Sobieralski v Commissioner of Police [2009] QCA 90

Judgment (26 paragraphs)

[1]

Department of Public Prosecutions (Queensland) for the respondent

[2]

[2] MUIR JA: I agree with the reasons of Atkinson J and with the order she proposes.

[3]

[3] ATKINSON J: The applicant applied for leave to appeal pursuant to s 118(3) of the District Court Act 1967 (Qld) against a decision of a District Court Judge allowing in part an appeal from sentences imposed by a Magistrate. The applicant did not appear on the date set down for hearing and did not file any written submissions. When the matter was called on for hearing the respondent was content to rely upon his written submissions.

[4]

[4] The grounds of appeal were that the sentence imposed was manifestly excessive, that the combination of imprisonment with monetary penalties was inappropriate in the circumstances and that insufficient attention was paid to the totality principle.

[5]

[5] Leave will not usually be granted unless "an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected."[1]

[6]

[6] The application arose from the following circumstances. On 13 September 2008 at the Magistrates Court in Mareeba the applicant was sentenced on his own plea of guilty for a number of offences which occurred between 2003 and 2007.

[7]

[7] For common assault which was committed on 1 June 2003 he was sentenced to one month's imprisonment and ordered to pay $1,775 compensation. The assault happened in the following circumstances. The 67 year old complainant employed the applicant as a farm hand. The complainant and applicant argued about some diesel which the applicant was trying to sell to him. The applicant suddenly pushed the complainant, causing him to fall to the ground, breaking his dentures. When the complainant stood up he was bleeding from the mouth.

[8]

[8] For possession of a drug utensil committed on 1 August 2004, a $300 fine was imposed upon him. The police intercepted the applicant's panel van on James St, Cairns for an inspection and licence check. The vehicle was found to be unregistered. The applicant was seen to place something inside his pants. A small metal pipe was found in his shorts.

[9]

[9] A number of offences were committed on 5 October 2004. For dangerous operation of a vehicle with a circumstance of aggravation he received six months imprisonment and he was disqualified from holding a driver's licence for 18 months; for trespass in an enclosed yard he received a $300 fine; for driving an unregistered vehicle using false plates and driving while unlicensed he was given a $500 fine and he was disqualified from holding a driver's licence for six months; for driving an uninsured vehicle he received a $300 fine.

[10]

[10] Those offences were committed in the following circumstances. At about 6.30pm on 2 October 2004 police were called to a single vehicle accident on Brinsmead Road. They found a white panel van against an embankment. It had suffered significant damage, particularly to the undercarriage. Witnesses had seen the van travelling at high speed along Brinsmead Road in an 80kph zone. The van changed lanes without indicating. The van raised a thick wall of dust, impeding the visibility of other motorists. When the dust settled, witnesses saw the van stationary at the embankment; the engine was running but the driver had decamped. Observations of the roadway indicated that the driver had braked hard and skidded 44 metres along the road, and had knocked over a guide post. The applicant had run from the vehicle, and jumped a fence into the yard of a nearby residence. He was questioned by a witness who described him as "agitated and angry". The applicant told the witness that his friend had committed suicide, and his girlfriend had just left him. The van belonged to the applicant, was unregistered and uninsured. Its plates belonged to a different vehicle. Checks also revealed that the applicant's driver's licence had been suspended by SPER. A warrant for the applicant's arrest was issued. This was the day of his girlfriend's funeral, which he had tried to attend but was prevented by her family. The applicant intended to try to talk to her relatives, and drove his unregistered vehicle. He was driving at about 90kph and lost control when a spare tyre became dislodged. The number plate on the vehicle belonged to a "mate" and he could not explain why it was on this vehicle.

[11]

[11] The next offence was committed later that month on 29 October 2004. At 2.15am police were called to a disturbance at the Sky Tower business premises on the corner of Spence and Sheridan Streets, Cairns. The applicant had climbed a 20 metre bungy tower and was threatening to jump off. The applicant climbed down the tower and onto the roof of a two storey building. After eight hours, negotiators were able to persuade him to climb down. The applicant declined to participate in an interview. The applicant was affected by depression, alcohol and amphetamines. While on the roof, the applicant caused significant damage to several business premises, including denting a metal roof by jumping on it, removed and damaged a TV antenna, and damaged two exhaust fans. According to the applicant, he'd gone on a bender after the death of his girlfriend. He was grieving at the time and was embarrassed about his conduct by the time of sentence. He said that he was prepared to reimburse the considerable damage caused. He received six months imprisonment to be served cumulatively for two counts of unlawfully climbing a structure, public nuisance and three counts of wilful damage. In addition he was ordered to pay $2,028.30, $316 and $779.90 compensation in relation to the wilful damage offences.

[12]

[12] For public nuisance committed on 19 November 2004 he received a $300 fine. At 4am police were informed that the applicant was causing a disturbance at the Lagoon on the Esplanade at Cairns. The applicant was observed removing his clothes and attempting to swim in the pool. He was informed by security that the pool was closed. The applicant became agitated and made another attempt to enter the pool. Security advised him that the police had been contacted, and the applicant began swearing while walking away from the pool. Police located the applicant who was attempting to pull up his pants and fasten his belt. He was clearly intoxicated. He was placed into the police vehicle where he began swearing, making threats against the police, and began kicking inside the van.

[13]

[13] On 15 December 2004 the applicant failed to appear before the Cairns Magistrates Court in relation to several substantive offences, and three warrants were issued for his arrest pursuant to the Bail Act 1980 (Qld). On 23 December 2004 he failed to appear in relation to another matter, and a further warrant was issued.

