DISTRICT COURT OF QUEENSLAND

CITATION:	Senesie Bull v The Commissioner of Police [2020] QDC 35	
PARTIES:	SENESIE BULL
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)	
FILE NO/S:	4326/19	
DIVISION:	Criminal	
PROCEEDING:	Appeal	
DELIVERED ON:	17 March 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	27 February 2020	
JUDGE:	Rosengren DCJ	
ORDER:	Appeal allowed
Appellant resentenced as follows:
1.	Burglary, Code s 419(4):
a.	12 months’ imprisonment;
b.	Parole release date 17 March 2020;
2.	Driving while disqualified by court order – 13 December 2018:
a.	1 month imprisonment;
b.	Licence disqualification for two years;
3.	Driving while disqualified by court order – 27 August 2019:
a.	2 months’ imprisonment;
b.	Licence disqualification for two years;
4.	Driving while disqualified by court order – 1 October 2019:
a.	3 months’ imprisonment;
b.	Licence disqualification for two years;
5.	Driving while disqualified by court order – 1 November 2019:
a.	4 months’ imprisonment;
b.	Licence disqualification for two years;
6.	Failure to appear – 17 January 2019:
a.	Convicted and not further punished;
b.	Conviction recorded;
7.	Failure to appear – 8 October 2019:
a.	Convicted and not further punished;
b.	Conviction recorded;
8.	All terms of imprisonment are to be served concurrently with each other;
9.	The sentence to take effect from the date of the original sentence, namely 4 November 2019;
10.	Declare that the period from 1 to 4 November 2019 be declared time served under this sentence.  	
CATCHWORDS:	CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to one offence of burglary, four offences of disqualified driving by a court order and two offences of failure to appear – where the appellant was sentenced to eighteen months’ imprisonment to be released after serving six months’ – whether the learned magistrate considered imprisonment as a last resort – whether the learned magistrate gave adequate weight to the appellant’s youth - whether the sentences were manifestly excessive 
Criminal Code 1899 (Qld) s 419(4)
Justices Act 1886 (Qld) s 222(2)(c), 223
Penalties and Sentences Act 1992 (Qld) s 9, s 9(1), 9(2)(a), s 9(10)
Transport Operations (Road Use Management) Act 1995 (Qld) s 78(2)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, applied
Doyle v Commissioner of Police [2015] QDC 155, cited
Markarian v The Queen (2005) 228 CLR 357, applied
Norbis v Norbis (1986) 161 CLR 513, applied
Queensland Police Service v Gregory [2010] QDC 388, cited
R v Callow [2017] QCA 304, applied
R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, applied
R v Dance [2009] QCA 371, cited
R v Frith [2017] QCA 143, applied
R v Ross [2000] QCA 49, cited
R v Schenk; Ex parte Attorney General (Qld) [2016] QCA 131, applied
R v Seiler [2003] QCA 217, cited
R v SCU [2017] QCA 198, applied	
COUNSEL:	A Beard for the appellant 
T O’Brien for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant 
Director of Public Prosecutions (Queensland) for the respondent	
[1]	On 4 November 2019, in the Magistrates Court at Richlands, the appellant pleaded guilty to seven offences for which the following sentences were imposed:
(i)	burglary – 18 months’ imprisonment with parole release after serving 6 months; 
(ii)	driving a motor vehicle without a driver licence – 9 months’ imprisonment and licence disqualification for two years;
(iii)	driving a motor vehicle without a driver licence – 6 months’ imprisonment and licence disqualification for two years;
(iv)	driving a motor vehicle without a driver licence – 3 months’ imprisonment and licence disqualification for two years;
(v)	driving a motor vehicle without a driver licence – 2 months’ imprisonment and licence disqualification for two years;
(vi)	failure to appear in accordance with an undertaking – $750 fine and a conviction recorded;
(vii)	failure to appear in accordance with an undertaking – $500 fine and a conviction recorded.
[2]	The appeal has been brought by the appellant on the basis that there were errors of law made by the learned magistrate and the sentences imposed were manifestly excessive.  
[3]	For the reasons that follow, the appeal should be allowed.  
