Abberton v Commissioner for Police
[2014] QDC 253
•7 November 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Abberton v Commissioner for Police [2014] QDC 253
PARTIES:
JAMES PATRICK ABBERTON
(appellant)
v
COMMISSIONER FOR POLICE
(respondent)
FILE NO/S:
1517/2014
DIVISION:
Appeal
ORIGINATING COURT:
Magistrates Court Roma
DELIVERED ON:
7 November 2014
DELIVERED AT:
Ipswich
HEARING DATE:
3 and 29 October 2014
JUDGE:
Bradley DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to one count of driving a motor vehicle under the influence of liquor and another of driving a motor vehicle without due care and attention – where the appellant was sentenced to three months imprisonment and was disqualified from holding or obtaining a driver’s licence for 30 months – whether sentence was manifestly excessive
CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant argued that the solicitor retained at the sentence hearing failed to submit the appellant’s material instructions – whether this failure amounted to a substantial miscarriage of justice
Justices Act 1886 (Qld), s 222, 223
Penalties and Sentences Act 1992 (Qld) s 11(b)
R v Barbaro; R v Zirilli [2014] HCA 2
R v Bedeau [2009] QCA 43
R v Edwards (1996) 90 A Crim R 510
COUNSEL:
J-P Mould of Counsel for the appellant
W Cloake, Solicitor for respondent
SOLICITORS:
No solicitors for the appellant
Office of Queensland Director of Public Prosecutions for the respondent
Background
On 23 April 2014 the appellant pleaded guilty in the Magistrates Court at Roma to two offences, the first of driving a motor vehicle whilst under the influence of liquor at Surat on 23 December 2013 and the second of driving his motor vehicle in the car park of the Royal Hotel, Burrowes Street, Surat without due care and attention on the same date.
For each offence the appellant was sentenced to three months imprisonment with a parole release date of the 22 May 2014 (after one month in prison) and he was disqualified from holding or obtaining a driver’s licence for 30 months. Convictions were recorded. The appellant was released on appeal bail after serving seven days in prison.
Facts
The facts placed before the Magistrate by the police prosecutor regarding the offending were as follows. The appellant had been drinking at the Royal Hotel at Surat for some time and was being served by a barmaid. He conceded that he may have been innocently flirting with the barmaid and he was confronted by the barmaid’s boyfriend and another man. The appellant left the hotel and approached his car which was parked in an undercover area in front of the hotel accommodation units. He was followed by the two men. The boyfriend moved away from the vehicle and stood in the main gravel driveway area whilst his friend argued with the appellant. While the argument was still ongoing, the appellant reversed his car out of the car park into the main driveway area where the boyfriend was standing. The area was dimly lit and the vehicle struck the boyfriend with force knocking him to the ground and pushing him for about a metre or so along the gravel driveway. The appellant’s vehicle then stopped reversing and was driven out of the car park without its lights on.
Police were called and observed cuts and abrasions to the boyfriend’s lower leg and right forearm. The ambulance attended but the boyfriend initially refused treatment although he was ultimately transported to the hospital.
The police attended the appellant’s residence but could not raise anyone. They inspected the appellant’s vehicle in the garage and there was no damage to it.
The police then attended the appellant’s parents’ address in Surat and advised them of the situation and requested entry into the appellant’s home. A spare key was obtained and the appellant was found asleep on top of his bed fully dressed with his boots on. The appellant was woken up and he submitted to a roadside breath test. Ultimately, a specimen of his blood was taken at the hospital and after analysis his blood alcohol reading was found to be 0.320%.
The appellant told police that he had been consuming alcohol at the local bowls club, that he drove straight home from the bowls club and the next thing he knew police were waking him up.
Appellant’s previous convictions
The appellant has two previous convictions for driving under the influence of liquor, the first on 24 September 1996 when his blood alcohol reading was .187 and the second on 11 May 2004 when his blood alcohol reading was .181. In addition, the appellant was convicted of careless driving on 31 July 1984 and of exceeding the speed limit by 30-44 kilometres per hour on 18 October 1995.
Submissions made to Magistrate
The appellant was represented by the duty lawyer in the Magistrates Court who told the Magistrate the appellant was 53 years of age and single. He has no dependant children and lives alone in Surat. He is employed by the Maranoa Regional Council as a truck driver and specifically drove the water tanker. He has been in such employment for almost 20 years. The Council has indicated to him that notwithstanding any disqualification of his driver’s licence he is such a valued employee that it will find something else for him to do in order to preserve his livelihood.
