Jones v Gleeson

[2021] TASSC 63

[2021] TASSC 63

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Jones v Gleeson [2021] TASSC 63

PARTIES:  JONES, Jason
  v
  GLEESON, Beven John

FILE NO:  1152/2021
DELIVERED ON:  20 December 2021
DELIVERED AT:  Hobart
HEARING DATE:  16, 20 December 2021
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether sentence manifestly inadequate – Evading police – Evading police (aggravated circumstances).

Police Powers (Vehicle Interception) Act 2000 (Tas), s 11A.
Justices Act 1959 (Tas), s 110A.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  Ms E Belonogoff
             Respondent:  Ms O Jenkins
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Rae & Partners

Judgment Number:  [2021] TASSC 63
Number of paragraphs:  38

Serial No 63/2021
File No 1152/2021

SENIOR SERGEANT JASON JONES v BEVEN JOHN GLEESON

REASONS FOR JUDGMENT  WOOD J

20 December 2021

1. The applicant has brought a motion to review seeking to appeal sentences imposed by Magistrate S Cure in the Launceston Magistrates Court on 30 April 2021, and corrected by her Honour on 9 July 2021. The respondent, Beven John Gleeson, had pleaded guilty to four charges across three complaints involving two charges of motor vehicle stealing, one charge of evading police and one charge of evading police (aggravated circumstances). The effect of the sentences he received was five months' imprisonment and licence disqualification for two years and eight months. He had served the term of imprisonment by 24 July 2021.

2. There are three grounds of review, the first ground having been abandoned. Grounds 2, 3 and 4 are as follows:

   "1   In relation to complaint 30822/2021, charge 1 (evading police) the learned Magistrate erred in law in imposing a disqualification period of 6 months.

   2   In relation to complaint 30822/2021 charge 1 (evading police), the learned Magistrate erred in law in imposing a sentence that was manifestly inadequate in all the circumstances of the case.

   3   In relation to complaint 30825/2021 charge 1 (evading police (aggravated circumstances)), the learned Magistrate erred in law in imposing a sentence that was manifestly inadequate in all the circumstances of the case."

The offending

1. As mentioned, there are three complaints and four charges. The facts presented to the learned magistrate are as follows.

   14 February 2021, evading police (complaint 30822/2021):

   An aggravated burglary occurred at Lilydale Road, Underwood on 3 February 2021. During that burglary a 2007 blue Toyota Kluger was stolen from the address. On 14 February 2021 at approximately 2:10pm police identified the stolen vehicle travelling west on Quarantine Road. The vehicle stopped at the intersection. Police stopped behind the vehicle. The vehicle then accelerated through a red light, conducted a U-turn into the opposite lane, and accelerated back on Quarantine Road towards St Leonards. Police activated their emergency lights and sirens and followed the vehicle. The respondent was observed by police as the driver of the vehicle. The vehicle overtook another vehicle at high speed, crossing onto the wrong side of the road. The vehicle was again sighted by police, after which the stolen vehicle overtook another vehicle on the wrong side of the road. Police lost sight of the vehicle.

   15 February 2021, motor vehicle stealing (complaint 30823/2021):

   On 15 February 2021 at approximately 6:45pm an off-duty police officer travelling east on Station Road observed the stolen Toyota Kluger being driven before stopping outside an address on St Leonards Road. Police observed it had Victorian number plates that were different on the front and back. The vehicle moved off in convoy with another vehicle. Police observed the driver of the vehicle was the respondent. Police notified other police personnel, but the respondent was not located.

   16 February 2021, evading police (aggravated circumstances), motor vehicle stealing (complaint 30825/2021):

   On 16 February 2021 at approximately 4:50pm police observed the respondent driving the stolen vehicle, which had been "badly painted" white, while travelling on Hoblers Bridge Road towards Elphin Road. Police conducted a U-turn and activated their lights and sirens and attempted to intercept the vehicle. The respondent immediately accelerated away from police and overtook other vehicles between the kerb and the lane of traffic. The respondent turned left onto Penquite Road, and continued to travel at high speed. Police lost sight of the respondent after he turned onto another road.

