Berner v MacGregor [2013] QDC 33

DISTRICT COURT OF QUEENSLAND CITATION: Berner v MacGregor [2013] QDC 33 PARTIES: PHILIP RICHARD BERNER (appellant) AND ANTHONY JOHN MACGREGOR (respondent) FILE NO/S: 2994/12 DIVISION: Appellate PROCEEDING: Appeal (s 222 Justices Act 1886 (Qld)) ORIGINATING COURT: Magistrates Court, Caboolture DELIVERED ON: 1 March 2013 DELIVERED AT: Brisbane HEARING DATE: 15 February 2013 JUDGE: Dorney QC DCJ ORDER: 1. The appeal is dismissed. 2. No order is made as to costs. CATCHWORDS: Appeal – Guilty plea – Whether sole ground of appeal is “punishment” was “excessive” Justices Act 1886 (Qld), ss 47(5), 222 and 223 Transport Operation (Road Use Management) Act 1995 (Qld), ss 78(1) and 78(3) Penalties and Sentences Act 1992 (Qld), ss 9 and 13 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Appleton v The Commissioner of Police [2004] QDC 465 Constable S J Miers v Blewett [2013] QCA 23 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Lacey v Attorney General (Qld) (2010) 242 CLR 573 Petrelli v Buchanan [2006] QDC 192 R v KAC [2010] QCA 39 Santillan v Queensland Police Force [2008] QDC 33 Smith v Ash [2011] 2 Qd R 175 Teelow v Commissioner of Police [2009] 2 Qd R 489 Wong v The Queen (2001) 207 CLR 584 Washband v Queensland Police Service [2009] QDC 243 -- 1 of 9 -- 2 COUNSEL: D L Crews for the appellant E L Kelso, Legal Officer, for the respondent SOLICITORS: Fowler Lawyers for the appellant Office of Department of Public Prosecutions for the respondent -- 2 of 9 -- 3 Introduction [1] The primary issue in this appeal is whether the sentence imposed with respect to the offence of disqualified driving, to which the appellant pleaded guilty, was manifestly excessive. [2] The appeal does raise for consideration the potential limitations inherent in s 222(2)(c) of the Justices Act 1886 (Qld) where, as here, a defendant pleads guilty. The matter arises because the appellant desires not only to assert the existence of manifest excessiveness but also to raise contended specific errors in the learned acting Magistrate’s decision at first instance. Background [3] On 31 July 2012 the appellant appeared before the Caboolture Magistrates Court and pleaded guilty to 2 offences. The first offence was one of disqualified driving, for which the maximum penalty was 60 penalty units or 18 months’ imprisonment. The second offence was a breach of probation. [4] The appellant was sentenced to 9 months’ imprisonment, suspended for 2 years, after serving 2 months (for the disqualified driving offence) and was fined $250.00 (for the breach of probation), with that order to remain otherwise in force. Additionally, the appellant’s driver license was suspended for 3 years. Appeal bail was granted on 1 August 2012. [5] The first offence and the breach both occurred on 14 April 2012, at Caboolture. The appellant had been earlier disqualified from driving for 15 months (for the period from 25 January 2012 until 24 April 2013). As revealed to the Magistrates Court, further traffic history involved 2 earlier offences of disqualified driving, the offence dates being 7 December 2006 and 4 January 2007 and the sentencing date for both being 31 January 2007. It is to be noted that those sentences were at least 5 years before this sentencing on 31 July 2012. [6] During the oral submissions, the respondent, as foreshadowed in writing, sought leave to adduce fresh evidence about previous traffic convictions. I made an instanter ruling that the respondent had not satisfied s 223(2) of the Justices Act in that there were no special grounds for giving leave, primarily because the evidence was available at the time of sentencing on 31 July 2012 and was, indeed, the same as was before the Magistrates Court at sentencing. [7] In the stated reasons for decision, the learned acting Magistrate observed that the appellant previously had “the benefit of a suspended sentence and would be fully cognisant of the significance of not driving while disqualified by the Court particularly”. It is common ground that the appellant had not been previously sentenced to any suspended term of imprisonment. It is to be noted that the appellant did have, on the traffic history indicated to the Magistrates Court, 2 9 month periods by way of Intensive Correction Orders and 40 hours by way of a -- 3 of 9 -- 4 Community Service Order. The ICOs were imposed on 31 January 2007 – presumably to be served concurrently - and the CSO was imposed on 25 January 2012, along with the probation order which was breached. As conceded by the appellant, on 13 September 2006 he was convicted of a UIL charge for which he was convicted and fined $1,100.00. His suspension or disqualification of his licence has been as follows: from 27 October 2005 until 8 March 2006; from 13 September 2006 until 31 July 2009; and from 23 December 