Seboa v Commissioner of Police
[2024] QDC 34
•15 February 2024 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION: Seboa v Commissioner of Police [2024] QDC 34
PARTIES: JOSHUA DAVID SEBOA
(Appellant)v
COMMISSIONER OF POLICE
(Respondent)FILE NO: BD 2141/2023
DIVISION: Criminal
PROCEEDING: Appeal
ORIGINATING COURT:
Magistrate Court at Holland Park DELIVERED ON: 15 February 2024 (ex tempore)
DELIVERED AT: Brisbane
HEARING DATE: 15 February 2024
JUDGE: Allen KC DCJ
ORDERS: The appeal is dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appeals against sentence pursuant to s 222 of the Justice Act 1886 (Qld) – where the appellant pleaded guilty to one offence of driving a motor vehicle under the influence of liquor – where the appellant was sentenced to perform unpaid community service of 120 hours within 12 months with a conviction recorded and disqualified from holding or obtaining a driver’s licence for 8 months – where the commission of the offence breached a suspended sentence – where the sentencing Magistrate activated the suspended term of 12 months imprisonment and ordered an immediate parole release date – whether the sentencing Magistrate failed to pay any or sufficient regard to extra-curial punishment the appellant received as a result of significant injuries suffered during the commission of the offence – whether the sentencing Magistrate failed to pay any or sufficient regard to the totality of the sentence for the offence and the breach of suspended sentence – whether the sentencing Magistrate failed to pay any or sufficient regard to the matters in section 147(3)(b) of the Penalties and Sentences Act 1992 when deciding whether it would be unjust to order that the appellant serve the whole of the suspended term of imprisonment – whether the sentence imposed was manifestly excessive
Legislation
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 147
Transport Operations (Road Use Management) Act 1995 (Qld), s 79Cases
House v The King (1936) 55 CLR 499APPEARANCES: S J Cartledge, instructed by Bell Criminal Lawyers, for the appellant
N J Hopper, Office of the Director of Public Prosecutions (Qld), for the respondent
On 26 June 2023 in the Magistrates Court at Holland Park, the appellant pleaded guilty to one offence of driving a motor vehicle under the influence of liquor contrary to section 79(1)(a) of the Transport Operations (Road Use Management) Act 1995.
The presiding Magistrate adjourned the sentence so that the appellant could seek legal advice with respect to the circumstance that such an offence breached a suspended sentence that had been imposed in the Magistrates Court at Southport on 12 November 2021. The appellant returned to the Magistrates Court at Holland Park on 17 July 2023, represented by a duty lawyer. He maintained his plea of guilty.
With respect to the offence of driving under the influence of liquor, the learned sentencing Magistrate ordered that the appellant perform unpaid community service of 120 hours within 12 months and a conviction was recorded. It was further ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of eight months from 17 July 2023.
With respect to the breach of the suspended sentence, the learned Magistrate activated the whole of the suspended term of 12 months imprisonment and ordered a parole release date of 17 July 2023, the date of the sentence.
The appellant has appealed against his sentence pursuant to section 222 of the Justices Act 1886. The appeal is by way of rehearing on the record. The onus is upon the appellant to show that there has been some error in the decision under appeal. The appeal against sentence is against the exercise of discretion and so the principles in House v The King (1936) 55 CLR 499 at 504 – 505 apply. An appellate court may not interfere with a sentence unless it is manifestly excessive, that is, unreasonable and plainly unjust. A conclusion to that effect will not be reached simply because the appellate court might have taken a different view as to the penalty. To succeed on the appeal, the appellant must satisfy the appellate court that the sentence imposed is outside an acceptable scope of judicial discretion. Even if an appellate court were to find that a sentence was at the top end of the permissible range or has a different view as to how the discretion should have been exercised, that is not, in itself, sufficient justification for interference with the sentence.
