DISTRICT COURT OF QUEENSLAND

Transcription

1 DISTRICT COURT OF QUEENSLAND CITATION: Doig v The Commissioner of Police [2016] QDC 320 PARTIES: SHANI MAUREEN DOIG (Appellant) and THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: DC No 1587 of 2016 DIVISION: PROCEEDING: ORIGINATING COURT: Appellate Appeal under s 222 of the Justices Act 1886 (Qld) Magistrates Court at Brisbane DELIVERED ON: 9 December 2016 DELIVERED AT: District Court at Brisbane HEARING DATE: 28 October 2016 JUDGE: ORDER: Devereaux SC DCJ Appeal allowed Appellant resentenced as follows: 1. Dangerous operation, Code s 328A: a. Conviction recorded; b. Probation for two years; c. Licence disqualification for two years; 2. Failing to stop a motor vehicle, PPRA s 754: a. Fine of 50 penalty units ($5,890.00), with an order, under PSA s 51 (b) that the proper officer give, under the SPE Act, section 34, particulars of the fine to SPER for registration under that section; b. Licence disqualification for two years; 3. Driving while over the middle alcohol limit but not the high alcohol limit: a. Fine of $1, with an order, under PSA s 51 (b) that the proper officer give, under the SPE Act, section 34, particulars of the

2 2 CATCHWORDS: fine to SPER for registration under that section; b. Licence disqualification for one year; 4. Driving while disqualified by court order: a. 12 months imprisonment wholly suspended for an operational period of two years; b. Licence disqualification for three years. APPEAL AND NEW TRIAL APPEAL- GENERAL PRINCIPLES where the appellant pleaded guilty to dangerous operation of a motor vehicle, failing to stop a motor vehicle, driving while over the middle alcohol limit and driving while disqualified by court order where the appellant was sentenced to twelve months imprisonment, parole release after two months, and disqualified from driving for three years where the appellant had a substantial history of alcoholism whether the learned magistrate erred in his interpretation of s 754 of the Police Powers and Responsibilities Act whether the evidence of alcoholism mitigated sentence as a mental illness short of insanity whether the sentence imposed was excessive in all of the circumstances. Cases: Channon v R (1978) 20 ALR 1 Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202 Cronin v Commissioner of Police [2016] QDC 63 Forbes v Jingle [2014] QDC 204 R v Ham & Anor [2016] QDC 255 R v Engert (1995) 84 A Crim R 67 R v Eveleigh [2002] QCA 219 R v Gilles, ex parte Attorney-General [2002] 1 Qd R 404 R v Hammond [1997] 2 Qd R 195 R v Hood [2005] QCA 159 R v Miller [2011] QCA 160 R v Nagy [2004] Qd R 63 R v Tsiaras [1996] 1 VR 398; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 Sbresni v Commissioner of Police [2016] QDC 18

3 3 Skinner v The Commissioner of Police [2016] QDC 138 COUNSEL: SOLICITORS: Legislation: Acts Interpretation Act 1954 (Qld) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Law Amendment Act 2012 (Qld) Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Police Powers and Responsibilities Act 2000 (Qld) Sentencing Act 1995 (WA) Sentencing Act 1991 (Vic) Sentencing Act (NT) Sentencing Act 1997 (TAS) B Power for the appellant W Cloake for the respondent Potts Lawyers for the appellant ODPP on behalf of the Commissioner of Police for the respondent [1] The appellant was convicted on 28 April 2016 at the Magistrates Court at Brisbane of four offences committed during a course of driving on 8 November 2015 at Surfers Paradise. She pleaded guilty. The charges and respective dispositions were as follows: 1. Dangerous operation of a motor vehicle, Criminal Code s. 328A: nine months imprisonment and driver s licence disqualified for two years; 2. Failing to stop a motor vehicle contrary to s 754 of the Police Powers and Responsibilities Act 2000 (PPRA): nine months imprisonment and disqualified for two years; 3. Driving while over the middle alcohol limit but not the high alcohol limit, Transport Operations (Road Use Management) Act 1995 (TORUM Act) s. 79(1A): two months imprisonment and driver s licence disqualified for one year; 4. Driving while disqualified by court order, s. 78(1) TORUM Act: 12 months imprisonment and disqualified from driving for three years.

