Bradshaw v Commissioner of Police [2011] QDC 355

1 [2011] QDC 355 DISTRICT COURT APPELLATE JURISDICTION JUDGE RAFTER SC No 2341 of 2011 LANCE JAMES BRADSHAW Appellant and THE COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 25/11/2011 JUDGMENT -- 1 of 8 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: On 27 June 2011 in the Magistrates Court at Cleveland, the appellant pleaded guilty to driving without a driver licence while disqualified by Court order. He was sentenced to six months' imprisonment suspended after one month for an operational period of two years. He was also disqualified from holding or obtaining a driver licence for two years. By notice of appeal filed 29 June 2011, the appellant has appealed against the severity of the sentence of imprisonment. There is no challenge to the driver licence disqualification, which is mandatory. The appellant was granted bail on 30 June 2011, so he has already served four days of the sentence. On the morning of 27 June 2011 the appellant appeared in the Magistrates Court at Cleveland on a charge of wilfully driving a vehicle that made unnecessary noise and smoke. He pleaded guilty. He was convicted and fined $1,000. He was disqualified from holding or obtaining a driver licence for one month. The Magistrate issued the appellant with a stern warning as to the consequences of driving whilst disqualified. The Magistrate told the appellant that driving whilst disqualified would ordinarily attract a gaol sentence, and his Honour also mentioned that people appeared regularly in the Court having -- 2 of 8 -- 3 JUDGMENT 1 10 20 30 40 50 60 driven after a disqualification was imposed and they were sent to gaol. The Magistrate described driving whilst subject to a Court-ordered disqualification as "the utmost contempt for Court". Moreover, the Magistrate enquired of the appellant as to how he had travelled to Court on the day of the appearance. He said that his wife had dropped him off, and the Magistrate asked whether she was at Court to take him back, and the appellant said that she was. The appellant appeared in the Magistrates Court later the same day, having been intercepted by the police while driving in Cleveland. He was observed to be driving in Shore Street. The police intercepted his vehicle for a licence check. He was unable to produce his driver's licence and was brought back to the Cleveland Magistrates Court to face the charge of disqualified driving. The appellant was at the relevant time 28 years old. He was employed as a plumber and he lost his job as a result, although fortunately he has been able to secure alternative employment. The appellant has a traffic history that includes driving under the influence of liquor for which he was fined $900 and disqualified from driving for ten months in the Maryborough -- 3 of 8 -- 4 JUDGMENT 1 10 20 30 40 50 60 Magistrates Court on 13 July 2005. He has a prior conviction for unlicensed driving for which he was fined $250 in the Hervey Bay Magistrates Court on 8 November 2006. Apart from that he has a number of penalties imposed for speeding offences. In sentencing the appellant, the Magistrate took into account his early plea of guilty, the fact that the Magistrate had explained the consequences of driving whilst disqualified, and his Honour recognised that a sentence of imprisonment was one of last resort. The Magistrate also had regard to the maximum available penalty. His Honour also had regard to the prevalence of the offence. The Magistrate mentioned that there was a pattern of sentencing for disqualified driving of between three and six months' imprisonment. The Magistrate also noted that the appellant was a mature man, aged 28 years. In the outline of submissions for the appellant it is argued that the Magistrate should have declined to hear the disqualified driving charge because there was a reasonable apprehension of a lack of impartiality. At the hearing of the appeal this morning, Mr Brandon for the appellant did not press that ground of appeal. In any event, there is no merit in the contention. There is absolutely nothing in the Magistrate’s conduct of the case that provides any basis for the contention that his Honour was -- 4 of 8 -- 5 JUDGMENT 1 10 20 30 40 50 60 not impartial. It is true that the Magistrate gave the appellant a stern warning as to the consequences of disqualified driving, and gave an indication as to the possible or likely penalty if he committed such an offence, but those sorts of observations are regularly made in the course of sentencing and do not provide any ground for thinking that the Magistrate lacked impartiality. The appellant also argues that: "Analysis of current sentencing practices reveals no discoverable case law where a person has been sentenced to a term of imprisonment to serve for a first offence." The decisions to which reference is made are Noon v. Wilson [2006] QDC 168 and McIvor v. Rourke [2007] QDC 95. The appellant contends in the written submissions that: "Based on current sentencing practices the appeal should be allowed and the Appellant be resentenced according to law." Ms McGee for the respondent concedes that the sentence imposed is manifestly excessive and that the appeal should be allowed. Having regard to the reliance on "current sentencing practices", it is surprising that the most recent decision referred to by the appellant's solicitor is McIvor v. Rourke, judgment delivered four and a half years ago on 3 May 2007. The respondent made no reference to authority, and neither party provide any guidance on sentencing trends in the Magistrates Court. -- 5 of 8 -- 6 JUDGMENT 1 10 20 30 40 50 60 Consistency in sentencing is important. In The R v. Gordon [2011] QCA 326, Margaret McMurdo P said at para 23: "No doubt his Honour was seeking to avoid committing the errors made in Moss, where this Court observed that nothing is more likely to lead to inconsistency and community dissatisfaction with the criminal justice system than different District Court judges setting different ranges for particular kinds of offences." I am concerned about consistency in sentencing in the Magistrates Court and the impact of allowing appeals of this type without proper regard to sentencing trends, particularly where the only cases referred to are judgments of this Court in 2006 and 2007. It must be remembered that there is potential for decisions of this Court to influence sentencing patterns in the Magistrates Court. It would be inappropriate for this Court to endeavour to lay down sentencing patterns without a proper consideration of trends in the Magistrates Court. Nevertheless, there has been a concession by the respondent that the sentence imposed is manifestly excessive, and I intend to act on that concession. However, in the circumstances, I observe that my decision should not be seen as necessarily setting a precedent to be followed in the Magistrates Court. That should only be done on a more extensive consideration of comparable cases. Mr Brandon submitted initially that the appropriate penalty -- 6 of 8 -- 7 JUDGMENT 1 10 20 30 40 50 60 was a fine of between $1,000 and $1,500. However, the appellant would require about 12 months to pay a fine in that range. That gives rise to concern as to whether a fine is really the appropriate penalty, given his obvious limited capacity to pay it. Ms McGee for the respondent submitted that it was appropriate to impose a community-based order, but Mr Brandon, for the appellant, resisted that. In the end that leaves only very limited options, and in the circumstances what I propose to do is simply order that the sentence imposed in the Magistrates Court be varied by ordering that the appellant serve the four days that he has already served, rather than the one month period of imprisonment that the Magistrate ordered. The orders that I would make, therefore, are as follows: (1) appeal allowed; (2) vary the sentence imposed in the Magistrates Court at Cleveland on 27 June 2011 by deleting the orders that the appellant serve one month imprisonment for an operational period of two years, and, instead, order that the six month sentence of imprisonment be suspended after four days (which the appellant has already served from 27 June 2011 to 30 June 2011) for an operational period of 12 months; (3) confirm the two year driver licence disqualification. ... -- 7 of 8 -- 8 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: All right. In those circumstances, I will, for reasons of clarity, confirm the two-year driver licence disqualification dating from 27 June 2011. ---- -- 8 of 8 --