Lythgoe v Queensland Police Service

"(a) all the circumstances of the case, including circumstances of aggravation or mitigation; and

(c) the person's criminal history and traffic history;

(d) any information before it relating to the person's medical history or the person's mental or physical capacity that the court considers relevant; and

(e) whether the offence was committed in association with the commission or attempted commission of another offence and if so, the nature of the other offence; and

(f) any other matters that the court considers relevant".[2]

[5] The ground of appeal was that the component of imprisonment as part of the sentence was manifestly excessive, that insufficient weight was given to any rehabilitation and suitability for community based orders.

[6] An appeal such as this is by way of rehearing on the evidence given in the proceeding before the Magistrate.[3]

[7] The facts of the offence put before the Magistrate were that at 3pm on the date of the offence, the police intercepted the motor vehicle driven by the appellant on Brisbane Road, Mooloolaba. On checking his license, it was found to be disqualified by court order. When asked his reasons for driving, the appellant said he was going to the laundromat.

[8] The appellant was ably represented by a solicitor. The solicitor told the court his instructions were that there was no urgency in respect of the driving, that the appellant was running an errand and simply did not think about getting behind the wheel and driving before setting off. He submitted that there was no other offence committed such as speeding or drink driving and that he cooperated with the police officers and had plead guilty before the court. He was in secure employment in which he had recently been promoted, he had good family support, was married with two children and another child due in the coming January, all residing with him and financially dependant upon him. In the event a prison sentence was imposed, he would lose his job which would have a flow on effect to his family. He had sold his car and arrangements had been made with his employer, so that he did not need to drive for the purposes of his work. He asked for a community based order, such as probation or alternatively if a sentence of imprisonment was imposed, that it be wholly suspended or immediate release on parole ordered.

[9] The appellant had been on parole regarding a previous offence which parole was due to end on the date of sentence. An officer of the Department of Corrective Services informed the court they had assessed the appellant. A pre-sentence assessment was tendered and admitted which indicated that the Department of Corrective Services regarded the appellant as suitable for further community based supervision although his employment may conflict with a community service order. He had been compliant with his parole order.

[10] The appellant was 21 years of age at the time of sentencing having been born on 16 March 1987. He had both a traffic history and a criminal history. His criminal history commenced when he was 18 years of age. There were offences of contravening a direction or requirement, using a carriage service for offensive purposes, possessing tainted property, common assault, fraud, attempted fraud, some drug offences. He was admitted to probation on 4 April 2005. He was before the court for breach of probation on 30 May 2005 and 17 June 2005. A community service order was made. On 8 July 2005 he was before the court for breach of the community service order. He was re-sentenced and fines were imposed. On 29 September 2005 he was before the court for a breach of a family protection order, probation was ordered with special conditions. On 6 February 2008 he was before the court for a large number of offences, mostly committed in a period between June and August 2007, fraud - 10 charges, unlawful entry of a vehicle with intent to commit an indictable offence - 15 charges, stealing - 13 charges, forgery, unlawful use of a motor vehicle - 2 charges, enter premises with intent, break and enter premises and commit an indictable offence, unlawful possession of property suspected of being stolen, burglary and committing an indictable offence. He was sentenced to imprisonment for 9 months with an immediate parole release order and ordered to pay a large amount of compensation. He was before the court again on 19 May 2008 for entering premises and committing an indictable offence, but that was for an offence committed in 2005. He was fined and ordered to pay a small amount of restitution.

[11] His traffic history commenced when he was 18 years of age. Between 25 April 2005 and 10 August 2005, there were 19 offences for a variety of traffic type offences - a learner, driving a motor vehicle without a licensed person with him, failing to display "L plates", permitting another person unlicensed to drive, driving a defective vehicle, driving a vehicle which was not in a safe condition, driving an uninsured motor vehicle on a road, driving a motor vehicle with the passenger not using a seat belt and two speeding offences by exceeding the speed limit in excess of 40 kilometres per hour. In August 2005 because of an accumulation of points, his license was suspended. On 4 September 2005 he committed an offence of unlicensed driving. He was disqualified from holding or obtaining a drivers license for 6 months and his demerit point suspension was increased. On 7 November 2005 he committed an offence of disqualified driving, he was fined and his license was disqualified for 2 years. On 7 December 2005 he committed the offence of unlicensed driving, his license was disqualified for 2 years. On 19 December 2005, he committed an offence as a passenger in a vehicle, failing to wear a seatbelt. On 20 May 2007, he committed an offence of disqualified driving. He was fined and his license was disqualified for 2 years. On that same occasion, he committed offences of driving a vehicle in a way to make unnecessary noise or smoke and driving under the influence of liquor. His blood alcohol concentration was 0.067%. On 14 March 2008 he committed a further offence of disqualified driving. He was fined and his license was disqualified for 2 years. His next conviction was for the offence under appeal.