4 4 Parole release fixed at 27 June 2016 after serving two months. [2] The appeal is brought on the following five grounds of appeal: I. The sentence imposed was excessive in all the circumstances; II. The sentencing magistrate erred in failing to treat the diagnosed condition of alcoholism (present at the time of offending) when combined with demonstrated rehabilitation at the time of sentence, as a mitigating factor: R v Miller [2011] QCA 160 at [58] [60]; III. The sentencing magistrate erred in failing to consider the full range of sentencing options that were available when dealing with multiple offences in order to achieve a just sentence: including the combination of suspended imprisonment on one charge and probation on another charge (as permitted by R v Hood [2005] QCA 159; [2005] 2 Qd R 54) and the imposition of a fine on one or more other counts; IV. The sentencing magistrate erred in finding that, if he considered imprisonment was the appropriate sentencing option, that he was constrained by s 754 of the Police Powers and Responsibilities Act 2000 to require that at least 50 days of imprisonment to be actually served, when in light of the decisions of Forbes v Jingle [2014] QDC 204, Sbresni v Commissioner of Police [2016] QDC 18, and Skinner v The Commissioner of Police [2016] QDC 138 his discretion was not constrained in the way he described. The sentencing magistrate consequently failed to consider that, for instance, it was open to impose a sentence of greater than 50 days imprisonment, but with that sentence wholly suspended or with immediate release on parole. V. The sentencing magistrate erred in making the finding for the purpose of sentence that the fact that the appellant had no criminal history was not particularly relevant when viewed against the appellant s traffic history. [3] For the reasons that follow, the appeal is to be allowed. [4] The facts were set out in a schedule. The driving occurred at about 2:34 am on 8 November The appellant was first noticed when she accelerated sharply away on a green light, heading south on The Esplanade at Surfers Paradise, crossed a dividing line into the path of oncoming traffic before swerving back into the correct line of driving. She again crossed the centre line near the intersection with Cavill Avenue the line was almost in the middle of her vehicle. She was driving in excess

5 5 of the 50 kph limit. Police activated lights and sirens in an attempt to intercept the car. The appellant did not stop. Police deemed it unsafe to continue the pursuit. A short time later, the appellant was seen stopped at a red light. Police drove up behind her and activated lights and siren. An officer got out of the police car, approached the appellant s car and tried to open the driver s door. The appellant accelerated away, turning left against a red traffic light. She struck a median strip and flattened a traffic sign, damaging the right fender of her car. She then travelled at speed to an intersection, turned right and was found sitting in the driver s seat at the entrance of a resort carpark. [5] The appellant told police she did not see the police lights and did not hear the siren because of the loud music in her car. [6] At 4:34 am, a specimen of her breath returned a reading of g alcohol/210 litres of breath. [7] The appellant had (most recently) been disqualified from driving on 2 October [8] The appellant was born on 2 April She was aged 47 at the time of the offences and is now 48. She had no criminal history but has a substantial traffic history, including 5 drink driving convictions (March 2011, November 2010, April 2004, August 1999, June 1987) and 5 convictions for driving while disqualified or unlicensed (April 2014, July 2013, December 2011, March 2011, June 1996). [9] Before the learned magistrate, the appellant s representative conceded that a term of imprisonment was within range but submitted it should be suspended or that immediate parole should be ordered. Ground 2 [10] The appellant s argument conflates two issues that need to be treated separately. The first is the relevance to sentence of mental illness falling short of insanity. The second is the relevance to sentence of having taken rehabilitative steps to overcome an addiction to alcohol. [11] The appellant submits it should not have been controversial that the underlying mental health issues that led to the state of intoxication and related criminal conduct was relevant and potentially provided mitigation.

