Clements v Punter [1995] QCA 206

IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 127 of 1995 Brisbane [Clements v. Punter] SYMON PUNTER v. BARRY CLEMENTS Appellant Fitzgerald. P. McPherson J.A. Shepherdson J. Judgment delivered 02/06/1995 Judgment of the Court IT IS ORDERED THAT THE OFFICER IN CHARGE OF THE LEGAL AID OFFICE IN CAIRNS EXPLAINS TO THE APPLICANT IN ACCORDANCE WITH S.95(2) OF PENALTIES AND SENTENCES ACT THE MATTERS STATED IN S.95(1) OF THAT ACT AND THEN FILE WITH THE REGISTRAR OF THIS COURT AN AFFIDAVIT IN COMPLIANCE WITH S.95. UPON THE FILING OF THAT AFFIDAVIT, THE APPLICATION IS GRANTED, THE APPEAL ALLOWED, THE SENTENCE OF SIX MONTHS IMPRISONMENT SET ASIDE AND IN LIEU THE APPLICANT IS SENTENCED TO IMPRISONMENT TO COMMENCE ON AND FROM 22 MARCH 1995 AND EXPIRE ON 13 APRIL 1995. PROBATION ORDER FOR A PERIOD OF TWO YEARS TO COMMENCE ON 13 APRIL 1995, TERMS SET OUT IN JUDGMENT. THE DISQUALIFICATION IN RESPECT OF THE DRIVING LICENCE AS PRONOUNCED BY THE STIPENDIARY MAGISTRATE REMAINS. CATCHWORDS: CRIMINAL LAW - SENTENCE - 24 year old applicant convicted of dangerous driving whilst adversely affected by alcohol. First offender. Sentenced to six months imprisonment and disqualified from holding or obtaining driver's licence for 12 months. Applicant released on bail after 22 days imprisonment. Consideration of sub-s.9(4) Penalties and Sentences Act and apparent failure by Sentencing Magistrate to take that into account. COUNSEL: Mr. P. Alcorn for the appellant Mr. P. Ridgeway for the respondent SOLICITORS: Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent -- 1 of 9 -- HEARING DATE: 16 May 1995 -- 2 of 9 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 127 of 1995 Brisbane [Clements v. Punter] SYMON PUNTER v. BARRY CLEMENTS Applicant REASONS FOR JUDGMENT - THE COURT Judgment delivered the 2nd day of June 1995 On 22 March 1995 in the Magistrates Court at Cairns the applicant pleaded guilty to a charge:- "That on the 21st day of March 1995 at Edmonton in the Magistrates Court District of Cairns in the State of Queensland, one Barry Andrew Clements did drive a motor vehicle namely a Holden sedan motor car on a road namely the Bruce Highway, Edmonton dangerously and the said Barry Andrew Clements being at that time adversely affected by an intoxicating substance namely alcohol." Mr Wessling SM, after hearing from the prosecutor and the applicant's solicitor then convicted the applicant and sentenced him to six months imprisonment. He also disqualified the applicant from holding or obtaining a drivers licence for a period of 12 months from that date. The applicant has applied for leave to appeal against that sentence on the ground that the sentence of imprisonment was manifestly excessive. The proceedings before the Stipendiary Magistrate were not tape or audio recorded. The facts as appearing on the police brief were read to the Stipendiary Magistrate; these showed that -- 3 of 9 -- 2 police from the Cairns traffic were conducting RBT duties in conjunction with a special purpose vehicle (a booze bus) on the Bruce Highway at Edmonton, that police had several cars pulled over when they observed a yellow Holden sedan travelling north from Edmonton approaching the RBT site; that that vehicle then left the road after attempting to brake and moved off to the left of the road nearly colliding with a lamp pole and the rear of the booze bus itself, and that it then appeared to accelerate and went uncontrollably onto the footpath where there were two pedestrians again nearly hitting them before moving back onto a grass portion nearby and parallel to the road and that this vehicle then braked heavily and skidded at least 100 metres again out of control before coming to a spinning halt. The defendant was the driver of that vehicle and he told police that he had been drinking earlier and that that could have contributed to his manner of driving; that he was chasing a red vehicle because the driver had yelled abuse at him, that speed and alcohol were the main factors for losing control of the vehicle and that he was not in any emergency at the time nor could he offer any excuse for driving dangerously. He told police he considered his driving at the time was dangerous and that he was sorry for his actions. Statements from two police officers Punter and Harrison were tendered to the Magistrate. The applicant has no criminal history - he was born on 15 May 1975 and was two months short of his twentieth birthday at the time of the offence. The applicant's main submission is that the Stipendiary -- 4 of 9 -- 3 Magistrate, in imposing a sentence of imprisonment failed to have proper regard to the applicant's youth and lack of previous convictions and that in all the circumstances the sentence was manifestly excessive. The bench charge sheet, a copy of which is before the court, shows that the Stipendiary Magistrate took into account the applicant's early and timely plea of guilty. He then completed a document headed "Record of Proceeding - Reasons". This document is partly printed and partly handwritten. It is obviously designed to ease the burden of a Magistrate on a busy day. It shows in a coverall way a number of matters to which a Stipendiary Magistrate might have regard in deciding what sentence or punishment should be imposed. The form appears to have been prepared for sentence of imprisonment - there may well be a slightly different form if probation were ordered but this is not known. The Stipendiary Magistrate has ticked a number of boxes showing that he took account of the applicant's timely plea of guilty, that the applicant had shown remorse, the character age and personal circumstances of the applicant, the need to deter the applicant and others who might be similarly minded and he has written in his own handwriting six other matters to which he had regard. These matters in summary were, recent reports in a Queensland