[12] Three character references were admitted into evidence, one from his mother, one from his grandmother and another from his partner. There was also a reference from his employer which indicated that the appellant was in training with the company to be competent to apply for a builders licence.

[13] The Magistrate's sentencing remarks reveal he took into account that the appellant was a young person of 21 years of age, his criminal and traffic history, and he noted the previous probation and community service orders and the breach thereof. He noted that the offence was committed whilst on parole but that the report from the Community Corrections Officer indicated that the parole due to be completed on that day had been completed successfully. He noted the personal references and that for an offence such as that before the court, imprisonment was a sentence of last resort. He noted there was no manner of driving or alcohol involved. He noted the prior convictions for disqualified driving. He said that the offence before him was "an offence which is showing contempt of the court order. This is your fourth time that you will be convicted of the offence of disqualified driving and those four offences occurring within a reasonably short space of time". In those circumstances he considered that the sentence to be imposed should include a term of imprisonment. He noted that the disqualification was the minimum period the law permitted him to impose and he had proceeded in that way because there was no alcohol or any other manner of operation of the vehicle involved. He indicated that if not for the matters that had been raised by his solicitor, he would have been serving a much longer period of imprisonment.

[14] There is nothing in the Magistrate's reasons for his sentence to indicate that he misunderstood or misapplied the facts or fell into error about the law. To the contrary, his sentencing remarks indicate that he gave consideration to all aspects of the matter, both from the prosecution and from the defence perspective.

[15] I was referred to some other appeals in the District Court against sentences of imprisonment imposed by Magistrates for offences of disqualified driving. Santillan v Queensland Police Service [2008] QDC 33 per Brabazon QC DCJ; Brooymans v Director of Public Prosecutions [2008] QDC 207 per Everson DCJ; Rogers v Harding and Peel [2007] QDC 112 per Wilson SC DCJ.

[16] Santillan was a case where the prison sentence and disqualification imposed was, in combination, plainly manifestly excessive. Brooymans also was a case where the prison sentence in combination with the licence disqualification was manifestly excessive. In Brooymans both counsel for the appellant and the respondent had submitted to that effect. By the time the appeal was heard, Brooymans had served 6 weeks of imprisonment. On appeal that was substituted for the sentence imposed by the Magistrate.

[17] Rogers was a case where a 19 year old male was before a court for the first time for a disqualified driving offence. It appears he had to that point a minor traffic history and no criminal history. There were two offences committed a fortnight apart, the first of which was committed two months after a court had ordered he be disqualified from holding or obtaining a drivers license. The Magistrate sentenced him to 4 months imprisonment and disqualified him from driving for two years. On appeal Wilson SC DCJ considered the sentence of imprisonment manifestly excessive. By the time of hearing of the appeal the appellant had served three days imprisonment. He allowed the appeal and ordered immediate parole.

[18] These decisions, like other similar appeals, turn on the facts peculiar to each of them. At best they indicate by way of example when a sentence under appeal may be considered one which is manifestly excessive.

[19] In this case the material before the Magistrate indicated that the appellant had prior convictions for disqualified driving. With the exception of his most recent parole he had breached community based orders in the past. He had re-offended whilst on parole. Whilst a sentence may have been constructed which released him on parole again, with the threat of a prison sentence hanging over his head, or alternatively a prison sentence suspended for a lengthy period, it cannot be said the sentence in its entirety was manifestly excessive.

[20] The appeal is dismissed. The sentence imposed by the Magistrate is confirmed.

[1] Section 78(1)(a) TORUM.

[2] Section 78(2) TORUM.

[3] Justices Act 1886 (Qld) section 223(1).