Angel v Commissioner of Police [2018] QDC 56

DISTRICT COURT OF QUEENSLAND CITATION: Angel v Commissioner of Police [2018] QDC 56 PARTIES: Stuart James Angel (Appellant) v Commissioner of Police (Respondent) FILE NO/S: 3502/17 DIVISION: Appellant PROCEEDING: Section 222 appeal, Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court, Roma DELIVERED ON: 6 April 2018 DELIVERED AT: Brisbane HEARING DATE: 21 March 2018 JUDGE: Butler SC DCJ ORDER: 1. The appeal against sentence is allowed. 2. The sentence of the Magistrates Court imposed on 31 August 2017 is varied by: (a) Setting aside the term of 12 months imprisonment imposed for the offence of disqualified driving committed on 22 August 2017 and substituting a term of eight months imprisonment; and (b) Setting aside the term of nine months imprisonment imposed for the offence of disqualified driving committed on 23 November 2016 and substituting a term of eight months imprisonment; and (c) Both terms of imprisonment to be served concurrently. 3. Otherwise all the orders made by the Magistrates’ Court on 31 August 2017 are affirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - Justices Act 1886 (Qld) section 222 - appellant convicted on his own plea of charges of driving a motor vehicle without a driver licence while disqualified by court order - whether sentence excessive. -- 1 of 10 -- 2 Transport Operations (Road Use Management) Act 1995 (Qld) s 9(10) and (11) Robinson Helicopter Co Inc v McDermott [2016] HCA 22 Forrest v Commissioner of Police [2017] QCA 132 White v the Commissioner of Police [2014] QCA 121 Teelow v the Commissioner of Police [2009] QCA 84 House v The Queen (1936) 55 CLR 499 Markarian v The Queen (2005) 228 CLR 357 Elias v The Queen [2013] HCA 31 COUNSEL: The appellant appeared on his own behalf S Gallagher for the respondent SOLICITORS: The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the respondent This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) against a sentence imposed in the Magistrates Court at Roma on 31 August 2017. The appellant was sentenced to a head sentence of twelve months imprisonment on the charge of driving a motor vehicle whilst disqualified by a court order. His parole release date was set at a point after four months actual custody had been served. The appellant submits that the sentence was excessive and that the Magistrate took incorrect information into account. The Appeal A notice of appeal was filed on 14 September 2017 stating as the grounds that “the sentence is manifestly excessive”. The appeal is against the sentences imposed on five charges dealt with on 31 August 2017. However, at the hearing of the appeal the self-represented appellant made it clear that his appeal is only against the sentences of imprisonment imposed on two of the charges. Other penalties, the fines and disqualifications are not challenged by the appellant. In an outline of argument provided by the appellant on 29 September 2017 and in a signed and witnessed document made by him on the 23 October 2017, the appellant raised the possibility that on the appeal he may seek to lead additional factual information not provided to the Magistrate. On the hearing of the appeal the appellant desisted from seeking to lead new evidence. He explained that in the interim he had received legal advice and he understood that his appeal should be focused on the sentence imposed, recognising that by his plea of the guilty he had accepted the facts as presented by the prosecution. Having heard the appellant on this issue I was satisfied that he was making an informed decision to advance his appeal argument as an appeal against sentence without seeking to lead any new evidence on the appeal. On 5 March 2018 the respondent issued a notice of application to strike out the appeal. On 7 March 2018 the application to strike out was mentioned before Chief Judge -- 2 of 10 -- 3 O’Brien who granted leave to the respondent to file the application, and listed it for further hearing on 21 March 2018. That application was served on the appellant, who was then in custody, on 8 March 2018. The appellant is presently in custody, his parole having been suspended because of further charges. On 8 March 2018, immediately following service on the appellant, he issued a document indicating that he wished to maintain his appeal and was ready to proceed at the Court’s convenience. At the hearing counsel for the respondent indicated that in light of the appellant’s statement that he wished to proceed, the prosecution would no longer press the application to strike out. In light of the respondent’s position, I dismissed the application to strike out and proceeded to hear the appeal. Appeal Principles An appeal to the District Court under section 222 