2. The respondent was arrested on 24 February 2021. The respondent participated in an interview with police, in which he denied being the driver, saying that he was at the cricket on the first instance, and out in the bush on the other two instances.

The respondent's circumstances

1. The defendant has prior convictions as an adult of relevance to his offending. These included three prior convictions for evading police. The details are as follows:

   ·     A conviction for evading police in December 2011, which was the subject of a global sentence of 20 months' imprisonment imposed for numerous offences, with no provision for parole, and 12 months' probation following release from prison.

   ·     In April 2017, the respondent was convicted of two separate charges of evading police committed in August and November 2016. Both offences attracted cumulative terms of six months' imprisonment which were imposed as global sentences encompassing other offending. The other offending encompassed within the first sentence was driving whilst driver licence suspended and reckless driving. The offences which attracted the second global sentence, as well as the offence of evading police, involved driving while disqualified, dishonestly alter a plate in a way calculated to deceive, two charges of using an unregistered motor vehicle, use a motor vehicle with no premium cover and drive whilst not the holder of a driver licence. The first set of offences attracted 16 months' disqualification and the second, 12 months' disqualification.

2. The defendant has other relevant prior convictions including convictions for motor vehicle stealing (3) and attempted motor vehicle stealing (2), and an extensive history of dishonesty for stealing and aggravated burglary. He has served three lengthy terms of imprisonment imposed by this Court. In 2008 he received two periods of imprisonment amounting to 27 months and a non-parole period of 18 months for crimes of violence and dishonesty arising from two incidents. In 2012 he was sentenced to three years and 6 months' imprisonment, with a non-parole period of two years and nine months for aggravated armed robbery. In 2019 he was sentenced to 23 months' imprisonment for two charges of recklessly discharge a firearm, with a non-parole period of eleven and a half months.

3. The respondent was 32 years of age at the time of offending. In counsel's plea in mitigation the following was said:

   ·     The respondent came from a good family with supportive parents and younger brother.

   ·     Was a victim of crime whilst incarcerated at a youth detention centre at 14 years old; that was revealed in the last two years as a result of the Royal Commission into institutional abuse.

   ·     He was willing to engage with counselling and appropriate services upon his release.

   ·     Has a relationship, which is complicated and is the subject of a family violence order but is nevertheless supportive.

   ·     Had a child who had begun to notice when the respondent was incarcerated and this was providing him with a "powerful incentive".

   ·     Held a certificate 3 in construction, a "white card", a forklift licence, and working with heights qualifications, and has worked consistently in various trades.

   ·     Has engaged in community sport as a highly skilled cricketer and footballer, and established supportive relationships with other team and club members.

   ·     Prior to being taken into custody he was working with his brother who is a qualified builder.

4. In respect of the particular offending, defence counsel submitted that the respondent:

   aHad bought the Kluger for a number of thousands of dollars to be used by his partner, but did not know at the time he bought it that it was stolen. He admits he had possession and control of the vehicle after becoming aware that it was stolen.

   bHad only had the car for a few days before the police intercepted him.

   cHad intended to get rid of the vehicle, but did not.

   dHas not previously held a licence, so he panicked following police interception and fled.

   eDid not injure or cause damage to other people or vehicles. His manner and nature of driving did not amount to reckless or dangerous driving.

The sentences

1. The sentences imposed by the learned magistrate are to be found in her Honour's comments as follows:

   "... so the Police Powers (Vehicle Interception) Act it's not less than two years, and not more than five year disqualification under s11A(4A), and under s11A(3C) I have got to impose the separate sentence...