6 6 [12] The information before the learned magistrate relevant to this topic was a lengthy report of a psychologist, a short letter from the appellant s treating psychologist and a letter from the appellant s doctor. These documents speak of a cycle of alcohol use and depression, risk taking behaviour when intoxicated, a suicide attempt at age 31, abstinence from 2004 to 2010 and undiagnosed anxiety disorder. [13] The appellant s personal history, as told in the psychologist s report, included that she has obtained a Bachelor of Arts degree, a Diploma of Teaching and a Masters degree in Education. She has been a teacher, an administration manager and events manager, executive officer at the National Centre for Stem Cell Research, Centre Manager at the School of Law and Justice at the QUT, worked at the University of Queensland s Centre for Clinical Research and at Shine Lawyers. In 2015 her father had a fall and sustained a leg injury. He was hospitalised in February and again in September She cared for her parents, sleeping at their home five nights a week. As her parents health declined the appellant s drinking increased. She worried constantly, lost weight and felt depressed. The appellant travelled to the Gold Coast on impulse. She spent 7 November drinking and taking naps. She decided, in the early hours of the morning, to get food. This led to the offending driving. [14] The consultant psychologist considered the appellant presented with a substantial history of alcohol and benzodiazepine dependence associated with underlying social anxiety and vulnerability to depression. The appellant had addressed her alcoholism, having attended a psychologist six times and, continuing in that relationship, had shown insight into the risk she presented to others by drinking and then driving and had the intelligence and motivation to continue treatment, remain abstinent and be of low risk of reoffending. The appellant was deeply remorseful and worried that a sentence of imprisonment would prevent her from caring for her parents. [15] The appellant s legal representative urged the learned magistrate to consider the appellant s condition a mitigating circumstance. His Honour considered the reporters diagnoses of depression and anxiety carried less weight than a qualified medical practitioner. He considered the real problem was alcoholism. [16] In my opinion, the learned magistrate made no error in this regard. The appellant did not present evidence of a mental illness which mitigated her offences, as opposed to giving them some context. In certain circumstances, mental illness short of insanity

7 7 can mitigate sentence: R v Tsiaras [1996] 1 VR 398; R v Miller [2011] QCA 160; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. In other circumstances, it does not, as Margaret Wilson J pointed out in Miller, referring to the reasons of Brennan J in Channon v R (1978) 20 ALR 1. See also, Gleeson CJ (NSW) in R v Engert (1995) 84 A Crim R 67. Assuming alcoholism were a mental illness, it was a cause of the offending. Without treatment to overcome it, the appellant would be likely to continue to offend, as her record showed. It increased the need for the sentence to ensure community protection and personal deterrence. If she were to overcome it, she would be less likely to reoffend, as her record also showed between (roughly) 2004 and 2010 and as the consulting psychologist opines. [17] This is the real relevance of the appellant s addiction to alcohol. The addiction itself was not, in this case, a mitigating circumstance. 1 But the appellant s efforts at overcoming the addiction, thereby reducing the likelihood of re-offending, demonstrate powerful prospects of rehabilitation. In my respectful opinion, the learned magistrate failed to appreciate the significance of the rehabilitation achieved. In this sense, the sentencing discretion miscarried. His Honour said, after dealing with the provisions of PPRA s.754, which I will come to, Whilst I accept that since your arrest you ve been taking rehabilitative steps, it s appropriate that that be recognised in terms of a reduction in the period that you would ordinarily be required to serve, rather than eliminating the personal and general deterrent aspects of sentence and artificially trying to avoid the mandated minimum 50 days in a Corrective Services facility. PPRA s. 754 [18] Because both grounds 3 and 4 involve some consideration of PPRA s. 754, it is convenient to introduce it now then deal with the arguments for each ground in turn. [19] The provision was introduced by the Police Powers and Responsibilities and Other Acts Amendment Act 2006 as part of a new Chapter 11A. Section 443ZD, made it an offence for a driver to fail to stop a motor vehicle. The maximum penalty was 200 penalty units or 3 years imprisonment. No minimum penalty was prescribed. 1 Contrast the relevance of addiction which creates the need to commit an offence: R v Hammond [1997] 2 Qd R 195

