Lamont v Queensland Police Service [2018] QDC 10

[3] The appeal against sentence is on the basis that it was "manifestly excessive" which is, of course, the only basis for an appeal against a sentence under s 222 of the Justices Act where there has been a plea of guilty

[4] In a number of recent cases a question has arisen in this Court as to whether the provisions of s 222(2)(c) of the Justices Act preclude an appeal based on an error of law. I examined this question in the decision of Goodman v Commissioner of Police [2017] QDC 252. in which I adopted the reasons of my brother Long SC DCJ in Pullen v O'Brien [2014] QDC 92 in concluding that it did not.

[5] The consequence is that the approach to an appeal against sentence under the relevant provision is governed by the well-known passage from the joint judgment of Dickson, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 at 504-5. The passage is so well-known it is unnecessary to set it out. Error of principle or failure to take into account material considerations can all justify a review of the sentence and the appeal court exercising the sentencing discretion afresh.

[6] The appellant was born on 18 October 1985 so was 31 at the time of his offending. He had a minor, dated and irrelevant criminal history but a very poor driving history. In all he had some 16 separate speeding offences dating from when he was 17. And it could not be said his driving manners improved with age. After he turned 27, on 18 October 2012, there were nine separate speeding offences over the period of four and a half years up to the subject offending. Whilst none over that period involved speeds in excess of 20 kilometres per hour over the speed limit, consideration of the history does suggest the appellant had little regard for the need to drive safely, or for the rules of the road. His conviction also of offences involving the use of a mobile phone on three occasions in 2008, 2011 and 2014 and of unlicensed driving in 2008 support this view.

[7] The subject offences were committed on 13 May 2017 and so the sentence was very soon thereafter, only six weeks later, on 26 June.

[8] The circumstances of his offending were set out by the police prosecutor, and except in respect of the allegation that the driving involved excessive speed, were not disputed. At 9.35am on the day of the offending police received some 10 separate calls from members of the public reporting the appellant's manner of driving. He had overtaken a semi-trailer over double white lines in a right-hand turn lane on the Bruce Highway near Maryborough. He had then overtaken another vehicle, also a semi-trailer, by driving on the inside of that vehicle, on the dirt nature strip, at what was said to be excessive speed. The driver of that vehicle had to pull to the centre of the road in a defensive manner. The 10 calls spanned a period of about 30 minutes, so the period of his dangerous driving was significant.

[9] Subsequently police found the defendant stopped at an intersection of a road and the Bruce Highway, north of Hervey Bay. Skid marks indicated his vehicle had stopped violently and skidded slightly sideways before stopping.

[10] The appellant was arrested. He made admissions that he had drugs in the car. Police found 0.81 grams of methylamphetamine, electronic scales and an "ice pipe". Later he admitted having taken methylamphetamines prior to driving. Police observation of him, and his behaviour, indicated he was very significantly affected. Although a blood test was conducted the prosecution did not have the certificate of analysis at the sentence hearing.

[11] The police prosecutor referred to the appellant's extremely minor criminal history - no convictions had ever been recorded - but also to his unfavourable traffic history. He referred also to a decision of R v Smith [2004] QCA 126, a case provided to him by the appellant's solicitor. He submitted that case, unlike the subject matter, did not involve excessive speed.

[12] The appellant's solicitor tendered a number of very supportive references, from his father (who was present in court), his sister and from two others. Certificates were tendered indicating his undertaking three clear drug tests on 5 June, 13 June and 24 June 2017. Letters from the Alcohol and Other Drug Service of 13 June 2017 and from Gryphon Psychology of 23 June, a mental health care plan prepared by his general practitioner on 23 June and a defensive driving course certificate of that same date were tendered. That body of material demonstrated the significant steps the appellant had taken, over the short period of six weeks, to rehabilitate. His solicitor also submitted that it was significant that the driving ceased voluntarily when the appellant deliberately, if somewhat dramatically, braked heavily and stopped. He submitted that this can be contrasted to cases, for example, where police were involved in a chase of a defendant.

[13] Within days of his offending the defendant had contacted his mother, seeking help with overcoming his addiction to methylamphetamine. In addition to the matters set out in the exhibits tendered it seems the appellant had returned to work with his father on a grazing property near Dysart outside Mackay.

[14] It was submitted that a part of the defensive driving course involved the appellant being shown pictures of a number of car accidents and of victims of those accidents, which significantly helped him develop insight into the serious nature of his offending.