   So in relation to that charge I convict him and impose a period of imprisonment of three months on that charge alone and I backdate that to 24th February and I order that he be disqualified from driving on that charge for two years from his release. On index 6, charge 1130822 the evade police I order that he be disqualified from driving for a period of six months and order that that be cumulative. On index 7, there are two motor vehicle stealings. Am I correct? ... I am required to disqualify him from driving on the two motor vehicle stealings, so charge 2, index 7, charge 3, index 8 there will be a two month period of disqualification, one each, both cumulative. So he ends up with two years and eight months' disqualification and there's an element of totality through that. On the balance of the matters; that is, the evading police, the motor vehicle stealing times two I convict him and sentence him to two months' imprisonment and that will be cumulative on the existing order. So he faces five months' imprisonment for these matters, all backdated to 24th February. I take into his pleas of guilty. I take into account that these occurred over three days, and I take into account his personal circumstances and the other matters put by Mr Hughes."

2. After filing the notice to review, the respondent's counsel made an application to the Magistrates Court to correct the sentence to make it compliant with s 11A(3C) of the Police Powers (Vehicle Interception) Act 2000, which requires a separate sentence to be imposed for offences under s 11A. This subsection states that the court must impose separate sentences for offences of evading police and evading police (aggravated circumstances), and they must not subsumed within a global sentence. This amendment commenced on 13 September 2017, notably after the imposition of the respondent's prior offences for evading police.

1. On 9 July 2021, the learned Magistrate corrected the sentence as below:

Complaint and Charge	Sentence imposed	Corrected sentence
30822/2021 Evading police (Charge 1)	Global sentence of 2 months imprisonment for this offence and 30823 and 30825 charge 3, cumulative 30825 charge 1. Disqualified from holding or obtaining a drivers licence for 6 months upon release, cumulative with the other disqualification periods.	1 month imprisonment cumulative to 30825 charge 1.
30823/2021 Motor vehicle stealing (Charge 2)	Global sentence of 2 months imprisonment for this offence and 30822 and 30825 charge 3, cumulative to 30825 charge 1. Disqualified from holding or obtaining a drivers licence for 1 month upon release, cumulative with the other disqualification periods.	Global sentence of 1 month imprisonment for this offence and 30825 charge 3 cumulative to 30822 charge 1.
30825/2021 Evading police (aggravated circumstances) (Charge 1)	3 months imprisonment backdated to 24/02/2021. Disqualified from holding or obtaining a drivers licence for 2 years from release.
Motor vehicle stealing (Charge 3)	Global sentence of two months imprisonment for this offence and 30823 and 30822, cumulative to 30825 Disqualified from holding or obtaining a drivers licence for 1 month upon release, cumulative with the above disqualification periods.	Global sentence of 1 month imprisonment for this offence and 30823 charge 2, cumulative to 30822 charge 1.

1. The corrections did not change the effective total sentence of five months' imprisonment and the disqualification period of two years and eight months.

The statutory penalties

1. For the offence of evading police contrary to s 11A(1) of the Police Powers (Vehicle Interception) Act the penalties are as follows:

   "Penalty: In the case of –

   (a)   a first offence, either or both of the following:

   (i)a fine of not less than 10 penalty units and not more than 100 penalty units;

   (ii)imprisonment for a term of not more than 2 years; and

   (b)   a second offence, either or both of the following:

   (i)a fine of not less than 20 penalty units and not more than 100 penalty units;

   (ii)imprisonment for a term of not more than 3 years; and

   (c)   a third or subsequent offence, either or both of the following:

   (i)a fine of not less than 20 penalty units and not more than 100 penalty units;

   (ii)imprisonment for a term of not more than 4 years."

2. In relation to offences of evading police (aggravated circumstances) contrary to s 11A(2A) the penalties provided for are as follows:

   "In the case of –

   (a)a first offence, either or both of the following:

   (i)a fine of not less than 20 penalty units and not more than 100 penalty units;

   (ii)imprisonment for a term of not more than 3 years; and

   (b)   a second or subsequent offence, either or both of the following:

   (i)a fine of not less than 20 penalty units and not more than 100 penalty units;

   (ii)imprisonment for a term of not more than 5 years."

