Ayling v Commissioner of Police [2017] QDC 42

DISTRICT COURT OF QUEENSLAND CITATION: Ayling v Commissioner of Police [2017] QDC 42 PARTIES: GAVIN MARK AYLING (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 3570 of 2016 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: Ex tempore reasons given 17 February 2017 DELIVERED AT: Brisbane HEARING DATE: 17 February 2017 JUDGE: Kefford DCJ ORDER: 1. The appeal is dismissed. 2. I order that the sentence imposed on 12 August 2016 is confirmed. 3. I order that a bench warrant issue for the arrest of Gavin Mark Ayling. I further order that the warrant lie in the Registry for 72 hours. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to 15 months imprisonment with a parole release date fixed and disqualification from driving for four years with conviction recorded – whether the sentence was manifestly excessive in all the circumstances – whether the approach to sentencing was a mathematical approach – whether the appellant’s traffic record is indicative of a person who has a continuing attitude of disobedience of the law Justices Act 1886 (Qld), s 222, s 223, s 225 Penalties and Sentences Act 1992 (Qld), s 9, s 11 Transport Operations (Road Use Management) Act 1995 (Qld), s 78 -- 1 of 6 -- 2 Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 084 House v The King (1936) 55 CLR 499; [1936] HCA 40 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 R v Jackson [2011] QCA 103 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 R v McCann [2016] QCA 216 Lutz v Newbury [2013] QDC 144 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Queensland Police Service v Gregory [2010] QDC 388 Vickers v Timothy [2009] QDC 255 Monday v Queensland Police Service [2012] QDC 167 COUNSEL: Robert Gordon for the appellant Michael Lehane for the respondent SOLICITORS: Rostron Carlyle for the appellant Office of the Director of Public Prosecutions for the respondent -- 2 of 6 -- 3 HER HONOUR: This is an appeal under section 222 of the Justices Act 1886 against a sentence imposed in the Magistrates Court in Brisbane on the 12th of August 2016. Section 222(2)(c) of the Justices Act 1886 provides that where the defendant pleads guilty then the person may only appeal on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. Section 225(1) of the Justices Act provides that on the hearing of an appeal the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers appropriate. The powers of the appellate Court are exercisable only when the appellant can demonstrate that having regard to all the evidence now before the appellate Court the order that is the subject of the appeal is the result of some legal, factual or discretionary error, as is apparent from Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84 at paragraph 4. Section 223(1) of the Justices Act provides that the appeal is to be by way of rehearing on the evidence given in the proceedings before the justices. By way of background, on the 12th of August 2016 the appellant pleaded guilty to the offences of failure to appear in accordance with undertakings and to the offence of disqualified driving. In relation to the driving offence, at approximately 8 pm on Friday 18 December 2015 Boondall Tactical Crime Squad were patrolling Webster Road at Stafford. The appellant was intercepted driving a motor vehicle. He was intercepted for a random breath test and licence check. At the time the appellant had just been to the tavern to place a few bets. The appellant produced a health care card and said that he did not hold a licence. He told the police that he was disqualified until the end of that month or the following month. Checks on the system showed that the appellant was subject to a two year disqualification from 23 January 2014 until 22 January 2016. On the count of failure to appear in accordance with the undertakings the appellant was convicted and fined $300. On the count of driving while disqualified the appellant was sentenced to 15 months imprisonment. A parole release date was fixed at 12 February 2017 – that is, six months – and disqualification for driving for four years and conviction recorded. Only one aspect of the orders is challenged, namely, the imposition of the 15 months’ imprisonment with six months to be served. The sentence is appealed on the basis that it is manifestly excessive in all of the circumstances. In terms of the antecedents of the appellant, the appellant was born on the 19th of April 1968. He was aged 47 years at the time of the offence and was 48 at the time of sentence. The appellant has an extensive Queensland criminal history and traffic history. The appellant has 10 previous convictions of disqualified driving on his traffic history. On 21 May 1996 he was fined $1200 and disqualified absolutely. On the 18th of November 1997 he was convicted of two offences and received 12 months’ imprisonment. He was disqualified absolutely. On 13 August 1999 he received 12 months’ imprisonment and was disqualified absolutely. On 12 November 1999 he received 18 months’ imprisonment and was disqualified absolutely. On 4 August 2000 he received 18 months’ imprisonment. On 13 November 2008 he was convicted of two offences, for which he was fined $1500 and $650. He was disqualified for 30 months. On 23 July 2012 he was disqualified for 24 months. On 23 January 2014 he was disqualified for 24 months. The appellant also has 10 previous convictions for unlicensed driving. The appellant’s criminal history also contains convictions of other offences with respect to the use of motor vehicles, including convictions for unlawful use of a motor vehicle in 1987, 1988, 1991 and -- 3 of 6 -- 4 1992. Reference to the appellant’s Queensland criminal history also discloses that while there is a significant period where there are no traffic offences, that period coincides with the appellant having spent a considerable time in jail in relation to other offences. To succeed on an appeal against a Magistrate’s exercise of sentencing discretion the appellant must establish an error of the type identified in House v The King [1936] 55 CLR 499; [1936] HCA 40. It is not enough that this Court