It was submitted that the appellant was confronted by the barmaid’s boyfriend and his friend in the hotel car park and that the exchange between them became heated. The appellant began to fear for his safety and although his original intention was to simply secure his vehicle in the car park before he walked home, which was only a block and a half distance from the hotel, he panicked when the exchange between the parties escalated and “jumped into his car and sought to flee”.[1]
[1] Transcript Magistrates Court; page 1 – 4, line 10
It was pointed out that the appellant’s first drink driving conviction was almost 20 years ago and the second almost 10 years ago. It was emphasised that but for the altercation in the car park which led to the appellant feeling under threat or at risk, he would not have driven.
Finally, it was submitted on the appellant’s behalf that after the appellant drove home “He thinks that he may have had even some more to drink. And that could only have exacerbated the ultimate reading that proceeded from the blood analysis”.[2]
[2] Ibid page 1 – 4, lines 44 – 46.
Magistrate’s sentencing remarks
In his sentencing remarks the Magistrate noted that the appellant’s decision to drive “caused a significant danger to yourself, to anyone that was in that car park and to any other members of the public that had the misfortune of being in your vicinity on that occasion”.[3] The Magistrate noted that the blood alcohol reading of .32 was in excess of six times the legal limit and he regarded the conduct as serious because it imposed a risk of injury or death to others.
[3] Ibid page 2of decision, lies 11 – 13.
The Magistrate took into account the appellant’s previous convictions for drink driving offences and noted that the factors of deterrence and protection of society were relevant in the circumstances.
Grounds of appeal
The grounds of this appeal are:
1. the sentence imposed was manifestly excessive;
2. (abandoned prior to hearing);
3. the learned Magistrate’s sentencing discretion miscarried in that His Honour was improperly led into error by the statement of opinion of the prosecution as to the sentence to be imposed;
4. the failure of the appellant’s solicitor retained at the sentencing hearing to submit or properly submit the appellant’s material instructions to the learned Magistrate amounted to a substantial miscarriage of justice;
5. the learned Magistrate erred at law by continuing to accept the appellant’s pleas of guilty and/or sentencing the appellant upon receiving notice of a material factual contest.
The final ground of appeal was abandoned during the hearing of this appeal. Mr Mould confirmed that the appellant was not appealing against his conviction, challenging the Certificate of Analysis or arguing that any allegation of post-driving drinking on the part of the appellant should be taken into account when considering the appropriate sentence.
New evidence
After hearing evidence from the appellant himself and Mark Orchard who represented the appellant in the Magistrates Court at Roma as duty solicitor, leave was given to the appellant to adduce new evidence in this appeal. That evidence was in the form of affidavits from each of the appellant’s parents, a friend of the appellant’s, and a doctor from the Surat Medical Practice concerning the appellant’s parents’ medical conditions.
In particular, the new evidence relates to the appellant’s elderly parents’ serious medical conditions, disabilities and their dependency on the appellant and the appellant’s contribution to the community as evidenced by his receiving an Australia Day award of community appreciation in 2008. These matters it was submitted, are significant mitigating factors which should influence the penalty.
Consideration
Section 222(2)(c) of the Justices Act 1886 provides that an appeal to this court from a sentence following a plea of guilty can only be on the ground that the punishment was excessive or inadequate.
As to the third ground of appeal that the Magistrate was improperly led into error by the statement of the prosecution as to the sentence to be imposed, the submission of the police prosecutor complained of by the appellant is as follows:
Your honour, clearly he was in no fit way or fit state to be driving a motor vehicle. While there may have been some discussions and angst between the parties involved, including the person that was hit, it could’ve had some disastrous consequences. While there is nothing in his last five years of UIL charges, your Honour can still take into account previous history. In 1996 he returned a reading of 0.187 and returned a fine of $990 and was disqualified for a period of 21 months.
In 2004, in May, for driving under the influence, he returned a result of 0.181. He was disqualified for 12 months and fined $900. He is not a person that does not know the consequences of drink driving. To drive in today’s world with a reading of 0.320 is just stupid, your Honour. And there needs to be a strong message sent by the court that it is unacceptable. (emphasis added) [4]
It is the last sentence which the appellant argues offends against the principle enunciated by the High Court in R v Barbaro; R v Zirilli.[5]
[4] Transcript Magistrates Court, Roma, 23 April 2014, 1 – 3, lines 24 – 35.