3. The section provides for minimum and maximum periods of disqualification for evading police depending on the number of prior convictions for evading police, and evading police (aggravated circumstances):

   "11(4)  Subject to subsection (4B), a court that convicts a person of an offence under subsection (1) must, in addition to the penalty specified in that subsection, disqualify the person from driving for –

   (a)in the case of a first offence, a period of not less than 6 months and not more than 3 years; or

   (b)in the case of a second offence, a period of not less than 12 months and not more than 5 years; or

   (c)in the case of a third or subsequent offence, a period of not less than 2 years and not more than 5 years."

4. In relation to evading police (aggravated circumstances), by virtue of subs (4A), and subject to subs (4B), a court that convicts a person of that offence must disqualify the person from driving for a period of not less than two years and not more than five years.

Ground 2

1. It can be seen that with respect to the offence of evading police, the learned magistrate erred by imposing a disqualification period of six months. The respondent has three prior convictions for evading police, and the minimum disqualification period in the case of a third or subsequent offence was a period of not less than two years. Specific error has been disclosed and this ground of review must succeed.

Grounds 3 and 4

1. Grounds 3 and 4 concern the periods of imprisonment imposed for evading police and evading police (aggravated circumstances). These periods are said to be manifestly inadequate. In order to succeed the applicant must demonstrate that the sentence imposed by the sentencing magistrate was lenient to the point of error. The sentence must be "unreasonable and plainly unjust": House v The King (1936) 55 CLR 499.

2. It is worthwhile pausing to consider the nature of the offences of evading police and evading police (aggravated circumstances). Evading police is defined in s 11A(1):

   "11A(1)  The driver of a vehicle must not take action to avoid apprehension or interception by a police officer who is exercising his or her powers or performing his or her functions under any Act."

3. Evading police (aggravated circumstances) involves such action to avoid apprehension or interception with circumstances set out in the legislation that are treated as aggravating. These circumstances are: driving a stolen vehicle, driving recklessly or negligently, or with alcohol present in breath or blood in contravention of s 6 of the Road Safety (Alcohol and Drugs) Act 1970 or an illicit drug present in oral fluid or blood, driving while the driver's licence has been suspended, cancelled or while he is disqualified from driving, or the taking of the action to avoid apprehension or interception was as a result of the driver having committed certain offences, or other prescribed circumstances.

4. The gradation in the maximum penalties for first, second and third or subsequent offending and the substantive increases in the length of those maxima, makes it clear that heavy penalties were envisaged and the purpose of the legislative scheme was to empower the court to impose heavy penalties in appropriate cases.

5. Here the circumstances particularised in the charge as aggravating were that at the time the defendant took evasive action, the vehicle he was driving was stolen.

6. It may be noted that the defendant faced only one charge of evading police (aggravated circumstances) and the first offence was merely evading police, yet he was driving a stolen vehicle on that occasion as well. The reason may have been that the prosecution accepted that in relation to the first occasion, the respondent did not know then that the vehicle he was driving was stolen. If so, that position assumes that knowledge is an element of the offence which is not apparent from the terms of the section, and that question of statutory construction may be an argument for a future case. It is not a question I need to decide. Given the charge, the learned magistrate was obliged to disregard the fact the vehicle was stolen when sentencing for evading police.

7. In relation to the offence of evading police there were no mitigating circumstances. The learned magistrate was informed that he panicked when he saw police, presumably because he was unlicensed and should not have been driving. Very often the reason for evading police is panic due to wrongdoing. It is inherent in the offence that the driver seeks to avoid apprehension by police. Almost always that will be because the driver is in the wrong and seeks to avoid the legal consequences of that wrongdoing.

8. His evasive driving in relation to the first offence posed a significant risk to the other road users. The respondent accelerated away from police through a red light. While he was being pursued by police he overtook two other vehicles at high speed and police lost sight of him. This offence can be appropriately characterised as a sustained course of conduct and an ultimately successful attempt to evade apprehension, demonstrating a disregard for the safety of other road users.

9. He has prior convictions for evading police which have attracted a gaol sentence and which have not proved to be a deterrent.

10. Taking action to avoid apprehension or interception can involve a single act or a course of conduct. Here both offences involved a course of conduct.