8 8 [20] The Criminal Law Amendment Act 2012 added the minimum penalty 50 penalty units, and the mandatory 2 year disqualification. [21] The Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 added the minimum penalty provision: Minimum penalty a) If the driver is a participant in a criminal organisation within the meaning of the Criminal Code, section 60A 100 penalty units or 100 days imprisonment served wholly in a corrective services facility; or b) Otherwise 50 penalty units or 50 days imprisonment served wholly in a corrective services facility. 2 [22] Section 754 is within Chapter 22 of the Act Provisions about evading police officers. Section 746 explains: (1) Drivers of motor vehicles sometimes fail to stop when directed to do so by a police officer using a police service motor vehicle to attempt to intercept another motor vehicle when the police officer reasonably believes the driver, or someone else in the other motor vehicle, is committing or has committed an offence. (2) A driver s failure to stop may be based on a desire to avoid prosecution for an offence. (3) There are many reasons why a police officer gives a direction requiring a driver to stop, including, but not limited to, because a. The driver is driving dangerously; or b. The driver is driving a motor vehicle reported as having been stolen; or c. The driver is driving a motor vehicle that has been used in the commission of an offence; or d. The police officer proposes to perform a breath test on the driver under the Road Use Management Act. (4) This chapter a. Provides for an offence called an evasion offence; and b. Makes particular provision to help police officers in the investigation of evasion offences and 2 The Serious and Organised Crime Legislation Amendment Bill 2016 (Qld) s 307 includes the following amendment: Section 754(2), minimum penalty omit, insert Minimum penalty 50 penalty units or 50 days imprisonment served wholly in a corrective services facility.

9 9 c. Enables a court to order the impoundment or forfeiture of a motor vehicle after the court finds the driver of a motor vehicle guilty of an evasion offence. [23] Proof of the s 754 offence requires evidence that: In the exercise of a power under an Act; A police officer using a police service motor vehicle, gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving; The driver of the motor vehicle does not stop the motor vehicle, as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. [24] Subsection (5) provides it is sufficient evidence of the commission of the offence if the evidence is that the driver, in failing to stop, took action to avoid being intercepted by a police officer. [25] It is a more complex offence provision than the already available failing to stop provision in s. 60 of the PPRA. That section provides that a police officer may require the person in control of a vehicle to stop the vehicle for a prescribed purpose. The prescribed purposes include, for enforcing a transport Act. It is an offence to fail to comply with the requirement, unless the person has a reasonable excuse. The maximum penalty, if the vehicle is a private vehicle, is 60 penalty units. [26] Whatever the mischief s. 754 was designed to attack, it has been employed in a variety of cases. For example, in Cronin v Commissioner of Police [2016] QDC 63, the appellant was riding a bicycle which was being propelled by an attached petrol combustion engine in Ipswich. A patrolling police officer caught up to him on a bridge and told the appellant to turn left off the bridge and stop. The appellant turned but did not stop. He went along several streets and onto a bike path where he turned the engine off and pedalled away. 3 Ground 3 [27] The appellant notes that the learned Magistrate said he regarded the offending as a single course of conduct. That may be understood as adopting the approach of 3 [2016] QDC 63 at [14-17]