2011 until 24 April 2013. Legislative provisions [8] The offence of disqualified driving arose pursuant to ss 78(1) and 78(3) of the Transport Operation (Road Use Management) Act 1995 (Qld). For present purposes, those provisions do not impose any greater “penalty” even where an offender falls within the definition of a “repeat unlicensed driver”, which the appellant did not. This has the consequence that the requirements of s 47(5) of the Justices Act 1886 (Qld) do not apply, with the additional consequence that the recent Court of Appeal decision of Constable S J Miers v Blewett,1 which overruled Washband v Queensland Police Service,2 does not need to be considered: at [14]. Thus, even though a s 47 notice had been given (incorrectly), it was accurate and appropriate for the sentences contained in it to be considered by the sentencing court. [9] The relevant appeal provision in the Justices Act is s 222(2)(c). It states that an exception applies to the right to appeal under s 222(1) where a defendant pleads guilty. In that circumstance, the person may “only” appeal under s 222 “on the sole ground” that a fine, penalty, forfeiture or punishment “was excessive” or inadequate. [10] In Smith v Ash,3 the Court of Appeal considered the width of this provision. While the concern there was with an appeal brought against a costs order, each of the shifting majorities considered the section in more general terms. In none of those judgments was there any discussion about the provision with respect to an appeal from a plea of guilty being on the ground “excessive or inadequate”. Fraser JA, for other purposes, contrasted provisions which referred to appeals against “the sentence passed on conviction”. That, for me at least, highlights the difference between the “sole ground” identified in s 222(2)(c) and the “usual” provisions covered in appeals against “sentence”: discussed at, for instance, 186-187 [42]. It must be conceded that Chesterman JA paraphrased the provision as one which “should be understood as a prohibition on appeals against conviction by a defendant who pleaded guilty” and one that “does not extend to any other prohibition”: at 195 [87]. See, also, McMurdo P at 179 [12]. Nevertheless, there was no examination of what was meant by the limitation to the “sole ground” of the sentence being excessive or inadequate. Importantly, the paraphrase used does not repeat the actual, literal words of s 222(2)(c). 1 [2013] QCA 23. 2 [2009] QDC 243. 3 [2011] 2 Qd R 175. -- 4 of 9 -- 5 [11] In determining the context of those literal words, it is recognised that the Court of Appeal in Teelow v Commissioner of Police,4 when considering an appeal that concerned, ultimately, an attack on a magistrate’s exercise of discretion, regarded it as appropriate to have recourse to the general principles governing appeals against the exercise of discretion as stated in House v The King.5 It is acknowledged that the appeal was concerned with a conviction after a plea of guilty – but there was no discussion of the actual meaning of s 222(2)(c). [12] Nevertheless, in Hili v The Queen,6 the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ canvassed what was meant when the single ground of appeal advanced was one concerning a sentence imposed at first instance as being “manifestly inadequate”. Such was identified as based upon the “error” (by the sentencing judge) of the last kind mentioned in House v The King. As the plurality stated, by asserting manifest inadequacy it was being alleged that the result embodied in the sentencing judge’s orders was “unreasonable or plainly unjust”: at 538 [58]. That meant: that it was not alleged that any specific error could be identified (as would be the case if the sentencing judge was said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations); and that, rather, what was being asserted was that it was to be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”: also at 538 [58]. The plurality then went on to note that it was pointed out in Wong v The Queen7 that appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases” but rather that “(i)ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”: at 538-539 [59]. [13] In Hili, the plurality further held that what reveals manifest excess, or inadequacy, of a sentence is a consideration of all of the matters that are relevant to fixing the sentence and, because the only ground there advanced was the ground of manifest inadequacy, it had to be “assumed” that what was being contended for was “no specific error”: at 539 [61]. [14] As the High Court recently reiterated, the task of statutory construction must begin with a consideration of the act itself: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,8 In undertaking that task, historical considerations and extrinsic materials cannot be relied on to displace “the clear meaning of the text”, with the language which has actually been employed being the surest guide to legislative intention: at 47 [47]. Additionally, the meaning of the text may require consideration of the context, which includes the general purpose and 4 [2009] 2 Qd R 489. 