The ground of appeal is that the sentence is manifestly excessive and has been further particularised as follows:
(a)the sentencing Magistrate erred in failing to pay any or sufficient regard to the extra-curial punishment the appellant received as a result of his significant injuries;
(b)the sentencing Magistrate erred in failing to pay any or sufficient regard to the totality of the sentence for the offence and the breach of the suspended sentence;
(c)the sentencing Magistrate erred in failing to pay any or sufficient regard to the principles in section 147(3) of the Penalties and Sentences Act 1992 when deciding whether it would be unjust to order the appellant to serve the whole of the suspended imprisonment.
The facts of the offending, as outlined by the police Prosecutor, were that the appellant consumed alcohol until intoxicated during the evening of 24 March through to the early hours of 25 March 2023. At about 3.20 am on 25 March 2023, he drove a Holden Commodore southbound on Orange Grove Road at Salisbury with a passenger in the front left passenger seat. He lost control of the motor vehicle, crashing into a large tree at the side of the road, causing extensive damage to the vehicle. He became trapped in the vehicle and emergency services were required to extricate him from the vehicle. He was taken by ambulance to the P.A. Hospital. He was observed to be intoxicated, slurring his speech, having bloodshot eyes and smelling of alcohol. A blood sample showed a BAC of .166.
The duty lawyer appearing for the appellant informed the learned Magistrate that the appellant was 26 years of age. With respect to the breach of the suspended sentence which had been imposed in the Magistrates Court at Southport for an offence of assault occasioning bodily harm committed on 2 October 2021, the duty lawyer pointed to the different type of offending of the breaching offence and submitted that, in the circumstances, the learned Magistrate could consider extending the operational period rather than activating any of the suspended terms of 12 months imprisonment. The duty lawyer noted that the prior traffic history included only one other incident of drink driving in 2019.
The duty lawyer submitted that the appellant had suffered extra-curial punishment because of the injuries he received in the accident that occurred as a result of his drink driving, namely a brain bleed and fractured ribs, shoulder, foot and eye socket.
With respect to the offence of driving under the influence of liquor, the duty lawyer submitted that the learned Magistrate might consider either a significant fine or community service. He asked the learned Magistrate to consider imposing a minimum licence disqualification period of six months.
The learned Magistrate noted that the appellant was already subject to a demerit point suspension of his driver’s licence until 3 January 2024 and had been subject to a suspension of his licence for the four months leading up to the sentence. The learned Magistrate stated that the offence of driving under the influence was a serious example of drink driving, including “because of the damage you did to yourself”. The learned Magistrate stated he accepted that the appellant had suffered very significant injuries. He stated that the appellant’s “driving patterns and behaviours ... show a rather careless lack of regard for other people’s safety on the road.”
In that respect, the learned Magistrate was having regard to the contents of a traffic history which showed that the appellant had been sentenced in the Magistrates Court at Southport for a mid-range drink driving offence with a BAC of .126 on 31 January 2019 and had subsequently been dealt with for several offences of exceeding the speed limit, failing to stop at red lights and using mobile phones as a driver.
The learned Magistrate noted that, whilst the appellant had breached the suspended sentence in committing the offence, there had been no subsequent criminal offences and the appellant apparently satisfactorily completed a six-month period of parole. The learned Magistrate stated:
I also note from the criminal history, without knowing the full details of the assault occasioning bodily harm, that that was accompanied by an alcohol-related charge, clearly related to the assault but subsumed into that one sentence. Alcohol, according to your criminal history at least, has been a longstanding problem for you, particularly in the commission of offences. This time instead of damaging someone else, you’ve banged yourself up quite badly.
I do accept for the purposes of this particular sentence, and totality has to be taken into account here as well between the suspended sentence which I have to activate or not, and if so, decide what to do with it, and the charge before the court. You have limited financial capacity currently, you’re not working. The injuries have meant and sicknesses meant that you haven’t been able to work, and without a licence you’re going to find it a bit more difficult to find the normal work again. I’ll take that into account as well. Being without your licence for some four months, in round terms, it can be – it is being given consideration in the subsequent disqualification. It may not be time for time as such, but certainly they’re relevant.
