Ehlers v Queensland Police Service [2017] QDC 6

DISTRICT COURT OF QUEENSLAND CITATION: Ehlers v Queensland Police Service [2017] QDC 6 PARTIES: VINCENT NORTON EHLERS (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 3221 of 2016 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 27 January 2017 DELIVERED AT: District Court at Brisbane HEARING DATE: 20 January 2017 JUDGE: Reid DCJ ORDER: 1. The appeal be allowed. 2. The sentence for the offence of dangerous operation of a motor vehicle when adversely affected by an intoxicating substance be reduced to 18 months imprisonment. 3. The other sentences not be interfered with. 4. The parole release date of 1 February 2017 not be interfered with. CATCHWORDS: APPEAL – juvenile history wrongly admitted – judicial error below – sentence – relevance of intelligence and psychiatric assessments – likelihood of parole – subsequent sentence for earlier offending SOLICITORS: Mr Ehlers was self-represented P. Adams (legal officer with the Department of Public Prosecutions) for the respondent instructed by Public Safety Business Agency [1] The appellant was, on 1 August 2016, convicted before a learned magistrate of four offences, namely: dangerous operation of a motor vehicle when adversely affected by an intoxicating substance, failing to comply with the duties of a driver involved in a motor vehicle accident in that he failed to give his particulars to the other driver, driving without a license and breach of bail. He was sentenced to a head sentence of -- 1 of 5 -- 2 2 years imprisonment on the dangerous operation charge and lesser prison sentences on the license offence and breach of bail. He was convicted but not further punished in respect of the failing to comply with the duty of a driver offence. 51 days of pre- sentence custody, for the period, so far as I can ascertain, from 9 June 2016 to 31 July 2016, was declared as time served and a parole release date of 1 February 2017 was set, that is, release after serving 234 days, or a little under 8 months, of his head sentence. [2] On the appeal he was self-represented. In addition to the material before the learned magistrate he tendered, with the consent of the respondent, three additional documents namely, a memorandum under the hand of Denise Holland-Roach to the Manager Offender Development, Brisbane Correctional Centre, of 17 September 2012, a four page report of Katie Veretennikoff and Lynley Mill of 12 November 2013 and a two page memorandum of Katie Veretennikoff to the Manager Offender Development, Wilston Correctional Centre, of 7 November 2013. [3] During the course of the appeal, the respondent conceded that the police prosecutor had wrongly tendered, and the learned magistrate wrongly admitted, the appellant’s full criminal history including all of his juvenile history. Except on three occasions, no conviction had been recorded when he was sentenced in the Childrens Court. To admit the whole of that record was contrary to provisions of s 148 of the Youth Justices Act which provides: (1) In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded. [4] That subsection had been amended, to make such history inadmissible, by s 15 of Act number 38 of 2016, the Youth Justice and Other Legislation Amendment Act (No 1) which, relevantly, commenced on 1 July 2016, a month prior to the appellant’s sentence. Previously, subsection (1) was subject to subsection (3) of s 148 of the Act which provided that a court sentencing an adult could admit evidence that as a child the adult had committed an offence even if a conviction was not recorded. [5] Thus only the admission into evidence of three juvenile sentences, namely those imposed on 23 September 2003, 17 June 2005 and 2 February 2007 were lawful. Those from 27 November 2001 to 30 May 2003, and on 25 November 2004, 22 March 2005 and 5 April 2006 were not. The magistrate, in her sentencing remarks, referred to the appellant’s “very serious criminal history” which, she said “runs from 2001 and in 2002 you were dealt with for wilful damage and then consistently right through the 2000’s, you’re before the court for being a violent person with and without cars”. [6] There are motor vehicle offences in his juvenile record in February 2003 and again in May 2003 when no conviction was recorded. To have received evidence of all of those children’s matters when no conviction was recorded was contrary to law and to have referred to the appellant’s juvenile history with respect to those matters indicates that the learned magistrate was influenced by them. [7] There was a further error in Her Honour’s sentencing remarks. In relation to the dangerous operation of a motor vehicle offence, the learned magistrate said: “The most serious (offence) is the dangerous operation of the motor vehicle when you would not pull over. The police tried not once, but -- 2 of 5 -- 3 twice, to have you pull over and you sped away… there was even a police helicopter involved in trying to stop you.” [8] The