[15] He had a good work history as a rural labourer, shop assistant at a liquor store and at the Hay Point coal terminal. It was said he lost that last job due to economic conditions and for the first time, it was said, tried methylamphetamine. I do note he had no prior drug convictions. He and his partner separated in April 2017. He defaulted in his rental payments. It was clear his life had spiralled out of control at the time of the offending.

[16] The appellant's solicitors' submissions to the magistrate acknowledged his "terrible history" of driving offences but noted the lack of any prior drink driving or drug driving offences. Ultimately the solicitor submitted a sentence of nine to 12 months imprisonment wholly suspended, with three years' probation for some of the other offences, was appropriate. He submitted actual imprisonment "would not have much utility" and may in fact be detrimental. He further submitted that an appropriate alternative was a period of imprisonment with immediate parole release.

[17] The solicitor submitted that R v Smith (supra) was very substantially relevant. I will refer again to that case later in these reasons. It was submitted that the driving in that case was similar to the appellant's and, additionally, as here, that there was no accident and no police chase. The appellant in that case was older, aged 54, and 18 months earlier had a blood alcohol concentration offence involving a reading of 0.098.

[18] The appellant's solicitor also submitted that Smith's case, like the appellant's, did not involve excessive speed. He submitted that despite the prosecution's assertion of excessive speed there was no evidence of that and he urged the learned magistrate to "give no weight to the allegation of excessive speed".

[19] In interpose that whilst it is true in this case there was no evidence of actual speed or of speed above or significantly above the speed limits, the important characteristic of the appellant's driving was his overtaking of two heavy vehicles travelling on the highway, once over double white lines and once by driving at least partly off the left hand edge of the bitumen to overtake a semi-trailer on the left hand side of that vehicle - and the fact that police received 10 complaints about his driving over a period of 30 minutes from members of the public. Whatever his speed, it was sufficient to overtake at least two other users of the highway, and was very clearly extremely dangerous. In my view the speed was excessive in the circumstances, even if it could not be shown that it was necessarily in excess of the speed limit. In my view determination of his actual speed and of whether the speed was properly characterised as "excessive" does not assist in the determination of the appeal. It was undoubtedly dangerous.

[20] Finally because of the importance of the issue of the appellant's approach to rehabilitation and having regard to the fact that only six weeks had passed between the offence and the sentence, I note that the appellant's solicitor said to the magistrate that "we were seeking originally to adjourn the matter to Mackay so he could perform further rehabilitation, but it's been dealt with today."

[21] In my view the unusually short period of only six weeks between the offence and sentence is very material, not just as an indication of the appellant's co-operation with justice and his remorse but more importantly because it should clearly have led the magistrate to conclude that the steps taken at rehabilitation, significant though they were, were only tentative early steps. It could not be said that the success of his rehabilitation was in any way certain. I consider that an important matter to which I will return.

[22] Before turning to the sentencing remarks themselves it is important to note a number of observations of the learned magistrate during the course of the appellant's solicitor's submissions.

[23] He indicated, immediately after the solicitor's submission that a wholly suspended sentence and probation was appropriate, that he had to consider the offending "in the light of his past history over 15 years". He then said:

"But it still needs to be shown to those members of the community who even think of having methylamphetamine in their system, driving when they expose others to danger, that they will in all probability go to prison."

[24] The magistrate then said he saw "no benefit in the additional probation" because, it seems

"He's taken his own initiative with the assistance of his family to undertake certain remedial measures. That's not going to be any greater through the Department of Corrective Services. So what's to be achieved by ...probation when he's already taking steps in relation to his own behaviour supported by his parents".

Ultimately His Honour expressed the view that the proposed wholly suspended sentence and probation "don't go together".

[25] In his sentencing remarks the learned magistrate indicted he took into account the applicant's early pleas of guilty and the "constructive steps" taken since being charged. I have set those steps out already. He however considered the nature of the appellant's driving and said:

"It cannot be tolerated in the community a person driving in the manner in which you did with methylamphetamine in your system. It is to be condemned both by the community and will be condemned by the court. The number of deaths on a major highway where you were driving has just increased unbelievably".

[26] After consideration of the appellant's unacceptable traffic history the learned magistrate then said:

"The nature and seriousness of the offence and the exposure of others to danger on a major highway...where deaths are increasing all the time the court finds that imprisonment is the appropriate penalty to impose."

[27] As I have said he imposed a head sentence for the dangerous operation of a motor vehicle offence of 12 months imprisonment with parole release after four months to reflect the "need for overall deterrence and taking into account all of the constructive steps you have made."

