12 period of five years is excessive. I note though, that the maximum terms available were five years for Charge 1 and absolute disqualification for Charge 2. Given his history, in my view, the defendant should consider himself fortunate that he was not disqualified absolutely. A five year term is not excessive. Order [52] Appeal dismissed. -- 12 of 12 --