considers that if it had been in the position of the Magistrate it would have taken a different course. Where it is alleged that a sentence is manifestly excessive, appellant intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases: Wong v R [2001] 207 CLR 584 at [58]; [2001] HCA 64. As was observed by Chesterman JA in R v Jackson [2011] QCA 103 at [25]: The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law. Manifest error arises if the sentence is beyond the range of sentences that could have been imposed. It is revealed by a consideration of all of the matters that are relevant to fixing the sentence: Hili v R [2010] 242 CLR 520 at 539, [60]; [2010] HCA 45. In R v McCann [2016] QCA 216, Gotterson JA observed: I now turn to the stated ground of appeal. To succeed in a challenge to a sentence as being manifestly excessive a person in the position of the applicant must show that the sentence is “unreasonable or plainly unjust” such that it may be inferred that in some ways there has been failure to properly exercise the discretion which the law reposes in the court of first instance. The same principle was recently affirmed by French CJ and Keane and Nettle JJ in R v Pham: “Appellant intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” At the sentencing hearing before the Magistrate the solicitor for the appellant submitted that the appellant’s traffic history was horrendous, making reference to the 10 convictions for disqualified driving and the 10 convictions for unlicensed driving. In mitigation of penalty the appellant’s solicitor relied on the following features: the appellant’s early plea of guilty; the health of his partner; the fact that he plays a significant role in the care of his partner and ceased work to care for his partner (on that issue, though, it was acknowledged by the solicitor that the partner would “survive without him” as she had children who could assist); his antecedents, including being employed for most of his adult life; his cooperation with police; his volunteering and qualifications and that he and his partner have the appellant’s -- 4 of 6 -- 5 youngest child, who is 18, living with them and they were in the process of seeking custody of his partner’s grandchild. The sentencing remarks indicate that the Magistrate took into account the following matters: the traffic history of the appellant; the sentencing principles and guidelines in sections 9 and 11 of the Penalties and Sentences Act 1992 and the principles in section 78(2) of the Transport Operations (Road Use Management) Act 1995. The appellant submits that the sentence is manifestly excessive. Counsel for the appellant made reference to sections 9(10) and (11) of the Penalties and Sentences Act 1992 and to Lutz v Newbury [2013] QDC 144, where this Court observed that the approach to sentencing ought not be mathematical. In particular, it was submitted that a mathematical approach had been taken and the sentence imposed offended section 9(11) of the Penalties and Sentences Act. The sentencing remarks do not disclose a mathematical approach. In the sentencing remarks the Magistrate observed that the offending may not be the worst offence of its kind but moral fault was high as it involved contempt of Court by a repeat and probably habitual offender who drives illegally if and when it suits him and not because he has no other choice. The Magistrate also observed that: … on the material before me, Mr Ayling looks like a recalcitrant, who refuses to submit to the authority of the law as a matter of personal convenience, despite the potential penal consequences. To date, a series of increasingly heavier sentences have failed to deter and reform him. The time has come for the imposition of a proportionate condign punishment calculated primarily to deter and punish, but also to prevent and protect. This is clear and apparent recidivist behaviour, and it aggravates culpability. His solicitor describes the offending as horrendous, and I agree. It was, in my opinion, entirely fair for the Magistrate to have made such observations and to take them into account in determining an appropriate sentence. As the High Court stated in Veen v R (No 2) [1988] 164 CLR 465 at 477; [1988] HCA 41: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. In my view, the appellant’s traffic record is indicative of a person who has a continuing attitude of disobedience of the law. -- 5 of 6 -- 6 Counsel for the appellant also submitted that the sentence was manifestly excessive in that it did not appropriately reflect the plea of guilty and also when regard is had to other cases. The sentencing remarks reveal that the Magistrate took into account comparable cases, including Queensland Police Service v Gregory [2010] QDC 388; Vickers v Timothy [2009] QDC 255 and Monday v Queensland Police Service [2012] QDC 167. He also took account of the maximum sentence of 18 months. While the sentence imposed was greater than those imposed in the cases considered by the Magistrate, it was entirely fair, in my opinion, for the Magistrate to have imposed the sentence of 15 months. General deterrence is a primary factor. Importantly, the appellant is and was at the time of the offending a man in his 40s with an appalling criminal and traffic history. In my opinion, the sentence is not beyond the acceptable scope of judicial discretion. In terms of the plea of guilty, the plea was an early plea but was made in the face of a very strong Crown case. The Magistrate was entitled to take that into account: Queensland Police Service v Gregory [2010] QDC 388 at 1-13. Further, it is apparent from the sentencing remarks that allowance was made for the early plea. It was used to reduce the head sentence and taken into account in setting the parole release date. In all of the circumstances the sentence is not, in my view, manifestly excessive. I propose the following orders: (1) the appeal is dismissed; (2) I order that the sentence imposed on 12 August 2016 is confirmed; and (3) I order that a bench warrant issue for the arrest of Gavin Mark Ayling. I further order that the warrant lie in the registry for 48 hours. -- 6 of 6 --