[28] The appellant submits the sentence of actual imprisonment was excessive for the following reasons:

(ii) The appellant had no previous convictions for driving under the influence, careless driving or dangerous operation of a motor vehicle;

(iii) The offending did not involve a police chase, accident or injury to any motorist;

(iv) The appellant had proven rehabilitation at the time of the sentence;

(v) The learned magistrate did not take into account s 9(2)(a)(ii) namely, "That a sentence that allows the offender to stay in the community is preferable";

(vi) The learned magistrate failed to distinguish R v Smith (supra);

(vii) The learned magistrate erred when he did not consider that a suspended sentence and probation were orders that could be served concurrently; and

(viii) The learned magistrate failed to accord sufficient weight to the appellant's mitigating circumstances, in particular his lack of relevant criminal history and attempts at rehabilitation.

[29] Before me the solicitor for the appellant accepted he needed to show error of the kind identified in House v R (supra). He submitted the learned magistrate:

(i) Placed undue weight on the appellant's traffic history and little weight on his mitigating circumstances, including his rehabilitation;

(ii) Failed to take into account ss 9 and 11 of the Penalties and Sentences Act, especially s 9(2)(a);

(ii) Failed to distinguish the decision in R v Smith (supra); and

(iv) Failed to consider a sentence of imprisonment, wholly suspended or with immediate parole release, for one offence and probation on others.

[30] It is, I think, of some help to consider the Court of Appeal decision in R v Smith (supra). A sentence of 15 months, suspended after four months, was on appeal reduced to a sentence of 15 months suspended forthwith. The appellant had spent almost one month in prison by then. He was significantly affected by alcohol, having a BAC of .182, and drove dangerously on a major highway for a significant period of about 20 minutes.

[31] His driving involved his erratically wandering over the roadway causing other vehicles to take evasive action. Fortunately there was no collision. He was 54 with a good work history and a history of involvement in his community. Although he had no prior criminal history he had the previous drink driving offence 18 months earlier to which I have referred.

[32] The then Chief Justice, in a dissenting judgment, said he would have upheld the sentence imposed but did say that;

"Were it not for the prior conviction and his offending again relatively soon after working through the consequences of that earlier offending he should not have been imprisoned".

"...It is not generally helpful to dwell on too closer comparison and contrasting from case to case. It is, to my mind, sufficient for the disposition of this application to note that there are a number of cases generally and sufficiently comparable with this one in which the requirement that the driver serve a term of imprisonment has been upheld. It could not, in my view, be concluded that in requiring the applicant to serve four months imprisonment the learned judge erred in principle or imposed a penalty which is manifestly excessive."

[34] Jerrard JA, with whom Holmes J (as the current Chief Justice then was) agreed, allowed the appeal, suspending the sentence forthwith for an operational period of three years, being one year more than the operational period imposed below.

[35] His Honour distinguished a number of cases relied on by the Crown - and I note by de Jersey CJ - on the basis that "at least a portion of the relevant dangerous driving ...occurred when those applicants were attempting to evade arrest during a police pursuit." That of course is a feature not present in this case, and of course not present in Smith. Indeed in this case the appellant voluntarily ceased his driving in the circumstances I earlier set out.

[36] Holmes J in her judgment said that although general deterrence was required in the form of a sentence of imprisonment, the requirements of personal deterrence were met by the increased operational period of three years.

[37] Although the solicitor for the applicant submitted to me that the learned magistrate erred in "failing to distinguish" the decision of R v Smith (supra) I do not think any failure to do so can be said to constitute an appealable error. It is not the role of a court to necessarily distinguish every case cited before it. Each depends on its particular facts. Rather, the question is whether consideration of that case indicates the court was in error in imposing the sentence it did. Consideration of the appellant's appalling traffic history, a feature not present in R v Smith, in my view indicates that the sentence here imposed was not outside the sentence that could have been imposed, notwithstanding R v Smith. The appellant's traffic history in R v Smith, although involving the previous BAC offence, was not nearly so lengthy as the history of the appellant in the case before me. I do not think that consideration of R v Smith means the sentence imposed was excessive.

[38] There is however a further consideration I think of importance. It is clear the appellant was addicted to drugs, and to methylamphetamines in particular. His driving, his admission to smoking it before driving and his possession offences together with his attendance on the Alcohol and Other Drugs Service, and his other steps towards rehabilitation all point to that addiction. The learned magistrate was, understandably, much impressed by the efforts of the appellant's family, and of course of the appellant, to overcome that addiction. It was because of those matters that the magistrate concluded that a combined prison and probation order, or separate orders to similar effect, did not have a role to play in the particular circumstance of this case.

