Bartley v Macerlich [2014] QDC 114

DISTRICT COURT OF QUEENSLAND CITATION: Bartley v Macerlich [2014] QDC 114 PARTIES: KEVIN JOHN BARTLEY (Appellant) v CONSTABLE KATHERINE MACERLICH (Respondent) FILE NO: D2 of 2014 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Emerald Magistrates Court DELIVERED ON: 23 May 2014 DELIVERED AT: Rockhampton HEARING DATE: 15 May 2014 JUDGE: Smith DCJ ORDER: 1. The order below is confirmed. 2. The appeal is dismissed. CATCHWORDS: CRIMINAL LAW- SENTENCE- whether errors by the Magistrate- whether sentence manifestly excessive Justices Act 1886 (Q) ss 222, 223, 225 Penalties and Sentences Act 1992 (Q) ss 9, 13, 234 Transport Operations (Road Use Management) Act 1995 (Q) s 78 Youth Justice and Other Legislation Amendment Act 2014 (Q) ss 34 and 39 Dansie v Kelly ex parte Dansie [1981] Qd R 1 Lutz v Newbury [2013] QDC 144 R v Costi [2001] QCA 404 R v Dwyer [2008] QCA 117 R v Tilley (1991) 53 A Crim R 1 Santillan v Queensland Police Service [2008] QDC 33 Souvlis v Commissioner of Police [2011] QDC 274 -- 1 of 11 -- 2 Teelow v Commissioner of Police [2009] 2 Qd R 489 COUNSEL: Mr. J. Clarke for the Appellant Ms. D. Kovac for the Respondent SOLICITORS: Anne Murray and Co for the Appellant Director of Public Prosecutions (Qld) for the Respondent Introduction [1] This is an appeal pursuant to s 222 of the Justices Act 1886 (Q) (JA). The appeal is against a penalty imposed in the Emerald Magistrates Court on 8 April 2014. [2] Section 222(2)(c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate. [3] Section 225(1) of the JA 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 of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …” [5] Section 223(1) of the JA provides that the appeal is to be by way of re-hearing on the evidence given in the proceeding before the Justices. Background [6] The appellant pleaded guilty to one count of driving a motor vehicle on Mayfair Drive, Emerald on 18 March 2014, when he was not, at the time, a holder of a drivers licence, having been disqualified by court order. -- 2 of 11 -- 3 [7] The learned Magistrate imposed 12 months’ imprisonment and fixed the parole release date as at 7 July 2014 (after 3 months). The appellant was also disqualified from holding or obtaining a driver licence for a period of 3 years. [8] The appellant was born on 1 April 1990 and thus was 24 years old at the time of the sentence. He had a number of criminal and traffic convictions as follows: Number Date Offence Penalty 1. 5 February 2008 Emerald Magistrates Court Commit Public Nuisance (19.01.08) No conviction recorded fined $300 2. 16 December 2008 Emerald Magistrates Court Commit Public Nuisance (1.6.08) Conviction recorded fined $600 3. 27 January 2009 Magistrates Court Learner driver without open driver present (3 January 2009); Fail to display L- Plates (3 January 2009); BAC – under .15 (.131) Fine of $1,500 Disqualified 10 months 4. 15 May 2009 Emerald District Court Assault occasioning bodily harm (1.6.08) No conviction recorded 12 months probation 5. 15 December 2009 Emerald Magistrates Court BAC – .07 (26 November 2009); Disqualified driving (26 November 2009) Breach of probation imposed 15.5.09 (fined $150) Exceed speed limit 12 months probation Disqualified 24 months -- 3 of 11 -- 4 in speed zone by at least 13km/h not more 20km/h (fined $233.00) 6. 16 August 2010 Emerald Magistrates Court Commit Public Nuisance (22.7.10) Contravene Direction (22.7.10) Conviction recorded Fine $750 7. 1 March 2011 Emerald Magistrates Court BAC - .043 (27 October 2010); Disqualified driving (28 October 2010); Breach probation order imposed 15.5.09 (fined $100); Wilful damage (28.10.10) 9 month Intensive Corrections Order Disqualified 2 years 8. 26 September 2011 Emerald Magistrates Court Disqualified driving (12 August 2011); Breach ICO 1.3.11 (fined $1200) 12 months imprisonment, immediate parole release date Disqualified for 2 years cumulative 9. 17 July 2012 Emerald Magistrates Court Commit Public Nuisance (20.5.12) Assault or Obstruct police (20.5.12) Conviction recorded Fined $1700 [9] As can be seen from the above table, the appellant had been given a number of penalties not involving actual custody prior to the imposition of the sentence imposed by the learned Magistrate. -- 4 of 11 -- 5 Submissions below [10] The police prosecutor informed the Magistrate as to the circumstances of the offence. He was intercepted driving a vehicle at Mayfair and told the police he did not have a current drivers licence. Police checks revealed he was the subject of a court disqualification from 26 September 2011 until 14 June 2014. He said that he was aware he would have been disqualified and not allowed to drive but he was driving to look for a lost puppy. He was issued a Notice to Appear. The prosecutor pointed out the previous convictions. [11] The defence solicitor pointed out to the Magistrate that the appellant had been trying hard to remain trouble free. He was in a relationship with a 21 year old woman and they had a 5 month old son. He was in full time employment as a diesel fitter and was working at the Blackwater Mine. A reference was tendered from the HM Group which indicated that he had a professional and capable attitude. [12] The appellant had never been unemployed and earned approximately $1,300 to $1,400 net per week. The de facto partner worked casually but earned a nominal amount of money. The immobilisation of the vehicle caused complications because it was the family vehicle and ordinarily used by the de-facto partner to get about. [13] The appellant had about $880 per week on financial expenses including $400 per week with respect to rent. [14] With respect to the offence, he discovered in the afternoon his two dogs were missing. He was concerned they might be a nuisance and a risk to the public