police brief on the magistrate’s court file discloses the following summary of the charge: “Police sighted (the appellant’s motor vehicle) travelling down Mayes Avenue. The vehicle stopped at the red traffic light at the intersection of Mayes Avenue and Kingston Road. Once the traffic light went green the vehicle has turned left into Kingston Road and stopped at the red traffic light at the intersection of Kingston Road and Queens Road. Shortly after this traffic light has turned green, the offending vehicle has proceeded to turn sharply and travel directly across three lanes of north-bound traffic on Kingston Road and then across another three lanes of south-bound traffic on Kingston Road against a red traffic arrow. Multiple vehicles travelling south-bound on Kingston Road have had to take evasive action to avoid a collision with the offending vehicle. Police have lost sight of the vehicle as it took off at speed, east down Queens Road in Slacks Creek. The police helicopter has observed the offending vehicle perform the mentioned dangerous manner of driving and has then observed the offending vehicle to travel a short distance on the wrong side of the road on Queens Road. The vehicle has proceeded to correct itself and move to the correct side of the road before losing control and again ending up on the incorrect side of Queens Road. The vehicle has then had a head-on collision with another vehicle which was travelling west on Queens Road.” [9] In my view, that schedule of facts does not indicate police tried to stop the appellant’s vehicle. It does not support what the learned magistrate said about police twice trying to pull the appellant over but not being able to do so and of the appellant speeding away and does support her statement that the helicopter was involved in trying to stop the appellant. Rather the helicopter used by police seems to have merely, observed the appellant’s conduct and were then able to track his movements, but it was not involved in trying to stop him. [10] In my view, the inadmissible use of the appellant’s criminal history and, additionally, those factual errors, justify, and indeed compel, the conclusion that the learned magistrate’s decision is infected by judicial error of the kind identified in House v King (1936) 55 CLR 499 where at p 503-504 the court referred to error comprised by allowing extraneous or irrelevant material to affect the decision or mistaking the facts. [11] In my view, therefore it is necessary that the appellant be sentenced afresh. [12] Before the magistrate, a report of Dr Stefan Goldfeder, a psychiatric register with the Prison Mental Health Service of 12 January 2016, had been tendered. Before me, the additional material I’ve identified was tendered by consent. The report of Dr Goldfeder spoke of the treatment the appellant was receiving for a severe personality disorder, learning disorder and intellectual disadvantage and of his prejudicial early history, including abandonment, abuse and trauma. The report spoke of the difficulties he had in prison, no doubt associated with those issues. Perhaps as a result -- 3 of 5 -- 4 of his anti-social personality disorder and impulsivity and some lack of compliance with his medication, it seems he was involved in fights within the prison, lost prison employment which he was undertaking and engaged in other behaviour which, if continued, might be likely to adversely affect any application he might make for parole. So, too, his history of breaching conditions of parole and of bail when not imprisoned could adversely impact any application for parole. [13] Before me, the appellant, in an impassioned plea, urged me to reduce the head sentence so that the accumulation of the sentence for these offences and a sentence of 18 months imposed in the District Court on 1 November 2016 and made cumulative on this sentence, would not exceed 3 years in total. That sentence, of His Honour, Judge Kent QC DCJ, is the subject of an appeal to the Court of Appeal which I was told has been listed for hearing in March. Judge Kent dealt with the appellant for two serious criminal offences committed prior to the subject offences, and for which he was on bail at the time of the subject offences. They involved breaking into a house at Calamvale with an accomplice, and, when confronted by a neighbour, threatening him with a weapon, either a knife or a chisel. For each of those offences His Honour imposed an 18 months sentence. They were made cumulative on the sentences imposed by the magistrate and because the consequence of those orders was that a head sentence in excess of 3 years was to be served, that is, 2 years imposed by the magistrate and 18 months to be served cumulatively imposed by His Honour, the provisions s 160C of the Penalties and Sentences Act meant that only a parole eligibility date, and not a parole release date, could be imposed. His Honour fixed the appellant’s parole eligibility date as 1 February 2017, the date the