[39] I accept the submissions of the respondent (see [4.10] of the written submissions) that R v Hood [2005] QCA 159 is authority for the proposition that a defendant may be sentenced to both a wholly suspended sentence for an offence and probation on a different offence. However the respondent submits that the learned magistrate in his remarks was indicating only that this was "not an appropriate sentence in the factual circumstances, rather than stating it was not an available sentence at law."

[40] I agree with that submission. The context in which the learned magistrate made that comment clearly indicates that he was doing no more than suggesting that in the particular circumstance of this case the imposition of such a sentence was not appropriate. He appears to have so concluded since, as he said, the defendant had already taken steps towards rehabilitation and would not get any additional assistance from the Department of Corrective Services supervision.

[41] I am however unable to agree with the magistrate's conclusion that a combined prison and probation order did not have a role to play in the particular circumstance of this case.

[42] The difficulties of overcoming addiction are well-known. In R v Cocaris [2005] QCA 407 the Court of Appeal considered an appeal against a sentence of 15 months imprisonment suspended after three months with an operational period of two years for an offence of dangerous operation of a motor vehicle when affected by heroin. It was a serious example of such an offence, involving that appellant, a 24 year old social worker, driving onto the incorrect side of a busy Brisbane road due to her dozing off as a result of drug consumption. She collided head on with another vehicle. The driver of that vehicle suffered, among other injuries, a fractured tibia, described as an injury "just shy of GBH".

[43] The applicant had taken significant efforts to overcome her addiction set out at paragraphs 14 to 17 of the judgment of Jerrard JA in that case. His Honour then said at paragraph 23;

"[23] Deterrence of others is always important when offenders are being sentenced for driving adversely affected by intoxicating liquor...However, consideration of the circumstance of the applicant's life shows that she is a young woman with a considerable need for guidance from others, despite her formal qualifications in that same general field, and with a considerable capacity to make very poor choices of behaviour.

[24] The sentencing objective specified by the guideline in s 9(1)(b) of the Penalties and Sentences Act 1992 (Qld), namely of providing conditions in the court's order that will help an offender's rehabilitation, is not excluded by s 9(3)(b) of that Act. Accordingly I respectively consider that an appropriate sentence would have combined a period of imprisonment and a period of probation, as Mr Smith urged this Court to order. I therefore consider the learned judge was in error in preferring simply to suspend the sentence, because Ms Cocaris is much in need of assistance and supervision."

[44] Although the appellant in the case before me had a far greater level of familial support than Ms Cocaris it is clear from the very short six week period between his offending and the sentence that his rehabilitation from drug addiction was far from certain. He had only a very limited number of attendances on the Alcohol and Other Drug Service and on his psychologist.

[45] In my assessment the learned magistrate's reliance on those early efforts at rehabilitation and the support of the applicant's family to justify a conclusion that there was "no benefit in...probation" and that a sentence of imprisonment and probation "don't go together" in the circumstance of the case, was misplaced. I do not suggest the learned magistrate was suggesting, as the applicant argued, that he could not sentence the applicant to both imprisonment and probation but in my view his conclusion that "he's doing those steps now (i.e. his rehabilitation)" and "that's not going to be any greater through the Department of Corrective Services" was misplaced.

[46] With respect, I think His Honour's conclusion constitutes appealable error. In my view it is inconsistent with the approach of the Court of Appeal in R v Cocaris (supra) which emphasised that a party's tentative steps towards rehabilitation - which, in any view, is all that could be as scribed to the appellant's early but creditworthy steps towards full rehabilitation can benefit from a prison sentence being combined with probation. The applicant remains much in need of assistance, and like Ms Cocaris, supervision. The sentence imposed did not achieve that end and was inconsistent with the requirements of s 9(2)(a) of the Penalties and Sentences Act.

[47] In that circumstance it is my view that the appellant has shown appealable error. I need to re-exercise the sentencing discretion.

[48] The appellant has already spent 17 days in custody. The question is whether or not he should now be re-sentenced to a further short period of imprisonment. I see little benefit in interrupting his progress to rehabilitation by requiring such incarceration. Whilst general deterrence is especially important in cases such as this, that need can be met by the imposition of a head sentence of 12 months imprisonment and an order that it be suspended forthwith, he having served 17 days of pre-sentence custody, with an operational period of 2 years. I note also that in R v Cocaris (supra) McMurdo P said that where an offender in a case like this has a substance abuse problem then "where there are efforts at and promising prospects of rehabilitation it may sometimes be appropriate to impose a structured probation order or an ICO".

[49] On the offences of driving under the influence of a drug and possessing dangerous drugs I impose probation for a period of three years on the usual conditions. I convict the appellant on those matters. I convict and not otherwise punish him with respect to the offence of possessing property used in the commission of a drug offence.