5 (1936) 55 CLR 499 at 504-505: at 495-496 [18]-[20]. 6 (2010) 242 CLR 520. 7 (2001) 207 CLR 584. 8 (2009) 239 CLR 27, at 46 [47]. -- 5 of 9 -- 6 policy of the provision (in particular the mischief it is seeking to remedy): also at 47 [47]. While it is open to argue that the mischief (being remedied here) is to limit appeals from guilty pleas to appeals against sentence, that could have been so easily and simply stated (as it has elsewhere). [15] Having canvassed those arguments, it is my conclusion that reliance on anything wider than manifestly excessive or inadequate (i.e. relying on some identified error of the other kinds mentioned in House v The King) is impermissible, although due attention must be given to what is set out in [13] above. [16] The respondent in this appeal, when pressed during oral argument, conceded that it was not arguing for any wider interpretation of s 222(2)(c) of the Justices Act 1886 (Qld) than what I have just concluded. [17] How that conclusion fits with the applicable principles governing an appeal by way of rehearing was discussed in Lacey v Attorney General (Qld).9 Before the powers of a court to set aside a primary decision are enlivened, demonstration is required of some error on the part of the primary court: at 597 [28]. Both in determining that error and exercising those powers a “real review” is undertaken. [18] On that conclusion, the focus of this Court will be upon the “sole ground” prescribed by that relevant provision. Analysis of “manifestly excessive” [19] Section 13 of the Penalties and Sentences Act 1992 (“PSA”) requires the sentencing court to bring into account the plea of guilty. Furthermore, it is necessary to bring into account the general mitigating factors required by s 9 of the PSA and, in particular, the engagement of s 9(2)(a). [20] Before considering the impact of those provisions, the respondent in his written Outline of Submissions accepted that the circumstances of the offending were as set out in paragraph 3 of the appellant’s Outline of Argument as well as at pages 2 and 3 of the learned acting Magistrate’s sentencing remarks – although the latter contains the most general summary of the actual offending. [21] Relevant antecedents are that the appellant was 32 years of age at the time of the offence and was also 32 on sentence. He did not have a criminal history although he had, as identified, a Queensland traffic history. His working history, and why he was on work travel at the time of offending, were all before the Magistrates Court, as here. There was no evidence that he would lose his employment totally, if required to serve actual time, although there would be financial consequences. 9 (2011) 242 CLR 573. -- 6 of 9 -- 7 [22] Section 9(2)(a) of the PSA contains two limbs. The first is the principle that a sentence of imprisonment should only be imposed as the last resort. The second is the principle that a sentence that allows the offender to stay in the community is preferable. Although the two limbs are joined by the connective conjunction “and”, it simply means that the court must have regard to both principles. Thus, in the appropriate case, even if a sentence of imprisonment is imposed as a last resort, the structuring of that sentence can allow an offender to stay in the community, on the basis that that outcome is preferable. That can be contrasted with a provision such as s 9(5) of the PSA which specifically excludes the principles mentioned in s 9(2)(a) and, instead, refers to an offender serving an “actual” term of imprisonment unless there are exceptional circumstances. [23] As for the history of the matter coming before the court, it was accepted, on appeal, by the respondent that this matter was never listed for a trial and that there was always to be a plea of “guilty” to be made by the appellant. [24] For the respondent it was contended that a period of actual custody was well within the sound exercise of the sentencing discretion, in the context of a maximum penalty of 18 months’ imprisonment, especially considering features which were detailed in paragraph [6.28] of the written Outline of Submissions (subject to the excision of the last of those points – which deals with the respondents late acceptance of the early indication of a plea of “guilty”). On behalf of the appellant it was contended that the sentencing court should have taken into account that the breach of probation was punished by way of a fine of $250.00 and by an order which did not disturb the existing community based