10 10 assessing the overall criminality" 4 and fixing an appropriate head sentence for the offences. The appellant does not submit this approach was wrong. The submission, as I apprehend it, is that while taking that approach the learned magistrate wrongly felt bound to a impose period of actual custody because one of the provisions of s. 754 of the PPRA. [28] The learned magistrate noticed this was the appellant s fourth conviction for disqualified driving in four years, considered the dangerous operation charge was probably the least serious part of the offending but concluded that the cumulative effect of all of the offending was such that the sentence of imprisonment must include a period of actual custody. [29] As to the effect of s. 754 of the PPRA, His Honour said, Given the fact that you re charged with failing to stop the section provides that the alternatives for the Court are either a fine or 50 days imprisonment served wholly in a Corrective services facility. [30] This is, with respect, a reasonable view of the meaning of s It is not the view expressed in several decisions of judges of this court. [31] The learned magistrate went on to say, In my view, the effect of the section means that having come to the conclusion that a sentence of imprisonment is the only appropriate penalty I m mandated to impose a minimum of 50 days actual service. Even if it wasn t so mandated, in my view, the cumulative seriousness of the offending would make it the appropriate penalty in any event. [32] If a court concludes the sentence for a s. 754 offence must be one of imprisonment, then I agree that the sentence must include the minimum period of actual custody. It does not follow that where a court considers the overall sentence for several offences should include a period of imprisonment, the sentence must include a period of actual custody merely because one of the offences was a s. 754 charge. It would not, in my respectful opinion, be outside the proper exercise of the sentencing discretion to impose a sentence of imprisonment for one charge (whether including actual custody or wholly suspended or with immediate parole release) and impose, say, the minimum 4 R v Nagy [2004] Qd R 63 Williams JA at [27] having referred, among other things, to the remarks of Pincus and McPherson JJA in R v Gilles, ex parte Attorney-General [2002] 1 Qd R 404.

11 11 fine for the s. 754 charge. If the learned magistrate considered himself bound to impose actual custody because of the provisions of s. 754, I respectfully consider he was mistaken. But his honour clearly expressed the view that the appellant s overall criminality called for a sentence of imprisonment with actual custody. [33] In my respectful opinion, because of the compelling material demonstrating rehabilitation, this conclusion was wrong. Ground 4 [34] Pursuant to Ground 4, the appellant submits the learned magistrate s statement, which I have quoted at paragraph [29] above, demonstrates error because of the decisions in Forbes v Jingle [2014] QDC 204 (Forbes), Sbresni v Commissioner of Police [2016] QDC 18 (Sbresni), and Skinner v The Commissioner of Police [2016] QDC 138 (Skinner). The ground, as set out in the written outline, is that the learned magistrate s discretion was not constrained in the way he described. The appellant also argues that a court sentencing for a s. 754 offence may impose a term of imprisonment of longer than 50 days but wholly suspend it or order immediate parole. I disagree with the latter. Such a disposition is plainly not open under s [35] In Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202, Henry J was dealing with an application for judicial review of certain decisions of a magistrate including the decision to reopen a sentencing proceeding under s. 188 of the Penalties and Sentences Act 1992 (PSA). [36] With respect to s. 754, which then contained the minimum penalty provision of 50 penalty units, Henry J said probation could be imposed as a penalty under s. 754 because the offence was punishable by imprisonment and s. 91 of the PSA provides that probation may be ordered if a court convicts an offender of an offence punishable by imprisonment. 5 [37] His Honour also said: [17] What though of s 754 s reference to a minimum penalty of 50 penalty units? Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum. 6 However, there appears to be no reason grounded in statute or principle why a period of probation ought be regarded as a lesser 5 [2013] QSC 202 at [15] 6 Acts Interpretation Act 1954 s 41

