Farrell v Queensland Police Service [2014] QDC 201

DISTRICT COURT OF QUEENSLAND CITATION: Farrell v Queensland Police Service [2014] QDC 201 PARTIES: JULIE ANNE FARRELL (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 32/14 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Rockhampton Magistrates Court DELIVERED ON: 16 September 2014 DELIVERED AT: Rockhampton HEARING DATE: 12 September 2014 JUDGE: Smith DCJ ORDER: 1. The appeal against sentence is allowed. 2. On the charge of driving without a licence disqualified by court order (repeat offender) on 30 November 2011 the sentence is varied to the extent that the parole release date of 14 November 2014 is set aside and in lieu thereof it is ordered that the date the appellant be released on parole be fixed as at 16 September 2014. Further the disqualification period is varied to 2 ½ years. 3. On the charge of driving without a licence disqualified by court order (repeat offender) on 5 January 2012 the sentence is set aside and in lieu thereof the appellant is sentenced to 12 months’ imprisonment, and it is ordered that the date the appellant be released on parole be fixed as at 16 September 2014. 4. On the charge of unlicensed driving on 5 February 2014 the Appellant is also disqualified from holding or obtaining a driver licence for a period of 6 months. 5. I declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Q) that the appellant has served 34 days in presentence custody. I state the dates are between 15 May 2014 and 19 June 2014. I declare that as time already served under the sentence. 6. The Appellant is released on parole pursuant to -- 1 of 11 -- 2 s 200(1) of the Corrective Services Act 2006 (Q). 7. The Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day. 8. If the appellant fails to do so, she will be unlawfully at large. 9. The Appellant’s legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q). 10. The sentences are otherwise confirmed. CATCHWORDS: CRIMINAL LAW- APPEAL- Whether sentence excessive- whether errors Justices Act 1886 (Q) ss 222, 223 and 225 Transport Operation (Road Use Management) Act 1995 (Q) s 78 Dempsey v QPS [2009] QDC 218 Pavlovic v Commissioner of Police [2006] QCA 134 R v D [2003] QCA 547 R v Maniadis [1997] 1 Qd R 593 Santillan v QPS [2008] QDC 33 Teelow v Commissioner of Police [2009] 2 Qd R 489 Whitney v Commissioner of the Police Service [2014] QDC 172 COUNSEL: Solicitors for the Appellant Mr. D. Jones for the Respondent SOLICITORS: McGowran lawyers for the Appellant Director of Public Prosecutions for the Respondent Introduction [1] This is an appeal against sentences imposed in the Rockhampton Magistrates Court on 15 May 2014. [2] When the Court is concerned with an appeal against sentence, the provisions of s 222(2)(c) of the Justices Act 1886 (Q) apply. That is: -- 2 of 11 -- 3 “if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” [3] 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 just.” [4] In Teelow v Commissioner of Police [2009] 2 Qd R 489, Muir JA held at [4]: “It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where 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 ...’” [5] Finally, s 223(1) of the Justices Act provides that the appeal is to be by way of rehearing on the evidence given before the justices, although in some circumstances “new” evidence may be admitted under s 223(2) if the Court is satisfied there are special grounds for giving leave. Charges [6] The defendant pleaded guilty to the following charges, and the following penalties were imposed: Date Offence Max penalty Penalty imposed 1 11 April 2011 Driving without a licence, disqualified by court order (repeat offender) s 78(1) and (3)(a) Transport Operations (Road Use Management) Act 1995 18 months imprisonment or 60 penalty units, 2 to 5 years disqualification $700 fine, two year disqualification 2 11 April 2011 Stealing (s 398 Criminal Code) Five years imprisonment (3 years if dealt with summarily) $400 fine, $80.01 restitution 3 11 April 2011 Stealing (s 398 Five years $600 fine, -- 3 of 11 -- 4 Criminal Code) imprisonment $185.05 restitution 4 6 July 2011 Driving without a licence, disqualified by court order (repeat offender) s 78(1) and (3)(a) Transport Operations (Road Use Management) Act 1995 18 months imprisonment or 60 penalty units, 2 to 5 years disqualification $700 fine, two year disqualification 5 30 November 2011 Driving unregistered vehicle (Reg 11 Transport Operations Road Use management- vehicle registration regulation 2010) 80 penalty units $356 fine 6 30 November 2011 Driving uninsured vehicle (s20(1) Motor Accident Insurance Act 1994) 80 penalty units $440 fine 7 30 November 2011 Driving without a licence, disqualified by court order (repeat offender) s 78(1) and (3)(a) Transport Operations (Road Use Management) Act 1995 18 months imprisonment or 60 penalty units, 2 to 5 years disqualification Nine months’ imprisonment, parole release date 14 November 2014, three year disqualification 8 5 January 2012 Driving without a licence, disqualified by court order (repeat offender) s 78(1) and 18 months imprisonment or 60 penalty units, 2 to 5 years disqualification 18 months’ imprisonment, parole release date 14 November 2014, three years disqualification -- 4 of 11 -- 5 (3)(a) Transport Operations (Road Use Management) Act 1995 9 5 February 2014 Contravene a direction (s 791(2) Police Powers and Responsibilities Act 2000) 40 penalty units $300 fine 10 5 February 2014 Driving without a licence s 78(1) Transport Operations (Road Use Management) Act 1995 12 months imprisonment or 40 penalty units, min 1 month disqualification max 6 months $300 fine1 11 5 February 2014 Driving unregistered vehicle (Reg 11 Transport Operations Road Use management- vehicle registration regulation 2010) 80 penalty units $352 fine 12 5 February 2014 Driving uninsured vehicle (s20(1) Motor Accident Insurance Act 1994) 80 penalty units $440 fine [7] The appellant was granted appeal bail on 19 June 2014 and thus has spent 34 days in presentence custody. [8] The appellant alleges in her notice of appeal that the sentences imposed were manifestly excessive. In an outline of submissions the appellant seeks to rely on new evidence. She also submits that the imposition of the maximum penalty on charge 8 was excessive. 