of the Act is an appeal by way of rehearing. The task of the Appellant Court in conducting an appeal by way of rehearing was recently explained by the High Court in Robinson Helicopter Co Inc v McDermott as follows: “A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge erred in fact or law.”1 The judge should consider the evidence led before the magistrate “paying due regard to the advantage the learned magistrate had in seeing the witnesses give evidence, to determine for himself the facts of the case and the legal consequences that follow from such findings fact”.2 Ordinarily, to succeed on such an appeal, especially an appeal against sentence, an appellant must establish some legal, factual or discretionary error by the sentencing court.3 Those principles are consistent with those adopted by the Court of Appeal in Teelow v the Commissioner of Police4 as applying to appeals against the exercise of discretion.5 In Teelow the Court of Appeal was considering an appeal to the District Court against sentence. The Offences The appellant was convicted, on his own plea of guilty, of five charges: 1. Using unregistered vehicle (22 August 2017), fined $450.00 in default nine days imprisonment. 2. Driving a motor vehicle without a driver licence while disqualified by court order (22 August 2017), twelve months imprisonment with ten days declared as time served, parole release set at 22 December 2017. 3. Contravene directional requirement (11 July 2017), fined $400.00 in default eight days imprisonment. 4. Possessing a thing used in the commission of the crime of possessing dangerous drugs (22 August 2017), fined $700.00 in default fourteen days imprisonment. 1 [2016] HCA 22 at [43]. 2 Forrest v Commissioner of Police [2017] QCA 132 at p 5. 3 White v the Commissioner of Police [2014] QCA 121 at [8]. 4 [2009] QCA 84. 5 Applying House v The Queen (1936) 55 CLR 499 at [504] – [505]. -- 3 of 10 -- 4 5. Possessing a thing used in the commission of the crime of possessing dangerous drugs (24 November 2016), fined $400.00 in default eight days imprisonment. 6. Driving a motor vehicle without a driver licence while disqualified by court order (23 November 2016), nine months imprisonment with ten days declared as time served, parole release set at 22 December 2017. The defendant was disqualified from holding or obtaining a driver licence for a period of 36 months from the date of sentence. The defendant only challenges the sentences of imprisonment. His primary submission being that the imposition of parole rather than a suspended sentence was unduly excessive. Each of the offences of Driving Without a Licence Authorising the Person to Drive was charged with a circumstance for aggravation that the appellant was disqualified at the time by court order. This offence attracts a maximum penalty of sixty penalty units or eighteen months imprisonment. Appellant’s Submissions The appellant spoke on his own behalf at the appeal. He submitted that the learned Magistrate had fallen into error by sentencing on the basis of incorrect information as to the number of previous offences of disqualified driving committed by the appellant. He pointed out that in this regard the judicial officer had been misled by the prosecutor’s submissions. The appellant submitted that in imposing a sentence of imprisonment with a parole release date the sentencing court had failed to have regard to the impact upon the appellant. As was apparent on the material before the Magistrate, the appellant was a permanent resident of New South Wales and responsible for a family consisting of his partner and three children. The appellant contended that a suspended sentence which would have allowed him to return to New South Wales should have been imposed in order to avoid the difficulties involved in arranging interstate parole supervision. The appellant submitted that the sentence should be suspended preferably from the 22 December 2017, the parole release date set by the learned Magistrate. In the alternative he submitted imprisonment should be suspended from the date of the appeal hearing. Respondent’s Submissions It was conceded on behalf of the respondent that the learned Magistrate sentenced on the basis of an erroneous understanding as to how many prior convictions for disqualified driving the defendant had. The learned Magistrate, in a typically careful and well-reasoned decision said: “Mr. Angel, one thing is quite clear from even the most cursory glance of your history: that you have a significant number of previous convictions. Mr. Angel, my count is that there are 10 previous convictions for disqualified driving in New South Wales, and you are been dealt with effectively for disqualified driving number 11 and number 12 in Queensland on today’s