Office of the Director of Public Prosecutions for the Respondent
[2]
[1] This is an appeal by the appellant against the sentence imposed upon him in the Redcliffe Magistrates Court on 15 May 2025.
[2] The appellant entered pleas of guilty to three offences, one of Dangerous operation of a motor vehicle, one of Evasion offence at night and one of Drink Driving (middle alcohol limit). All offences were committed on the night of 14 March 2025. He was sentenced to nine months' imprisonment for the Dangerous Driving, and disqualified from holding or obtaining a drivers licence for nine months; three months' imprisonment for the Evasion offence and disqualified from holding or obtaining a drivers licence for two years and disqualified from holding or obtaining a drivers licence for four months for the Drink driving, but otherwise convicted and not further punished for that offence. All sentences are to run concurrently with parole release after three months, that is, on 14 August 2025.
[3] The appellant successfully applied for bail pending his appeal hearing after he had served 25 days in custody from 15 May to 9 June 2025.
[4] He appeals pursuant to s.222 of the and contends that the sentence imposed was excessive in all of the circumstances. In particular, he submits that the sentence of nine months' imprisonment with release after three months failed to properly reflect the appellant's personal circumstances, his prospects of rehabilitation, the principle that a sentence that allows an offender to remain in the community is preferable, the undesirability of short periods of imprisonment, and that the sentence was disproportionate to the gravity of the offending.
[5] The circumstances of the offending are that on the night of 14 March 2025, at about 1:30am, the appellant was seen by police doing 'burnouts' in Barry Bolton Park, Margate. Damage was caused to the park in the form of circular tyre marks in the grass. It seems that he noticed the police presence, so he drove away. Police then saw that his number plates had been covered with pink plastic to hide the vehicle's identity. Police followed after him and he pulled over to the side of the road. Police pulled in behind. He then sped away along the suburban street and sped through a 'Give way' sign, across a crossroad causing his vehicle to become momentarily airborne and narrowly miss parked cars when he landed as he continued eastbound. Police continued to follow at a safe distance and he then again pulled over a little further along. This time, he was boxed in by police to prevent him again taking off. The Court was told that the period of dangerous driving was about 25 seconds and then he 'came to his senses' and pulled over, and thereafter cooperated with the police.
[6] The appellant was the driver. He had another fellow with him in the passenger seat. He admitted that he knew he was in the wrong and that he had covered his number plate so as to avoid getting caught. He admitted that he had been drinking and he attempted to evade police because he knew that he was over the legal limit to drive. At the time, he was on a provisional licence which required that he had zero alcohol in his system. He also admitted to police that he knew that his driving had been very dangerous and could have been a lot more serious were it not for the minimal traffic on the road at that time of the morning.
[7] Earlier in the night he had been drinking at a social gathering and was asked to give a friend a lift home, which he agreed to do. The sentencing Magistrate was told that it was the friend who wanted him to do burnouts and that he 'succumbed to peer pressure' and agreed to do it. It was then that he covered up his number plates in order to avoid identification.
[8] The appellant is 22 years of age. He has no previous criminal convictions, but, despite his only having a licence for about five years, he has accumulated a concerning history of traffic infringements, including a previous offence of drink driving and as many as ten offences involving excessive speed.
[9] He is in a committed relationship and is the father to a young daughter who was seven months old at the time he was sentenced. He was educated to year 12 and then commenced an apprenticeship but felt the need for 'more stable' work, so he took up other work on a 'full time casual' basis as a 'sample prep'. He is the primary income earner for his young family.
[10] Since the offending conduct, the Court was told that the appellant had reflected on his conduct, and resolved to make better choices. He completed the Queensland Traffic Offenders Program (QTOP), resolved to curb his drinking, and associate with better influences. He recognises the potential for very serious harm to have been caused and is remorseful and expressed insight into the seriousness of his conduct. He cooperated at the scene and made relevant admissions and entered a plea of guilty only two months after the offending, supporting his expressions of remorse and insight.
[11] The learned Magistrate considered the circumstances of the offending to be particularly serious. Whilst the appellant's dangerous driving persisted for only 25 seconds, his driving was such that great danger was presented to other road users and he observed that 'someone could have been killed in that 25 seconds'. He went on to observe, "...in circumstances such as this where there's a real risk to members of the public and other road users, the circumstances of it, it's beyond [probation] I reckon. It requires a sentence of deterrence, not only for him but other members in the community that might think that they can get away with this sort of behaviour. There needs to be a clear message sent that you won't get away with this behaviour".
