TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE SMITH

No 906 of 2022

SAVO RADIC	Appellant

and

THE QUEENSLAND POLICE SERVICE	Respondent

BRISBANE

11.31 AM, FRIDAY, 22 JULY 2022

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

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HIS HONOUR:   The appellant pleaded guilty to one count of driving without a driver licence disqualified by a Court order and one count of unregistered vehicle.  He was convicted and not punished on the second charge and was sentenced to 12 months imprisonment with a parole eligibility date on the 25th of March 2022.  Suspended sentences of three months, six months and nine months were activated and ordered to be served concurrently.  The appellant was born on the 28th of January 1986.  He was 36 years of age at the time of sentence.  He had a significant traffic history for disqualified driving.

On the 29th of June 2021 he was dealt with for disqualified driving.  He received 10 months imprisonment with a parole release date and was disqualified from driving for three years.  It seems common ground that there was an error in that sentence.  He was only eligible for parole, but despite that he was released.  On the 1st of October 2019 he was dealt with for disqualified driving and was convicted and sentenced to nine months imprisonment fully suspended, disqualified for two years.  On 24 May 2019 he was dealt with for disqualified driving, drug driving and breaches of the suspended sentence.  He received six months imprisonment and three months imprisonment suspended for three years and was disqualified for three years and six months.  On 7 November 2016 he was dealt with for disqualified driving and received a $300 fine and disqualified for two years

On 9 August 2016 he was dealt with for drug driving.  On 2nd January 2006 he was dealt with for disqualified driving and was fined $700 and disqualified for two years.  There were numerous more minor traffic infringements.  He also had a criminal history.  He had numerous previous convictions for drug offences including, importantly, an appearance in the Supreme Court on 21 February 2019 for possessing a schedule 1 drug.  He received three years imprisonment with a parole release date at the date of sentence.  He breached this order by the present offences.  This matter proceeded on 25 February 2022.  

The Prosecutor informed the Court that on 7 October 2021 police were patrolling Evans Road, Salisbury at about 11.30 am.  The defendant’s vehicle was a Fiat and had an expired registration.  He was intercepted.  He claimed to have no knowledge of the registration status and admitted driving the vehicle.  Police discovered he’d been disqualified for three years on 29 June 2021.  He claimed he was driving for his job as a mechanic, but he understood he was not lawfully allowed to drive a vehicle.  Defence counsel informed the Court that the parole office still considered the appellant as an appropriate person for supervision.  There had been disruption because of COVID to supervision.

Defence counsel referred to a report from Peter Stoker.  The appellant had tragic antecedents.  He was a refugee of Yugoslavian background.  He had been exposed to the war.  The psychologist considered there was PTSD.  He needed counselling.  The Defence submitted an intensive correction order was open.  The reports of Mr Stoker were tendered.  The reports informed the Court that he, his mother and brother had become refugees in Croatia after his father was killed in 1992 in the war.  His mother worked as a nurse.  His grandfather died when he was seven.  They were refugees in Serbia until 1995 living on the streets.  

They arrived in Australia in 1998 moving to Brisbane.  The mother also had PTSD.  He went to year 12 at school.  He completed a mechanics trade.  He had a reasonable work history.  He had used methylamphetamine in the past but had stopped that.  He was in a serious relationship.  He was suffering depression at the time of the offending.  He made a stupid decision to drive.  He drove to maintain his job.  He suffered PTSD and a methamphetamine dependency disorder.  He would benefit from counselling.  

As to the present charges, it was submitted he was threatened with the sack if he didn’t drive the van.  He was fearful of being dismissed.  He had now resigned from that job.  It was accepted that at the time of the offences the appellant was on the Supreme Court parole order and the parole order of 10 months.  It was accepted that on 1 October 2019 the appellant was given the suspended sentence of nine months suspended for three years and also the suspended sentence of six months imposed on 24  May.  This was extended by another 12 months.  The sentence was adjourned until 25 March 2022 so the Defence could make further submissions concerning the suspended sentences.  Written submissions were relied on.  The following was submitted.  The suspended sentence imposed in May 2019 of three months and six months had already been activated but that doesn’t seem to be borne out by the material.