date. Unfortunately, Mr. Angel, you appear to show little heed to orders of the court not to get behind -- 4 of 10 -- 5 the wheel of a motor vehicle and drive. Your conduct is that of a persistent recidivist traffic offender, Mr. Angel.”6 Unfortunately, the learned Magistrate was incorrect in referring to ten previous convictions for disqualified driving in New South Wales. In fact the criminal history before the court only refers to six convictions for disqualified driving in New South Wales. His Honour was led into error by the submission from the police prosecutor who stated that the defendant had ten disqualified driving entries in his record. That was a mistake, no doubt brought about because there were four appeals to the New South Wales District Court which appear on the criminal history and may have been mistaken for further disqualified driving convictions. His Honour’s conclusion that the appellant is a persistent recidivist traffic offender was not inaccurate. The six disqualified driving convictions and his remaining traffic record are sufficient to qualify him for that description. However, the error is not a trivial one. In sentencing this appellant the extent of his criminal history was highly relevant to the sentence imposed. It could not be safely concluded that the error as to the number of previous disqualified driving convictions had no effect upon the sentence his Honour imposed. In that circumstance the concession by the respondent that it was a sentencing error is properly made. The respondent submits that notwithstanding the error the sentence imposed upon the appellant was an appropriate one. It is submitted that he was 27 years of age at the time and had a concerning and relevant criminal history which included his being twice sentenced for driving with a suspended licence and on six occasions being sentenced for disqualified driving. The most recent conviction of disqualified driving saw him sentenced to twelve months imprisonment with a non-parole period of three months. The respondent contends that the sentence of imprisonment of twelve months with a parole release date after four appropriately reflected the gravity of the offending and the need for personal and general deterrence. Furthermore, the appellant had committed not one but two offences of disqualified driving for which he was being sentenced. The respondent submits that the sentence imposed was not excessive. In response to the appellant’s submission that a suspended sentence rather than a sentence involving parole ought to have been imposed, the respondent contends that either order would have been appropriate and within the sentencing discretion. Material before Magistrates Court The police prosecutor outlined the circumstances of each offence. It was alleged that on 23 November 2016 at 6am the defendant was intercepted driving a vehicle. No information was provided as to the nature of the driving. The crux of that offence was that the appellant’s New South Wales licence was disqualified at the time. On 24 November 2016 at Townsville police stopped a car in which the appellant was a passenger. They located two phones belonging to him which contain messages in respect to the supply of cannabis and methylamphetamine. 6 Transcript of decision, p 2, ll 22 – 29. -- 5 of 10 -- 6 At 3am on 22 August 2017 police intercepted a vehicle at Roma. The police prosecutor alleged: “Police have observed the defendant to be the driver and a female passenger.” The appellant was disqualified from driving at the time. The vehicle was unregistered. The appellant in his written submissions questioned whether there was proof he had actually driven the car but before me he accepted that he was in charge of the car and on that basis did not dispute his guilty plea. On this occasion, as is the case with the charge of unlicensed driving on 23 November 2016, there was no allegation that the nature or length of the driving was of itself concerning. On 22 August 2017 a mobile phone belonging to the appellant was found in the car. It contained messages concerning the sale of dangerous drugs. The final charge related to the appellant’s failure on 11 January 2017 to attend, as directed, a drug diversion assessment program in Townsville. At the time these matters came before the Magistrates Court the defendant was also charged with possessing and supplying dangerous drugs in August 2017. Those matters were adjourned for an indictment to be brought in the District Court. I understand they have not as yet been finalised. Those charges cannot, and will not, play any part in my decision on this appeal. The appellant served the 4 months imprisonment up to his parole release date and in addition has served about a further two months due to