Dempsey v Queensland Police Service

[2009] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:

Dempsey v Queensland Police Service [2009] QDC 218

PARTIES:

WAYNE GEORGE DEMPSEY
(Appellant)
v
QUEENSLAND POLICE SERVICE (Respondent)

FILE NO/S:

136 of 2009

DIVISION:

Trial Division

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

23 July 2009

DELIVERED AT:

Cairns (extempore)

HEARING DATE:

23 July 2009

JUDGE:

Everson DCJ

ORDER:

1. The appeal is allowed and the sentence imposed by the learned Acting Magistrate on 24 June 2009 be set aside;
2. The appellant is convicted on each count of disqualified driving and sentenced to a term of imprisonment of 12 months on each count, with each being concurrent with the other;
3. The appellant is further disqualified from holding or obtaining a driver's licence for a period of two years in respect of each count, with each disqualification being concurrent with the other;
4. I set a parole release date of 24 October 2009.

CATCHWORDS:

APPEAL – APPEAL AGAINST SENTENCE – Whether sentence was manifestly excessive.

SENTENCE – SENTENCING DISCRETION – whether Acting Magistrate erred in his discretion – where Acting Magistrate did not properly take into account the guilty plea and other mitigating factors.

COUNSEL:

M Sumner-potts Counsel for the Applicant/appellant
N Crane for the respondent

SOLICITORS:

The Law Office for the applicant/appellant
Director of Public Prosecutions for the Respondent

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE EVERSON

Appeal No 136 of 2009

WAYNE GEORGE DEMPSEY	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

CAIRNS

..DATE 23/07/2009

..JUDGMENT

HIS HONOUR:  This is an appeal pursuant to section 222 of the

Justices Act 1886 from the decision of an Acting Magistrate in

the Magistrates Court at Cairns on 24 June 2009.

The learned Acting Magistrate convicted the appellant of two

counts of disqualified driving on that occasion.  In each

instance the appellant was sentenced to 12 months'

imprisonment concurrently, with a parole release date after

six months on 23 December 2009.  The learned Acting Magistrate

further disqualified the appellant from obtaining a driver's

licence for a further two years in respect of each count,

resulting in a cumulative disqualification of four years in

this regard.  Before me it is argued on behalf of the

appellant that the sentence was manifestly excessive.

The approach to the hearing of such an appeal is set out in

the Justices Act and was helpfully summarised in the recent

decision of Peila v Queensland Police Service [2007] QDC 022

by his Honour Judge Tutt.  His Honour observed at para 8 that

the court's power in respect of an appeal in this regard is by

way of rehearing on the evidence given in the proceedings

below and that the Court has a wide discretion in the order it

chooses to make pursuant to section 225. Section 225 (1)

states that, "On the hearing of an appeal the Judge 'may

confirm, set aside or vary the appeal order or make any other

order in the matter the Judge considers just.'"

Significantly, his Honour also observed that the general

principles upon which an appellate Court in these

circumstances must operate are well established and were

summarised in House v The King (1936) 55 CLR 499.

These principles are most instructive.  At 504-505 Dixon,

Everett and McTiernan JJ stated as follows:

"The manner in which an appeal against the exercise of

discretion should be determined is governed by

established principles.  It is not enough that the judges

composing the appellate Court consider that, if they had

been in the position of the primary judge, they would

have taken a different course.  It must appear that some

error has been made in exercising the discretion.  If the

judge acts upon a wrong principle, if he allows

extraneous or erroneous matters to guide or affect him,

if he mistakes the facts, if he does not take into

account some material consideration, then his

determination should be reviewed and the appellate Court

may exercise its own discretion in substitution for his

if it has the materials for doing so."

It is true that a number of matters were put before the

learned Acting Magistrate.  Of particular significance was the

appellant's criminal history and appalling traffic history.

At the time he was sentenced by the learned Acting Magistrate

he had already been convicted of eight counts of disqualified

driving, although there had been a gap of approximately three

years since his last conviction.

The learned Acting Magistrate took all of these matters into

account and, in particular, made reference to the fact that

there was no alcohol involved in the offending before him.  In

the course of this appeal Mr Sumner-Potts, who appears on

behalf of the appellant, expressly makes reference to the fact

that the appellant's traffic history does not contain any

entries for drink-driving or reckless driving.  These are

obviously relevant considerations in the exercise of the

sentencing discretion.

Material was also placed before the learned Acting Magistrate

which disclosed that on each of the occasions of the offences

before him, the appellant's de facto had been present in the

vehicle and that she was a licensed driver.  Evidence was

placed before the learned Acting Magistrate that on the first

occasion, the appellant's de facto was not driving because she

was extremely upset and on the second occasion, she was not

driving because she was extremely tired.  Other matters were

placed before the learned Acting Magistrate which included the

impact of a term of imprisonment upon the appellant's young

family.  The learned Acting Magistrate appeared to take these

matters into account because he expressly stated that in

mitigation, he also took into account "the circumstances in

respect of your spouse".

