Hartwig v Cameron

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD - where the appellant's parole release date was significantly past the halfway point of the head sentence - whether the sentencing magistrate erred in not giving the parties an opportunity to be heard in relation to this

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO TAKE THAT PLEA OF GUILTY INTO ACCOUNT - where the appellant's parole release date was significantly past the halfway point of the head sentence - whether the sentencing magistrate erred in not stating he took the appellant's plea of guilty into account

Justices Act 1886 (Qld) s 222(1), s 225(1)

Penalties and Sentences Act 1992 (Qld) s 13

House v The King (1936) 55 CLR 504, applied

Hughes v Hopwood (1950) QWN 21, applied

Knibbs v R [2008] QDC 288, cited

R v Kitson [2008] QCA 086, applied

R v Leu and Togra [2008] QCA 201, applied

R v Maxfield [2002] 1 Qd R 417, cited

R v McQuire and Porter [2000] QCA 40; (2000) 110 A Crim R 348, cited

R v Myall [2008] QCA 202, cited

R v Ryan [2008] QCA 134, applied

Siganto v R [1998] HCA 74; (1996) 194 CLR 656, applied

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

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: On 24 September 2009, in the Magistrates Court at Toowoomba, the appellant pleaded guilty to one count each of driving under the influence of liquor, driving without a driver licence whilst disqualified by a Court order, using a motor vehicle with registration plates issued for another vehicle, and driving an uninsured vehicle, and two counts each of using a vehicle with registration plates recorded as cancelled, and of driving an unregistered vehicle.

In each case, the Acting Magistrate recorded a conviction. He was fined on each charge, with the exception of the charge of driving under the influence of liquor. On the charge of driving an uninsured vehicle, he was fined $350, in default six days' imprisonment. For the balance of the charges, with the exception of driving under the influence, one penalty was imposed, and he was fined $1,600, in default 30 days' imprisonment. These penalties were referred to SPER. He was disqualified for 24 months from holding or obtaining a driver licence in respect of the offence of driving without a licence whilst disqualified by a Court order.

On the charge of driving under the influence of liquor, he was sentenced to nine months' imprisonment and disqualified from holding or obtaining a driver licence for 24 months. On the same date, the Acting Magistrate wholly activated a suspended sentence of six months' imprisonment which had been imposed on 16 January 2009 by the Pittsworth Magistrates Court for an earlier offence of driving under the influence of liquor. The operational period of that order was two years, as was the licence disqualification that was imposed on that occasion.

The sentence of nine months' imprisonment for driving under the influence was made cumulative on the activated suspended sentence of six months. A parole release date for this total period of 15 months' imprisonment was fixed on 24 June 2010, that is, after serving nine months' imprisonment, or 60 per cent of the sentence.

This is an appeal under section 222(1) of the Justices Act 1886[Qld] on the following grounds: 1, the sentencing Magistrate erred in failing to give reasons for setting the parole release date at beyond 50 per cent of the sentence; 2, the sentencing Magistrate erred in failing to give the parties an opportunity to be heard on his Honour's intention to set the parole release date at a date beyond 50 per cent of the sentence; 3, the sentence is manifestly excessive.

The facts which were placed before the Acting Magistrate are not in dispute. On 9 May 2009, the appellant was intercepted by police while driving a vehicle towing a box trailer. The police requested his driver licence. The appellant stated he did not have one. This was because of his disqualification from holding or obtaining a Queensland driver licence by the Pittsworth Magistrates Court on 16 January 2009 for a period of two years. This had happened approximately four months prior to his interception by the police officers. He admitted that he knew of this disqualification, and that it was an offence to drive while disqualified. He could give no emergent reason for the driving.

The registration plates on the vehicle that the appellant was driving were cancelled and belonged to another vehicle. The vehicle that he was driving had also been uninsured since April 2009. The appellant admitted that he was aware of all of these matters. Similarly, the trailer was unregistered and the registration plates attached to it had been cancelled since 21 August 2008. Again, the appellant admitted that he knew this. The charge of driving under the influence of liquor related to a breath analysis which established that his breath alcohol concentration was .174 per cent. Because the appellant was given a notice to appear he spent no time in pre-sentence custody in relation to these offences. The appellant's criminal and traffic histories were tendered.

His traffic history is extensive, particularly for offences involving driving under the influence of liquor, or in excess of the prescribed blood alcohol content. From 1978 to 2009, he committed such offences on 11 previous occasions. The last being that for which he received the wholly suspended sentence on 16 January 2009. He committed at least one such offence in each decade over that period. In 1991, the offence of driving under the influence of liquor was combined with an offence of dangerous driving. He had also been convicted on 16 January 2009 of one count each of driving an uninsured vehicle, and of driving an unregistered vehicle which are like offences to offences on which he was also convicted before the Acting Magistrate.