[14]

[14] His next offending occurred in 2007. At 4.28pm on 2 April 2007, police conducting traffic enforcement on Ceola Drive, Mareeba, saw a Hyundai car drive past. The applicant was the sole occupant. Police called out to him to stop, as they noticed that he was talking on a mobile phone while driving. The applicant looked at the police and accelerated away. Ceola Drive had a 50kph speed limit, and there was a high volume of traffic at the time. The applicant turned into Anzac Avenue and overtook several vehicles, crossing double centre lines as he did so. Police pursued with lights and sirens activated, and, despite reaching speeds of 80kph, they were unable to catch up with the applicant. The applicant turned onto Tinaroo Creek Road and accelerated away at high speed. Police quickly lost sight of the applicant, despite reaching speeds of 100kph. Police caught up with the applicant at the end of Tinaroo Creek Road, but he sped away, spinning the wheels of his car, and fishtailing past the police, narrowly missing their vehicle. The applicant drove away at high speed, later losing control of his vehicle. Police abandoned the pursuit. Police inquiries revealed that the applicant had borrowed the Hyundai from a friend, and that his licence had been suspended by SPER since 29 October 2006. The applicant said that he had borrowed a car and was visiting his brother's place of work. He was talking on his mobile phone and was unaware of the police until he was at the quarry where his brother worked. He took off because he knew he was unlicensed.

[15]

[15] For the offence of dangerous operation of a vehicle, he received nine months imprisonment to be served cumulatively, with his driver's licence disqualified for 30 months and for using a mobile telephone while operating a motor vehicle, failure to comply with the requirement to stop a motor vehicle and unlicensed driving he was convicted and his driver's licence disqualified for six months.

[16]

[16] On 4 September 2007 police apprehended the applicant in a residence at Mareeba. He gave his name as Jason Thompson. The applicant left the residence, but was located and arrested shortly afterwards in a neighbouring unit. The applicant offered no lawful reason for his failures to appear in 2004. The applicant said that he had missed the court dates because he had gone to Darwin to undertake a lucrative roofing contract. He subsequently contacted his lawyer and was advised to hand himself in, but he hadn't got around to it. For three breaches of the Bail Act for failing to appear on 15 December 2004 he received one month's imprisonment for each offence cumulative upon each other and upon the other terms of imprisonment. For failure to appear under the Bail Act on 23 December 2004 he received one months imprisonment also cumulative.

[17]

[17] For obstructing a police officer on 4 September 2007 he received one month's imprisonment to be served cumulatively. It arose from the circumstances surrounding the applicant's arrest re the Bail Act warrants. Having given a false name, the applicant was required to accompany police to the station to enable his identity to be confirmed. He ran from the house and climbed a fence into a neighbouring yard. Police lost sight of him for a short time but he was located soon afterwards.

[18]

[18] By the time of sentencing, there were various mitigating factors. The applicant pleaded guilty to all the offences, was in employment, had given up the use of drugs and had co-operated with the police to the extent of receiving a letter of comfort.

[19]

[19] The Magistrate set the parole release date at 12 April 2008 and declared nine days pre-sentence custody being time already served under the sentences imposed. The effective total term of imprisonment was 27 months with release on parole ordered after he had served seven months and nine days of the sentence. The total of the compensation ordered was $4,899.20 and the total of the fines imposed was $1,700. The total monetary penalties were therefore $6,599.20 and he was also disqualified from holding or obtaining a driver's licence for 30 months.

[20]

[20] The sentence therefore imposed quite heavy monetary penalties. The capacity of the applicant to pay was however compromised by the fact that he was a self-employed person who lost his business because of the term of imprisonment also imposed. As he could not pay the monetary penalties, he then faced and faces the default period of imprisonment in addition to the term of imprisonment of 27 months imposed. This was an extra eight months imprisonment and must be served cumulatively pursuant to s 185(2)(b) of the Penalties and Sentences Act 1992.

[21]

[21] The learned District Court judge on appeal varied the sentence imposed so that the sentences of one month's imprisonment for common assault committed on 1 June 2003 and one month's imprisonment for obstructing a police offer on 4 September 2007 were ordered to be served concurrently with each other and also with the sentence of six months imprisonment ordered to be served in respect of the offence of dangerous operation of a vehicle committed on 5 October 2004. The effect was a reduction in the sentence imposed from 27 months imprisonment to 25 months imprisonment.

[22]

[22] The application for leave to appeal under s 118(3) of the District Court Act submitted that the appeal raised an important question as to the appropriateness of combining imprisonment with substantial monetary penalties. In my opinion, this is a matter which must be considered when the court is considering the totality of the sentence imposed particularly when the monetary penalties are unable to be paid and will therefore lead to a further term of imprisonment which will have to be served cumulatively. In such a case, it is important to consider whether the effective sentence imposed offends against the totality principle referred to by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 when it adopted, at 63, a statement from Thomas, Principles of Sentencing 2nd ed, 1979 at pp 56-57:

[23]

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

[24]

[23] In my view, the effective total sentence of 33 months, made up of 25 months imprisonment upheld on appeal and eight months in default of payment, was manifestly excessive. A more appropriate sentence could now be achieved by removing the fine and penalties so that the applicant is not in jeopardy of any further imprisonment than that imposed as the term of imprisonment on the appeal. To do otherwise would cause a substantial injustice to the applicant.

[25]

[24] I would grant the application for leave to appeal, allow the appeal, and vary the order of the District Court at Cairns of 17 June 2008 by deleting order 2 and substituting the following: "2. All fines and compensation orders are removed."

[26]

[1] Pickering v McArthur [2005] QCA 294 at [3].

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Judgment (26 paragraphs)

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