Wright v Doherty

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DISTRICT COURT OF QUEENSLAND

CITATION:

Wright v Doherty [2022] QDC 277

PARTIES:

JAKKEIGH LEIGH WRIGHT

(Appellant)

v

SENIOR CONSTABLE LIAM DOHERTY

(Respondent)

FILE NO:

2809/22

DIVISION:

Civil

PROCEEDING:

Appeal - Justices Act 1886 (Qld) s 222

ORIGINATING COURT:

District Court of Queensland at Brisbane

DELIVERED ON:

6 December 2022

DELIVERED AT:

District Court of Queensland at Brisbane

HEARING DATE:

5 December 2022

JUDGE:

Loury KC DCJ

ORDER:

(1)      The appeal is allowed;

(2)      The sentences imposed by the learned Magistrate are set aside;

(3)      I activate the suspended sentences imposed on 26 November 2020 in the Brisbane Magistrates Court;

(4)      For the offence of drug driving the appellant is sentenced to six weeks imprisonment.  I order that term of imprisonment be served concurrently with the activated suspended sentences;

(5)      The appellant is disqualified from driving for six months;

(6)      I order that the appellant be released on parole on 6 December 2022;      

(7)      No order as to costs.

LEGISLATION:

Justices Act 1886 (Qld) s 226

Penalties and Sentences Act 1992 (Qld) s 147, s 148

CASES:

Latoudis v Casey (1990) 170 CLR 534

R v Hannan; ex parte Attorney-General (Qld) [2019] 2 Qd R 213

R v Norden [2009] 2 Qd R 455

Scanlon v Queensland Police Service [2011] QDC 236
COUNSEL:

J Lee (solicitor) for the appellant

E Duncan (solicitor) for the respondent
SOLICITORS:

Donnelly Law Group for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Introduction

  1. On 11 November 2022 the appellant pleaded guilty to an offence of driving whilst a relevant drug was present in her saliva.  She was sentenced to three months imprisonment. She had committed the offence in breach of suspended sentences imposed on 26 November 2020 and those suspended sentences were activated in full.  The activated suspended sentence of 12 months imprisonment was ordered to be served cumulatively on the three month sentence imposed for drug driving.  A parole release date was set at 10 February 2023 (after serving three months of the sentence). Additionally, the appellant was disqualified from driving for a period of nine months.   

  2. The appellant has appealed against the severity of her sentence.  The principles relevant to such an appeal are well settled.  The appeal is by way of rehearing on the evidence before the learned Magistrate and any new evidence adduced with the leave of the court.  It is necessary for the appellant to demonstrate that the decision of the Magistrate was affected by some error. 

    Circumstances of the offending

  3. On 27 August 2022 the appellant was intercepted by police when she was driving her car. She underwent a drug test which returned a positive result for methylamphetamine. The appellant admitted to police that she had used methylamphetamine two days prior to being intercepted.

    The appellant’s antecedents

  4. The appellant has a significant criminal and traffic history.  On 18 December 2018 the appellant was convicted of trafficking in dangerous drugs over a three month period in 2017. She was also convicted of five counts of supplying schedule 1…

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Details
Case
[2022] QDC 277
Decision Date

CaseChat Overview and Summary

In Wright v Doherty, the appellant, who was subject to a probation order, returned a positive drug test. The learned Magistrate, considering the appellant's persistent disregard for the law and the nature of the drug driving offence, imposed a sentence of imprisonment, activating the suspended sentences imposed for previous offences. The appellant's representative argued for probation or a wholly suspended sentence, but the Magistrate noted that these options were not available under the statute. Despite this, the Magistrate activated the suspended sentences and ordered them to be served cumulatively with the sentence for drug driving.

The legal issues centred on whether the learned Magistrate correctly considered the relevant statutory provisions and whether the sentence imposed was appropriate. The Court examined whether the Magistrate appropriately considered the factors relevant to activating a suspended sentence under section 147 of the Penalties and Sentences Act 1992 (Qld) and whether the sentence imposed was proportionate to the offence committed. The Court found that the Magistrate did not consider the statutory provisions correctly, and the sentence imposed was not reflective of the mitigating factors, including the appellant's guilty plea.

The Court concluded that the appeal should be allowed, and the sentences imposed by the learned Magistrate were set aside. The suspended sentences were activated, and the appellant was sentenced to six weeks imprisonment for the drug driving offence, to be served concurrently with the activated suspended sentences. The Court also imposed a six-month disqualification from driving and ordered the appellant's release on parole on 6 December 2022. No order was made as to costs.

