R v. Anderson

[2007] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anderson [2007] QCA 222

PARTIES:

R
v
ANDERSON, Travis Anthony
(applicant)

FILE NO/S:

CA No 130 of 2007

DC No 776 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

16 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2007

JUDGES:

de Jersey CJ, Williams JA, Jerrard JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to 15 counts of fraud, two counts of stealing as a servant, one of stealing and one of attempting to dishonestly obtain property from another – where the applicant was sentenced to three years and six months imprisonment suspended for an operational period of five years after he had served 11 months imprisonment – where a different District Court Judge activated 12 months of that partly suspended sentence and further ordered, pursuant to s 147(1)(p), s 151A and s 160B(3) of the Penalties and Sentences Act 1992(Qld) that the applicant be released on parole on 21 December 2007 – whether the order activating 12 months of that sentence created a manifestly excessive sentence

Penalties and Sentences Act 1992(Qld), s 147(1)(p), s 151A s 160B(3)

COUNSEL:

R H East for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  I invite Justice Jerrard to deliver the first judgment.

JERRARD JA:  In July 2004 Mr Travis Anderson pleaded guilty to 15 counts of fraud, two counts of stealing as a servant, one of stealing and one of attempting to dishonestly obtain property from another.  He was sentenced to three years and six months imprisonment suspended for an operational period of five years after he had served 11 months imprisonment.

By an order made on 7 June 2007 a different District Court Judge activated 12 months of that partly suspended sentence and further ordered, pursuant to section 147(1)(p), s 151A and s 160B subsection 3 of the Penalties and Sentences Act 1992(Qld) that Mr Anderson be released on parole on 21 December 2007. Mr Anderson has applied for leave to appeal against the order activating 12 months of that sentence and his counsel contends that only four to six months should have been so activated.

The sentencing remarks of 29 July 2004 record that Mr Anderson's victims had actually lost about $65,000 and had risked the loss of more than twice that amount.   Two of his 19 property offences were committed while on bail and the explanation for his offending was then described by that learned sentencing Judge as his pathological gambling.
That sentencing Judge took into account his plea of guilty, his admissions to the police and the fact that he had made unsuccessful attempts at rehabilitation which had included being in a live-in residential facility for six months.  That Judge declared that seven days spent in custody counted as time served. 

Mr Anderson was released from custody after serving the 11 months on or about 28 June 2005. On 13 January 2006 he drove a motor vehicle with a blood alcohol concentration of .18 and failed to stop.  And on 27 January 2006 he was fined $1,750 in default of 17 days imprisonment for the first of those offences in the Brisbane Magistrates Court.  He was also disqualified from driving for two and a half years. 

On 31 January 2006 four days after that Court appearance, Mr Anderson committed an offence of disqualified driving and an offence of failing to wear a seatbelt.  He was given a notice to appear but, before he did appear and be dealt with, he committed a second offence of disqualified driving, this time on 19 May 2006.

On 5 July 2006 he appeared in the Brisbane Magistrates Court and pleaded guilty to both offences of disqualified driving, that is, on 31 January and 19 May 2006.  And on the first offence was fined $1,200 in default 24 days and disqualified from driving for two years.  And on the second, sentenced to three months imprisonment and wholly suspended for 12 months.  He was disqualified from driving for another 30 months.  He was also fined for the offence relating to a seatbelt and for making an improper right-hand turn.

On 27 December 2006, Mr Anderson committed a third offence of driving while disqualified and on 6 February 2007 was sentenced to four months imprisonment suspended after seven days for that offence.  An operational period of two years was fixed.  He was also committed for sentence to the District Court for breaching the suspended sentence imposed on 29 July 2004. 

The learned sentencing Judge who activated the 12 months referred to the fact that Mr Anderson's offending for which he was given a partially suspended sentence had lasted from early April 2003 until May 2004 and to the fact that Mr Anderson had committed two offences at that time when on bail after arrest on others.