and made a rash and foolish decision to drive to see if he could locate them in the area. They were not there and he went to return home and was then observed by the police to be driving. On this occasion he was driving for no more than 10 minutes. It was submitted that actual incarceration would leave his family without financial support and the court was asked to take into account the short duration of the driving, his motivation behind it and the consequences for his family. It was submitted that it had been some two and a half years since the appellant had been in court for the same kind of offence. A reference from a local rugby league football club was handed to the court. The learned Magistrate acknowledged the receipt of -- 5 of 11 -- 6 both references. The reference from the rugby league football club indicated that the appellant was a senior player and helped out with general volunteer work. [15] The appellant’s solicitor submitted his client was sorry for his actions and pleaded guilty at the very first available opportunity. It was submitted that a sentence could be structured which did not involve any time in actual custody. The defence solicitor submitted to the Magistrate that he had a number of comparable decisions to refer to; the Bench replied “I don’t know that it’s necessary. It’s up to you”. [16] The defence solicitor then referred to the case of Santillan v Queensland Police Service [2008] QDC 33. The Bench indicated it was aware of this. The defence also referred to the case of Souvlis v Commissioner of Police [2011] QDC 274 and finally, the decision of Lutz v Newbury [2013] QDC 144. The Bench indicated, “If you look around the District Court’s decisions, you can find any decision that suits your argument”. It was finally submitted that Mr Bartley had had opportunities in the past but there were positive features to his background which would enable the court to order an immediate parole release date. The decision [17] The learned Magistrate noted in his sentencing remarks that the appellant had previously been placed on an Intensive Correction Order which had been breached. The Magistrate pointed out that this was his fifth conviction for disqualified driving and he had three other convictions for breaches of the drink driving laws. The Magistrate pointed out he might have been attracted to the defence submission but for the fact he had previously received probation for such an offence, an Intensive Correction Order for such an offence and an Immediate Parole Order for such an offence. Although he had not driven for over two and a-half years, 12 months of that was whilst he was the subject of parole. The Magistrate noted that general and personal deterrence were important. The Magistrate noted, “I’m not adopting a mathematical approach, but in my view, you’ve simply used up all the chances that you’ve had.” [18] In the result the penalty I have already mentioned was imposed. -- 6 of 11 -- 7 Submissions on appeal [19] The appellant submits the following: (a) the guilty plea was entered at the earliest stage; (b) it appeared the learned Magistrate was not interested in receiving or considering the facts of the District Court Decisions; (c) it was an error for the Magistrate to find “it really is though, if you look around the District Court’s Decisions, you can find any decision that suits your argument”; (d) it was an error for him to state that he understood why the police had appealed the decision of Lutz v Newbury; (e) the learned Magistrate failed to state how he took into account the matters referred to in the course of the submissions in determining the appropriate penalty; (f) no reference was made to the references which had been tendered on the appellant’s behalf and no reference was made to the matters raised by way of comparable decisions; (g) it is respectfully submitted that the Magistrate erred in stating “I’m not adopting a mathematical approach to sentencing, but in my view, you’ve simply used up all the chances that you’ve had”. [20] In oral submissions, Mr Clark submitted that the learned Magistrate failed to appropriately deal with the appellant’s solicitor’s submissions and placed too much emphasis on the question of deterrence. [21] The respondent, on the other hand submits: (a) R v Lawley [2007] QCA 243 applies. In that case the Court of Appeal held: “It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”; (b) the learned Magistrate did not err in the exercise of his sentencing discretion. It is submitted that the guilty plea and cooperation was taken into account by the Magistrate setting a parole release date earlier than the halfway mark and less than at the one-third mark; -- 7 of 11 -- 8 (c) whilst the Magistrate did not specifically refer to the reference, it can be inferred he had regard to the references when he arrived at the decision; (d) as regards to family hardship, the Crown submits that the principle expressed in R v Tilley (1991) 53 A Crim R 1 at 3-4 followed by the Court of Appeal in R v Costi [2001] QCA 404 is applicable. It was noted: “An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal sentimental factors.” (e) with respect to the issue of the comparable decisions, this is not a case where the learned Magistrate refused to hear details of any of the cases. Indeed, the Magistrate was aware of the decision of Santillan v Queensland Police Service and was familiar with Lutz v Newberry by the end of the decision; (f) with respect to the comment “but in my view you’ve simply used up all the chances that you’ve had”, the Crown submits that this is no error; all he was taking into account were considerations under s 9 of the Penalties and Sentences Act; (g) there was no error in the Magistrate saying, “It really is though, if you look around the District Court decisions, you