Dynevor v Commissioner of Police [2009] QDC 192

[2009] QDC 192 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1023 of 2009 ASHLEY ROBERT DYNEVOR Applicant and THE COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 24/06/2009 ORDER CATCHWORDS: Justices Act 1886 s222 sentence appeal - concurrent head sentences of 12 months for repeat dishonesty and disqualified driving offences confirmed, but ameliorated on appeal by parole ordered after serving a third. 1-1 -- 1 of 9 -- HIS HONOUR: The Court was grateful to have Ms Litchen's acknowledgment volunteered in her submissions for the respondent in this Section 222 appeal against sentence, that the Magistrate's orders under appeal could be seen as harsh in respect of the lack of any amelioration of the head sentences of 12 months, which the experienced Magistrate sitting in the Murri Court at Inala pronounced on the 23rd March 2009. If chapter and verse is necessary to support the proposition that there's a conventional acknowledgment of guilty pleas by recommendations for early post/present community based release or a suspension of sentence or, nowadays, fixed parole release dates or recommendations, at after approximately one-third of the head sentence has been served, that may be found, for example in Hoad [2005] QCA 92 at paragraph 31. The appellant's problem is his bad criminal history which commenced at the young age of 11. His most serious matter was a robbery offence which he committed not long after turning 17. He has considerable experience of incarceration, and, speaking broadly, has failed to make the most of opportunities to reform himself in the community and served more custody than sentencing courts hoped would be the case. The sentences under appeal were imposed for disqualified driving in respect of which the appellant may be seen as somewhat incorrigible, although the general proposition that he's settled down in recent years seems correct. 1-2 ORDER -- 2 of 9 -- The other serious matter concerns his entering or being in premises of a kindergarten with intent. The premises were the offices of a kindergarten where, so far as the facts were known, Mr Dynevor may have had legitimate reason to be for the purposes of enrolling his children. The office was unattended, he sought to force entry to a filing cabinet in hope of obtaining funds, he said for the purpose of purchasing food for his family, which includes four young children. It must be accepted, I think, that that was an opportunistic offence; nothing was obtained, he didn't get into the filing cabinet but some damage was caused to it. The matters in respect of which sentence was pronounced were not the only ones before the Court. When the police apprehended Mr Dynevor, whose date of birth is the 14th August 1985, he came under notice because he was driving a vehicle which had four back seat passengers who necessarily, given the number of them and the nature of the vehicle, weren't properly restrained. He'd been sentenced to imprisonment for four months previously for disqualified driving as the culmination of a bad traffic history. It is true that there were no bad features of his own driving pointed to on the day which might have created a danger to the public or to his passengers and that may be taken into account, but so also ought the risk of exacerbated consequences to his unrestrained passengers if some other driver happened to do the wrong thing. No penalty was imposed in respect of the unusual charge of overloading the vehicle. 1-3 ORDER -- 3 of 9 -- For the offences as a 17 year old, which include unlawful use of a motor vehicle and break and enter, a head sentence of two years' imprisonment was imposed in the Beenleigh District Court on the 20th May 2004. That was suspended for two years after eight months had been served. A 191 day sentence, representing a period of pre-sentence custody, was imposed in the Brisbane District Court on the 23rd August 2007 for entering premises and committing an indictable offence. On that day, the appellant was ordered to serve the whole of at least one suspended sentence. I don't think it's necessary to rehash all the complications of that order, but a parole release date of the 21st September 2007 was fixed. Those dates that Ms Hillard has given me indicate what appears to be a favourable development in the appellant's case of a period without trouble with the law. He left his fingerprint in the kindergarten and was apprehended for the offence there in that way. He'd been cooperative with the authorities in providing explanations which I have already noted, adding to the evidence they had of the offending, some of which has been noted above. The explanation for the disqualified driving offence is that a brother had "stolen" the seriously ill father's motor vehicle and left it at a place where the appellant was asked to retrieve it from. He took advantage of the opportunity, it seems, to drive his family. 