Queensland Police Service v Gregory [2010] QDC 388

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

Penalties and Sentences Act 1992 (Qld), s 9(2)(p)

Director of Public Prosecutions v Ottewell [1970] AC 642, cited

House v The King (1936) 55 CLR 499, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Aston (No. 2) [1991] 1 Qd R 375, applied

R v Melano; ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186, cited

R v Mladenovic; ex parte Attorney-General [2006] QCA 176, cited

R v Sittczenko; ex parte Cth DPP [2005] QCA 461, cited

Veen v The Queen (No. 2) (1988) 164 ALR 465, applied

Director of Public Prosecutions (Qld) for the appellant

HIS HONOUR: This appeal has been brought pursuant to section 222 of the Justices Act 1886 (Qld) by the complainant, an officer of the Queensland Police Service, against the sentence imposed by a Magistrate on 18 February 2010 in the Doomadgee Magistrates Court upon Rex John Gregory.

The appeal is brought on the ground that the sentence is manifestly inadequate.

The respondent pleaded guilty to one count of driving a motor vehicle on 19 January 2010 without a driver licence whilst disqualified by a Court order.

He was sentenced to six months' imprisonment with an immediate parole release date. His licence was disqualified for a period of two years.

The respondent was observed by police at approximately 4.15 p.m. driving a white Toyota Hilux motor vehicle along Cantle Street, Doomadgee. Police then spoke to the respondent who admitted that he did not have a current driver licence and that he had been disqualified from driving by a Court order. Further inquiries revealed that he was the subject of a Court order on 19 June 2008 where his licence was disqualified until 18 June 2010. His reason for driving was so he could buy some ice cream for his children who were crying.

At the time of sentence he was a 40 year old man. He had been married for 20 years and has 10 children.

He had an extensive history for traffic offences. Since 1992, he had accumulated five unlicensed driving offences, six disqualified driving offences and seven offences of driving under the influence of liquor. He had committed these offences in 1992, 1993, 1995, 1996, 2000, 2001, 2005, 2006, 2007 and 2008.

His driver licence was first disqualified in 1993 for a driving under the influence offence committed in December 1992. On this occasion, his licence was disqualified for 12 months. He had also driven whilst unlicensed on this occasion.

In 1995, he committed further combined offences of driving under the influence and unlicensed driving. On this occasion, his licence was disqualified for 15 months. His blood alcohol content for these initial offences of driving under the influence was 0.12 and 0.26 per cent, respectively.

In 1996, he was convicted of his first offence of disqualified driving and was disqualified absolutely. In 2001, he committed further combined offences of driving under the influence and unlicensed driving. His blood alcohol content on this occasion was 0.257 per cent. On this occasion, he was disqualified for 12 months and ordered to complete 68 hours' community service.

In the same year, he was convicted of disqualified driving. He was again disqualified absolutely. He was sentenced to imprisonment for the first time for a traffic offence. On this occasion, his term of imprisonment was three months.

A further disqualified driving offence in the same year resulted in his being sentenced to imprisonment for two months. He received another absolute disqualification. He had also driven under the influence on this occasion for which he was disqualified for 19 months. His blood alcohol content was 0.254 per cent.

In 2005, he was convicted of unlicensed driving and disqualified for one month. In 2007, he was convicted of further combined offences of driving under the influence of liquor and disqualified driving. He was disqualified for two years. His blood alcohol content was 0.153 per cent.

On 1 March 2008 and 17 March 2008, he again committed combined offences of driving under the influence and disqualified driving. On these occasions, he had blood alcohol contents of 0.214 per cent and 0.225 per cent.

He was dealt with for all of these offences on 19 June 2008. For the first disqualified driving he was sentenced to three months' imprisonment and disqualified for two years. For the second, a six month term of imprisonment was coupled with the same period of disqualification. It is not clear from the traffic history if he received a concurrent term of imprisonment. However, he was disqualified for 12 months.

For the second driving under the influence offence, he was sentenced to six months' imprisonment and disqualified for 18 months. Consequently, he was sentenced in total to six months' imprisonment.

Although it does not appear in the traffic history, the written submissions for the appellant state that his parole release date was after serving two-thirds or four months of this sentence. This is also in accordance with the Magistrate's sentencing remarks.

He also received a two year disqualification for these offences. The disqualification period was not to expire until 18 June 2010. Therefore, at the time he committed the offence which is the subject of this appeal, there was five months of the disqualification to run.

Before the Magistrate, the Prosecutor drew attention to this history. He referred to this being the respondent's fifth disqualified driving offence in the past five years. More correctly, it was his fourth such offence together with an unlicensed driving offence during this period.

The Prosecutor submitted that the defendant should be sentenced to six months' imprisonment with a parole release date at the one-third mark, i.e. after two months. In doing so, he observed the previous sentence to serve an actual term of imprisonment had not been a sufficient deterrent to prevent him from re-offending in an identical manner.