Transport publication of concern over the number of fatalities involving young drivers and the higher involvement of alcohol use in motor vehicle incidents, that the applicant was chasing another vehicle for which no reasonable explanation was offered, the real and potential dangers to others in the immediate -- 5 of 9 -- 4 vicinity, the time of the incident namely 8.05pm and place namely the Captain Cook Highway being the main thoroughfare to suburbs north of Cairns, that it was not a situation which could be said to result from panic but was one where the driver showed complete disregard for the safety of his passengers and that at the time he had a blood alcohol level of .108%. The printed form then reads:- "Having considered all available sentencing options and being mindful that imprisonment is a sentence of last resort, I am satisfied that it is appropriate and no more severe in all the circumstances to sentence the offender to a term of imprisonment." While it is true that the printed form states that the Stipendiary Magistrate had considered all matters stated in ss.9 and 11 of Penalties and Sentences Act the Magistrate has not, on the face of his reasons, considered subs.9(4) of Penalties and Sentences Act which reads:- "(4) A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having- (a) considered all other available sentences; (b) taken into account the desirability of not imprisoning a first offender; is satisfied that no other sentence is appropriate in all circumstances of the case." The Magistrate in his reasons has complied with the above subparagraph (a), but has not said that he took into account the desirability of not imprisoning a first offender. In our view the evident failure to take this matter into account has caused the exercise of the sentencing discretion to miscarry. The courts have for a number of years said that when a -- 6 of 9 -- 5 court exercises its judicial discretion on sentence it must, where the offender is a juvenile without previous convictions consider that it is undesirable to send such a person to prison. See R v. Price [1978] Qd.R 68 where the applicant was 18 years old and then a juvenile with no previous convictions. Subsection 9(4) of Penalties and Sentences Act has placed certain statutory limitations upon a court imposing a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted. In our view, because of the above error in exercising the sentencing discretion it is open to this court to exercise the discretion afresh. The applicant had been in custody serving the sentence until 13 April 1995 on which day he was released after having been granted bail. He is a first offender and he has had a taste of jail. One hopes that he has learned a salutary lesson from that experience and the experience will deter him not only from conduct of the type which he exhibited on the night of 21 March but any other unlawful conduct in which he may be minded to indulge. There is no doubt that the Magistrate was correct to be concerned about the matters he mentioned in his reasons including the number of road fatalities involving young drivers and the involvement of alcohol in motor vehicle accidents. Here the applicant has been free on bail and it would in our view, in the circumstances of this case, be unnecessarily repressive to issue a warrant to arrest him and return him to custody. -- 7 of 9 -- 6 In our view, the appropriate penalty is to sentence the applicant to a term of imprisonment, such term to commence on and from 22 March 1995, and expire on 13 April 1995 and make a probation order for a term of two years from 13 April 1995. The terms of that probation order will require that the applicant:- (a) must not commit another offence during the period of the order; (b) must report to an authorised commission officer at Cairns within four days from this day; (c) must report to and receive visits from an authorised commission officer as directed by the officer; (d) must take part in counselling and satisfactorily attend other programs as directed by an authorised commission officer during the period of the order; (e) must notify an authorised commission officer of every change of his place of residence or employment within two business days after the change happens; (f) must not leave or stay out of Queensland without the permission of an authorised commission officer; and (g) must comply with every reasonable direction of an authorised commission officer. After argument before us concluded, the applicants lawyers sent to the applicant a proforma document containing details of the requirements of a probation order substantially in the above terms. These lawyers have produced to the Registrar a document signed by the applicant stating that he has read the requirements of the probation order sent to him and consenting to such an order -- 8 of 9 -- 7 for a period of 2 years. So far, the requirements of s.95 of Penalties and Sentences Act have not been complied with. The consent of the applicant complies with s.96 of that Act. Until there is compliance with s.95, the probation order will not be made. The applicant resides in Cairns. The Court requires the officer in charge of the Legal Aid Office in Cairns to cause to be explained to the applicant in accordance with s.95(2) the matters stated in subs.95(1) and then to file with the Registrar of this Court an affidavit as to compliance with s.95. Upon the filing of that affidavit, the application is granted, the appeal allowed, the sentence of six months imprisonment set aside and in lieu the applicant is sentenced to a term of imprisonment to commence on and from 22 March 1995 and expire on 13 April 1995 and a probation order is made for a period of 2 years to commence on 13 April 1995. The terms of that order will be as above set out. The disqualification in respect of the driving licence as pronounced by the Stipendiary Magistrate remains. -- 9 of 9 --