[5] [2014] HCA 2
The High Court in Barbaro held that the prosecution in particular is prohibited from making any submissions as to the range of sentence. Any such submissions are, it was held, statements of opinion, not submissions of law. The comment made by the prosecutor in this case was obviously not a submission of law. However, there can be no suggestion that the comment was a submission as to the actual penalty that should be imposed, a suggested range of imprisonment or even that imprisonment should be imposed. It was nothing more than a statement of the obvious in light of the circumstances of the case; that this was a serious example of drink driving that should be denounced by the community. This ground is not made out.
As to the fourth ground of appeal, any failure of the appellant’s legal representative “to submit or properly submit the appellant’s material instructions” at the sentence hearing has been overcome with the new evidence now before this court. By reason of section 223 of the Justices Act this appeal is by way of rehearing on the evidence given in the court below and on the new evidence placed before me.
The additional matters now before the court which can be taken into account in considering the appellant’s sentence are:
1. The appellant’s father is 89 years of age and suffers from a number of disabling conditions including asthma, chronic obstructive pulmonary disease, and macular degeneration.[6] The appellant’s father has bad eyesight, has difficulty breathing, suffers from deafness and cannot bend down without becoming dizzy.[7]
[6] Affidavit of Dr Cienne Morton filed 29 October 2014
[7] Affidavit of Vincent John Abberton filed 29 October 2014
2. The appellant’s mother is 79 years of age and suffers from a number of disabling conditions including hyper cholesterolaemia and chronic obstructive pulmonary disease, and as a result she rarely goes outside and is in receipt of concentrated oxygen through a machine 24 hours a day.
3. The appellant visits his parents at least once per day and performs many household tasks for them. In the event that the appellant is unable to assist his parents, they would have to pay for domestic help which would cause them financial hardship.
4. In 2008 the appellant received an Australia Day award for service to the community. The award is in recognition of his local voluntary assistance in working bees, camp drafts, bowls clubs, race track and a fishing competition.[8]
[8] Affidavit of James Patrick Abberton files 3 October 2014
Section 11(b) of the Penalties and Sentences Act 1992 provides that in determining an offender’s character a court may consider “any significant contributions made to the community by the offender”.
R v Bedeau[9] is authority for the proposition that an offender’s role as his parent’s carer and the hardship they would suffer as a result of the offender’s incarceration are relevant factors to be taken into account in sentencing. However, as Muir JA said at paragraph 13 of that decision, it must be borne in mind “that the mother’s hardship ‘cannot be allowed to overwhelm factors such as retribution and deterrence’”.
[9] [2009] QCA 43
The following observations of Gleeson CJ in R v Edwards[10] were noted:
Hardship to spouse, family, and friends, is the tragic, but inevitable consequence of almost every conviction and penalty recorded in a criminal Court… It seems… that courts would often do less than their clear duty… if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
[10] (1996) 90 A Crim R 510 at 515 - 517
The appellant argues that a further factor, evident from the submissions made to the Magistrate, but apparently given no weight, is that the appellant only drove because he was in fear of his safety. This fact was not contested by the prosecution and, although the facts did not afford the appellant a defence pursuant to section 25 of the Criminal Code, it nevertheless was a significant matter in mitigation.
Here, the appellant’s extremely high blood alcohol reading, the serious circumstances of his driving without due care and attention which resulted in his vehicle knocking over a pedestrian, and the appellant’s previous (albeit dated) convictions for drink driving, call for a significant penalty. The factors of personal and general deterrence and the community’s denunciation of the appellant’s conduct, outweigh the hardship suffered by the appellant’s parents and his contributions to the community to support a short period of imprisonment.
Apart from the assertion that the appellant drove because “he began to fear for his safety” and panicked, and he felt intimidated and threatened by the two men, there is no more detailed explanation for the appellant’s decision to drive, and no explanation as to the necessity for him to drive as opposed to, for example, simply taking refuge inside his vehicle without actually driving it. This is not a fact that can significantly mitigate the sentence.
Even taking into account the new evidence, the original sentence imposed upon the appellant cannot be said to be manifestly excessive. The appeal is dismissed.
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