Bandman v Commissioner of Police [2010] QDC 107

R v Kitson [2008] QCA 86, applied

Whyte v State of Queensland [2008] QDC 256, cited

Whyte v Queensland Police Service [2010] QDC 29, cited.

S Walsh of Counsel for the appellant instructed by Mark Stone Lawyers

K Jones, Solicitor on behalf of the respondent instructed by the Office of Director of Public Prosecutions, Ipswich

**[1] On the 22nd of December 2009 the appellant pleaded guilty in the Magistrates Court at Gatton to the offences of driving a motor vehicle whilst disqualified by a Court, driving an unregistered vehicle and driving an uninsured vehicle. The appellant was sentenced to three months imprisonment for driving whilst disqualified and for each of the other two offences fined $800 in default of payment to serve 16 days in prison. The Magistrate allowed no time to pay and ordered that the 16 days default imprisonment with respect to the fines be served concurrently with the three months imprisonment.

[2] The convictions breached a suspended sentence of one month imprisonment that was imposed on the appellant on the 2nd of December 2008 in the Dalby Magistrates Court for the offence of disqualified driving. For that offence the appellant was sentenced to one month imprisonment wholly suspended for two years and disqualified from holding or obtaining a drivers licence for two years.

[3] The Magistrate on the 22nd of December 2009 activated the suspended sentence of one month and ordered that the three months imprisonment be served cumulatively on the one month making a total of four months imprisonment for the appellant to serve. The Magistrate also disqualified the appellant from holding or obtaining a drivers licence for three years.

[4] The Magistrate fixed the parole release date at the 21st of April 2010 which had the effect of ensuring that the appellant serve the full four months imprisonment.

[5] The appellant was granted bail by this Court on the 3rd of February 2010 and has thus spent 44 days in custody in relation to the sentence.

[6] The appellant argues that the sentence imposed by the Magistrate is manifestly excessive.

[7] The facts placed before the sentencing Magistrate were that at approximately 10.35am on Tuesday the 15th of October 2009 police from Gatton were conducting patrols in Cochrane Street which is the street in which the appellant resides. The police observed a blue Suzuki motorcycle with no registration plates pass them travelling in the opposite direction. The police did a U-turn and followed the motorcycle to the appellant's address in Cochrane Street. There the appellant was spoken to by police and admitted that the motorcycle was not registered and that he had ridden it on the road.

[8] The appellant told police he was getting the motorcycle fixed up so that he could sell it and that he was taking it for a test drive.

[9] The appellant was unrepresented before the Magistrate but agreed with the facts alleged by the police prosecutor. The appellant repeated the explanation he had given to the police and told the Magistrate that he had bought the motorcycle second-hand from a farm where he was working and he had repaired it. Those repairs were completed on the day of the offence and he rolled the motorcycle down the hill outside his home to see if it would start.

[10] The appellant was born on 23 February 1973. He has significant criminal and traffic histories. His criminal history includes convictions dating back to 1997 for a number of offences all dealt with summarily, including drug offences, stealing, two common assaults, a number of wilful damages and numerous convictions for public nuisance, obstruct police and other "street" offences.

[11] The appellant's traffic history includes four convictions for driving under the influence of liquor and four convictions for disqualified driving since 2001. In January 2003 the appellant was sentenced to three months imprisonment and 15 months probation for driving under the influence of liquor and disqualified driving.

[12] When addressing the Magistrate the appellant admitted that he was an alcoholic but pointed out that he was sober when he committed the offences on 15 October 2009.

[13] In sentencing the appellant, the Magistrate noted his timely pleas of guilty, but also that the appellant was riding the motorcycle whilst disqualified and whilst subject to a suspended term of imprisonment. The Magistrate unsurprisingly came to the conclusion that the only appropriate penalty for the disqualified driving offence was one of imprisonment. He also found that as the conviction was for an offence of a like nature to the one for which the appellant was given a suspended term of imprisonment, that the suspended sentence should be activated. That part of the Magistrate's decision is not challenged, but it is submitted on behalf of the appellant that the one month term of imprisonment should have been ordered to be served concurrently with the terms of imprisonment imposed for the new offences.

[14] Although it may well be true to describe the appellant's driving on 15 October 2009 as "stupid and ill considered", as described on behalf of the appellant, he nevertheless clearly understood that he should not drive at all on a road and, given his history, the terms of imprisonment and the cumulative nature of those terms are not inappropriate.

[15] The real issue in this case is whether the Magistrate's order effectively denying the appellant any release on parole is manifestly excessive. In that regard, the Magistrate simply said to the appellant, "I find you an inappropriate person Mr Bandman, to make any order as to suspended sentence and fix a parole release date, as far as you are concerned, as at the 21st day of April next year. So you will be serving full time. ... You have four months in prison and you will do the lot."

[16] The Court of Appeal held in R v Kitson[1] that where an appellant has a claim upon the discretion of the court for an order to be released after serving less than half of the sentence in view of a plea of guilty and other personal circumstances, a parole release date that is significantly beyond the mid point of the head sentence is very unusual. If such an unusual order is made reasons for doing so are required to be given. Further, where such an unusual aspect of the sentence is not sought or contemplated in the submissions of either party, it should not be imposed without the sentencing Magistrate adverting to it and giving the appellant, in particular, the opportunity to be heard. In this case the police prosecutor made no submissions as to penalty and the appellant was not invited to respond to the Magistrate's intention not to order his release on parole. Neither did the Magistrate give reasons for such an order.

[17] The principles outlined in the decision of Kitson have been applied by this Court on a number of occasions.[2] The Magistrate's order in this case was an unusual one in that, despite the appellant's admissions to police, his cooperation and early pleas of guilty, a parole release date at the very end of the term of imprisonment was imposed. In the circumstances of this case, a parole release date after serving one third or, at the very most, one half of the term of imprisonment would have ordinarily been imposed.

[18] By making the order that he did, the Magistrate did impose a sentence which was manifestly excessive and that sentence should be varied so that the appellant be released on parole after serving one third of the sentence. One third of the sentence amounts to 40 days. As noted above the appellant has in fact served 44 days in custody. The appeal is therefore allowed and the sentence imposed by the Magistrate on 22 December 2009 is varied so that the parole release date be today, 26 March 2010. In all other respects the order of the Magistrate remains in place.**

[1] [2008] QCA 86.

[2] Whyte v State of Queensland [2008] QDC 256; Knibbs v R [2008] QDC 288; Hartwig v Cameron [2010] QDC 28; Whyte v Queensland Police Service [2010] QDC 29.