Horwell v Queensland Police Service

[2012] QDC 230

[2012] QDC 230

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE R JONES

No D14 of 2012

MARK DAVID HORWELL	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

MARYBOROUGH

..DATE 20/08/2012

JUDGMENT

HIS HONOUR: This is an appeal brought by Mark David Horwell pursuant to section 222 of the Justices Act. The factual background to the appeal is that at the Magistrates Court at Bundaberg on 13 March 2012, the appellant was convicted in respect of one count of dangerous operation of a motor vehicle, one count of driving whilst disqualified by a Court order, one count of evading police, and one count of being in possession of a knife in a public place.

The learned sentencing Magistrate imposed the following sentences: on count 1, two years' imprisonment; count 2, 18 months' imprisonment, and on counts 3 and 4, a conviction was recorded but the appellant was not further punished.

A parole release date was set in respect of count 1 at 13 March 2013.  The net effect of that sentence was to require the appellant to serve one-half of the sentence imposed.

It is well established that in appeals such as this, it would be wrong for the Court to interfere with the exercise of a sentencing discretion simply because the appellate Court might have had a different view as to the appropriate sentence. It is well established that before interfering with the exercise of a sentencing discretion, it has to be shown that the sentencing Magistrate acted upon a wrong principle or allowed extraneous or irrelevant material to influence him or her or to act on a mistaken view of the facts, or to not take into account some material consideration, and I will refer there to the well-known case of House and The Queen [1936] 55 CLR 499 at 504.

The appellant here does not cavil with the head sentence imposed in respect of count 1, but contends that a parole release date should have been fixed after nine months' imprisonment.  That would see him released on 13 December 2012.

The position of the Crown is that it, quite properly, in my view, accepts that the learned sentencing Magistrate did err in the exercise of his discretion by not taking into account the appellant's plea of guilty; however, for reasons I will come to in a moment, the Crown contends that an appropriate parole release date would be set after the appellant served 10 months of imprisonment which would result in a parole release date of 13 January 2013.

The plea of guilty entered by the appellant could not reasonably be described as an early plea, in my view.  It was entered at a time virtually on the eve of trial when the Crown had prepared its case, including having witnesses available to give evidence.  In that context, it could not be described as an early plea; however, it is a plea that, as I said, the Crown acknowledged ought to have been taken into account.

It has been recognised that pleas of guilty prior to trial assist in the administration of justice in that they save the time and expense of a trial, and it is not unknown for defendants to require the Crown to prosecute even the most hopeless of cases.  Another factor to be taken into account is that by encouraging early pleas, matters are disposed of in a more efficient and expeditious way.

So notwithstanding the fact that this plea was entered at a relatively late stage, it was appropriate for it to be taken into account, and in failing to do so, the learned Magistrate erred in the exercise of his discretion, and that allows me to revisit the matter.

It is contended by the Crown and not really disputed by the appellant that he is at an age where he should not expect any leniency by virtue of youth.  He also has what could be fairly described as an appalling traffic history, including four previous convictions for unlicensed driving, and 12 convictions for driving whilst disqualified.

He was placed on parole on 28 January 2011 for disqualified driving, and also of significance is that the dangerous operation of the vehicle charge occurred in circumstances where the defendant was trying to evade the police.  The actions also involved innocent road users having to take evasive action.

It seems to me, having regard to the antecedents of the appellant, the sentencing Magistrate could not be criticised for the head sentence of two years imposed in respect of count 1.

But for some matters I will come to in a moment, and I would like to put on the record that I think the position taken by the Crown was a reasonable one.  However, on balance, there are some particular circumstances which have led me to conclude that it would be appropriate to set a parole release date after nine months.  I should indicate that these matters were put before the learned Magistrate below.  But I am satisfied that on balance, insufficient weight was given to them.

The appellant has been in custody since 13 March 2012.  He has a partner who is in Court today.  Between he and his partner, they have four children, his partner having two previous children aged 18 and 15, and two younger children of which the appellant is the father aged 10 and 3.  As I understand it, the appellant's partner is caring for at least three of those children on her own.  She, most unfortunately, has been diagnosed with cervical cancer.

The extremely unfortunate history of ill health surrounding the appellant continues.  His mother has also had a tumour removed from her spine fairly recently, which of course limits her ability to not only care for herself but also her husband, the appellant's father.  The appellant's father has been diagnosed with cancer, more particularly prostate cancer which has recently spread throughout various parts of his body.

I have been referred to a number of reports. I intend to refer to only one, and that is the report of a Dr Judith Pohlen.  Under the heading "Opinion", that report states, "Extensive osseous metastases in the axial and appendicular skeleton, particularly T12 to L2-L3, pelvis and proximal femur (right, left, in the glenoid aspect of the left scapula and mid left humeral shaft).  Since prior outside study, 29/8/2011: likely interval increase in T9/T10 and T11, and distal right femur.".

The medical report does not indicate that the appellant's father will not survive the coming Christmas, but the appellant is concerned that if he was required to serve the full term of the imprisonment or even the 10 months contended for by the Crown, he would be denied the opportunity of spending a last Christmas with his father.

On balance, and I must say it is with some degree of reservation, if not reluctance, that I have decided to accede to the submissions made on behalf of the appellant.  By way of summary, the reasons for doing so include not only the appellant's plea of guilty, but also those unfortunate personal circumstances to which I have referred.

So the orders of the Court will be that the appeal is allowed but only to the extent of varying the parole release date to 13 December 2012.

‑‑‑‑‑