Johnson v Commissioner of Police [2011] QDC 18

[4] The appellant, who was 24 years of age, has an extensive traffic record in Queensland which includes the following convictions:

[5] Additionally the appellant has a number of convictions for other offences against the traffic laws including convictions for unlicensed driving. The appellant also has convictions for drug offences, failures to appear in court in accordance with his bail undertaking and the summary offences of unlawful possession of suspected stolen property and contravention of a police direction or requirement.

[6] The appellant's solicitor told the magistrate that the appellant was in receipt of Centrelink payments and had quite limited education. He was in a de facto relationship. His partner was in court and he and his partner have two "very young children". The appellant's mother died about two months prior to the sentence and his father was very ill. The magistrate was told that the appellant has "a cannabis problem".

[7] So far as the facts were concerned it was submitted that the appellant was taking the motor bike "a very short distance along the road to a deserted area so that he could ride the motor bike".

[8] The magistrate heard from a representative of Corrective Services who told him that the appellant was "ready willing and able" to undertake a community based order and that he had done "quite well" in relation to his current community service order.

[9] The magistrate referred to the appellant's previous convictions for disqualified driving and indicated that community based orders or a suspended term of imprisonment were not appropriate penalties in the circumstances.

[10] When the magistrate received further submissions on behalf of the appellant regarding a parole release date at about one third of the head sentence he replied "that parole is not an appropriate penalty as far as your client is concerned".

[11] In his sentencing remarks the magistrate referred to the appellant's early plea of guilty, his relatively young age and his health problems. He also noted that imprisonment would have an adverse effect on his family. The magistrate noted however the appellant's appalling traffic history and the fact that he had previously received penalties of fines, probation, community service, an intensive correction order, a suspended period of imprisonment and immediate parole release and that the appellant had "squandered each and every one of those".

[12] The magistrate somewhat puzzlingly told the appellant "you're the prime mover in this offence, the offence being for your personal gain". He also referred to the prevalence of the offence and the need for both personal and general deterrence to be reflected in the penalty. The magistrate told the appellant that "you demonstrate a sheer contempt for the laws of this State and the orders of its courts in an attempt to rehabilitate you". He also noted the "sentencing guidelines and sentencing options open and available to me" and the principle that a sentence of imprisonment is a sentence of last resort.

[13] 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 the 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 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 the parties to be heard.[2] In this case the magistrate did receive submissions on behalf of the appellant regarding a parole release date.

[14] It was conceded on behalf of the respondent that in this case the magistrate did not give any or sufficient reasons in his sentencing remarks for not ordering an earlier parole release date.

[15] The principles outlined in the decision of Kitson have been applied by this court on appeal in similar cases on numerous occasions.[3] The facts and circumstances of this case, particularly the appellant's plea of guilty, indicate that the appellant should have been given a parole release date at least around the midpoint of the head sentence.

[16] It was conceded on behalf of the respondent that the sentence imposed by the magistrate was manifestly excessive and that the sentence should be varied to allow for the appellant's release on parole. As at the date of hearing of the appeal the appellant had served four months of the six months term of imprisonment and it was conceded that an order for his release on the date of hearing was appropriate.

[1] [2008] QCA 86 [17]

[3] 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; Bandman v Commissioner of Police [2010] QDC 107