Harman v Queensland Police Service [2018] QDC 146

[3] Pursuant to s 223 of the Justices Act 1896 (Qld) an appeal under s 222 is by way of rehearing. It is for the appellant to demonstrate some legal, factual or discretionary error.[1] There was no attempt to rely on fresh evidence. This court's review of the matter was therefore confined to the transcript of the lower court, the exhibits tendered and His Honour's sentencing remarks.

[4] The sentence imposed in the Cairns Magistrate Court on 23 May 2018 concerned 10 offences on 3 different days.

• Driving whilst a relevant drug is present in saliva

• Used/ permitted use of vehicle with registration plate belonging to another vehicle

• Used vehicle with registration plates belonging to another vehicle

[5] In addition to those various concurrent terms of imprisonment, driving disqualification periods were imposed. The appellant has made no complaint about them.

[6] The present offending concerns a three-week period. On 27 February 2018 the appellant pleaded guilty to driving with a relevant drug in his saliva. A magistrate disqualified him from driving for a month. Afterwards the appellant drove his car away. When intercepted he was found to have methylamphetamine in his system and was charged with the first 2 offences. Within two weeks he had affixed false number plates to his unregistered vehicle. Nine days after that he was again caught driving, while still under disqualification. There were diazepam tablets in his car and he admitted to giving a few to his passenger.

[7] The appellant was 28 years old. He pleaded guilty to all of the offences. He had relevant criminal and traffic histories spanning 12 years. They included 6 previous offences of driving whilst disqualified, 6 of driving without a licence and twice operating a vehicle dangerously as well as single entries for driving under the influence of alcohol and drug driving. Most, and the worst, of those matters were dated and related to a 6-month period in 2008 when the appellant was only 18 years old, following the death of the grandmother who raised him. It is unfortunate that was not all there was to the appellant's past. His antisocial conduct had expanded in other directions. There were multiple entries of relatively low level property offending. While still only 18 he took part in a violent robbery and was later sentenced to 3 years' imprisonment. He was released on parole for that in July 2011. A year later, at the age of 22, he joined with others to beat a man unconscious with metal bars. They caused a serious injury. In 2014 the appellant was sentenced to 4 years imprisonment for the grievously bodily harm and assaults. The date he was released on parole for those offences is unknown, but he began fresh offending while on parole and within 17 months of the parole eligibility date. He drove again without a licence in April 2016. In June 2016, there was some minor property offending. His licence was suspended for demerit points. In December 2017 he was fined for unlawful possession of drugs and a knife. In January 2018 he was caught driving with the methylamphetamine in his system. It was upon the sentence for that offence on 27 February 2018 that he began the present series of offending.

[8] The ground of appeal was manifest severity. On behalf of the appellant, Mr Grau also particularised specific errors, namely:

1. the sentencing magistrate had undue regard to a dated traffic record and placed too much weight on the driving offence very soon after a court ordered disqualification;

1. the sentencing magistrate erred by not placing sufficient weight on the principle that despite an offender's previous convictions the sentence imposed must not be disproportionate to the gravity of the current offence;

1. the sentencing magistrate erred by not placing sufficient weight on the principle a sentence of imprisonment is a last resort; and

1. the sentencing magistrate erred by not placing sufficient weight on the principle that a sentence allows an offender to remain in the community is preferable.

Grounds iii and iv (imprisonment as a last resort and preferred sentence in the community)

[9] S 9 (2) (a) of the Penalties and Sentences Act 1992 ( Qld) compels the sentencing court to consider the principles that imprisonment should only be imposed as a last resort and a sentence that allows an offender to remain in the community is preferable. Those principles must be weighed with all other relevant factors set out in s 9 (2), such as the seriousness of the offence, its prevalence, the aggravating and mitigating factors, and the maximum and minimum penalty. Clearly, the provision does not mean the court must refrain from imposing immediate imprisonment, if it is otherwise required.

