Souvlis v Commissioner of Police [2011] QDC 274

[2] On 20 May 2011 the appellant appeared before the Magistrates Court at Maryborough on of the following charges:

(a) driving without a drivers licence disqualified by court order; and

[3] The appellant was convicted on his own plea of guilty and the sentences imposed were:

(a) for the speeding offence, a conviction recorded but no further punishment.

(b) for the driving while disqualified, nine months' imprisonment with a parole release date fixed at 19 August 2011.

Five days imprisonment between 16 and 20 May 2011 was declared time already served. The net effect of that order was that the appellant would be required to serve some three months' imprisonment. In addition, the appellant was disqualified from holding or obtaining a drivers licence for a period of four years. The term of disqualification was to be served cumulatively upon any other disqualification period currently being served by the appellant. The appellant, on 27 May 2011 was released on bail pending the outcome of this appeal. The maximum penalty for this offence is 18 months' imprisonment.

1. That the sentence of nine months' imprisonment was manifestly excessive.

2. The imposition of a court-ordered parole release date of 19 August 2011 was manifestly excessive.

3. The magistrate erred in his application under the Penalties and Sentences Act 1992 by not giving sufficient (weight) to matters of mitigation in favour of the defendant under s 9 of the Penalties and Sentences Act 1992.

[5] In the written outline of submissions filed on behalf of the appellant it is submitted that the learned magistrate failed to give adequate weight to:

[6] There was no real challenge to, or argument against, the length of disqualification imposed (4 years) save for the submission that it, together with the custodial sentence imposed, resulted in a manifestly excessive sentence. Not surprisingly, there is no challenge to the sentence imposed concerning the speeding offence. In respect of the driving while disqualified offence, it is submitted that:[1]

"...the appropriate sentence for the Appellant in the current circumstances is one of a head sentence of four (4) to six (6) months with a Court Ordered Parole Release Date be ordered (as at 3 November 2011) after considering the five (5) days presentence custody which are declarable for the charge of disqualified driving and the further six (6) days of imprisonment served by the Appellant between 21 May 2011 and 27 May 2011 when he was released onto bail."

[7] On behalf of the respondent, while it was conceded that the sentence "may have been at the higher end of the appropriate sentencing range", it was asserted that it was not manifestly excessive when all the relevant circumstances and, in particular, the appellant's criminal and traffic histories were taken into account.

[8] It is accepted that this court should not interfere with the exercise of a sentencing discretion unless it can be shown that some error had been made in the exercise of that discretion. That would typically involve the court below acting upon a wrong principle, allowing extraneous or irrelevant matters to affect the exercise of the discretion, acting upon a mistaken view as to the relevant facts of the case or where some material consideration had been ignored or given insufficient weight. It is not enough that the appellate court simply considers that a different sentence might have been a better option than that being appealed.[2]

[9] The subject offences occurred on 24 April 2011. At about 7.40 am the appellant was intercepted by the police on the Bruce Highway for driving above the posted speed limit. Police enquiries revealed that the appellant had been disqualified from driving a motor vehicle by an order of the court. At the time of the offences, he was 30 years old.

[10] At the time of the sentencing the appellant had a criminal and traffic history in Queensland. His criminal history extended over some two and a half pages, and included two entries of unlawful use of a motor vehicle, breach of probation and community service orders and drug and wilful damage offences. His traffic history, which could only be described as dreadful, extended over 4 pages. From my reading of his history, the appellant's drivers licence had been suspended eight times due to an accumulation of demerit points. On 26 March 2008 he was convicted of unlicensed driving and received a $450 fine and was disqualified from holding a drivers licence for a period of six months. Within that disqualification period he was convicted for driving while disqualified on two occasions, namely 17 and 24 May 2008. The appellant was dealt with for both offences on 22 September 2008 and fined in respect of the first offence but sentenced to six months' imprisonment with an immediate parole release date in respect of the second. His licence was also disqualified for three years. On the same day the appellant was also sentenced for a number of drug and drug related offences and one count of assault or obstructing a police officer. The sentence imposed for all those offences was 2 years probation. The subject offences occurred about one month prior to the expiry date of the disqualification period set in September 2008.

[11] By reference to the sentencing remarks, it is clear the learned Magistrate considered the following matters to be relevant. First, the appellant's traffic history and in particular the two previous driving while disqualified offences.[3] Second, his criminal history.[4] Third, that the appellant had failed in the past to comply with previous orders of the court, including court imposed disqualification orders, fines, and community service orders, and what the learned magistrate described as public interest issues, namely the expectation that the community expects people to abide by the laws of the state and court imposed orders.[5] And that the driving while disqualified offence was committed "in association with the commission or attempted commission of another offence."[6] Here the associated offence was the speeding offence.

[12] The fact that the appellant had entered an early plea was clearly identified and taken into account.[7] The fact that the custodial term was fixed at one-third of the sentence imposed is broadly consistent with the level of discount attributed to an early plea.

[13] The appellant's complaint that the learned magistrate failed to give adequate weight to the appellant's early plea is not made out.