It is a bad traffic history, although he has never previously been sentenced to an actual period of imprisonment for offences of this nature, or for any other offences. As Ms Lynch, who represented the appellant, both before this Court and before the Magistrates Court, recognised in her submissions to the Acting Magistrate the history really does speak for itself. She said that it was reflective of an underlying problem with alcohol and very poor judgment. She observed correctly that this was the first occasion on which he had been charged with disqualified driving.

She told the Magistrate that the appellant was 51 years of age. He had been a tractor fitter for 37 years, and for the past three years, had operated a business of this nature which extended also to providing firewood, although in the previous 12 months business had been difficult, and as a consequence of this he was receiving a part-pension. She described him as a people-pleaser who had been apprehended after delivering firewood to a customer to obtain some money and to maintain a good relationship. She accepted that a sentence of imprisonment must be imposed.

In her submission, she referred to the facts that the appellant was not intercepted as a result of his manner of driving, his cooperation with the police, his making full admissions, and his entry of a plea of guilty on his first appearance with the matter being adjourned to allow him to apply for legal aid. Although my reading of the Court file does not accord with the last proposition. The matter was first mentioned before the Court on 12 June 2009. His plea of guilty was entered on his third appearance on 14 August 2009. I nonetheless accept that this was properly categorized as an early plea of guilty. There was no contrary suggestion made to the Acting Magistrate, or before me on appeal. In these circumstances, it was submitted that the head sentence be in the vicinity of nine months, although it was accepted that the six months suspended sentence must be activated. Ms Lynch suggested that three months only be made cumulative. It was submitted that the appellant be released on parole after serving three months, or one-third of the total sentence which was suggested.

The Acting Magistrate spoke briefly to the appellant. He told him that his history spoke for itself. He acknowledged that the appellant was a hard worker, but told him that he had also reaped the consequences of his hard drinking. He then proceeded to sentence him for each of the offences. In relation to the issue of fixing a parole release date, he firstly said: "On the suspended term of imprisonment, I activate that term of imprisonment to serve the whole of that term. I'll make an announcement in relation to parole in due course." After sentencing on the offences for which the appellant was fined, the Acting Magistrate addressed the offence of driving under the influence of liquor. In doing so he said: "On that particular matter, for reasons of the history details as outlined, the outcome is by way of a term of imprisonment." After sentencing him to nine months' imprisonment and ordering that it be served cumulative with the activated suspended term of imprisonment, he said: "I make an announcement of a parole release date of 24 June 2010." No reasons were given for that aspect of his decision, except for the reference to the appellant's criminal history as a reason for imposing a term of imprisonment.

For the offence of driving under the influence of liquor, no reasons were given during the decision. In particular, there was no reference to any circumstance in mitigation. As is clear from the grounds of appeal, the appellant's argument is that the Acting Magistrate erred in failing to give reasons for setting the parole release date beyond the 50 per cent point of the sentence, i.e. at 60 per cent, and failing to give the parties the opportunity to be heard in relation to his intention in this regard.

It is relevant to this submission that the appellant also relies on his Honour's failure to make reference to the appellant's plea of guilty, let alone an early plea of guilty. In summary, the appellant submits that his Honour did not have regard to the principle in R v Kitson [2008] QCA 086, and section 13 of the Penalties & Sentences Act 1992 (Qld). As was decided in Kitson, where an appellant has a claim upon the discretion for an order that he be released after serving less than half of the sentence in view of his plea of guilty and other personal circumstances, a parole release date which 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 was not sought or contemplated in the submissions of either party, it should not be imposed without the sentencing Judge or Magistrate adverting to it and giving the opportunity to be heard. This decision has been applied in R v Myall [2008] QCA 202.

In R v Leu; R v Togia [2008] QCA 2001, it was held that in circumstances where there was an unusual order deferring eligibility for parole for six months beyond the midpoint, and this was not contemplated in the submission of any party, it should not have been made without the sentencing Judge adverting to it and giving the parties an opportunity to be heard about it. The failure to allow that opportunity and the failure to give any reasons for making the order amounted to errors.