Despite this it was accepted the Court had the discretion to deal with the sentences under section 147 of the Penalties and Sentences Act.  It was submitted it would be unjust to order the defendant to serve any part of the suspended sentence.  It would be unjust for him to go to jail.  The diagnosis of Mr Stoker was relied on.  He voluntarily engaged with Ms Rose, a psychologist.  In that regard by consent a letter has been tendered today much is marked as exhibit 5, which does show a link between his psychological condition and the offending in this case.  The parole office was not properly functioning during COVID.  The appellant had successfully drug-rehabilitated.  His mental illness contributed to the offending.  He had been threatened by his employer.  An ICO was pressed for or, alternatively, a parole release date or a suspended sentence.

In further oral submissions Defence counsel pressed for an ICO and pointing out there was no recent drug offending.  The present counselling was referred to.  Most other points were repeated.  There was an email tendered concerning treatment.  It was submitted that the imposition of a parole eligibility date would be unfair, but in light of the parole board delays but the magistrate said there would need to be positive evidence on this point.  In his decision the magistrate referred to the facts of the case.  He didn’t find the decision to drive to be an impulsive one.  He took into account the reports of Mr Stoker and the rehabilitation from drugs.  He noted the appellant had breached two parole orders.  He noted the breaches of the suspended sentences of three months, six months and nine months.

He took into account the plea of guilty, noting that jail was a sentence of last resort.  He noted the maximum penalties.  Despite the mental health condition general and personal deterrence were still relevant.  The sentences I referred to earlier were imposed.  The magistrate accepted there would be delays in his parole but spending up to six months inside would not be disproportionate to the offending. 

 As to the appellant’s submissions many grounds of appeal are listed in the notice of appeal.  The submissions point out the appellant was released on bail by another magistrate on 31 May 2022.  Despite this, the appellant has remained in custody.  Many of the other matters referred to below were repeated.

Taking into account totality considerations it is submitted it is open to the appellant to be resentenced to immediate release.  It is also submitted the sentence is manifestly excessive.  It is submitted the magistrate had little regard to the appellant’s mental health, rehabilitation and failed to give weight to the COVID disruption submissions.  It is alleged the magistrate failed to give weight to section 9(2)(a) of the Penalties and Sentences Act and:  the parole board delays.  It is submitted that the magistrate had access to documents the parties did not have and he failed to consider totality and the impact on third parties.  By reference to various comparable decisions the sentence is said to be unjust.

On the other hand, the respondent submits in its written submissions the sentence was within the exercise of a sound sentencing discretion.  The magistrate did specifically say he took into account section 92A.  In light of the appellant’s previous history jail was not unjust.  The magistrate considered all relevant matters.  He acted appropriately and counsel had the opportunity to inspect the Court files.  In oral submissions today, though, bearing in mind the pre-sentence custody certificate, it is conceded that having regard to totality the period of 119 days would be a sufficient custodial portion of the penalty.  

Now, this is an appeal by way of rehearing.  Whilst the magistrate specifically took into account the pleas of guilty the fact is totality loomed large in this case, bearing in mind the other orders.  Bearing in mind the plea of guilty in the ordinary course one would serve approximately one-third of the sentence.  As it turns out by reason of the other orders being activated and by reason of the parole situation if the sentence were allowed to stand the appellant would be required to serve far more than one-third of the sentence.  On the other hand, of course, as the respondent points out, the fact is the appellant by this offending breached two parole orders and three suspended sentences.  He was on suspended sentences for disqualified driving and had received a 10 month sentence on 29 June 2021 for disqualified driving and yet committed this offence shortly thereafter.

It is conceded, though, there was an error in that he be given a parole release for the 10 month sentence, but as it turns out that was to his benefit because he was released.  Having considered all matters I do consider that because of the custodial situation and the principles of totality an error has occurred in the sentencing process.  I think greater weight ought to have been given to the principle of totality taking into account the plea of guilty and the other mitigating factors.  As I have said, in my opinion he has served a sufficient custodial portion of the sentences.  In those circumstances I make the following orders.  

MR HENRY:   Your Honour, can I just be heard on the orders?

HIS HONOUR:   (1) the appeal is allowed;  (2) in lieu of the penalties imposed by the magistrate on the driving without a licence disqualified by a Court order committed on 7 October 2021, I order, taking into account the 119 days, custody sentence – the whole term of imprisonment be suspended forthwith and the defendant must not commit another offence punishable by imprisonment for the period of two years if he is to avoid being dealt with for the suspended term of imprisonment.

With respect to the activated suspended sentences of nine months, six months and three months, I set aside the orders made by the magistrate.  I find it would be unjust to activate any of those suspended sentences now bearing in mind the 119 days he has spent in pre-sentence custody.  I sentence him to the rising of the Court on each of those.

The orders are otherwise not disturbed.  

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