The respondent's legal representative stressed that he had been working in the CDP scheme for the previous 15 years. He made the point that the offence for which he was sentenced to four months actual imprisonment involved two very high blood alcohol content readings coupled, in each case, with a disqualified driving offence, whereas he was before the Court on this occasion on one disqualified driving charge.

He stressed that he had not committed an offence for almost two years and also his early plea of guilty. He submitted that the respondent could be assisted to understand the error of his ways through a parole release date.

Ms Ketchup, whom I understand to be the coordinator of the Doomadgee Community Justice Group, or at least a senior member of that group, addressed the Court pursuant to section 9(2)(p) of the Penalties and Sentences Act 1992 (Qld). She made the point that apart from the respondent's driving, he was a very quiet person in the community. She confirmed he worked every day. She observed that his driving was not reckless and he cooperated with the police.

It was at this point that the respondent's lawyer identified the respondent's reason for driving and added that the respondent knew he should not have been driving but gave in to his crying children.

In sentencing the appellant, the learned Magistrate, in accordance with these submissions, stated that it was difficult for her to impose a sentence other than a term of imprisonment. She said:

"The law is the law and it does say that you are not allowed to drive and you've placed yourself in a very difficult situation, a situation where you risk your liberty being taken away."

She also made reference to his extensive traffic history which she described as "clearly serious". She referred to his early plea, his full cooperation with the police, the fact there was nothing adverse in relation to his driving, the significant period since he had been before the Court and that it seemed his history was simply driving, as being in his favour. She also said the other factor was that if he had gone back years ago and removed the absolute disqualification he may not have been in this situation. Her Honour also referred to his being a working man. With reference to his early plea, she expressly said that because of this she imposed a lesser penalty.

Unfortunately, the respondent has not appeared before me on the hearing of this appeal, either in person or by a legal representative. The only submissions I have before me are those on behalf of the appellant who contends that a parole release date should be fixed after two months of actual custody. I am left to consider this submission without the benefit of a contradictor.

It is submitted that the weight of the early plea and cooperation with the police is reduced because this was almost inevitable in circumstances where the respondent was directly observed driving by the police. It is argued that whilst there was nothing adverse in the nature of the driving, such as speeding or alcohol, the principles in Veen v. The Queen (No. 2) (1988) 164 ALR 465 and R v. Aston (No. 2) [1991] 1 Qd R 375 suggest that given the respondent's many previous convictions for the same or similar offending, the gravity of the offending is increased and a more severe penalty is warranted.

Further, it is submitted that the sentence has the effect that the respondent is punished to a lesser extent than on the previous occasion when he was sentenced to an actual period of imprisonment for the same offence.

In conclusion, it is submitted that such a sentence is inconsistent with the principles of specific and general deterrence and with the reasoning in Veen (No. 2) and Aston (No. 2).

Before an Appellate Court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect her, mistook the facts or did not take a material consideration into account: House v. The King (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504-505. As McMurdo P said in relation to Attorney-General's appeals under section 669A of the Criminal Code 1899(Qld) in R v. Mladenovic, ex parte Attorney-General [2006] QCA 176 at [15], the appellant must demonstrate an error in the exercise of the sentencing Judge's discretion (here, that the Magistrate's sentence is manifestly inadequate) before this Court can intervene and re-exercise the sentencing discretion. See also R v. Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane J at [25] to [26].

Section 669A of the Criminal Code is an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence.

As the Court of Appeal said in R v. Melano, ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186:

"Unless the sentencing Judge had erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be proper."

It is therefore relevant to consider whether the sentence appealed against was outside the sound exercise of the Court's discretion: Parry v. Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [29]. I am indebted to his Honour for the review of relevant authorities at [27] to [29].

I appreciate the difficulties experienced by Magistrates in sentencing defendants who appear before them on circuit in communities like Doomadgee. These are generally busy lists which require them to sentence and make other decisions in relation to a large number of persons and charges on any given day. They have to make quick decisions before moving on to the next matter.

As in the present case, they seldom have the benefit of the relevant legal authorities being cited to them. They do not have the benefit of hindsight and reflection which is available to an Appeal Court.

While recognising this, I consider that, in this case, the appellant has demonstrated that the learned Magistrate has erred in principle, both because an error is discernible and is demonstrated by a manifest inadequacy of sentence.

In the first place, her Honour at no time referred to the need to impose a penalty which reflected the principles of specific and general deterrence. As stated by the High Court of Australia in Veen [No. 2], in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ at 477, while the antecedent criminal history of an offender cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence,

"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 a 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."

In the circumstances of this case, I consider that the appellant's continuing attitude of disobedience to the law in driving whilst disqualified or unlicensed is such that the principles of specific and general deterrence indicated that a more severe penalty was warranted.