magistrate had set as his parole release date under the earlier sentence. [14] The additional material tendered before me related primarily to the results in an assessment of his IQ using the Kaufmann Brief Intelligence Test (KBIT-11). On the basis of that assessment, he was assessed as having a significant cognitive impairment. Although the assessment was not easy, because of the appellant’s personality and his tiredness and other issues associated with his medication, he was assessed with a level of functioning in the extremely low range. The report of 12 November 2013 concludes: “Overall, given prisoner Ehlers’ results from this assessment, including his low IQ score, the potential for meeting criteria for an intellectual disability, the significant impact of his medication, the presence of multiple psychiatric diagnoses and symptoms, significant literacy issues and the potential presence of a learning disability, prisoner Ehlers has been assessed as unsuitable for the Pathways Program. Even with the assistance of a literacy tutor in the Pathways Program, treatment gains would be unlikely. Prisoner Ehlers appears as though he would require individual and tailored treatment to understand and internalise the concepts covered in the Pathways Program.” [15] His inability to complete such a program, or others like it, I would surmise, would be likely to adversely affect his prospects of success with any application for parole. In my view, that assessment of his intelligence, and indeed the psychiatric report of Dr Goldfeder are mitigating factors of his sentence. See R v Dunn (unreported) QLDSC No 29 of 1994, 13.05.94 and the reference at [10.190] of Qld Sentencing Manual, loose leaf edition. -- 4 of 5 -- 5 [16] The issue of parole is a complicated one. There may be good reasons not to release the appellant on parole. He has a history of anti-social criminal behaviour and fraught personal circumstances. [17] On the other hand he impressed me as someone who was, at least at the time of the hearing of the appeal before me, keen to redeem himself. He was, at that time, no doubt not influenced by illegal drugs. His father and grandmother were both in court and supported him. He indicated – with the nodding approval of those relatives – that on his release, he proposed to live with them. [18] Unfortunately, before me he was un-represented and his submissions were not developed in the Court of Appeal. It may be that a cogent argument in favour of setting a parole release date could be developed. That may require up-to-date medical reports. He may, on the other hand, be too great a risk if released to contemplate releasing him on parole. [19] In my view, the Court of Appeal would be in a better position than me to determine whether he is a suitable candidate for parole release or whether the setting of a parole eligibility date is more appropriate. In any case, it is a matter solely for the Court of Appeal to consider Judge Kent’s sentence, under which the eligibility date was set. [20] I have however determined to allow the appeal and will reduce his head sentence to one of 18 months with no change to his parole release date of 1 February 2017. I’ve concluded such a head sentence, with a parole release date after serving a little under 8 months, is sufficient for his offending. It is in my view consistent with the decision of the Court of Appeal in R v Coake (unreported) No 403/98 delivered 5 February 1999. In that case the appellant had a good work history and much less of a criminal history but his dangerous driving was more culpable. He, when drunk, drove at up to 120kph through red lights and engaged in a high speed chase with police. Whilst the appellant’s conduct was dangerous, I think his personal circumstances, mainly his intellectual impairment, and the errors made by the learned magistrate that I have referred to require some amelioration of his head sentence. The motivation for his criminal activity, including his drug use which precipitated it, must all be seen against the background of his grossly prejudicial personal circumstances, much of which is unrelated to any faults of his. [21] In the circumstance, I order: 1. The appeal be allowed; 2. The sentence for the offence of dangerous operation of a motor vehicle when adversely affected by an intoxicating substance be reduced to 18 months imprisonment; 3. The other sentences not be interfered with; and 4. The parole release date of 1 February 2017 not be interfered with. [22] The consequence of my order is that the overall effect of this sentence and the cumulative sentence imposed by His Honour Judge Kent QC DCJ of 18 months imprisonment, is that a total cumulative sentence of 3 years has been imposed. That would not preclude the Court of Appeal from ordering a parole release date, at a date to be determined by them, rather than the parole eligibility date that Judge Kent was required to impose by reason of s 160C of the Penalties and Sentences Act. -- 5 of 5 --