Bell v Commissioner of Police

[2024] QDC 233

DISTRICT COURT OF QUEENSLAND

CITATION:

Bell v Commissioner of Police [2024] QDC 233

PARTIES:

TRINITY WILLIAM BELL
(appellant)

v

COMMISSIONER OF POLICE   (respondent)

FILE NO/S:

BD3318/24

DIVISION:

Appellate

DELIVERED ON:

18 December 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 December 2024

JUDGE:

Allen KC DCJ

ORDERS:

1.   The appeal is dismissed.

2.   The proper officer of the Richlands Magistrates Court should correct the Verdict and Judgment Record as noted in paragraphs [42] and [43] of these reasons.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE –  where the appellant pleaded guilty to numerous, mainly traffic, offences – where the appellant was sentenced to an effective term of 12 months imprisonment for the offences – where the appellant was sentenced to a cumulative term of one month’s imprisonment for a failure to appear– whether the sentence imposed was manifestly excessive

Bail Act 1980, s 33
Drugs Misuse Act 1986, s 9
Justices Act 1886, s 222
Motor Accident Insurance Act 1994, s 20
Penalties and Sentences Act 1992, s 9, s 147, s 148
Transport Operations (Road Use Management) Act 1995, s 78, s 79, s 86
Transport Operations (Road Use Management - Vehicle Registration) Regulation 2021, s 10

Barbaro v The Queen (2014) 253 CLR 58
R v Nagy [2004] 1 Qd R 63

APPEARANCES:

Appellant self-represented

B D White for the respondent

1. On 4 November 2024, the appellant pleaded guilty in the Magistrates Court at Richlands to five charges of unlicenced driving contrary to section 78(1) of the Transport Operations (Road Use Management) Act 1995 (TORUM); three charges of driving an unregistered motor vehicle contrary to section 10(1) of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 2021; three charges of driving an uninsured vehicle contrary to section 20(1) of the Motor Accident Insurance Act 1994; two counts of possession of a dangerous drug contrary to section 9(1)(d) of the Drugs Misuse Act 1986; and one charge of drug driving contrary to sections 79(2A)(a) and 86(2)(E) of TORUM. He was also dealt with the for the offence of failing to appear contrary to section 33(1) of the Bail Act 1980.

2. The appellant was sentenced to concurrent terms of 12 months imprisonment for each of the offences of unlicenced driving, concurrent terms of three months’ imprisonment for each of the offences of possession of dangerous drugs and drug driving and convicted and not further punished with respect to the other traffic offences.  The appellant was sentenced to a term of one month imprisonment for the offence of failure to appear, and that sentence was, by operation of law, cumulative upon the 12-month period of imprisonment imposed for the other offences.

3. The sentencing Magistrate also activated the balance of a suspended term of imprisonment of two months, two days, and ordered that that term be served cumulatively upon the other sentences he had imposed.  The effective sentence for all offences was thus:  a period of imprisonment of 15 months, two days.  The sentencing Magistrate ordered a parole release date of 27 January 2025, which, taking into account pre-sentence custody, was after a period of five months imprisonment.

4. The appellant has appealed against sentence pursuant to section 222 of the Justices Act. The defendant having pleaded guilty to the charges, the only ground of appeal is that the sentence is excessive.

5. The circumstances of the offending are helpfully summarised in an outline on behalf of the respondent Commissioner of Police as follows.

6. On 12 November 2023, the appellant was intercepted while driving on Aldershot Street, Sunnybank.  He was unlicenced.  The registration of the motor vehicle had expired, and the vehicle was uninsured.  The appellant told police he knew the car was unregistered.  He was issued with a notice to appear.

7. On 22 November 2023, police intercepted the appellant on the on-ramp to the Logan Motorway from Compton Road, Karawatha.  The appellant told police he did not have a driver’s licence.  He told them that he was coming from the pokies at a nearby pub and was driving to Tara where his mother lives.  He was issued with a notice to appear.

8. On 14 March 2024, the appellant was intercepted driving a motorbike without registration plates on Turton Street, Sunnybank.  He was unlicenced, and the registration of the motorbike was more than 11 months past cancellation.  The motorbike was uninsured.  The appellant was issued with a notice to appear in the Brisbane Magistrates Court on 28 March 2024. 

9. On 28 March 2024, the appellant failed to appear in the Brisbane Magistrates Court.  A warrant was issued. 

10. On 28 August 2024, the appellant was intercepted driving a motorcycle in Sunnybank.  The motorcycle had no registration plates and was uninsured.  The defendant was unlicenced and SPER suspended at the time.  He was arrested and remanded in custody until his sentence on 4 November 2024, a period of 68 days.