12 12 penalty than a fine. They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender. Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine. [18] Section 754 s reference to a minimum penalty of 50 penalty units requires that where a fine is imposed it must be at least 50 penalty units. However, it does not require that a fine must be imposed. To construe the penalty provision for the offence in that way would be to ignore that it is also an offence punishable with imprisonment and, it follows, with probation. The wording of s 754 does not inevitably require the imposition of a fine or exclude the availability of a sentence of probation. [38] Harrison DCJ followed this reasoning in Forbes v Jingle [2014] QDC 204, deciding that the 2013 amendment to the minimum penalty provision did not alter the result. His Honour framed the issue as whether the inclusion of the words, served wholly in a corrective services facility excluded the operation of S. 91 of the PSA. These cases were followed in Sbresni, Skinner and Ham & Anor [2016] QDC 255. [39] In my respectful opinion, there are two difficulties with the reasoning in Spencer and Forbes. First, it is not enough to say that because an offence is punishable by imprisonment a probation order is open if a specified minimum penalty is provided for. The question becomes, as Henry J said, what of the minimum penalty provision? If a court were to be required to assess the relative punitive strength of different orders, the question would be not whether, in the abstract or in a particular case, probation is a less serious penalty than a fine, but whether probation would be a less serious penalty than a fine of about $5,500. In any case, the answer that a court must assess the relative punitive strength of different orders in each case requires that there be some hierarchy of sentences, which is the second difficulty. [40] The scheme of the PSA does not provide a hierarchy of dispositions. The purposes of the Act, set out in s. 3 include: (a) (b) Collecting in a single Act general powers of courts to sentence offenders; and Providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration.

13 13 [41] I respectfully agree with the representation, by the authors of Principles of Criminal Law in Queensland and Western Australia 7, of the sentencing options in a circular diagram (Diagram 16.1 [16.160]). Each order is one of the sentencing tools 8 available to a court. [42] Legislation in some other States differs. [43] The Western Australian Sentencing Act 1995, s. 39(2), lists the sentencing options in apparently increasing order of seriousness (a) impose no sentence to (h) impose a term of imprisonment. Subsection 39(3) provides that a court may not use a sentencing option in subsection (2) unless satisfied, having regard the sentencing principles set out earlier in the Act, that it is not appropriate to use any of the options listed before that option. [44] The Sentencing Act 1991 (Vic) includes in s. 5, Sentencing Guidelines: (6) A court must not impose a community correction order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by imposing a fine. (7) A court must not impose a fine unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a dismissal, discharge or adjournment. [45] The Northern Territory Sentencing Act contains a similar provision (s. 7) but with no equivalent of the West Australian subsection 39(3). [46] Other States simply have their provisions in Parts, like the Queensland Act, though in different orders of apparent seriousness. See Sentencing Act 1977 (Tas.) and Crimes (Sentencing Procedure) Act 1999 (NSW). [47] Arguably, if there is an implied hierarchy of sentences in the Queensland legislation, probation and community service orders are more serious than a fine. These orders are contained in Part 5 Intermediate Orders, coming after Part 4 Fines and before Part 6 Intensive Correction Orders. But in my opinion the provisions of s.754 do not 7 Burton, Crofts, Tarrant. Thomson Reuters To borrow the term used by Fryberg J in R v Eveleigh [2002] QCA 219 at [111].

14 14 require or allow a court to decide whether in a particular case, an order of probation or community service is not less than a fine of 50 penalty units. [48] The term penalty bears a natural meaning - a punishment imposed for a breach. Penalty is defined inclusively in PSA s. 4. It includes any fine, compensation, restitution or other amount of money but does not include an offender levy. The provisions of the PSA suggest a penalty is something to be paid. Consistently, Schedule 1 to the Acts Interpretation Act provides that penalty includes forfeiture and punishment. [49] The definition of sentence in s. 4 of the PSA suggests a distinction between a penalty and imprisonment, and a distinction between those and other orders: Sentence (a) Means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; (Italics added) and (b) [50] Once this distinction is understood, the meaning of the penalty provision in s. 754, taken with ss. 41 and 41A of the Acts Interpretation Act and s. 180A of the PSA 9, is tolerably clear. The range of sentences available to a court under s. 754 is limited to a fine or imprisonment or both not less than the minimum and not greater than the maximum. If this leads to a conclusion which seems unreasonable in a particular case, or which compels the imposition of a fine inconsistent with the capacity of a defendant to pay, 10 that is the result of the legislation. [51] I am not satisfied the learned magistrate erred as argued in support of ground 4. 9 Meaning of certain sentence provisions A provision of an Act that provides to the effect that the maximum penalty for an offence may be a fine or imprisonment means that the sentencing court may order the offender (a) to pay a fine; or (b) to be imprisoned; or (c) to pay a fine and also to be imprisoned. 10 PSA s. 48(1) provides: (1) If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account (a) the financial circumstances of the offender; and (b) the nature of the burden that payment of the fine will be on the offender.