Nature of s 222 appeals
[4]	The appeal is by way of rehearing of the evidence.  Section 222(2)(c) of the Justices Act 1886 (Qld) provides that where a defendant pleads guilty, an appeal can only be brought on the sole ground that a fine, penalty or punishment was excessive or inadequate.  
[5]	This Court is empowered to intervene:
“… only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is “unreasonable or plainly unjust” such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v The King (1936) 55 CLR 499 at 505.”
[6]	In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review.  In the recent Court of Appeal decision of R v Callow at [36], Morrison J reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:
“Furthermore, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.”
[7]	In referring to Markarian, Boddice J said in R v Frith at [35]:
“In any event, that the sentence imposed on the applicant was higher than imposed in another factual circumstance does not establish manifest excessiveness.  A particular fact situation does not support a single correct decision.  The sentencing discretion involves an allowance of flexibility in the exercise of that discretion.”
Sentencing framework
[8]	The Penalties and Sentences Act 1992 (‘the Act’) creates the regulatory framework which is relevant to this appeal.  The purposes for which sentences may be imposed on an offender are found in s 9(1) of the Act.  Those include punishment, conditions to assist rehabilitation, deterrence of the offender or others, denunciation of the conduct on behalf of the community and protection of the Queensland community from the offender. 
[9]	Section 9(2)(a) of the Act refers to the various factors that a court must have regard to.  These include the principle that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows an offender to stay in the community is preferable.  Other factors the Court must have regard to include the nature and seriousness of the offence; the offender’s age and character; the presence of any aggravating or mitigating factors; the prevalence of the offence; and any time spent in custody prior to the sentence.  
[10]	With respect to the offences of driving while disqualified by court order, the matters in s 78(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘the TORUM Act’), which include the public interest, must be taken into account. 
Circumstances of the offending
[11]	The offending occurred over a 15 month period between 19 August 2018 and 1 November 2019.  The burglary offence was the first in time.  The complainant and his family had left their house to attend church.  They returned home at around midday to learn that their house had been broken into.  A bedroom window had been smashed and property was strewn throughout the bedroom.  A laptop, a bag, a watch and two video game consoles were stolen. 
[12]	A witness had observed a vehicle outside the house.  Two male persons exited and knocked on the front door.  They were joined by a third male person.  They drove the vehicle into the driveway.  Two of the males went around to the rear of the house.  Witnesses heard the sound of glass smashing.  The appellant was identified via a fingerprint on the broken glass from the broken window.
[13]	The appellant was given a notice to appear on 21 August 2018.  The remaining six offences were committed in breach of his bail undertakings.  
[14]	The first driving whilst disqualified by a court order occurred on 13 December 2018.  The appellant was intercepted by police and told police he had driven from the Ipswich Court.  He was unable to provide an explanation as to why he was driving.  He had most recently been disqualified from driving on 26 March 2018 for a period of two years.
[15]	The appellant was required to appear in the Ipswich Magistrates Court on 17 January 2019 in accordance with his previous bail undertakings.  He did not appear.  His explanation to the police for this is that he did not hold a driver’s licence.  This constitutes the first failure to appear offence.  
[16]	The second driving whilst disqualified by a court order occurred on 27 August 2019 at approximately 8.30am.  The appellant was intercepted by police whilst driving his niece to school.
[17]	The third driving whilst disqualified by a court order occurred only about 5 weeks later on 1 October 2019 at approximately 9.35am.  The appellant told police that he was on his way home.  He was unable to provide a reason for driving.   
[18]	A week later on 8 October 2019, the appellant again failed to appear in accordance with an undertaking.  His explanation was that he was the primary carer for his partner and their new baby.  
[19]	The fourth driving whilst disqualified by a court order occurred on 1 November 2019.  The appellant told police that he was driving some friends around and knew that he should not have been driving.  
Sentencing submissions and remarks
[20]	The sentencing submissions made on behalf of the appellant were that;
(i)	he was 22 years;
(ii)	he was born in Africa and came to Australia with his family when he was nine years of age;
(iii)	his family are supportive;
(iv)	he worked full-time as a delivery driver;
(v)	he has not previously been supervised in the community;
(vi)	the range for the appropriate sentence extended to a wholly suspended period of imprisonment or imprisonment with immediate parole.