In the normal course of events I would have thought even an 18-months disqualification is appropriate here for this type of offending. In the circumstances, I’m going to reduce that substantially for the reasons identified by [the duty lawyer], and also not least because of the early plea of guilty which requires a meaningful reduction of penalty as a matter of law.
For the driving charge, you’re disqualified from holding or obtaining a licence for a further eight months. That will extend beyond the demerit point suspension from January, but not for a long time, still a couple of months but I’m paying close regard to that. You’re best off working, for everyone’s – everybody’s benefit, including your own. I’d rather keep the suspension lower and the other penalties not so reduced.
The learned Magistrate then obtained the appellant’s agreement to perform 120 hours of community service and made such an order. The learned Magistrate then continued:
We then turn to the suspended sentence. The starting position, as a matter of law under section 147 of the Penalties and Sentences Act is that the time is to be served unless it is unjust for that to occur. I am satisfied, given the different nature of offences, that it would be unjust for you to serve any actual time. It is, however, not unjust to activate the sentence, notwithstanding the different nature of offences. This, in the broader sense, is still alcohol-related. I do take some encouragement from the fact that your last parole period did not result in any further offending at all. It was not broken, even though the traffic history wasn’t perfect. It did seem to have some reduction in your offending behaviours. I have the same confidence here, and so I do activate the suspended sentence of 12 months and grant you immediate parole release.
The criminal history of the appellant that was before the learned sentencing Magistrate commenced in 2014. It included convictions for committing public nuisance and assaulting or obstructing police in 2015, offences of committing public nuisance and assaulting or obstructing police whilst adversely affected by an intoxicating substance and common assault in 2018, unlawful stalking, using or threatening violence in 2019, further offences relating to licenced premises in 2019 and offences of going armed so as to cause fear in 2020.
The appellant appeared in the District Court at Southport on 1 March 2021 when he was sentenced to concurrent terms of imprisonment, the longest being 18 months for offences of unlawful wounding, using a carriage service to make a threat to cause serious harm and assault occasioning bodily harm. He was also dealt with for a breach of a probation order that had been imposed for his conviction for unlawful stalking in 2019, as well as another breach of a probation order. Taking into account pre-sentence custody of 273 days, there was an order made for the appellant’s release on parole on the sentencing date of 1 March 2021.
It appears from the criminal history that the appellant went on to immediately commit a further offence of unlawful stalking between 1 and 11 March 2021, for which he was sentenced in the Magistrates Court at Southport on 15 June 2021 to six months imprisonment, suspended for two years.
On the 12th of November 2021, the appellant appeared in the Magistrates Court at Southport and was sentenced for an offence of assault occasioning bodily harm committed on 2 October 2021. He was sentenced to 12 months imprisonment, which was wholly suspended for an operational period of two years. That is the suspended sentence that the appellant breached by the offence of driving under the influence. The suspended term of imprisonment imposed in the Magistrates Court at Southport on 15 June 2021 was fully invoked but with a parole release date of 12 November 2021. On the same date, a conviction was recorded and the appellant not further punished for an offence of being drunk or disorderly in licensed premises committed on the same date as the offence of assault occasioning bodily harm.
As noted earlier, the first particular of the ground of appeal is that the sentencing Magistrate erred in failing to pay any or sufficient regard to the extra-curial punishment the appellant received as a result of his significant injuries. As noted earlier from the sentencing remarks of the learned Magistrate, it cannot be said that he failed to have regard to the fact of such injuries. The complaint really amounts to a contention that the sentence ultimately imposed is manifestly excessive.
Likewise, the second particular, that the sentencing Magistrate erred in failing to pay any or sufficient regard to the totality of the sentence for the offence and the breach of the suspended sentence, is also really a contention that the totality of the sentence is manifestly excessive.
I will return to that contention after dealing with the third particular, which is that the sentencing Magistrate erred in failing to pay any or sufficient regard to the principles in section 147(3) of the Penalties and Sentences Act when deciding whether it would be unjust to order the appellant to serve the whole of the suspended imprisonment.