[12] In support of the submission for probation (which was rejected by the sentencing Magistrate as failing to properly reflect the seriousness of the offending and as failing to address the need for a strongly deterrent sentence), it was stressed that the appellant was a young man with no criminal history, with good employment and the responsibility for a young family. The Magistrate was reminded that a sentence of imprisonment was a last resort.
[13] For the appellant it was submitted that a period of probation should be imposed for the offence of Dangerous driving, and the minimum fine imposed for the Evasion offence in the night, that is $8065. That same submission is made in this appeal.
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[14] The appeal is pursuant to s.222 of the Justices Act 1986 (Qld) ("JA"). Relevantly, s.222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s.222 is by way of rehearing on the evidence given in the proceedings before the magistrate (s.223(1)).
[15] In Teelow v Commissioner of Police,[1] it was said that:
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"It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error... On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[2]
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[16] Further, in McDonald v Queensland Police Service,[3] Bowskill J (as her Honour then was) stated:
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"It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate's reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate's view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error."
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[17] The process of sentencing is an exercise of discretion. A sentencing judge has an extremely wide discretion to be exercised within the limits of the principles which are applicable.[4] It necessarily involves the assessment of various factors and the courts have long recognised that it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.[5]
[18] In the present case, it was broadly accepted that the most serious of the appellant's offences was the Dangerous driving. It is, however, difficult to extricate that dangerousness from the fact that it was done in attempting to evade police, an offence in itself which carries a mandatory minimum penalty (s.754(2) of the Police Powers and Responsibilities Act 2000 (Qld)). The introduction of a mandatory minimum penalty for the offence of Evasion reflects the seriousness with which the offence is regarded, no doubt a reflection of the inherent dangerousness involved in the commission of the offence. It is also safe to observe that young people are those more likely to be convicted of this offence such that the imposition of a mandatory minimum sentence, including one of a mandatory period (50 days) of imprisonment to be served wholly within a correctional facility must be seen as a statutory displacement of the prominence otherwise to be given to youth, lack of criminal history and prospects of rehabilitation in the exercise of the sentencing discretion. A mandatory minimum penalty such as that in s.754(2) of the PPRA must be seen to require that additional prominence be given to personal and general deterrence.
[19] However, a term of imprisonment is not the only minimum penalty available upon a conviction for the offence of Evasion such that matters personal to an offender remain relevant to the exercise of the sentencing discretion. Further, for the offence of Dangerous driving, no minimum penalty is mandated and as such, the general sentencing principles apply without constraint.
[20] Whilst the sentencing Magistrate was unassailably correct to regard the offending as serious and identifying deterrence, both personal and general as significant factors in the exercise of the sentencing discretion, it is also clear that there is a proper place for consideration of the appellant's prospects of rehabilitation.
[21] The appellant's contentions in this appeal are interrelated and essentially amount to the contention that the matters personal to the appellant were given insufficient weight in the exercise of the sentencing discretion, and that to focus on deterrence to the apparent exclusion of the matters personal to the appellant resulted in a penalty which was excessive.
[22] I do not accept the appellant's contention that the sentencing Magistrate failed to have regard to the principle that a sentence which allows an offender to remain in the community is preferable, nor that he failed to acknowledge the undesirability of short period of imprisonment. A failure to state those well-known principles out loud in the context of sentencing in a busy court such as the Redcliffe Magistrates Court does not establish a failure to take them into account and in this case, those principles must be viewed in the context of sentencing for an offence with a mandated minimum penalty which includes what might be thought to be a 'short' period of incarceration. So, for this offender, the legislative landscape was different, and those established principles must be viewed in that context.
[23] I also cannot accept the contention that the penalty imposed failed to reflect the gravity of the offence. As noted, the Magistrate considered the offending to be objectively serious. Another unassailable conclusion in my view. A penalty such as that imposed was well within the scope of the maximum penalty of three years imprisonment for each of the offences of Dangerous Driving and Evasion. The real question is whether, in all of the circumstances of this case, the penalty imposed was a just sentence, which properly reflected all of the relevant sentencing considerations, including those personal to the appellant.