his parole been suspended. This appears to be because he is facing further charges. Offending history The police prosecutor referred to the appellant’s criminal history, inaccurately stating the appellant had 10 disqualified driving entries on his New South Wales record. In fact there were only six. A copy of the New South Wales criminal history document was before the learned Magistrate. The most relevant previous convictions are: Court Date Offence Date Charge Sentence (after appeal) 15 June 2009 19 February 2009 Driving while suspended Fine $250 15 June 2009 19 January 2009 Driving while suspended Fine $250 9 November 2009 2 July 2009 Driving while disqualified x2 Periodic detention 9 months 3 March 2010 6 December 2009 Driving while disqualified 12 months imprisonment (7 -- 6 of 10 -- 7 Court Date Offence Date Charge Sentence (after appeal) months non parole period) 6 July 2011 11 June 2011 Driving while disqualified Intensive corrections order: 1 year 1 month 6 July 2011 13 June 2011 Driving while disqualified Intensive corrections order: 1 year 2 months. 1 February 2017 14 April 2016 Driving while disqualified 12 months imprisonment (3 months non-parole period) The New South Wales courts imposed successive disqualifications from driving from at least January 2014 up to January 2018. The appellant’s current disqualifications continue to 2029. The appellant was also convicted and fined $300 in Queensland on 12 July 2016 for driving without a licence on 11 May 2016. Consideration The effective sentence imposed by the learned Magistrate for the various offences dealt with on 31 August 2017 was a 12 month term of imprisonment, with parole release set for 22 December 2017 (a date 4 months after the appellant’s arrest). Ten days pre-sentence custody was taken into account on the sentence. In addition, various fines totalling $1,950 were imposed. The overall penalty was substantial, involving as it did actual imprisonment plus significant fines. The concession made by the respondent that the learned Magistrate erroneously took into account inaccurate information as to the defendant’s criminal history resulted, in my view, in the sentencing process falling into error. It follows that I must sentence afresh on an independent assessment of the material placed before the Magistrates Court. Sentencing, as explained by the High Court in Markarian v The Queen7, involves the balancing of multiple factors, while always being mindful of the relevant legislative provisions and legal principles. While careful attention to the maximum penalty “is almost always required”, it will not always play a decisive role in the final determination.8 Nevertheless, the maximum penalty is a necessary starting point. Here the maximum penalty under the Transport Operations (Road Use Management) Act 1995 (Qld) for driving while disqualified was 60 penalty units or 18 months 7 (2005) 228 CLR 357. 8 Elias v The Queen [2013] HCA 31 at [27]. -- 7 of 10 -- 8 imprisonment. The sentence imposed by the Magistrates was therefore two-thirds of the applicable maximum penalty. The appellant was sentenced for six offences, four of which were relatively minor. The most significant sentences were the two disqualified driving offences. A significant mitigating factor is the appellant’s plea of guilty; his sentence must incorporate a benefit for that timely plea. In addition the ten days of pre-sentence custody must be taken into account. The court was advised the appellant was employed as a fibre optics technician and was the sole income earner in his family, financially supporting three children aged 11 months to three and a half years. His partner was said to be pregnant with another child due in April 2018. Before me the appellant expressed a desire to return to New South Wales to be with his family. He said he would be able to live with his parents. A relevant aggravating factor is the appellant’s serious criminal and traffic history. The sentencing principle in this regard is to be found in subsections (10) and (11) of section 9 of the Penalties and Sentences Act 1992 (Qld): “(10) In determining the appropriate sentence for an offender who has 1 or more previous convictions, 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 – (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction. (11) Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.” In relation to the two offences for drug related offending, it is relevant to note that the appellant had no previous convictions for drugs in either New South Wales or Queensland. The appellant’s serious history of multiple offending for driving while disqualified is of importance. A break in the offending occurred between 2011 and 2016 and was explained by the appellant as being due to his having