This is particularly so in the present case which indicated the respondent's continuing attitude of disobedience to the law, notwithstanding that he had been sentenced to four months actual imprisonment for two disqualified driving offences associated in each case with high level driving under the influence offences 19 months previously. On this occasion, he deliberately drove the motor vehicle despite knowing he did not have a current licence and remained disqualified from driving by the Court's order in relation to those earlier offences. Notwithstanding this, he took the risk of breaking the law knowing the potential consequences. This showed a need to impose condign punishment to deter him and other offenders, particularly in communities such as Doomadgee, from committing further offences of a like kind. Although a penalty cannot be imposed which is disproportionate to the gravity of the singular offence of which he was convicted on this occasion, to punish him to a lesser extent than on the previous occasion when an actual term of imprisonment was imposed is not to impose condign punishment to deter him and other offenders.

By not making any reference to this in her sentencing remarks, in my view, the learned Magistrate gave too much weight to the mitigating factors to which she referred and insufficient weight to the principle of deterrence, both general and specific.

Although her Honour was entitled to give the respondent the benefit of his early plea of guilty and his full cooperation with the police, I agree with the appellant's submission that these factors were entitled to less weight in the present case because he had been directly observed by the police to commit this offence. As such, his conviction was an inevitable consequence of his offending, as he must have been recognised.

In addition, I consider that her Honour took an extraneous or irrelevant consideration into account in making reference to the fact that he may not have been in this situation if he had removed the absolute disqualification years ago.

Earlier, in the course of her sentencing remarks, her Honour had observed to the respondent that she did not know whether he appreciated that it is a relatively easy process to have the disqualification removed. After imposing sentence, she told him that, upon the expiration of two years, he needed to make an application to have his absolute disqualification removed and to apply for a licence. She suggested he could obtain legal advice about this.

I recognise it is often the commission of driving offences which are relatively easy to detect in indigenous communities which result in persons like the respondent incurring an extensive traffic history, particularly for unlicensed and disqualified driving, and this results in a disproportionate incarceration rate.

As her Honour said, this is often contributed to by their lack of knowledge that an application can be made after the passage of the appropriate time period to remove the absolute disqualifications that result.

However, the respondent fell to be sentenced on the factual basis that having been disqualified for a fifth time by a Court in 2008 he deliberately drove a motor vehicle in breach of this order.

In my view, it was irrelevant to the exercise of the sentencing discretion that he may not have been in the situation which, in fact, existed if he had made an application to remove the absolute disqualification.

In Aston [No. 2], Cooper J quoted with approval from the opinion of Lord Donovan in Director of Public Prosecutions v. Ottewell [1970] AC 642 at 650:

"Judges have always (and I think rightly) felt themselves entitled to deal with a persistent offender by increasing the sentence they would have passed if he were not. This is not to punish the offender again for his past crimes, nor is it always primarily for the protection of the public. It may simply be because of the Judge's view that sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried, perhaps in the offender's own interest; or it may be that repetition has itself increased the gravity of the offence. Eventually, in some cases, the stage is reached where it becomes clear that progressively increasing sentences are not a deterrent and the protection of the public against a persistent offender then comes to the forefront of the considerations which the Judge must take into account."

In this case, her Honour's sentence did not give sufficient recognition to the fact that the repetition of the respondent's offending had increased the gravity of the offence and that, in circumstances where sentences passed for previous offences had proved to be an insufficient deterrent, including sentences of actual imprisonment, a further sentence of actual imprisonment was required. It must be remembered that the sentences in 2008 for disqualified driving were not the first occasion on which the appellant had been sentenced to terms of imprisonment. He had been sentenced twice to terms of imprisonment for this offence in 2001.

In these circumstances I consider that her Honour's sentence was outside the sound exercise of the Court's sentencing discretion.

I therefore find that the appellant has established an error in the exercise of this discretion, both because an error in principle is discernible and because it is demonstrated by the manifest inadequacy of the sentence.

Accordingly, I am entitled to re-exercise the sentencing discretion. Subject to one factor, I would do so by varying the sentence imposed by fixing the parole release date after two months of actual custody or setting aside the sentence and re-sentencing the respondent to six months' imprisonment with a parole release date fixed after he had served two months of actual custody.

The factor which has caused me not to do so is that because of the time which has elapsed since the appeal was instituted, the appellant has completed his six month term of imprisonment which was imposed slightly over seven months ago on 18 February 2010. The institution of the appeal did not stay the operation of this sentence which the respondent served in the community. Accordingly, there is no existing term of imprisonment to which a parole release date requiring an actual period of custody to be served can be fixed.

To achieve this result by imposing a sentence of actual custody at this stage would have the effect of imposing a penalty for the offence which would be in excess of the term of six months which the appellant accepts in its submission is proportionate to the gravity of the offence.

Accordingly, to impose a sentence at this time of, for example, two months actual imprisonment would result in a total period of imprisonment for this offence of eight months. This would be disproportionate to the gravity of the offence.

Accordingly, notwithstanding that I consider the sentence imposed by the learned Magistrate which did not involve the requirement of a period of actual custody to be served before release on parole was manifestly inadequate, in the particular circumstances of this case, I dismiss the appeal.