1 The Magistrate in error referred to this offence as occurring on 5 April 2014 (R2.17) -- 5 of 11 -- 6 Material below [9] The appellant was unrepresented before the Magistrates Court. She pleaded guilty to each charge and entered the pleas of her own free will (T1-3). [10] The Police Prosecutor informed the Court that with respect the offence on 11 April 2011, police were investigating an offence which occurred at Southport. A white utility being driven by the appellant had made off without paying for fuel. The appellant was identified from CCTV footage. She was also disqualified from driving at that time. She was interviewed and denied any knowledge of the matters. [11] Further on the same day, the vehicle was being driven by a male with the appellant as the passenger. More fuel was obtained and no attempt was made to pay for the fuel. In the interview the appellant claimed she had no knowledge of that matter. [12] With respect to the offence on 6 July 2011, police received information that she had been driving disqualified in an unregistered vehicle at Monto. Police conducted patrols and later identified the appellant as the driver of the vehicle. She had been disqualified for six months from 9 February 2011. [13] Turning to the events of 30 November 2011, police were conducting patrols at the Peak Downs Highway at Nebo. The appellant was the driver of the vehicle. It did not appear to have a registration plate attached. She was required to produce a driver’s licence but she said she did not have one, and she said that she was disqualified. Checks revealed her to have been disqualified from driving on 13 July 2011 at the Southport Magistrates Court for six months. [14] Turning to the events on 5 January 2012, police from Nebo were conducting patrols at Water Street and intercepted a vehicle being driven by the appellant. She admitted to the police she did not have a licence, and she said the reason for driving was she had to move house straight away and there was nobody else to help. She had been disqualified from 13 July 2011 until 12 January 2012. [15] As to the offences on 5 February 2014 police observed that registration on the vehicle on which the appellant was driving had expired. She was unable to produce a licence, stating she did not have it with her. She was given a direction to state her -- 6 of 11 -- 7 true and correct name and address, but false details were given. A licence check under the false name showed that the person was the holder of a current drivers licence and an infringement notice had been issued under that name. Later, the police discovered that she had given incorrect details (her sister’s name). [16] The offence of driving without a licence which occurred that day related to the use of a red Mazda which was uninsured and not registered. [17] The appellant’s criminal history showed that she was born on 28 August 1974. Her last appearance before the Court was on 1 May 2014 on an offence of failing to appear in accordance with bail undertakings, for which she was fined. Prior to this, there were entries relative to unlawfully taking shop goods away, a fine for forgery and uttering, a fine for animal cruelty, a breach of a domestic violence order, a fine of assaulting or obstructing a police officer, and a further fine for breaching a domestic violence order. The most recent offence before 1 May 2014 occurred on 14 April 2010. [18] As to the appellant’s traffic history, this disclosed that she had numerous breaches of the traffic laws. She had been dealt with for unlicensed driving as follows: (a) 8 September 1999, Cloncurry Magistrates Court, unlicensed driving, $200 fine; (b) 6 December 2000, Cloncurry Magistrates Court, unlicensed driving, $100 fine; (c) 9 February 2011, Southport Magistrates Court, unlicensed driving, $400 fine, disqualified six months. (d) 13 July 2011, Monto Magistrates Court, unlicensed driving, $400 fine, disqualified six months; [19] In submissions to the Magistrate, the appellant submitted that with respect to the offence on 5 January 2012 she was moving a load of furniture to town and was not actually aware she was disqualified because she did not go to Court and the matter proceeded without her (T1-7.40). The Magistrate did not accept that assertion. With respect to the last count of disqualified driving (5 February 2014), she decided to drive her child to school because she was getting bullied on the bus. With respect to the unlicensed driving on 6 July 2011 in Monto, she submitted that her vehicle -- 7 of 11 -- 8 had been at the workshop getting repairs done. The repairer became quite aggressive, and she drove to check to see if her mother was all right (T1-8.11). [20] She was a mining operator by occupation and had been in the same job for about three and a-half years. She was able to catch public transport to and from work (T1- 8.30). [21] She was not represented, because she had been paying for her child to go to boarding school and was not able to afford a solicitor. She had been diagnosed with post-traumatic stress disorder and saw a psychologist once every two weeks. She had two children, one 15 and one 17. One of them was totally reliant upon her for income (T1-8.45). Reasons for decision [22] The learned Magistrate took into account the pleas of guilty in her favour. He noted that she was charged on four separate occasions for disqualified driving. He considered that personal and general deterrence were important. He imposed the penalties which I mentioned earlier. The learned Magistrate did not make