15 15 Ground 5 [52] In support of ground 5, the appellant submits the learned magistrate s statement that the fact that the appellant had no criminal history was not particularly relevant when viewed against the appellant s traffic history offends against PSA s. 9(10). That subsection provides: (10) In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction. [53] The subsection does not distinguish between traffic and criminal convictions. [54] The statement complained of was contained in the following passage: Your lack of criminal history is partly relevant. In effect, we re dealing with driving offences, rather than criminal offences. Although the dangerous driving/dangerous operation is a criminal offence under the Code, really I regard the whole sequence of events here as being one course of conduct. The fact that some charges are or some offences are provided for in one Act and others in other Acts I don t think changes the basic tenor of the conduct that s involved. So the fact that you have no criminal history is not particularly relevant when viewed against your traffic history, which is really the relevant consideration in this case. [55] In my respectful opinion, these statements do not disclose error. Ground 1 [56] The appellant asserts the sentence was excessive in ground 1. I was referred to a number of decided cases as indicative of the appropriate range of sentences. [57] In R v Fanning [2005] QCA 267, a 24 year old offender with a minor criminal and traffic history pleaded guilty to one count of dangerous operation of a motor vehicle, whilst adversely affected by an intoxicating substance, and one count of breaking, entering and stealing. He drove dangerously over a short period of time and stopped the vehicle on interception by the police. A sentence of 18 months imprisonment, suspended after six months for an operational period of three years, was overturned on appeal. It was acknowledged that the applicant had a good record of employment,

16 16 a difficult upbringing, and had taken effective steps to resolve a drug habit which was suspected to have been a cause of his offending behaviour. On appeal, the sentence was varied by suspending the sentence on each count after three months. The disqualification period was reduced from five years, as imposed at first instance, to two years. [58] In R v Smith [2004] QCA 126, the applicant, aged 54 at the time of the offence, pleaded guilty to the dangerous operation of a motor vehicle while adversely affected by alcohol. A sentence of 15 months imprisonment, suspended after four months for an operational period of two years, was overturned on appeal. The driving took place over a 20 minute period and there was, fortunately, no collision or injury occasioned. The applicant had a prior conviction for driving under the influence of alcohol, but no criminal history and an excellent record of voluntary community work and employment. On appeal, the sentence was suspended forthwith for an operational period of three years. [59] In R v Dean [2006] QCA 256, the applicant was convicted after trial of dangerous operation of a motor vehicle. He was sentenced to nine months imprisonment, suspended after one month, for an operational period of 12 months. He was disqualified from holding or obtaining a driver s licence for a period of four years. The applicant was, at the relevant time, driving an unregistered vehicle and was attempting to evade police apprehension; although it was not characterised as a high speed chase. He had a bad traffic history in Queensland and New South Wales, including prior convictions for unlicensed driving and driving under the influence of alcohol. Bearing in mind the applicant s traffic history and family circumstances, the period of disqualification was reduced to three years. [60] In R v Harris [2008] QCA 141, the offender was convicted on his own plea of guilty of driving a motor vehicle while disqualified, dangerous operation of a vehicle and failing to stop at the scene of an incident. In respect of these offences, he was sentenced to 18 months imprisonment, with a fixed parole release date after 9 months of incarceration. The applicant had an appalling driving history and had previously been imprisoned for similar charges. In mitigation, it was submitted that the applicant s lengthy criminal record was explained, at least in part, by a history of alcohol and drug problems. On appeal, the court fixed the offender s parole release date as at the date of judgment, approximately 4 months since the date of sentence.