[10] S 9 (2) (a) was the subject of submissions below. It is unlikely that the very experienced magistrate overlooked them. Indeed, His Honour specifically acknowledged s 9 (2) (a) (ii). The force of the appellant's complaints on these points was further blunted by the appellant's concession on appeal that the level of the appellant's offending did warrant a significant period of imprisonment, including immediate imprisonment up to 3 months.

Grounds i and ii (too much weight on the traffic history and driving immediately after a disqualification)

[11] Mr Grau stressed that the worst of the traffic history and the only prior entries for driving when disqualified were accumulated 10 years ago when the appellant was 18 and in difficult personal circumstances. He contended an undue emphasis on the past traffic history was demonstrated on pages 2 and 3 of the ex tempore sentencing remarks :

1. "That conduct sir - that reprehensible conduct, that complete contempt for disqualification and the rule of law in the state is reflected in your criminal history that has seen you on six previous occasions convicted of disqualified driving... You sir, are a gentleman who, notwithstanding having been dealt within the past on a number of occasions and sentenced to various penalties, including periods of imprisonment, have formed a view that the laws - the traffic laws in this state, sir do not apply to you. You treat them with utter and complete disregard and contempt."

1. "Bearing in mind your appalling history and your demonstrated contempt sir, I am not persuaded that it is appropriate, even though the penalties and sentences Act informs me that a sentence of imprisonment served in the community is preferable, that you ought to be afforded that opportunity"

[12] The purposes of sentencing are confined to the specific purposes set out in s 9(1) of the Penalties and Sentences Act 1992 (Qld). Any sentence should be proportionate to the gravity of the present offending, rather than a punishment for the previous history. Even so, the previous history may be relevant to present issues of moral culpability, prospects for rehabilitation, the need for the protection of the community and the need for specific deterrence, with the failure of previous penalties and court orders. Furthermore, such relevance of the previous record is not necessarily limited to offences of the same type. The majority in Veen [No 2] (1987) 1964 CLR 465 at 477 explained it in this way:

"... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

[13] The prohibition against a sentence disproportionate to the gravity of the current offence is enshrined in s 9 (11) of the Penalties and Sentences Act 1992. S9 (10) affirms that previous convictions may reasonably be an aggravating factor, bearing in mind the nature and age of those convictions.

[14] The worst of the appellant's traffic history was 10 years old. If there had been no further offending between the series of disqualified driving in 2008 and the present offences in 2018, the significance of the appellant's record would be greatly reduced. Regrettably, he went on to more serious offending before committing the present charges. A persistent antisocial attitude was of real relevance to the need for personal deterrence. The deliberate and repeated nature of the present offending was similar to past offending. It could not be said to be an isolated lapse or out of character.

[15] In the 10 years between the 2 series of disqualified driving, the appellant had been sentenced to imprisonment on 6 separate occasions. In fact, he had spent more than 7 of the last 8 years subject to imprisonment for offences of violence. He had been in actual custody for at least 2 years, and had spent the remainder of the time on parole orders. Two sentences are noteworthy. In February 2010 the appellant was sentenced to 3 years imprisonment for a robbery in company with personal violence, committed as an 18 year old. In 2013, shortly after he had completed parole, he committed the grievous bodily harm offence and other assaults. In February 2014 he was sentenced to 4 years' imprisonment for that. The current offending commenced not long after the expiration of the 4 year sentence. The appellant had continued an association with drugs. He was fined for possession in December 2017, then found driving with a relevant drug in his system in January 2018. On the morning the disqualification was imposed for that offence, the appellant immediately repeated it. He then attempted to disguise his unregistered car with false number plates and drove his car for the second time, 3 weeks into the 4 week disqualification period. It was a calculated and determined defiance of the law, not some mere inadvertence. The prior antecedents were relevant. It was appropriate for the magistrate to have regard to the past history. Whether he placed too much weight upon it must come down to whether the total sentence imposed was disproportionate to the total level of criminality displayed in those last 3 weeks of offending.