11. The appellant is 41 years of age and was aged 40 to 41 at the time of the offences.  He has a significant criminal history dating from 1998 involving unlawful use of motor vehicles, breaking and entering, unlawful assaults, possessing dangerous drugs, and breaches of various forms of court orders.

12. On the 2nd of August 2023 in the Ipswich Magistrates Court, the defendant was sentenced for one offence of unlawful possession of a motor vehicle with intent to deprive committed between 2 and 8 February 2023.  He was sentenced to a term of three months’ imprisonment to be suspended for six months.  There was a declaration of a time in custody of 28 days between 5 July 2023 and 2 August 2023. 

13. Whilst subject to the suspension of the balance of that two-month, two-day term, the defendant committed the first two unlicenced driving offences on 12 and 22 November 2023 for which he was sentenced on 4 November 2024. 

14. The appellant also has a lengthy and, on his own admission, appalling traffic history.  The appellant has never held a driver’s licence but did obtain a provisional learner’s permit during the time of the commission of the offences for which he was sentenced on 4 November 2024. When the appellant was sentenced, he had 12 previous convictions for disqualified driving, four for unlicenced driving, two for driving under the influence of illicit drugs, and two for dangerous operation of a motor vehicle, one of which whilst adversely affected. The appellant has previously been subject to orders of disqualification of licence of varying periods of time, including periods of up to five years.  It was submitted on the appeal hearing that the appellant has previously been absolutely disqualified, but such is not apparent from the traffic history before the sentencing Magistrate, and I disregard that submission accordingly.

15. The sentencing Magistrate had before him a detailed schedule of facts consistent with that summary of the circumstances of the offending set out earlier.  He heard submissions by a duty solicitor on behalf of the appellant that the appellant’s father had passed away when the appellant was 15 years, and that the appellant has used drugs since that time.  The appellant had completed an industrial course at TAFE and grade 10 at school.  He had, prior to his incarceration, worked in a truck wrecking yard and has the opportunity of employment at a mechanic shop upon release.  The appellant has a partner and six children.  Whilst on remand, the appellant had committed a course directed towards issues of substance abuse and had been employed in the prison. 

16. The appellant makes some particular criticisms of the conduct of the sentence proceedings and contends some specific errors on behalf of the sentencing Magistrate. 

17. The appellant was arraigned in bulk with the acquiescence of his duty solicitor.  Only one of the unlicenced driving charges was read in full to the appellant by the sentencing Magistrate before he was asked to enter a plea, which was one of guilty.  The Magistrate then addressed the appellant in familiar terms.  He agreed that he had been taken through the rest of the charges and was asked how he pleaded to four more charges of unlicenced driving, three of driving an unregistered, three of driving an uninsured vehicle, two possession of dangerous drugs and a drug drive:  guilty or not guilty?  The defendant entered a plea of guilty.  The sentencing Magistrate then noted that he had he had at an earlier date, been called upon in relation to the failure to appear and had not shown cause for that.

18. The appellant expresses concern that the full terms of each of the charges was not read to him for the purpose of arraignment.  He is concerned that this may have led to the– sentencing Magistrate not being fully cognisant of the charges to which he was pleading guilty and for which he was to be sentenced, and that could have caused a consequent misapprehension by the sentencing Magistrate of the facts of his offending.

19. The process of a global arraignment is not unknown and is not so irregular as to vitiate the entry of pleas of guilty to all of the charges by the appellant.  The appellant is therefore limited to argue that the sentences imposed are excessive.  Insofar as the appellant is concerned that such procedure may have led to a consequence misapprehension on the part of the sentencing Magistrate as to the charges for which he was being sentenced and the circumstances of that offending, such concern is misplaced given the evident understanding on the part of the Magistrate, both during the process of arraignment, and in the course of proceedings, and in imposing sentences of the charges for which the appellant was being sentenced and the sentencing Magistrate’s perusal of the detailed schedule of facts which set out the circumstances of such offending.

20. The appellant also contends that the learned Magistrate, in referring to the aggravating effect of previous convictions pursuant to section 9(10) of the Penalties and Sentences Act 1992 (PSA), did not have regard to (a) the nature of the previous convictions and their relevance to the current offending, and (b) the time that had elapsed since such convictions as required by the terms of section 9(10). 