a settled relationship and employment during that period. Discord in his relationship in 2016 appears to have prompted a return to offending behaviour. There was a driving offence in New South Wales in April 2016 and in Queensland in May 2016. The former resulted in his been sentenced in New South Wales on 1 February 2017 to twelve months imprisonment with a non-parole period of three months. He went into custody on 8 December 2016 with release on 7 March 2017. The first of the Queensland disqualified driving offences the subject of this appeal was committed on 23 November 2016, just prior to when his New South Wales sentence of imprisonment was imposed. Had the New South Wales Court on 1 February 2017 been able to also sentence him on the Queensland offence it is unlikely he would have received any additional imprisonment to the twelve months imposed on that occasion. The second disqualified driving offence the subject of this appeal was committed on 22 August 2017, about five months after his release from prison in New South Wales. -- 8 of 10 -- 9 Reoffending so soon after serving imprisonment for similar offending is an aggravating factor. It is relevant to note, as the prosecutor helpfully explained to the learned Magistrate, that under New South Wales legislation a second or subsequent offence of disqualified driving attracts a maximum penalty of two years imprisonment. That is a higher maximum than the eighteen months provided under the Queensland legislation for the disqualified driving offences the subject of this appeal. It is necessary to ensure that the sentence imposed reflects the overall criminality of the offending behaviour. The sentence must not exceed what is “just and appropriate”. Applying the totality principle, it is necessary to bear in mind that not only imprisonment but also significant fines have been imposed. In addition, commission of one of the more serious offences upon which he is to be sentenced preceded the imposition of the most recent term of imprisonment in New South Wales. The most significant offence, driving while disqualified on 22 August 2017, did not have any aggravating features associated with the nature or length of the driving as is often the case with disqualified driving offences. Nevertheless, a significant term of imprisonment with a component of actual custody is justified given the appellant’s serious criminal history for disqualified driving. However, as required by section 9 (11) of the Penalties and Sentences Act 1992 (Qld), the sentence imposed must not be disproportionate to the gravity of the current offence. Given the many competing considerations, informed minds may differ on what the sentence should be. Doing my best to balance the considerations outlined above, I am persuaded that a sentence of eight months imprisonment will appropriately reflect the criminality involved and the various mitigating circumstances. The appellant submitted that a suspended term of imprisonment rather than a parole release date should have been imposed. It is true that because he is a resident of New South Wales he may experience difficulty in having his parole supervision transferred. Nevertheless, the appellant’s serious history of reoffending indicates that deterrence in the form of imprisonment may not of itself be sufficient to prevent reoffending. Parole provides supervision not available where a term of imprisonment is suspended. In my view, supervision during any term served in the community is required in the appellant’s case. As the appellant has already served about 6 months of his sentence in custody, there is nothing to be gained in varying the parole release date. I therefore do not propose to disturb the learned Magistrate’s sentencing orders except to reduce the term of imprisonment imposed on each charge of disqualified driving. The learned Magistrate’s orders as to the parole release date and declaration of pre-sentence custody will remain undisturbed. So too, his Honour’s orders as to fines and driving disqualifications will continue unaffected. The orders of the court will be: 1. The appeal against sentence is allowed. 2. The sentence of the Magistrates Court imposed on 31 August 2017 is varied by: Setting aside the term of 12 months imprisonment imposed for the offence of disqualified driving committed on 22 August 2017 and substituting a term of eight months imprisonment; and -- 9 of 10 -- 10 Setting aside the term of nine months imprisonment imposed for the offence of disqualified driving committed on 23 November 2016 and substituting a term of eight months imprisonment; and Both terms of imprisonment to be served concurrently. 3. Otherwise all the orders made by the Magistrates’ Court on 31 August 2017 are affirmed. -- 10 of 10 --