[21]	The sentencing remarks reveal that the learned magistrate took into account the following matters:
(i)	the plea of guilty;
(ii)	the nature and number of the offences;
(iii)	the appellant’s criminal and traffic histories;
(iv)	the need for general deterrence for the burglary offence in circumstances where the community was getting tired of people breaking into homes;
(v)	the need for personal deterrence for the driving offences in the context of the appellant’s traffic history;
(vi)	the mandatory provisions of s 9 of the Act and s 78(2) of the TORUM Act.  
Whether error 
[22]	The appellant points to three errors as grounds to sustain the appeal.  One ground is that the learned magistrate erred in failing to consider the principles that imprisonment is a sentence of last resort and that an order that allows the offender to stay in the community is preferable.  I agree that the learned magistrate did not advert to these sentencing principles which are apposite in this case. 
[23]	A second ground is that the learned magistrate failed to take into account the three days that the appellant had spent in presentence custody between 1 and 4 November 2019.  There is no dispute that this was not taken into account in circumstances where it was not brought to the learned magistrate’s attention.   
[24]	The third ground is that the learned magistrate failed to place appropriate weight on the appellant’s age and the particular focus on rehabilitation for youthful offenders.  While the learned magistrate did not specifically refer to the appellant’s age, this information was provided to the court during the course of submissions.  I am of the view that it is ultimately unnecessary to determine whether the learned magistrate made such an error.  This is because the respondent concedes that the other two grounds are made out, with the consequence that the sentencing discretion miscarried, resulting in an error of law.  
[25]	In these circumstances, this Court has the jurisdiction to vary the sentence and impose such sentence as it considers appropriate.
Re-sentencing
[26]	A new sentence must be imposed, unless it is determined, in the independent and separate exercise of my discretion, that no different sentence should have been imposed.
[27]	The offences carry the following maximum penalties:
(i)	burglary – life imprisonment;
(ii)	driving a motor vehicle without a driver’s licence disqualified by a court order – 18 months’ imprisonment or 60 penalty units;  
(iii)	failure to appear in accordance with an undertaking – 2 years imprisonment or 40 penalty units.
[28]	The significance of having maximum penalties, particularly for the offence of burglary, shows how seriously the community through Parliament regards such offending.  Taken and balanced with all other relevant factors, maximum penalties provide a yardstick for the courts.    
[29]	The appellant was between 20 and 22 years of age when he committed the offences.  He is still 22 years of age.  At the time of the offences, the appellant had a not insubstantial traffic history.  He also had three entries in his criminal history.  The combined histories are detailed below.   
[30]	On 15 December 2017 the appellant drove whilst unlicensed.  For this offence, he appeared in the Ipswich Magistrates Court on 1 February 2018.  He was fined $300 and disqualified from driving for six months.   
[31]	Then on 14 March 2018 the appellant was sentenced in the Richlands Magistrates Court for three offences.  One of these was unlicensed driving on 18 January 2018.  For this he was fined $2,000 and disqualified from driving for six months.  The other two offences were committed on 2 March 2018 and were for failing to comply with a requirement to stop his vehicle and driving whilst disqualified.  For each of those offences he was fined $2,000.  In addition, for the driving whilst disqualified, he was disqualified from holding or obtaining a driver licence for two years.  Convictions were recorded for each of these three offences.  
[32]	The appellant’s next appearance in court was on 26 March 2018.  On this occasion he was sentenced for four offences.  One of these was driving without a licence on 26 December 2017, for which he was fined $400 and he was disqualified from holding or obtaining a driver licence for six months.  The second and third offences were for driving whilst disqualified and possessing a dangerous drug on 2 March 2018.  For those offences he was fined $700 and $300 respectively.  For the driving whilst disqualified he was disqualified from holding or obtaining a driver licence for two years.  A conviction was recorded for the drug offence.  The fourth offence was a failure to appear on 16 March 2018 in accordance with a previous undertaking he had given.  He was fined $300 and a conviction was recorded.   