can find any decision that suits your argument.”, (h) the Magistrate did not fail to take into account any relevant sentencing principle nor did he take into account any irrelevant matters and fall into error. It is submitted the comparable decisions relied on by the appellant did not bind the Magistrate. It is submitted that the traffic history was very relevant and the sentence imposed was within the sound exercise of sentencing discretion, (i) the sentence is not manifestly excessive in that it is not so unreasonable or plainly unjust as to give rise to an inference the discretion miscarried. Conclusion -- 8 of 11 -- 9 [22] The maximum penalty for this offence under s 78 of the Transport Operations (Road Use Management) Act 1995(Q) is 60 penalty units or 18 months’ imprisonment if the person committed the offence while the person was disqualified by any court order from holding or obtaining a driver license (s 78(1)). [23] Section 78(3)(a) provides for the mandatory disqualification of a person from holding or obtaining a driver license for a period of at least two years but not more than five years if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver license. This mandatory disqualification period is imposed in addition to any other penalty. [24] In my opinion, the respondent’s submissions here should be accepted. [25] It seems to me that the Magistrate did take into account the plea of guilty and the matters favourable to the appellant (including the references) by imposing a non- parole period less than the one-third mark. [26] His Honour ought to have addressed section 13 of the Penalties and Sentences Act 1992 (Q) in his reasons, but this does not invalidate the sentence (see section 13(5)). [27] Relevant of course to the sentence imposed was the appellant’s history. He had a number of previous convictions for disqualified driving and had previously received probation, an Intensive Correction Order and an immediate parole release date. [28] The history shows that he breached the probation order and the Intensive Correction Order. Further, I note that the appellant was convicted of commit public nuisance and assault or obstruct a police officer, which offences occurred on 20 May 2012. He was fined $1,700. This appears to have occurred whilst he was on parole. (The 12 month prison term was imposed on 26 September 2011). This told against the submission that he had rehabilitated since the imposition of the order on 26 September 2011. [29] The comment made by the Learned Magistrate to the Appellant that he had “used up [his] chances” in light of his history could not be said to be wrong. -- 9 of 11 -- 10 [30] As to the comparable decisions the Learned Magistrate probably should not have made the comments he did about them, but any error in that regard was immaterial. [31] Each case depends on its own facts. Whilst the decisions provided guidance the exercise of the sentencing discretion was a matter for him taking into account all relevant considerations. As was said in R v Dwyer [2008] QCA 117 at [37]: “An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.” [32] Of course it would be an error for a Magistrate to disregard District Court decisions which establish the appropriate range of sentence and/or which establish any relevant sentencing principle. Clearly enough a sentence which is outside of the “range” would be manifestly excessive. [33] In this case the decisions do not mandate this appeal being allowed as there are distinguishing features in each of them. [34] In Santillan v Queensland Police Service [2008] QDC 33, there were no previous offences of drink driving or reckless driving. He committed the offences of disqualified driving earning a living as a painter. He was 21 at the time of the offences and 22 at the time of sentence. It appears he served 4 months’ imprisonment (this is not entirely clear as the Judge refers to 30 October 2006 which must be an error). The end result appears to be a head sentence of 8 months to serve 4 months. [35] In Souvlis v Commissioner of Police [2011] QDC 274 the offender was sentenced to 9 months’ imprisonment with a parole release date after 3 months. The appeal was allowed such that he only had to serve 11 days. One of the specific reasons for the appeal being allowed was the Magistrate failed to refer to section 9(2)(a) PSA i.e. that a sentence of imprisonment was one of last resort. This is not relevant in the instant case as that provision did not apply at the date of the sentence in the present -- 10 of 11 -- 11 case.1 Also relevant to the Judge’s decision was that the history did not include any entries for drink driving (see [19]). [36] In Lutz v Newbury [2013] QDC 144 the offender was sentenced to a 3 month fully suspended prison term. The police unsuccessfully appealed. [37] Again relevant was the fact the offender had no previous convictions for drink driving (see pp 2.1). [38] In my view, even if the sentence imposed might be regarded as heavy, the sentence was not so unreasonable or plainly unjust as to give rise to an inference that the discretion miscarried. [39] Even if the reasons were less than fulsome, it is relevant the proceedings were apparently conducted in a busy Magistrates Court (see Dansie v Kelly; ex parte Dansie [1981] Qd R 1 at 6). [40] Even if a material error can be said to be established and I were to resentence the Appellant it seems to me in light of the offender’s history, the sentence imposed below whilst perhaps heavy, was within the range. [41] In the circumstances, the order below is confirmed, and I dismiss the appeal. 1 The sub-section was removed with effect 28 March 2014- s34 of the Youth Justice and Other Legislation Amendment Act 2014 (Q). This is retrospective- see s234 of the Penalties and Sentences Act 1992 (Q). -- 11 of 11 --