Mr Anderson had even then a very lengthy traffic history which had included his offending on bail at that time by unlicensed driving.  A number of other traffic offences, mostly of speeding, were committed, until he was eventually imprisoned on the 29th of July 2004.  That learned Judge referred to the observations of Mr Justice Hoare, with whom Hart J and WB Campbell J agreed, in the matter of The Queen v Groening CA Number 89 of 1971.   In that case, Justice Hoare  wrote to the effect that driving while a disqualified driver was a very serious offence involving a defiance of the law and that to treat it as a comparatively minor offence entirely lost the deterrent effect of disqualification.  The learned sentencing Judge in this matter also remarked that the disqualified riving on 19 May 2006 had occurred when Mr Anderson was on bail for the prior disqualified driving charge. 

Mr Anderson's counsel, on this application, Mr East, has submitted that that remark was in fact in error because Mr Anderson had been issued with a notice to appear in respect of that offence and not arrested and released on bail.  But with all respect there is really nothing of power in that argument because what matters is that Mr Anderson, when allowed to go at large, after knowing it was alleged he was driving without a licence, had again driven without a licence and when disqualified.  That involved just as much a defiance of the order disqualifying him as it would have had he been granted bail rather than called upon to appear after being apprehended on the first occasion for driving while disqualified.

The learned Judge dealing with the matter on the 7th of June 2007 concluded under s 147(2) of the Penalties and SentencesAct that it would be unjust to activate the whole of the suspended term of imprisonment but clearly concluded it was appropriate to activate part of it.  Mr Anderson's counsel, Mr East, does not challenge that conclusion, arguing only that a shorter period should have been activated.  The actual term Mr Anderson was ordered to serve, that is, six months and two weeks, after persistently committing offences punishable by imprisonment during the operational period of that suspended sentence was not in itself manifestly excessive.  It is only a little longer than the length of activation suggested by his counsel on this appeal. 

But what appears to have stimulated this application was some of the conduct of the learned Judge who heard the matter on the 7th of June 2007.  Regrettably, in the course of submissions by counsel, the learned Judge made some remarks obliquely critical of the Judge who had imposed the sentences on 29 July 2004 and repeated those criticisms in the sentencing remarks of 7 June 2007.  Those statements implied that the sentence imposed in July 2004 was a very lenient one. 

The learned Judge in 2007 was also critical for the same reason of the sentences imposed by the Magistrates who had dealt with Mr Anderson on his offences of disqualified driving.  In addition, when counsel for the prosecution had suggested to that sentencing Judge that the activated part of the suspended sentence be in the order of four to six months the learned Judge expressed a degree of surprise at that suggestion and required that counsel for the prosecution obtain further instructions. 

When the Court resumed the prosecutor asked for the activation of up to 18 months of the suspended term.  And the totality of what occurred led Mr Anderson's counsel on this application to submit that the Judges conduct gave rise to a possible perception of a lack of impartiality which had arguably tainted the sentencing process.  Partiality in fact is not established because the order made on the 7th of June 2007 was not manifestly excessive and was significantly less than the order finally sought by the prosecution.

The Judge hearing the matter in June 2007 ought to have reflected on the fact that no appeal had been brought against the sentences imposed by the other District Court Judge or the Magistrates dealing with the applicant.  The Judge activating part of the suspended sentence was not required to do anything other than accept as appropriate the sentences bringing Mr Anderson before the Court again. 

Criticism by one judicial officer, not sitting on appeal, of the performance of other judicial officers who are not then present is undesirable, makes great difficulty for counsel who are then appearing and is capable of considerably distracting attention from the merits of an otherwise carefully conducted sentencing procedure.  Accordingly I would dismiss the application for leave to appeal.

THE CHIEF JUSTICE:   I agree.

WILLIAMS:  I agree.

THE CHIEF JUSTICE:  The application is dismissed.

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