[24] In this case, the appellant was a young man of 22 years of age. He had no criminal history, but his traffic record reflected a young person with a concerning attitude towards the privilege of holding a licence. I pause to note at this juncture that he makes no complaint in this appeal about the disqualification for the period of two years, which is the minimum period of disqualification for the offence of Evasion(s.754(5) of the PPRA). Further, his offending was committed on a single occasion, over a relatively short period of time. Whilst he attempted to evade police by driving dangerously away from them, he did not maintain his criminal conduct for long, and then he pulled over, cooperated and made relevant admissions. There was some degree of planning in that he took the additional step of masking his registration plates to inhibit his identification. In addition, he entered pleas of guilty at an early time, after completing a relevant traffic offenders' program. He has a job, and the responsibility for a young family, including an infant child. Those personal factors, suggest tangible prospects of rehabilitation and a return to a law-abiding lifestyle and otherwise warrant some amelioration of the penalty imposed.
[25] Having myself considered the material relevant to this sentencing hearing, I am driven to conclude that the sentencing Magistrate was influenced by considerations of deterrence to the exclusion of the personal factors which supported a strong claim to mitigation and rehabilitative prospects. In that sense, I have concluded that the learned Magistrate erred and the sentencing discretion must be exercised afresh.
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[26] As noted, the appellant served 25 days in custody before he was released on bail pending this appeal. A short period of incarceration such as that is hopefully just the tonic to deter this young man from continuing to indulge in anti-social and criminal conduct in the future. In that sense, that penalty can be seen to have had a significant deterrent effect, personally, but also generally. Given the seriousness of his offending, in the context of driving dangerously to evade police, a short period of incarceration was within the sound exercise of the sentencing discretion, despite the young age, lack of criminal history, the undesirability of short periods of incarceration and the principle that jail is a sentence of last resort. Driving in a manner which causes significant danger to other road users, particularly by young people with a short driving history but one that includes gravely concerning conduct such as the appellant's, calls for a sentence which is powerfully deterrent so as to protect the community from the risk of such offending. Against that, the appellant entered pleas of guilty at an early time, cooperated with police by making relevant admissions and otherwise has strong claims in mitigation of penalty which warranted a tangible reflection in the penalty imposed. The need to protect the community from offending such as this can also be achieved if he is rehabilitated and supported in his path to a law-abiding life.
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[27] In my review of the whole of the record in this appeal, I have concluded that the sentence imposed in the Magistrates Court on 15 May 2025 by the learned Magistrate failed to properly reflect the appellant's personal circumstances and prospects of rehabilitation and is therefore affected by error.
[28] For the reasons articulated above, the totality of the offending was sufficiently serious as to justify a sentence involving a component of incarceration. The context of his concerning history of previous traffic infringements suggests the need for a penalty with a particular deterrent effect over and above the general deterrence that such offending calls for. That has now been achieved by the period already served following his sentence on 15 May 2025, and can be imposed in relation to what is accepted to be the most serious of his offending, that is, the Dangerous driving. The mandatory penalty required by s.754(2) of the PPRA for the offence of Evasion can be achieved by the imposition of a fine set at the minimum level. Given the combination of other orders that I will impose, no greater level of punishment is required to achieve the necessary purposes of sentencing. Otherwise, the principles of sentencing in s.9 of the Penalties and Sentences Act can be achieved in this case by the imposition of a period of probation to ensure that the commitment already displayed towards the appellant's rehabilitation can be supported in the community by the supervision, but also support and guidance that a Probation Order can provide. I acknowledge also that the mandatory disqualification period of two years will also provide a measure of protection to the community from further offending by this offender.
[29] Putting all of that together, I order as follows;
The appeal against sentence is allowed. The orders of the learned Magistrate are set aside.
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2. The appellant is resentenced in the following way;
Further, that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992, and report by 5:00pm tomorrow, 5 August 2025 to an authorised Corrective Services Officer at Redcliffe.
[13]
Pursuant to s.159A of the Penalties and Sentences Act 1992, I declare that the period of 25 days spent in custody from 15 May 2025 to 9 June 2025 be time served pursuant to the sentence now imposed.
[14]
I order that the appellant be disqualified from holding or obtaining a Queensland driver's licence for a period of two years.
[15]
Count 2: Order that the appellant be fined the sum of $8065 to be paid within six months. If not paid by that date, I direct the Registrar refer the non-payment to the State Penalties and Enforcement Registry (SPER).
[16]
I order that the appellant be disqualified from holding or obtaining a Queensland driver's licence for a period of two years.
[17]
I order that the appellant be disqualified from holding or obtaining a Queensland driver's licence for a period of two years.
[18]
A conviction is recorded in relation to each count.