reference to the family situation of the appellant when reaching his decision. The new evidence [23] The appellant submits that there are special grounds to admit the new evidence and relies on Pavlovic v Commissioner of Police [2006] QCA 134 in this regard. [24] In her affidavit sworn 19 June 2014, the appellant says that she is a single mother with two children; she has a daughter aged 15 and a son aged 17. Prior to her incarceration, they lived at Todd Avenue, Yeppoon for two and a-half years. Her daughter was attending St Ursula’s College at Yeppoon, but because of the imprisonment she had gone to stay with her sister in Brisbane and was attending a local state school. She was employed as an operator in the mines in a five- days-on/five-days-off roster, and her employer provided a bus service for staff to travel to and from work. During the period of the offending, she was diagnosed with post-traumatic stress disorder and was going through a very bitter family law battle with her former partner. She also suffered post-traumatic stress disorder from -- 8 of 11 -- 9 sexual abuse she suffered as a child. She had been seeing a psychologist in Yeppoon in relation to these problems. [25] She has never been on probation, parole nor had suspended sentences in the past. Whilst on bail for the offences, she reported weekly as required. [26] It seems to me that if a potential miscarriage of justice may occur if such evidence is not admitted, then the Court should admit the evidence (see R v Maniadis [1997] 1 Qd R 593). In light of the fact the appellant was unrepresented and in light of the important information contained in the affidavit, it seems to me there are special grounds to admit the further evidence. [27] The crown also sought to rely on new evidence namely the total SPER debt. I also admit this evidence. Determination [28] Taking into account the further evidence and also taking into account that the learned Magistrate did not refer to any other mitigating factors aside from the pleas of guilty, it is my determination that, in all the circumstances, the sentence is an excessive one. Further, it seems to me that a resentencing should occur in this case. [29] Relevant in this case also is that there is an absence of drink driving and dangerous driving offences in the appellant’s criminal history (see Dempsey v QPS [2009] QDC 218 and Santillan v QPS [2008] QDC 33). There is no allegation of risky driving at the time of apprehension on the disqualified and unlicensed driving charges. [30] I also note that the penalty imposed on one of the disqualified driving charges involved the imposition of the maximum penalty as a head sentence. In R v D [2003] QCA 547 at [43] it was said that the maximum should be imposed in the worst category of case. It is easy to imagine worse categories e.g. a serious car accident where serious injuries are occasioned to others or where the offender has previous convictions for disqualified driving. -- 9 of 11 -- 10 [31] It seems to me that in light of the fact she had never previously been sentenced to gaol for unlicensed driving offences and had no previous convictions for disqualified driving, this was not an appropriate occasion to impose the maximum penalty. [32] I also note that previously the appellant had never been given the opportunity of probation, parole or any other community based orders. [33] There is a further error. On the unlicensed driving offence from 5 February 2014 the Magistrate imposed no disqualification period. This was in error as the minimum was 1 month and the maximum was 6 months (see s78(3)(h) of the Transport Operations (Road Use Management) Act 1995 (Q).) [34] The crown argued that the penalty was not excessive and relied on Whitney v Commissioner of Police [2014] QDC 172 as a comparable case. I consider Whitney to be more serious as he had previously had the benefit of a suspended sentence and an intensive correction order. He also had 12 prior convictions for disqualified driving and 5 for drink driving. [35] In my opinion the custodial portion of 34 days is a sufficient period of actual custody to be served. [36] In the circumstances, it is my determination that the appellant should receive a head sentence of 12 months’ imprisonment on count 8, with a parole release date as at 16 September 2014. The parole release date on count 7 should also be 16 September 2014. [37] The orders will be as follows: 1. The appeal against sentence is allowed. 2. On the charge of driving without a licence disqualified by court order (repeat offender) on 30 November 2011 the sentence is varied to the extent that the parole release date of 14 November 2014 is set aside and in lieu thereof it is ordered that the date the appellant be released on parole be fixed as at 16 September 2014. Further the disqualification period is varied to 2 ½ years. -- 10 of 11 -- 11 3. On the charge of driving without a licensed disqualified by court order (repeat offender) on 5 January 2012 the sentence is set aside and in lieu thereof the appellant is sentenced to 12 months’ imprisonment, and it is ordered that the date the appellant be released on parole be fixed as at 16 September 2014. 4. On the charge of unlicensed driving on 5 February 2014 the Appellant is also disqualified from holding or obtaining a driver licence for a period of 6 months. 5. I declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Q) that the appellant has served 34 days in presentence custody. I state the dates are between 15 May 2014 and 19 June 2014. I declare that as time already served under the sentence. 6. The Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q). 7. The Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day. 8. If the appellant fails to do so, she will be unlawfully at large. 9. The Appellant’s legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q). 10. The sentences are otherwise confirmed. -- 11 of 11 --