Orders

Orders of the court

(1) The appeal is allowed;

(2) The sentences imposed by the learned Magistrate are set aside;

(3) I activate the suspended sentences imposed on 26 November 2020 in the Brisbane Magistrates Court;

(4) For the offence of drug driving the appellant is sentenced to six weeks imprisonment. I order that term of imprisonment be served concurrently with the activated suspended sentences;

(5) The appellant is disqualified from driving for six months;

(6) I order that the appellant be released on parole on 6 December 2022;

(7) No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

An officer from Community Corrections informed the learned Magistrate that the appellant had returned a positive drug test whilst subject to the probation order. The learned Magistrate’s decision The learned Magistrate said that he had taken into account the appellant’s plea of guilty and reduced the penalty that he would otherwise have imposed. He referred to the appellant having breached the probation order and the suspended sentences imposed. He indicated that the appellant had not responded to parole or probation because she had been returning “dirty urine tests throughout”. He considered that the appellant had used up all the opportunities for lenience that she could expect. She had engaged in a persistent attitude of disobedience of the law for a number of years. The learned Magistrate referred to drug driving as being an antisocial offence that puts the lives of other road users in danger. He referred to the need for a sentence that punishes, provides a deterrent to others and protects the community. He considered that there was only one sentencing option that was appropriate in the circumstances, which was imprisonment. Consideration The learned Magistrate was not directed to any of the considerations in section 147 of the Penalties and Sentences Act 1992 (Qld). The submissions made by the appellant’s representative, which were to the effect that the appellant should be sentenced to probation or a wholly suspended sentence, suggest to me that he did not appreciate the significance of the offence having been committed whilst the appellant was subject to a suspended sentence. Section 147 only provides for three options when activating a suspended sentence and those options do not include probation or another suspended sentence. Despite the absence of any assistance from the parties, the learned Magistrate took into account the relevant considerations in determining whether to activate the suspended sentence. Whilst the breaching offence is, by virtue of the maximum penalty available, less serious than the original offences for which the appellant received the suspended sentences, there were factors which favoured activation. In particular, that this was the second occasion on which the appellant had breached the suspended sentences by drug driving. She was given the benefit of an extension of the operational period of the suspended sentence and the assistance of probation when previously having breached the suspended sentences. There was little to suggest that the appellant had taken steps to deal with her drug problem. It was not in all the circumstances, unjust to activate the whole of the suspended sentences imposed being a period of 12 months imprisonment given the appellant’s repeated breaches of the suspended sentences by committing the same offence. Section 148 of the Penalties and Sentences Act 1992 (Qld) requires that the activated suspended sentence be served immediately unless the court orders otherwise. The learned Magistrate made an order that displaced that provision by ordering that the activated suspended sentence be imposed cumulatively on the sentence imposed for drug driving.

Ratio Decidendi

Legal Principle Established

He considered that there was only one sentencing option that was appropriate in the circumstances, which was imprisonment. Consideration The learned Magistrate was not directed to any of the considerations in section 147 of the Penalties and Sentences Act 1992 (Qld). The submissions made by the appellant’s representative, which were to the effect that the appellant should be sentenced to probation or a wholly suspended sentence, suggest to me that he did not appreciate the significance of the offence having been committed whilst the appellant was subject to a suspended sentence. Section 147 only provides for three options when activating a suspended sentence and those options do not include probation or another suspended sentence. Despite the absence of any assistance from the parties, the learned Magistrate took into account the relevant considerations in determining whether to activate the suspended sentence. Whilst the breaching offence is, by virtue of the maximum penalty available, less serious than the original offences for which the appellant received the suspended sentences, there were factors which favoured activation. In particular, that this was the second occasion on which the appellant had breached the suspended sentences by drug driving. She was given the benefit of an extension of the operational period of the suspended sentence and the assistance of probation when previously having breached the suspended sentences. There was little to suggest that the appellant had taken steps to deal with her drug problem. It was not in all the circumstances, unjust to activate the whole of the suspended sentences imposed being a period of 12 months imprisonment given the appellant’s repeated breaches of the suspended sentences by committing the same offence. Section 148 of the Penalties and Sentences Act 1992 (Qld) requires that the activated suspended sentence be served immediately unless the court orders otherwise. The learned Magistrate made an order that displaced that provision by ordering that the activated suspended sentence be imposed cumulatively on the sentence imposed for drug driving. The sentence imposed for drug driving was the maximum penalty that could be imposed. As a result of the accumulation of the 12 month term of imprisonment on the maximum penalty for the offence of drug driving, it is difficult to see how the learned Magistrate took into account the appellant’s guilty plea by reducing the penalty that he would otherwise have imposed. The learned Magistrate, in addition to sentencing the appellant to the maximum sentence available, also imposed the maximum disqualification period available. There is another matter that arose during the course of the hearing and that is the learned Magistrate’s reference to returning dirty urine tests throughout the period of probation. The statement of the officer from Community Corrections at the hearing of the sentence was to a single drug test which was positive. The appellant’s representative was able to obtain some information from Community Corrections which although not in proper form, the respondent did not object to my receiving as new evidence. That evidence indicates that the appellant was referred to Drug ARM for counselling however due to the extensive wait lists, she was not accepted into the program. She self-reported engagement with AODS and inquired about counselling. She was referred to the Brisbane Domestic Violence Service and had ongoing phone contact with that service. No formal breach action was taken despite her conviction for the offence of drug driving as her order had recently expired and she had not committed any other offences during the currency of the order. She reported on all occasions as directed. There were two urine tests completed which returned positive indications for methylamphetamine. Those tests were undertaken in October 2021 and February 2022. I do not consider that it was correct to refer to the appellant as returning dirty urine tests throughout the period.