Holley v Queensland Police Service

[2010] QDC 291

[2010] QDC 291

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BRADLEY
Appeal No. 103 of 2009

ROBERT LAURENCE WILLIAM HOLLEY	Appellant (Defendant)
and
THE QUEENSLAND POLICE SERVICE	Plaintiff (Respondent)
IPSWICH ..DATE 22/04/2010 ORDER/SENTENCE

1-1

HER HONOUR: This is an appeal against sentence from the Magistrates Court Toowoomba where, on the 21st of October 2009, the appellant was convicted on his plea of guilty of 14 offences. I just take it, that in relation to the drive uninsured and drive unregistered, that's not part of your appeal?

MR DAVIES: No, your Honour, no.

HER HONOUR: Yes. Okay. So it's the 12 offences for which the defendant was given a term of imprisonment or terms of imprisonment that are the subject of the appeal. The offences included driving whilst disqualified on the 9th of September 2008; driving whilst disqualified on the 2nd of November 2008; driving whilst disqualified on the 19th of November 2008, and driving on the same date at the same time with a blood alcohol concentration of point 235 percent; driving whilst disqualified on the 21st of December 2008, and driving at the same time with a blood alcohol concentration of point 252 percent.

There were two related breaches of the bail of failing to appear in Court. The effective head sentence was one of 15 months imprisonment for the driving offences and a cumulative six month term of imprisonment for - or three month term of imprisonment for each of the failures to appear. Making a total of 21 months imprisonment.

The Magistrate fixed the parole release date at the very end of the term of imprisonment of 21 months. It is conceded by the Prosecution that in fixing the parole release date at the 1-2 ORDER/SENTENCE

very end of the term of imprisonment particularly in the face
of the appellant's pleas of guilty, the Magistrate failed to
apply the principles that the Court of Appeal have set out in
the case of the Queen and Kitson, which is 2008, QCA 86.

In that case, the Court of Appeal held that where a parole order is - or where an appellant has a claim upon the discretion of the Court for an order to be released after serving less than half of the sentence, in view of a plea of guilty, and in view of other personal circumstances, then a parole release date that is fixed significantly beyond the mid point of the head sentence is very unusual. And in this case, of course, it was right at the end of the head sentence.

The Court of Appeal held that if such an unusual order is made, then reasons for doing so are required to be given, and where such an unusual aspect of the sentence is not sought or contemplated in submissions of either party, it should not be imposed without the sentencing Magistrate referring to it and giving the appellant, in particular, the opportunity to be heard.

In this case the - and I haven't actually read the sentencing particular reasons about why parole was right at the end?

MR DAVIES: No, he didn't, your Honour. No.

HER HONOUR: No. All right. In this case then, it is conceded that the Magistrate failed to address the issue in his sentencing remarks and it's conceded, as I say, by the respondent that his sentencing discretion miscarried and that the appellant should be sentenced afresh. 1-3 ORDER/SENTENCE

This case is somewhat unusual, because I am dealing with the appellant for a breach of a suspended sentence. The the charges for which he was sentenced by the Magistrate in October last year breached a suspended sentence that was imposed upon him on the 30th of May 2006 in the District Court of Dalby of four years imprisonment, suspended after he had served 16 months imprisonment, and that was for the offence of dangerous operation causing grievous bodily harm.

I'll give my reasons for dealing with that shortly, but so far as this appeal is concerned, in the circumstances in which the appellant finds himself, it's conceded on his behalf that an

appropriate sentence - effective sentence for the offences
dealt with in the Magistrates Court should be one of two years
imprisonment, with - it's submitted by the appellant that the
parole should be fixed at halfway. Although, the respondent
argues that parole should remain at the 21 months, and that

the head sentence shouldn't be increased.

All of that - really is academic in the end, because of the breach proceedings, but the order that I'll make with respect to the appeal is that the appeal is upheld. The orders made by the Magistrate are set aside. And instead the following orders are imposed, and that is that for each of the charges of disqualified driving and for each of the driving under the influence charges the appellant is sentenced to 18 months imprisonment. And for each of the fail to appear charges, the appellant is sentenced to three months imprisonment. That makes a total of 24 months imprisonment. And for the purposes of this resentence, I order that the appellant be released on parole on the 12th of October 2010, which would be effectively 12 months after he was taken into custody last year for these offences. 1-4 ORDER/SENTENCE

Turning now to the breach of the suspended sentence, and I'll just get you to stand up, Mr Holley. Now you have been successful in your appeal, but it's not going to make a huge difference because of the order that I'm about to make with respect to the breach of the suspended sentence.

You were sentenced in Dalby back in May 2006 for a very, very serious driving offence of driving dangerously whilst under the influence of alcohol and causing grievous bodily harm to the two passengers in your vehicle. And I'm not going to repeat what the Judge said to you at the time, but it was obviously a very serious offence, particularly, given your background of previous convictions for driving offences and drink driving offences.

The Judge on that occasion gave you the benefit of an early release on a suspended sentence, after serving 16 months. So you must have been released around September 2007. Now a year later, between September and December 2008 you committed four more disqualified driving offences and two more serious drink driving offences. In those circumstances, I really have no choice now but to order that you serve the whole of the balance of the four years, which is 32 months - two years and eight months. There is no suggestion that it would be unjust that I make that order, and I will make that order. 1-5 ORDER/SENTENCE

So the order that I make is that you do serve the whole of the balance of the term of imprisonment that was imposed on you on the 30th of May 2006 in the Dalby District Court, but

partially suspended. So I order that you serve the whole of
the 32 months outstanding. That will be served from today.
And I will order your release on parole, after effectively
serving two and a half years, so that takes us to the 11th of
April 2012. So I will order your release on parole on the
11th of April 2012. But you will be on parole until December
2012, so you will have that hanging over your head, and you
will be supervised for that period of time.

So far as the disqualification aspect of the appeal is concerned, the effective order that the Magistrate made was one of 12 years disqualification.

Well, just to make it clear, the order I've made with respect
to the breach of the suspended sentence and the parole order
that I make there, will now cancel out the parole release date
of the 12th of October 2010, which is as a result

of the appeal.

Now, going back to the disqualified driving orders - the disqualification periods for each of the offences, the order that'll I make then is that the defendant is disqualified from holding or obtaining a drivers licence for two and a half years. 1-6 ORDER/SENTENCE

With respect to the driving under the influence on the 19th of November 2008, and for each of the other substantive offences of driving under the influence and disqualified driving, is disqualified for a period of three years. Which as I understand, the effect of the legislation, will make a total of five and a half years from today.

Okay. So, Mr Holley, you're disqualified effectively for five and a half years from today. You'll be I gaol until the 11th of April 2012, and then you'll be on parole till the end of the year effectively.

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1-7 ORDER/SENTENCE