[14] Turning then to the complaint that insufficient regard was given to the other provisions of s 9 of the Penalties and Sentences Act 1992. Without specifically referring to the Act, the learned magistrate clearly turned his mind to relevant considerations. First, identification of the principle that imprisonment should be imposed as a last resort,[8] and that it is preferable for offenders to remain working within the community rather than being incarcerated.[9] The appellant's medical history, including his "mental and physical capacity" and drug addiction, were also specifically addressed by the learned magistrate.[10] In my view, the only discernible error made in respect of the relevant provisions of the Penalties and Sentences Act 1992 was a failure to give sufficient weight to the principle of imposing a sentence which would allow the offender to stay in the community.[11]

[15] By reference to the appellant's written outline and Mr Cassidy's (counsel for the appellant) submissions at the hearing of the appeal, it became tolerably clear that real challenge to the sentence imposed was that, when compared to comparable sentences, it was materially out of range.

[16] After reference to the mitigating and aggravating features of the case, the learned magistrate said:[12]

"Now, the Courts in this state, that is, the higher Courts have made it clear that there can be an expectation where you breach a statute law and breach orders of the Court, that you can expose yourself to imprisonment. Here the monetary penalty is either $6,000 or you can be imprisoned for 18 months and periods of disqualification must apply under the provisions of the Transport Operations (Road Use Management) Act 1995.

When one considers all of the matters, it is my opinion that the appropriate penalty is one of imprisonment and where some term of that imprisonment should be served..."

[17] Given the appellant's history concerning the non-payment of fines and breaches of probation and community service orders, it was entirely open for his Honour to consider any further penalty or penalties of that nature to be inappropriate.

[18] However, notwithstanding the learned magistrate's reference to decisions of the "higher courts", no reference was made to any decisions which might have guided his Honour to reach the conclusions that he did. That he did not do so is perhaps understandable. On my reading of the submissions made on 20 May 2011, his Honour's attention was not apparently directed to any relevant authority dealing with what might be an appropriate range of sentences.

[19] As mentioned above, the appellant's driving history is a dreadful one. However, it is relevant to have regard to the nature of that history. Leaving aside for the moment the driving while disqualified entries, it is largely dominated by speeding offences and unlicensed driving type offences, including driving on a learners licence without an appropriate licensed person being present in the vehicle. There are no entries for dangerous driving or driving under the influence of alcohol and/or a drug. The absence of such offences was considered relevant in Santillan v Queensland Police Service.[13]

[20] As identified above, the magistrate considered it sufficiently important to expressly refer to the appellant's criminal history dealing with unlawful use of motor vehicles and "other types of offences of wilful destruction".[14] One of the unlawful use of a motor vehicle offences and one of the wilful damage offences occurred virtually 11 years ago and were dealt with in the Southport Magistrates Court on 15 March 2001 with a raft of other offences. From my reading of the record, one sentence was imposed in respect of all offences, being one year probation and community service of 70 hours. The next wilful destruction entry is concerned with an offence that occurred in excess of nine years ago and, by reference to the sentence imposed, must have been relatively minor. The next unlawful use of a motor vehicle entry was dealt with in the Southport Magistrates Court on 23 April 2007. However, it would appear that this offence occurred on or about 22 February 1998, when the appellant would only have been about 17. The penalty imposed was no conviction recorded and the appellant to enter into recognisance in the sum of $400 and to be of good behaviour for a period of 12 months. It is unclear whether that sentence reflects either the level of offending or the passage of time between the commission of the offence and it being dealt with or both. The balance of the appellant's criminal record is thereafter littered with a raft of drug and, mostly likely, drug related offences. There is one entry of assault or obstructing a police officer.

[21] In my view the learned Magistrate failed to fully consider the true nature and extent of the appellant's criminal and traffic history, and thereby proceeded on an erroneous view about the level of the appellant's past offending behaviour.

[22] Unlike the situation facing the learned magistrate, I was provided with a number of cases which, according to the appellant, supports his position. It is most unfortunate that his Honour was not given the same assistance. These cases, some of which I will refer to below, make it tolerably clear that the sentence imposed when viewed in its totality was manifestly excessive. Had they been brought to the attention of the Court below this appeal might not have been necessary.

[23] In Low v McMonagle[15] the appellant was sentenced in the Magistrates Court to six months' imprisonment suspended after serving two months for an operational period of two years in respect of two offences to which he pleaded guilty:

(i) driving a motor vehicle while under the influence of liquor and a drug;

(ii) driving a motor vehicle while not being the holder of a driver's licence and being disqualified by a court order from holding or obtaining a driver's licence.

[24] Orders were also made disqualifying the appellant's driver's licence for a period of two years and, because those orders were made cumulative, the effect of total period of disqualification was 4 years.

[25] The appellant had no relevant criminal history but a traffic history which included eight drink driving offences and three driving while disqualified offences. There were numerous other minor traffic related offences.

[26] After referring to the appellant's antecedents, the appeal judge, Long SC DCJ, observed:[16]

"However and as is apparent from what has been set out so far, the particularly concerning aspect of this serious combination of offending circumstances is that it not only occurred in the context of that history of driving offences but also less than seven months after the most recent entry resulting in the disqualification of the appellant's driver licence, by court order."