1-4 ORDER -- 4 of 9 -- The Magistrate's sentencing remarks can usefully be set out in full: "BENCH: And it would seem straight after being dealt with in that Court, some two months later, you've committed further enter premises and commit indictable offences, for which, on that occasion, you were taken to the District Court, and received a sentence and the suspended sentence was revoked, and released in September '07. Following that, of course, then you come before the Court for a further offence of burglary committed some 12 months later after being released from custody. Well I take into account all matters stated in sections 9 and 11 of the Penalties and Sentences Act, including your timely plea of guilty in relation to these offences. It is obvious, in relation to this matter, that you have had the benefit of a great deal of considerable lenient - provisional lenient treatment. To address all the issues that have been raised here today, over a period of time. In fact, since the year 2002, your response to all that provisional lenient treatment has been to continue to commit further offences, and to ignore the orders of the Court. And nothing, it seems to me, has changed considerably over that period of time. Offences of this kind, that is disqualified driving, are prevalent within the community, as is the offence of enter premises with intent to commit indictable offences. I am satisfied that it is appropriate, and no more severe in all 1-5 ORDER -- 5 of 9 -- these circumstances that you should be sentenced to a period of imprisonment in relation to these offences. Firstly, in dealing with the charge of enter premises, you are convicted of that offence and the conviction is recorded. You are sent to prison for a term of 12 months. In respect of the offence of driving whilst disqualified, you are convicted of that offence and a conviction is recorded, and you are sentenced to imprisonment for a term of 12 months to be served concurrent. You are disqualified from holding or obtaining a driver licence for a period of two years from this date. In respect of the remaining traffic offences, I simply record upon the record that you are convicted of those offences, where convictions are recorded. I have taken those matters into account and impose a penalty here today, and simply record upon the record that no further penalty is imposed. In respect of the matter, I'm now required to fix a parole release date. In respect of parole release date, I fix a parole release date as the 23rd of September 2009 being six months from today. So you'll go to prison to serve a period until the 23rd of September 2009, when you will be eligible for release on parole. You may take the prisoner into custody. Any clarifications sought?" I'm grateful to the advocates this morning for the trouble they've gone to to locate comparable sentences. There really 1-6 ORDER -- 6 of 9 -- is nothing that can be located, the circumstances of the Court of Appeal decisions unearthed being complex because of concatenations of offences and the like. I note the optimistic submission of Ms Hillard that the enter premises offence should attract a sentence of three to four months, the disqualified driving offence a sentence of four to six months, that those sentences ought to be concurrent. In my opinion, the system is, to an extent, driven to penalise the appellant more heavily because of his bad history, and impose escalating penalties for repeat instances of similar offending. Even if the new offences can be seen as less than serious, that seems to me something that an appellant can't successfully complain of. While the Magistrate's 12 month sentences, which were concurrent, may appear stern, one can't assess them as manifestly excessive. I am concerned, however, at the apparent lack of any effective ameliorating order. As a matter of impression, six months of incarceration strikes me as severe. Cases such as Corrigan [1994] 2 Queensland Reports 415, especially at 415, by reference to Section 13 of the Penalties & Sentences Act, identify two ways in which a sentence following a guilty plea may be ameliorated, namely by reduction of the head sentence or by some other ameliorating order. Fortunate offenders may receive the benefit of both. The Magistrate in his sentencing remarks didn't refer to Section 13 by number, although he did refer to other relevant sections of the Act and he did make the statement which is 1-7 ORDER -- 7 of 9 -- required by Section 13 subsection (3) as to taking the pleas of guilty into account. I am unable, however, to understand from the sentencing remarks in exactly what way the guilty plea was taken into account and it appears to me in the end that the sentencing discretion somehow miscarried. In my view while the head sentences are within range, and particularly so as being made concurrent, there was an error in not accompanying those by an order with ameliorating effect. Ms Litchen, while making the concession she did about harshness of the order, was far from accepting that there was appealable error here. Courts sitting in sentence appeals have to be careful not to attract the charge of tinkering. As it happens, in the previous matter in today's list, I had occasion to consider Tabakovic v. Commissioner of Police [2005] QCA 90, in which Justice Fryberg warned against tinkering. That was a case in which, in the result, the Court of Appeal reduced a three and a half year head sentence to three years and made an order to secure the appellant's release after 10 months rather than 16 months. The reduction of the actual period of incarceration here to the conventional four months fits within the parameters of a decision such as Tabakovic. I would allow the appeal, but only to the extent of fixing a parole release date of the 23rd July 2009, being the one-third mark, rather than 23rd September 2009. 1-8 ORDER -- 8 of 9 -- ----- 1-9 ORDER -- 9 of 9 --