[16] Mr Grau stressed that neither of the latest episodes of driving while disqualified involved dangerous operation of a vehicle. That does not mean they were not serious. Even within their own factual context, the present series of offences reflect the strongest contempt for the Court's order to stop. I do not accept the appellant's submission that it was "a relatively ordinary instance of disqualified driving". The appellant's immediate and repeated defiance of the court's order was breathtaking. The magistrate was right to be concerned about the implications of that in terms of the gravity of the new offending and the risk of reoffending. His Honour's description of complete contempt was not inaccurate

[17] Mr Gau submitted a just and appropriate sentence would fall within the range of 6 to 9 months imprisonment, with no more than 3 months to be served before parole to reflect the plea and cooperation. In arguing that the head sentence was 3 months too high, Mr Grau focused on a comparison with the traffic histories of other offenders sentenced to periods of imprisonment. As Mr Nevard pointed however, the real issue must be the gravity of the offences for sentence, in the context of the offender's antecedents.

[18] The maximum penalty for each of the 2 charges of disqualified driving was 18 months imprisonment. It seems no relevant sentencing authority from the Court of Appeal has been found. Numerous judgments from this court were cited, including: Angel v QPS [2018]; Ayling v QPS [2017] QDC 42; Monday v QPS [2012] QDC 167; Johnson v QPS [2011] QDC 18; and QPS v Gregory [2010] QDC 388. While they are not binding, they are obviously helpful in the pursuit of a just and consistent sentencing approach. At the end of the day, each case must be weighed according to its own circumstances. Consideration of previous judgments does not suggest to me that the present sentence was excessive for the particulars of this case. For example, sentences for just a single episode of disqualified driving include Monday, Johnson, Gregory and Ayling. Mr Grau submitted that the past traffic histories of those offenders was more repetitive and more recent than the appellant's record. While that is so, they were not being sentenced for their past histories. In each of those cases the objective seriousness of the fresh conduct was less than the present. It involved the one driving incident, not two. The nature of the driving in each case was unremarkable but for the breach of the disqualification period. None of those cases included the present feature of an immediate and such flagrant disregard of the disqualification order. Even so, the ultimate sentences for the one offence of disqualified driving ranged from 6 months to 15 months imprisonment, with actual imprisonment of between 2 and 4 months found to be justified.

[19] Ayling had managed to complete 23 months of a 24 month disqualification before driving again. The sentence of 15 months imprisonment, with parole at 6 months was upheld in light of his extensive traffic and criminal history. Similarly, in Monday an appeal against 14 months imprisonment, with parole at one third, was unsuccessful. There the one instance of disqualified driving was in the context of 6 previous convictions for the same offence. Gregory drove once, 19 months after a 2 year disqualification period was imposed. The appeal was against the leniency of a sentence of 6 months imprisonment with immediate parole. His Honour, Judge Irwin found the sentence to be manifestly inadequate and would have delayed parole for 2 months had the sentence not expired. The gravity of the single offence in that instance was notably less serious than either of the appellant's driving offences within the first 3 weeks of his disqualification. Johnson reoffended 7 weeks after being disqualified by driving a minibike. The decision has limited application because of the original failure to fix a proper parole date. The original sentence of 6 months to serve 6 months had to be corrected. On an appeal by Johnson the parole date was fixed to the time already served, namely 4 months.

[20] The case involving repeat offending is Angel. The level of criminality in that matter is comparable to that evident here, save for the absence of an immediate rejection of the disqualification order. Angel was a similar age to the appellant, but had had a more recent driving history without the accompanying level of criminal history. There were relevant errors of fact, so the sentencing discretion fell to be exercised afresh. A period of 8 months imprisonment was substituted, where Angel had already served 6 months of the original sentence in actual custody. The non-parole period was formally ordered at 4 months. Concurrent orders for substantial fines were affirmed.

The appellant has failed to demonstrate specific error. The sentence fits comfortably within the pattern disclosed in the authorities cited. The appeal is dismissed.

[1] Eg Teelow v The Commissioner of Police [2009] QCA 84; House v the King (1936) 55 CLR 499