"The seriousness of the appellant's offending is self-evident. It extends beyond the manifestation of an underlying drug and alcohol addiction, but repeated offences of driving while affected by such substances and includes the manifestation through the collision which occurred, of the high level of danger to the community which was inherent in his conduct. It also includes his flagrant disregard of the authority of the court order in respect of his disqualification."

[28] After establishing that the magistrate below had erred in the exercise of his sentencing discretion, his Honour allowed the appeal and relevantly varied the sentences imposed in respect of each offence to six months' imprisonment to be suspended after serving 14 days for an operational period of two years. Both sentences were to be served concurrently and a declaration was made in respect of the 14 days the appellant had already spent in custody. The disqualification period imposed by the magistrate below was not interfered with.

[29] Aggravating features of this case were the interrelated drink driving offences and the history of drink driving and driving while disqualified offences. However, the appellant had no "relevant" criminal history.

[30] In Santillan v Queensland Police Service this court was concerned with a 22-year-old appellant who had a "very bad traffic history" extending over five and a half pages of record. This traffic history, however, did not include any entries for drink driving or reckless driving and the appellant had only a "slight" criminal history. An aggravating feature of this case was that the appellant had obtained and used a false licence in the name of a friend, which he used in conjunction with his friend's birth certificate. However, in addition to being a young man, the appellant had a good work history and was "otherwise carrying on a useful life".

[31] The sentences imposed below were described by Brabazon QC DCJ in the following way:[18]

"The three offences of driving while disqualified resulted in 15 months imprisonment suspended after serving nine months, for an operational period of two years, and a further disqualification of three and a half years."

[32] Brabazon QC DCJ considered that the sentences were "impermissibly high" and allowed the appeal in part and ordered that:

"(a) the suspended term of four months' imprisonment imposed on 30 October 2006 be now served; fix the parole release date to today 29 February 2008;

(b) with respect to the offence of 24 February 2007, reduce the three years' disqualification to two years; fix the parole release date at today;

(c) with respect to the offence of 17 May 2007, reduce the period of imprisonment to eight months; fix the parole release date at today; reduce the disqualification to two years;

(d) with respect to the offence of 5 July 2007, reduce the period of imprisonment to eight months; fix today as the parole release date; reduce the disqualification to a period of two years."

[33] The period of time the appellant had spent in custody prior to the appeal being allowed is not stated in the judgment.

[34] Aggravating features in this case were clearly the appellant's traffic history and the use of a fake licence and the friend's birth certificate. However, mitigating factors not present in this case are youth, good work history and an otherwise useful life and only a "slight" criminal history. Mr Souvlis' criminal history, while not as bad as many seen in this Court, could not be described as slight.

[35] In Lythgoe v Queensland Police Service[19] the appellant was sentenced in the Magistrates Court for two offences; driving without a licence and driving while disqualified by a court order. On his plea of guilty he was sentenced to one month's imprisonment followed by two years' probation and was disqualified from holding a driver's licence for a period of two years. The appellant had a number of mitigating factors in his favour, including that he was in secure employment, was married with two children and another child due in the near future, and his entire family was dependent on his income. However, he had an extensive criminal history and a not immaterial traffic history.[20] In dismissing the appeal, Dodds DCJ said:[21]

"... while 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."

[36] As is always the situation, no two cases are identical. However, in my view, a review of the authorities shows that the sentence imposed below was manifestly excessive when regard is had to the true nature of the appellant's antecedents, and the sentencing preference of imposing a sentence which would allow the appellant to stay in the community.

[37] However, the range for the head sentence advocated for on behalf of the appellant (4 to 6 months) with a parole release date fixed at 27 May 2011, even coupled with the lengthy term of disqualification (4 years) fails to recognise the appellant's antecedents. This is his third conviction for this type of offence. A fine was imposed in respect of the first and a six month term of imprisonment with immediate parole imposed for the second. While his record may not demonstrate that he is a clear danger on the roads, it does reveal that he is a repeat offender with a level of contempt for the previous disqualification orders. It is also of some relevance that since the disqualification orders were made on 24 May 2008, the appellant has committed a number of criminal offences, albeit minor drug and drug related offences. On balance, while the sentence of nine months is at the high end of the range, it cannot be said in the circumstances of this case to be manifestly excessive, provided the appellant does not have to return to custody.

[38] For the reasons given, the orders of the court are:

2. The sentence below is varied but only to the extent that, in respect of the offence of driving without a drivers licence while disqualified, the parole release date be fixed at 27 May 2011.

3. A declaration is made that the period of 11 days served in custody between 16 May 2011 and 27 May 2011 be time served under the sentence.

[2] House v R (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[3] Transcript of sentencing remarks T1 2 LL 35-60; T1 3 LL 1-42.

[11] Section 9(2)(a) Penalties and Sentences Act 1992.

[13] (2008) QDC 33 at para [5].

[15] (2011) QDC 109.

[19] [2009] QDC 108.

[20] Refer to paras 10 and 11 of the reasons of Dodds DCJ.