17 17 [61] In R v Boubaris [2014] QCA 199 the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death. He was sentenced to 18 months imprisonment, to be suspended after serving a period of 3 months, for an operational period of 30 months. He was also disqualified from holding or obtaining a driver s licence for a period of 18 months. At the date of sentence, the applicant was 27 years old, in a relationship and expecting his first child. He had a concerning traffic history with convictions for related offences. Traces of methylamphetamine were found in the applicant s system at the time of the offence; although it could not be conclusively determined that he was adversely affected by the substance. The application for leave to appeal against sentence was refused. [62] In R v Obern [2002] QCA 444, the applicant pleaded guilty to one count of dangerous driving causing grievous bodily harm. He was sentenced to 12 months imprisonment, to be suspended after four months, and was disqualified from holding or obtaining a driver s licence for five years. Mr Obern had ignored police instructions directed to him while preparations were being made to tow his vehicle away. He drove away with a police officer s arm trapped inside the vehicle, ignoring repeated requests to stop the vehicle. It was accepted that the applicant s possession of a driver s licence was crucial to his future employment, having been self-employed since his midtwenties. However, the plea was a late one, entered only after jurors had been collected for empanelment, and the applicant had a prior criminal history and a concerning traffic history. The application for leave to appeal against sentence was refused. [63] In R v Macdougall [2002] QCA 423, the applicant pleaded guilty to one count of dangerous operation of a motor vehicle. He was sentenced to 3 months imprisonment wholly suspended for an operational period of 12 months, and was disqualified from holding or obtaining a driver s licence for 6 months. The offence occurred when the applicant was driving home after attending his father s funeral. The applicant side swiped a bus, ran into the back of a station wagon and hit a third vehicle. Fortunately, no one other than the applicant received any significant physical injury from the incident. The applicant had a number of favourable references and had received a bravery commendation. The application for leave to appeal against sentence was refused.

18 18 [64] I have already said that I consider the proper disposition of the appellant s charges did not require the imposition of a sentence of imprisonment with actually custody. Each case requires a careful assessment of the relevant facts taking into account the maximum and minimum penalties with the purposes and relevant considerations for sentence contained particularly in s. 9 of the PSA. I am satisfied that the sentencing discretion miscarried and it is necessary that I re-sentence the appellant. [65] Taking into account the appellant s poor traffic history and the brash arrogance of her offending, the sentencing purposes of personal deterrence and protection of the community are prominent. Of course, I bear in mind the other sentencing purposes of punishment, deterring others from similar offending and expressing the community s denunciation of her conduct. With respect to the charge of driving while disqualified by court order, the matters in the TORUM Act s. 78(2), which include the public interest, must be taken into account. Considering these matters and the powerful mitigating effect of the appellant s rehabilitative steps, I would impose sentences as follows: 1. Dangerous operation, Code s. 328A: Conviction recorded; Probation for 2 years; licence disqualification for two years; 2. Failing to stop a motor vehicle, PPRA s 754: Fine of 50 penalty units ($5,890) 11 with an order, under PSA s. 51(b) that the proper officer give, under the SPE Act, section 34, particulars of the fine to SPER for registration under that section; licence disqualification for two years; 3. Driving while over the middle alcohol limit but not the high alcohol limit: Fine of $1, with an order, under PSA s. 51(b) that the proper officer give, under the SPE Act, section 34, particulars of the fine to SPER for registration under that section; licence disqualification for one year; 4. Driving while disqualified by court order: 12 months imprisonment wholly suspended for an operational period of two years; licence disqualification for three years. [66] These orders would, in my opinion, combine significant punishment with strong personal and general deterrence while allowing the continued rehabilitation of the appellant, thereby promoting the protection of the community. 11 Penalties and Sentences Amendment Regulation (No 1) 2015