[33]	The presentence custody certificate is exhibit 2.  The appellant has been in custody since 1 November 2019.  He had spent three days on remand in relation to the subject offences prior to the sentence on 4 November 2019.  He was subsequently granted appeal bail on 24 January 2020.  However, he was not released.  This is because he was sentenced to three months’ imprisonment on 18 December 2019.  This was for an offence of driving while a drug was present in his system on 1 October 2019.  This was the same day that he committed one of the disqualified driving offences the subject of this appeal.  His full time discharge date for this further offence is today.  In short, the appellant has been in custody since 1 November 2019.
[34]	I accept that the burglary committed by the defendant is a less serious example of this sort of offending.  Having said this, such offending is very prevalent in the community and general deterrence is a paramount consideration.   
[35]	The four offences of disqualified driving were committed between December 2018 and November 2019, with the most recent three having each occurred only about a month apart.  On each of the four occasions, the appellant deliberately drove the motor vehicle despite knowing that he did not have a current licence and remained disqualified from driving by the court’s order in relation to earlier offending.  Notwithstanding this, he took the risk of breaking the law knowing the potential consequences.  These driving offences also occurred in the context of previous offences of an identical nature.  This shows a need to impose a condign punishment to deter him and other offenders. 
[36]	Section 9(10) of the Act specifies when a court must treat a previous conviction as an aggravating factor.  The appellant’s relevant prior convictions are detailed above.  They include two offences of disqualified driving, being the same offence as four of the offences the subject of the appeal.  These both occurred on 2 March 2018, only some nine months’ prior to the first of the four of his disqualified driving charges the subject of the appeal.  His traffic history includes an additional three unlicensed driving offences.  In my view, the appellant’s prior convictions for driving related offences are relevant to the determination of the sentence.  They are an aggravating factor, although the sentences to be imposed must not be disproportionate to the gravity of the offending the subject of the appeal.  Another aggravating feature of the appellant’s offending is that six of the seven offences were committed in breach of his bail undertakings entered into when granted bail for the burglary offence.   
[37]	Turning to the factors in mitigation, although the appellant pleaded guilty to each of the offences in the context of a strong Crown case, he is entitled to some benefit for his pleas.  Further, he is youthful, has a young child and a supportive family, had full time work and has not previously been supervised in the community.  
[38]	The solicitor appearing for the appellant referred to the Court of Appeal decisions of R v Ross, R v Dance, R v Seiler and the District Court decisions of Queensland Police Service v Gregory and Doyle v The Commissioner of Police.  All of these cases were for sentences imposed when the offender pleaded guilty.
[39]	In R v Ross, the pleas of guilty were to an ex officio indictment involving 22 counts of property related offences and 8 summary offences.  They were committed over a seven week period immediately before and after Mr Ross’s 18th birthday.  After his arrest he co-operated fully with the authorities and admitted all offending including some in relation to which the police had no other evidence.  The total loss of the offending was $8,400.  Some of the offences were committed while on bail.  Mr Ross’s criminal history included a number of offences of dishonesty in the 12 months leading up to the commission of these offences.  He had previously failed to comply with community service orders.   The Court of Appeal ordered that Mr Ross be imprisoned for three months’ in respect of each indictable offence.  He had spent 93 days in custody prior to being granted Supreme Court bail which was deemed time already served under the sentence.  It was ordered that upon his release Mr Ross be on probation for three years.
[40]	In R v Seiler, the pleas of guilty were to an ex officio indictment involving six counts of burglary and stealing with six counts of fraud.  The offences were committed on or from members of Mr Seiler’s family and they had forgiven him.  The property was recovered.  He was 18 years of age when the offences were committed over a one month period.  He had no criminal history.  Mr Seiler had completed 200 hours’ community service, which alone was considered to be a positive step towards rehabilitation.  The Court of Appeal ordered that Mr Seiler undergo 18 months’ probation.   
[41]	R v Dance is another Court of Appeal decision relied on by the appellant.  In that case Mr Dance was 17 and 18 years of age when he committed 19 indictable offences, mainly of a property nature and 3 summary offences.  He was 19 years of age when he was sentenced.  His criminal history was limited to three offences of unlawful use of motor vehicles with no convictions recorded.  His probation report for his breach of community based orders demonstrated a resistant attitude towards engaging and recommended interventions.  Mr Dance was remorseful.  He had made efforts at rehabilitation, he had not offended for some period and had a stable living and working environment.  He admitted some offences of which he could not have been convicted without those admissions.  Mr Dance was given a head sentence of 18 months’ imprisonment.  He had served approximately two and a half months in prison at the time of the appeal and he was given immediate parole.  The Court observed that at first instance the Crown had submitted that immediate parole would have been within range, and that it should have been acted upon by the sentencing judge.  