order (which meant that the appellant was subjected to continuing supervision for some further time). But a suspended sentence does not bespeak supervision. [25] The appellant’s learned counsel, both orally and in writing, invited this Court to undertake a consideration of many case summaries attached to the written submissions, as well as cases presented for the Court’s consideration. I have read all, of both. Additionally, I have read Exhibit 1, which is a Schedule containing more abbreviated summaries of “driving while disqualified” cases. [26] Nevertheless, I am reminded by the High Court in Hili that manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed” (at 539 [60]) – meaning that it is irrelevant what I might have imposed as a sentence if I had been dealing with the matter afresh (at least at this stage of the consideration). [27] It is impossible to discern from all those cases a clear line of authority, or precedent, which would lead to the conclusion that there must have been some misapplication of principle in the overall sentencing that was imposed here. As canvassed in Hili, the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or ought to sentence”, though they “stand as yardstick”: at 537 [54]. “Unifying principles” are discerned only by an “examination of the whole of (their) circumstances”: at 537 [54]-[55]. While -- 7 of 9 -- 8 Petrelli v Buchanan10 is instructive, the appellant there was not in breach of a probation order when committing the relevant disqualified driving offence: cf. Appleton v The Commissioner of Police.11 In particular, in the Disqualified Driving Schedule, which became Exhibit 1, the Court of Appeal decision relevant to an offender on a third offence of driving while disqualified, as well as several of the relevant District Court decisions – to the extent to which they tell me anything - impel me towards the conclusion that the sentence in this case was not manifestly excessive, since no misapplication of (unidentified) principles has been demonstrated from the sentence imposed. [28] While punishments such as imprisonment and license disqualification are separate punishments which can amount to a double punishment for the same offence (see Santillan v Queensland Police Force12), where, as here, the disqualified driving was undertaken within 3 months of the imposition of the 15 month disqualification ordered on 25 January 2012, it was done in the context of a decision to use a motor vehicle for work purposes. And, contrary to the written submissions made by the appellant’s counsel, it was not, in truth, an occurrence that represented a social rather than a criminal problem, being a clearly understood decision to offend against the law. [29] Lastly, as the Transcript of Proceedings before the learned acting Magistrate shows, the solicitor for the appellant (the then defendant) submitted that “a wholly suspended term of imprisonment would be within range” (emphasis added). That submission implicitly recognised that a term of actual imprisonment was open – as it was. Undoubtedly, if I had been the sentencing court at first instance, I may well have accepted the explicit submission myself. Unfortunately for the appellant’s case, that is not the test to be applied here. [30] Overall, applying all the relevant principles applicable to this particular sentencing, I detect no manifestation of the application of erroneous principles. If I were to be in error in excluding a consideration of specific error, then I would have concluded that any error advanced in this appeal could not have made any material difference to the result, even though I would have imposed a less severe sentence in any re- sentencing myself. This follows from the analysis by Keane JA, in R v KAC,13 of circumstances outside manifest excess, where error does not materially affect the severity of the sentence: at [17] - [18], with de Jersey CJ and Holmes JA agreeing. In particular, the production of a non-existent license was acknowledged “not to be before the court” – and could well be relevant to the extent of real co-operation originally showed anyway – and the incorrect reference to a totally suspended sentence, in light of an ICO (which is the serving of a sentence of imprisonment in the community) and the CSO, was simply a “slip”. The reference to “no sentence other than imprisonment” as “appropriate” does not materially affect the “severity” of the sentence (which is one of imprisonment) – particularly where the use of a partially suspended sentence was involved. 10 [2006] QDC 192. 11 [2004] QDC 465. 12 [2008] QDC 33 at [3]. 13 [2010] QCA 39 at [17]-[18]. -- 8 of 9 -- 9 Orders [31] Accordingly, the orders that I intend to make are: (a) The appeal is dismissed. (b) No order is made as to costs (in line with the respondents written submissions). -- 9 of 9 --