Kitson has been applied by this Court in Whyte v State of Queensland [2008] QDC 256 by Bradley DCJ, and in Knibbs v R [2008] QDC 288 by Rafter DCJ. The Acting Magistrate's order in this case was an unusual one in that despite the appellant's early plea of guilty, and his cooperation with the police involving the making of full admissions, a parole release date beyond the midpoint was imposed. As recognised by the High Court in Siganto v R [1998] 194CLR 656 at 663-4, a plea of guilty is ordinarily a matter to be taken into account in mitigation. The extent of mitigation may vary, depending on the circumstances of the case. In this case, the Acting Magistrate did not state that he took the appellant's plea of guilty into account. This was contrary to section 13(3) of the Penalties & Sentences Act. As was recently stated in R v Ryan [2008] QCA 134 by Mackenzie AJA at [26] and [28] with reference to section 13, "Making an ameliorating accompanying order in the form of a recommendation or order for early release is one of the means of complying with the requirements: R v Corrigan [1994] 2QdR 415. Reduction of the head sentence is another. The first option was not adopted in this case.

As R v Taylor and Napatali ex parte A-G (Qld) [1999] 106A CrimR78 establishes, and R v Woods [2004] QCA 2004 re-affirms the necessity to take a plea of guilty into account and state that it has been done, and how it has been done is an essential part of the transparency of the sentencing process. If a plea of guilty is entered, but a trial Judge does not reduce the sentence by either of those means, section 13(4) requires the Judge to state why. On the other hand, if a plea of guilty is taken into account by reducing the head sentence, it should, in my view, as a matter of course, be apparent on the record that it was."

These requirements have not been complied with in the present case. Consistently with what was said in R v McQuire and Porter [2000] 110A CrimR 348 per Byrne J at 366, this omission fortifies an impression emerging from the sentencing remarks and from the sentence that the appellant did not receive a discount on account of his plea of guilty. Although, as recognised in R v Maxfield [2002] 1QdR 417 at 423, per Davies JA and Fryberg J at [23] the section does not require a Court to reduce the sentence of an offender who pleaded guilty. In this case, the appellant was entitled to have his sentence reduced because of his timely notification of his intention to plead guilty. He was also entitled to have his sentence reduced because of his cooperation with the police. It is true that there was a strong case against him, nonetheless, this approach to the charges was beneficial to the public and this called for recognition through a discounted sentence. In these circumstances, the Acting Magistrate was in error in not taking the plea of guilty into account and reducing the sentence, and as is conceded by the respondent on this appeal, in not giving reasons for setting the parole release date beyond 50 per cent of the midpoint, and for failing to give the parties an opportunity to be heard in relation to this.

The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood [1950] QWN21 [at p31] Macrossan CJ stated that an appeal court is not entitled to interfere unless it "can find that the sentence is manifestly excessive, or that there are some circumstances which show that the Magistrate acted under a misapprehension of fact, or on some wrong principle in awarding sentence." Similarly, in House v The King [1936] 55CLR 504 at 505, Dixon, Evatt and McTiernan JJ stated that "It is not enough that the Judges comprising the appellate court consider that if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion."

The errors I have identified involve the Acting Magistrate proceeding on a wrong principle in determining sentence. In other words, as the respondent concedes, there was an error in the exercise of his sentencing discretion. For these reasons, the sentence to the extent that it involves the parole release date, which is the only point on which the appellant now takes issue, must be varied under section 225(1) of the Justices Act. It was originally submitted for the appellant that the parole release date should be set as at the date of this hearing. This would involve a release after approximately four months and one week of the sentence, however, the appellant does not press this argument. I consider that this is a correct position for the appellant to take.

I agree with the submission of the respondent that the appropriate parole release date is one fixed at one-third of the total head sentence of 15 months, i.e. after serving five months. I conclude that this is an appropriate discount, notwithstanding the appellant's bad traffic history which included 11 previous like offences to the charge of driving under the influence of liquor. This is because this was the first time that the appellant had been sentenced to an actual term of imprisonment.

It is relevant that if released after serving one-third of the total period of imprisonment, he will be subject to parole for 10 months from the date of his release. This imposes significant obligations and restrictions upon him. A failure to comply with the order in any way, including the commission of another offence during the parole period, is likely to result in his parole being suspended and revoked, and his being required to serve the balance of his sentence of imprisonment. The parole order is part of the sentence. The effect of this sentence provides the necessary personal and general deterrence, and denunciation of his conduct that the Acting Magistrate must have had in mind when sentencing the appellant.

Accordingly, I order as follows: 1, appeal allowed; 2, sentence at first instance varied by fixing a parole release date as 24 February 2010. In light of the submissions made by the appellant this morning, I make no order as to costs.