21. There is nothing on the record of proceedings in the Magistrates Court which would support a finding that the sentencing Magistrate did not give consideration to the full details of the criminal history and traffic record that were before him.  Such error is not established.

22. The appellant submits with respect to the activation of the suspended term of imprisonment in full that the sentencing Magistrate may have misapprehended that the offence for which the suspended sentence was imposed was one of unlawful use of a motor vehicle rather than unlawful possession of a motor vehicle.  The appellant submits that this may be of some significance, because the offence for which the suspended sentence imposed was not one which related to his illegally driving a motor vehicle, and that this would have significance in determining whether the suspended term should be activated in full and whether it should be ordered to be cumulative upon other sentences imposed.

23. There is nothing on the record to indicate that the Magistrate would have misapprehended, contrary to the clear terms of the criminal history, that the offence for which the suspended sentence was imposed was one of unlawful use of a motor vehicle rather than unlawful possession of a motor vehicle.  Such contended error is not established.  I will return in considering the issue of excessiveness of sentence to the justness of activating the full suspended term and ordering that it be cumulative upon the other sentences imposed.

24. The appellant also submits that he was inadequately represented by the duty lawyer and points to the fact that his lawyer, in submitting for a total sentence in the range of nine months to 12 months, contended for a higher sentence than that earlier contended for by the police prosecutor.  That may merely indicate a better understanding on the part of the duty lawyer as to the approach on sentence likely to be taken by the sentencing Magistrate.  It was certainly not an unreasonable submission to make, notwithstanding the unduly lenient attitude earlier taken by the police prosecutor.

25. In any event, the High Court has made it clear in Barbaro v The Queen (2014) 253 CLR 58 that the submissions on sentence made by lawyers cannot define an appropriate range of sentence or constrain a sentencing court within such a range. The police prosecutor’s submission was of no ultimate significance in the determination of an appropriate sentence.

26. The other submissions on behalf of the appellant are properly directed towards the real issue on the appeal which is whether the totality of sentence imposed is excessive. 

27. The appellant points out accurately that the sentences imposed for the offences of unlicenced driving were the statutory maximum penalty available for each of those offences.  He submits that that of itself renders those sentences excessive. 

28. It is not the law that the maximum penalty for a sentence can only be imposed in cases where a more severe or a more egregious hypothetical case of offending can be imagined.  The maximum penalty for an offence can be applied in cases that can be legitimately considered amongst the most serious examples of that offence.  Both the circumstances of the offending and the circumstances of the offender are relevant in determining whether the case is of the worst type so as to warrant the maximum penalty.

29. It would have been open, given the continued reoffending by the appellant, to have imposed lesser but cumulative terms of imprisonment for the offences of unlicenced driving.  The question would then have been whether the total period of imprisonment was excessive for the total criminality for such offending.  The sentencing Magistrate instead adopted the orthodox R v Nagy approach of imposing concurrent terms of imprisonment to reflect the totality of the offending by way of the five instances of unlicensed driving.  In all the circumstances, given the persistence of such offending and the antecedents of the appellant, it cannot be said that the imposition of concurrent terms of 12 months, albeit the statutory maximum, render the sentences for those offences excessive.

30. The appellant further submits that the total period of imprisonment is rendered excessive because the term of one month’s imprisonment for failure to appear was made cumulative upon the 12-month term, and then the Magistrate ordered the balance of the suspended sentence of two months, two days to be cumulative upon that period of imprisonment, thus, resulting in a total period of imprisonment of 15 months, two days.  The appellant submits, in all the circumstances, such a cumulation of sentence results in an excessive sentence.

31. The period of one month’s imprisonment was required to be cumulative by operation of law: see section 33 of the Bail Act 1980.  There was no cause shown for the failure to appear and no good reason provided for it.  The defendant simply ignored his obligations to appear in the Magistrates Court and was subsequently apprehended committing a further offence.  It cannot be said that the sentence of one month’s imprisonment, in light of the circumstances of the offending and the appellant’s antecedents, was excessive of itself, notwithstanding it be cumulative. 

32. The questions remain whether it was within the exercise of a proper sentencing discretion for a sentencing Magistrate to activate all of the balance of the suspended term of imprisonment of two months, two days, and further, whether the sentencing Magistrate ordering that activated term of imprisonment be cumulative upon the other sentences rendered the total period of imprisonment excessive.

33. The appellant makes the point noted earlier that the suspended term of imprisonment was imposed in relation to an offence of unlawful possession of a motor vehicle.  He contends, therefore, that the offence for which the suspended term was imposed is of  a different nature to the driving offences which breached the suspended sentence, and that that does not appear to have been recognised by the sentencing Magistrate. 