Regrettably, however, the learned Acting Magistrate did not

expressly take into account the appellant's plea of guilty as

is required pursuant to section 13 of the Penalties and

Sentences Act 1992.  The consequences of this were recently

explored by the Court of Appeal in R v Woods [2004] QCA 204.

The judgment of the Court emphasised that section 13 is a

statutory expression of the common law principle which had

recently been referred to by the High Court in Cameron v R

(2002) 209 CLR 339, where the High Court observed that a plea

of guilty is ordinarily a matter to be taken into account in

mitigation, both because it is usually evidence of some

remorse and also, on the pragmatic ground, that the community

is spared the expense of a contested trial.  The High Court

further observed that the plea may also "indicate acceptance

of responsibility and a willingness to facilitate the course

of justice".  (At pp 663-664 [22]).

The Court of Appeal went on to observe that "The necessity to

take a guilty plea into account and state that it has been

done and how it has been done is an essential part of the

transparency of the sentencing process."  (R v Woods at para

10).

On behalf of the respondent Mr Crane submits that, although

not expressly mentioned, the plea of guilty was taken into

account in the moderation of the head sentences imposed by the

learned Magistrate.  Section 78 of the Transport Operations

(Road Use Management) Act 1995 prescribes a maximum penalty of

60 units, or 18 months' imprisonment, for this offence.

Mr Crane submits that in deciding to impose concurrent

sentences of 12 months in circumstances where the appellant

had already been convicted of disqualified driving on eight

previous occasions, the Magistrate was moderating the head

sentence, having regard to the pleas of guilty.

It is true that pursuant to section 13(5) of the Penalties and

Sentences Act, a sentence is not invalid merely because of the

failure of the Court to state that it has not reduced a

sentence for a plea of guilty and it therefore appears

that it is open to an appellate Court to infer that

a plea of guilty was nonetheless taken into account.  The

difficulty in this regard, however, is that whilst the

offending of the appellant demonstrated something of a

contempt for previous penalties imposed in respect of

disqualified driving, which included terms of imprisonment,

the disqualified driving of itself had not occurred in

circumstances where anyone had been placed at risk of injury,

or where alcohol or drugs had been consumed And these are

powerful mitigating factors which of themselves warranted

moderation of the head sentences.

The other aspect of the learned Acting Magistrate's sentencing

which causes concern is the cumulative period of

disqualification in circumstances where this was clearly not

mandatory.

The error on the part of the learned Acting Magistrate in not

expressly taking the pleas of guilty into account requires

this Court to re-exercise the sentencing discretion.  The

disqualification from holding or obtaining a driver's licence

is properly to be regarded as part of the penalty (see

Santillan v Queensland Police Service [2008] QDC 33) and this

must be viewed as moderating the sentence that may otherwise

have been imposed.

On behalf of the appellant, Mr Sumner-Potts does not submit

that the learned Acting Magistrate was in error in imposing

head sentences of 12 months' imprisonment, to be served

concurrently.  He does, however, submit that an earlier parole

release date was appropriate.

In respect of the period of disqualification from holding or

obtaining a driver's licence, both Mr Crane and

Mr Sumner-Potts submit that the cumulative period of four

years is oppressive and manifestly excessive in the

circumstances, and a more appropriate period of

disqualification is a total of two years.  Mr Crane submits

that this can be achieved through making the period of

disqualification in respect of each offence concurrent with

the other.

A period of actual imprisonment is clearly an appropriate

sentence, having regard to the circumstances before me and

having regard to comparative authorities; see, for example,

Appleton v Commissioner of Police [2004] QDC 465.

Taking into account the appellant's plea of guilty, his

criminal history and his traffic history containing, as it

does, not only eight prior convictions for disqualified

driving but also two prior convictions for unlicensed driving,

taking into account the gap in the pattern of his offending

whereby for approximately three years he did not commit any

traffic offences, taking into account the extenuating

circumstances put before the learned Acting Magistrate,

including his family responsibilities as the father of a young

child and the breadwinner for his de facto and dependents,

taking into account the fact that evidence has been put before

the Court of certain limited extenuating circumstances

concerning why his de facto was not driving on each occasion

giving rise to each count, I am of the view that an

appropriate head sentence of 12 months remains appropriate.

However, when the mitigating circumstances set out above are

taken into account, it is appropriate that a parole release

date after four months be set.  This is to be coupled with a

period of disqualification pursuant to section 78(3)(a) of the

Transport Operations (Road Use Management) Act of two years in

each instance, concurrent with the other.

Accordingly, pursuant to section 225 of the Justices Act the

orders of the Court are as follows:

(1) The appeal is allowed and the sentence imposed by the

learned Acting Magistrate on 24 June 2009 be set aside;

(2) The appellant is convicted on each count of

disqualified driving and sentenced to a term of

imprisonment of 12 months on each count, with each being

concurrent with the other;

(3) The appellant is further disqualified from holding or

obtaining a driver's licence for a period of two years in

respect of each count, with each disqualification being

concurrent with the other;

I set a parole release date of 24 October 2009.

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