11. The offence of evading police (aggravated circumstances) involves a particularly high level of culpability, committed just two days after evading police. Given that earlier incident and his prior convictions for evading police, this offence was not uncharacteristic behaviour.

12. His culpability with respect to this occasion is compounded by the fact that he must have known that if the police saw the vehicle or him driving, it was very likely the police would try and intercept him. His evasive action was an immediate and determined response to avoid apprehension. It involved a driving manoeuvre fraught with risk and substantive disregard for the safety of others. There were no mitigating circumstances.

1. A deterrent penalty was required to discourage the respondent and other repeat offenders from evasive driving. The court needed to send a message that the perceived advantage of evading police is not worth the risk given the court's approach. The short prison sentences in this case failed this objective and in fact, may even encourage his future offending. The sentences of imprisonment under review were manifestly inadequate.

2. I uphold grounds 3 and 4.

Residual discretion

1. Notwithstanding this conclusion, this Court has a discretionary power to dismiss the motion to review: Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60. As a Crown appeal there are special considerations that apply arising from concerns about unfairness to a respondent and exposure to double jeopardy. The purpose of the residual discretion in relation to Crown appeals is to avoid injustice which might be caused to a respondent if the appeal is allowed.

2. The respondent relies on the significant period of time that has lapsed since he was sentenced. The respondent was sentenced on 30 April 2021 and the sentence was corrected on 9 July 2021. The lapse of time is unfortunate but does not give rise to injustice. This is not the more usual case where as a consequence of the lapse of time the sentence of imprisonment under review has not only been served, but the person has been released back into the community and faces returning to prison. Particularly where the offender has taken rehabilitative steps in the community, this can be a powerful reason to dismiss a Crown appeal. In this case, the respondent has remained in custody after his sentence expired having been remanded in custody on other offences.

Outcome

1. The motion to review is allowed. I will make orders and re-sentence the respondent after hearing from the parties.

Re-sentencing 20 December 2021

1. In re-sentencing the respondent, I have taken into account the facts and plea in mitigation presented to the learned magistrate and also the submissions I have heard today with regard to s 110A(2AA) of the Justices Act 1959. This section allows the Court to take into account matters relevant to sentence that have occurred since the sentencing orders under review were made. The respondent has remained in custody on remand since serving the sentences under review. He has obtained employment in prison as a painter but most of this time has been spent in "lockdowns". An unfortunate result of the lockdowns is reduced contact with lawyers and family. These lockdowns have been imposed across the general prison population and have meant that for prisoners and remandees, like the respondent, incarceration has been more difficult than ordinarily it would be.

2. In fixing the substituted sentences, I have checked to ensure that the aggregate term of imprisonment is a just reflection of the totality of his offending. I make the following orders:

   ·     For the offence of evading police, I quash the sentence of one month imprisonment and substitute a sentence of four months' imprisonment. I impose a non-parole period of two months with respect to this period of four months. I quash the disqualification period of 6 months and substitute a disqualification period of two years.

   ·     For the offence of evading police (aggravating circumstances), I quash the sentence of three months' imprisonment and impose a sentence of six months' imprisonment. The respondent is not to be eligible to apply for parole until he has served four months of that sentence.

3. These substituted sentences do not affect the commencement date and cumulative nature of the sentences structured by the learned magistrate. The substituted sentences of imprisonment are in addition to the one month term he received for two offences of motor vehicle stealing, which is not subject to review. Thus, the substituted sentence of six months' imprisonment imposed in relation to evading police (aggravated circumstances) is backdated to 24 February 2021. The substituted sentence of four months' imprisonment for evading police is to be served cumulatively to that term of six months and the global sentence of one month imprisonment imposed by the learned magistrate for two offences of motor vehicle stealing is to be served cumulatively.  

4. Pursuant to s 92A(3) of the Sentencing Act 1997, I specify that the total sentence that the respondent is liable to serve for the substituted sentences and the global sentence for the two offences of motor vehicle stealing is 11 months' imprisonment backdated to 24 February 2021. Further, he would not be eligible to apply for parole until he has served seven months.