Section 147(1) of the Penalties and Sentences Act provides for the orders that a court might make upon dealing with an offender for a breach of a suspended sentence. They include ordering that the operational period be extended for not longer than one year, ordering the offender to serve the whole of the suspended imprisonment or ordering the offender to serve part of the suspended imprisonment. Section 147(2) provides that the court must order that the offender serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so. Section 147(3) provides that, in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment, the court must have regard to certain matters. They include whether the subsequent offence is trivial having regard to the nature of the offence and the circumstances in which it was committed, the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment, the antecedents and criminal history of the offender, the prevalence of the original and subsequent offences, steps taken by the offender towards rehabilitation since the original sentence was imposed, including the relative length of any period of good behaviour during the operational period, the degree to which the offender has reverted to criminal conduct of any kind, the motivation for the subsequent offence, “the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender” (section 147(3)(b)), and any special circumstances arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.
The appellant submits that, in circumstances where the learned Magistrate was given no factual details of the offence of assault occasioning bodily harm, he could not have had regard to those matters in section 147(3)(b). He was given no information so as to be able to gauge the seriousness of the original offence, including what physical or emotional harm was done to a victim or any information as to the damage, injury or loss caused by the appellant in that offence.
The question is whether the lack of such information precluded the learned Magistrate from dealing with the breach of the suspended sentence or compelled a conclusion that it would be unjust to order the appellant to serve the whole of the suspended imprisonment.
In my view, as a matter of law, the lack of such information as to the matters in section 147(3)(b) did not preclude the learned Magistrate from dealing with the breach of suspended sentence or compel a conclusion that it would be unjust to order the appellant to serve the whole of the suspended imprisonment.
In our adversarial system of criminal justice, the learned Magistrate was limited to having regard to such information on the sentence as was placed before him by the parties to the sentencing proceedings. If information as to those matters in section 147(3)(b) had been placed before the Court by either of the parties, section 147(3) required the Court to have regard to such matters. The absence of such information, though, did not mean that the learned Magistrate could not have regard to all the information placed before him and reach a conclusion as to whether it would be unjust for the appellant to serve the whole of the suspended term of imprisonment.
The learned Magistrate recognised that the different nature of the breaching offence was a relevant consideration in determining such a question.
The question really becomes one as to whether it was outside the proper exercise of judicial discretion for the learned Magistrate to conclude that it would not be unjust for the appellant to serve the whole of the suspended term of imprisonment.
When one considers the seriousness of the offence of driving under the influence in the context of the appellant’s traffic history and criminal history, including his previous breaches of suspended terms of imprisonment, I consider it was within the proper exercise of judicial discretion for the learned Magistrate to conclude that it would not be unjust to order that the appellant serve the whole of the suspended term of imprisonment. That was a decision reached in the process of instinctive synthesis as to what was to ultimately be an appropriate sentence in all the circumstances, including the decision of the learned Magistrate to order an immediate parole release with respect to that activated suspended term of imprisonment.
That leads me to return to the ultimate argument of the appellant, which is that the sentence imposed by the learned Magistrate, considered in its totality, is manifestly excessive.
The offence of driving under the influence of liquor was a serious example of such an offence. The appellant does not refer to any comparative decisions to support a submission that a 120-hour community service order is outside the proper exercise of discretion for such an offence, either considered solely or in combination with the other orders of the learned Magistrate. The licence disqualification only extended the prohibition on the appellant driving a motor vehicle for something less than three months beyond that suspension to which he was already subject because of the accumulation of demerit points.
Those orders, considered in combination with the activation of the 12-month suspended term of imprisonment with immediate release on parole, result in a total sentence that has not been demonstrated to be manifestly excessive in all the circumstances.
Indeed, upon my consideration of the record, it appears that the learned Magistrate gave careful consideration to all the circumstances of the offence and the offender, including those mitigating circumstances contended for the appellant. The sentence imposed is one which, in my view, was entirely appropriate in all the circumstances. It was certainly not manifestly excessive.
The appellant has failed to demonstrate any error by the learned Magistrate.
The appeal is dismissed.
0
1
3