34. The starting point when considering a breach of suspended sentence pursuant to section 147 of the PSA is that a court must order that the offender serve the whole of the suspended term of imprisonment unless it is of the opinion that it would be unjust to do so (section 147(2)). 

35. Section 147(3) of the PSA provides that, in deciding whether it would be unjust to order the offender to serve the whole of the suspended term of imprisonment, the court must have regard to, inter alia, whether the subsequent breaching offence/s is/are trivial having regard to a number of different considerations.  Those considerations do not expressly refer to the difference in the nature of the offence for which the suspended sentence was imposed and the nature of the breaching offence/s. 

36. Such a feature, however, may be of significant relevance in determining whether it would be unjust to order that the whole of the suspended term be activated.  For example, it is not uncommon for an offender who has been sentenced for very serious offending, for example, serious offences of violence or sexual offences against children, to find themselves before a court having breached a suspended term by the commission of a traffic offence that is punishable by imprisonment. It is not unknown in such circumstances that the fact that the offender has not reverted to serious offending of the type for which the suspended sentence was imposed, but has, instead, committed a relatively minor offence of a different type, to be able to satisfy the court that it would be unjust to order the activation of the whole suspended term or, indeed, any of it.  But each breach of a suspended sentence must be considered on its own facts. 

37. The fact that the suspended sentence breached by the appellant was one imposed for an offence of unlawful possession of a motor vehicle is really of little significance in the circumstances of this matter.  The fact is that a little over halfway through a six-month operational period imposed for that sentence, the defendant committed two repeated offences of unlicenced driving.  Those breaching offences, given their circumstances and the antecedents of the appellant, cannot by any means be regarded as trivial, having regard to those matters in section 147(3)(a) of the PSA.

38. It was certainly open to the sentencing Magistrate to find that it would not be unjust to order the activation of the whole suspended term. That leaves, however, consideration of whether ordering that activated term to be cumulative upon the other sentences renders the total sentence excessive. Section 148 of the Penalties and Sentences Act provides that an activated term of imprisonment will be served concurrently with any other sentences an offender is serving unless the court orders otherwise.  So, the default position is that such activated term will be concurrent unless the court otherwise orders that it be cumulative.

39. In determining whether such activated term should be ordered to be served cumulatively, or, by default, should be concurrent, the court is required to consider all the circumstances of the breach.  In the circumstances that I have already outlined, it was open to the Magistrate, consistent with orthodox sentencing principle, to order that such term be served cumulatively. 

40. In all the circumstances of all the offending for which the sentencing Magistrate was dealing, in light of the appellant’s antecedents, the total period of imprisonment is not such as to fall outside a properly available range of penalty. That is not to say that another Magistrate might not have imposed a lesser penalty. But the task of a court in considering an appeal against sentence pursuant to section 222 of the Justices Act1886 is not one of a rehearing of sentence. An appeal can only be allowed if the appellant establishes some legal, factual or discretionary error on the part of the sentencing Magistrate, and in particular, that the sentence is excessive within the meaning of that term. 

1. The appellant has not established any legal, factual or discretionary error on the part of the sentencing Magistrate or, ultimately, that the total sentence ultimately imposed is an excessive one.  In those circumstances, the appeal against sentence must be dismissed.

2. It has become apparent during the course of the hearing of the appeal that the amended Verdict and Judgment Record is in error where it states at page 4 that the sentencing Magistrate ordered “that the offender serve the whole of the suspended imprisonment, being a period of three months.”  It is quite apparent from the transcript of the sentencing Magistrate’s sentencing remarks and the handwritten notations by the sentencing Magistrate on the Bench Charge Sheet that what the sentencing Magistrate ordered was that the balance of the suspended term (after the declaration of 28 days pre-sentence custody between the 5th of July 2023 and the 2nd of August 2023 made in the Ipswich Magistrates Court on 2 August 2023) was to be activated.  That is, it is quite clear that the sentencing Magistrate, in fact, ordered that it be the balance of the three-month term after the 28 days that had already been served that was to be activated.  And, in fact, the learned Magistrate could not have ordered more than that suspended term of two months, two days be activated.

3. The Verdict and Judgment Record is, therefore, inaccurate when it records the sentencing Magistrate as having ordered that a suspended term of three months’ imprisonment be activated.  The proper officer of the Richlands Magistrates Court should correct the verdict and judgment record to reflect the sentencing order that was, in fact, made by the sentencing Magistrate.