[42]	Doyle v The Commissioner of Police involved an appeal from the Magistrates Court to the District Court in relation to four summary offences.  These were two counts of driving a motor vehicle while disqualified by a court order, one count of unlawfully possessing a motor vehicle and one count of failing to appear in accordance with a bail undertaking.  All offences, apart from the failure to appear, occurred over a period of a week.  Ms Doyle was 25 years of age at the time of the commission of the offences and when sentenced.  She had a lengthy traffic history and had shown repeated disregard for road rules and court orders that she must not drive a vehicle.  It was conceded by the respondent that there was an appealable error in the magistrate’s decision.  Ms Doyle was fined $1,500.  Convictions were recorded for all four offences and for each count of driving a motor vehicle whilst disqualified, Ms Doyle was disqualified from holding or obtaining a driver licence for a period of two years.
[43]	Queensland Police Service v Gregory also involved an appeal from the Magistrates Court to the District Court.  In that case, the respondent pleaded guilty to one count of driving a motor vehicle without a driver licence whilst disqualified by a court order.  His reason for driving was so that he could buy some ice cream for his children who were crying.  He was a 40 year old man and had 10 children.  He had previously been convicted of five offences of unlicensed driving, six offences of disqualified driving and seven offences of driving under the influence.  At first instance the respondent was sentenced to six months’ imprisonment with immediate parole.  On appeal, the District Court judge said that he would have varied the sentence imposed by fixing the parole release date after the respondent had served two months’ actual custody.  However, by the time of the appeal, the respondent had completed his six month term of imprisonment in the community with the consequence that there was no existing term of imprisonment to which a parole release date that required an actual period of custody to be served, could be fixed.  In these circumstances, the appeal was dismissed.    
[44]	Turning to the present case, not surprisingly, the circumstances of this offending and/or the personal circumstances of the appellant are factually quite different to the cases to which I have been referred.  Of course, sentences imposed in other cases are not determinative of the sentence in this case and they do not set a range of permissible sentences.  However, they assist in understanding how the various relevant factors should be treated in deciding a sentence.   
[45]	Here the offending occurred over 15 months’.  There is also the repeated nature of the disqualified driving offences in the context of a concerning traffic history which demonstrates a flagrant disregard for the law.  Further, six of the seven offences occurred whilst the appellant was on bail for the first offence.  Another concerning factor is that the course of conduct only ended with the appellant’s eventual incarceration.  These factors must be balanced against the factors in mitigation as detailed above.   
[46]	I have ultimately come to the view that the sentences imposed were excessive and it is necessary that I re-sentence the appellant.  The new sentences will take effect from the date of the original sentence, being 4 November 2019.  The three days the appellant spent in presentence custody between 1 and 4 November 2019 will be declared.  All terms of imprisonment are to be concurrent.  
[47]	It is appropriate to take a global approach and impose the head sentence in relation to the offence of burglary.  I would impose the sentences as follows:
(i)	burglary: imprisonment for 12 months; parole release date 17 March 2020;
(ii)	driving while disqualified by a court order – 13 December 2018: 1 month imprisonment; licence disqualification for two years;
(iii)	driving while disqualified by a court order – 27 August 2019: 2 months’ imprisonment; licence disqualification for two years;
(iv)	driving while disqualified by a court order – 1 October 2019: 3 months’ imprisonment; licence disqualification for two years;
(v)	driving while disqualified by a court order – 1 November 2019: 4 months’ imprisonment; licence disqualification for two years;
(vi)	failure to appear – 17 January 2019; convicted but not further punished; conviction recorded;
(vii)	failure to appear – 8 October 2019; convicted but not further punished; conviction recorded.
[48]	For a relatively young offender who has not been incarcerated before, these orders involve a real and substantial punishment.  In my view any further period of actual custody may jeopardise the appellant's prospects of rehabilitation without corresponding advantages in terms of personal or general deterrence.