DISTRICT COURT OF QUEENSLAND
CITATION:
Keen v Commissioner of Police [2017] QDC 215
PARTIES:
GARY BERNARD ARTHUR KEEN
(Appellant)
v
COMMISSIONER OF POLICE
(Respondent)
FILE NO/S:
D 4787/16
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Rockhampton
DELIVERED ON:
23 August 2017
DELIVERED AT:
Brisbane
HEARING DATE:
21 July 2017
JUDGE:
Richards DCJ
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – NATURE AND CIRCUMSTANCE OF OFFENDER – whether sentence was manifestly excessive
Justices Act 1886, s 222
Penalties and Sentences Act 1992, s 159A
COUNSEL:
The appellant appeared for himself
M.Z. Ahmed for the respondent
SOLICITORS:
The appellant appeared for himself
Queensland Director of Public Prosecutions for the respondent
The appellant appeals against a sentence imposed upon him on 4 November 2016 in the Magistrates Court at Rockhampton. On that date the appellant pleaded guilty to a number of offences all of which occurred on 15 August 2016. He was sentenced as follows:
·Possessing a dangerous drug: 5 months imprisonment and immediate release on parole;
·Disobeying the speed limit: Fined $243 conviction recorded;
·Contravening a requirement of police: Conviction recorded and not further punished;
·Fail to remain at a place (private vehicle): One month imprisonment;
·Fail to comply with requirement to stop a private vehicle: three months imprisonment immediate release on parole;
·Obstruct a police officer: Three months imprisonment immediate release on parole;
·Commit public nuisance: Three months imprisonment immediate release on parole;
·Disqualified driving (court order): Three months imprisonment immediate release on parole and two year mandatory licence disqualification;
·Possession of utensils or pipes used in connection: Three months imprisonment immediate release on parole; and
·Possession of property suspected of being used in connection with the commission of a drug offence: Three months imprisonment immediate release on parole.
All of the sentences were to be served concurrently and pursuant to s 159A of the Penalties and Sentences Act 1992, 80 days spent in presentence custody from 16 August 2016 to 3 November 2016 was deemed time already served on the sentence.
The appellant’s notice of appeal states the grounds of the appeal are:
1. The magistrate has erred at law;
2. No Magistrates Court order signed by the magistrate has been received by the defendant.
3. The defendant is a private man;
4. It is a fraud for any person to act as a magistrate in any court in Australia; and
5. Criminal Procedure Act 2004 (WA) s 22, Fines Act 1996 (NSW), Police Powers and Responsibilities Act 2000 are not enacted into law.
At the hearing of this matter, Mr Keen appeared and began to argue that there is no contract between himself and the police and therefore the police had no right to pull him over and that he was a natural man and therefore this somehow made him not guilty of the offences. At the time I interrupted him and pointed out that he had actually pleaded guilty to the offences and that as such his appeal only lies on the ground that the fine, penalty, forfeiture or punishment was excessive or inadequate pursuant to s 222(2)(c) of the Justices Act 1886. Mr Keen asked the matter be stood down and it was stood down until 3.00pm. Thereupon although Mr Keen initially reappeared at 3.00pm by the time the matter was called on Mr Keen had absented himself from the court and did not return.
In the circumstances, I will assume that Mr Keen does not intend to pursue any suggestion that the convictions were wrongly entered, and I will proceed on the basis that the appeal is against sentence because the punishment was excessive.
On 15 August 2016, the police intercepted the appellant driving on the Bruce Highway. They smelt cannabis and conducted a search of the car, where they found a clip seal bag containing 1.12 grams of methamphetamine. At the time they intercepted him, he was doing 120km in a 110km zone. He refused to provide identification and then provided an incorrect date of birth. He was asked to wait in his car while they checked his name and when they went to check his name he drove off. Police then followed him with their lights and siren activated. He kept driving until they manoeuvred in front of him and he eventually pulled over, stopping in the middle of the Bruce Highway. He was arrested, refused to go back to the police car and struggled when they attempted to restrain him. He acted aggressively with the police and whilst police were endeavouring to arrest him, traffic on the Bruce Highway came to a standstill. The police located his identification documents in his car, conducted checks and found he had been disqualified from driving for two years and six months by order of the Southport Magistrates Court on 17 April 2015. They also located a water pipe sitting on the front passenger seat of his car and a set of scales in the front of his car.
The appellant was 61 years of age at the time of the offence. He has a Queensland criminal history beginning in 1978, although there were breaks in his offending between 1981 and 1994, 1999 and 2010 and 2010 and 2015. He does have previous convictions for possession of drugs, for failing to stop a private vehicle and possession of utensils. He also has a Queensland traffic history beginning in 1993. On 17 April 2015 he was convicted in the Southport Magistrates Court for obstructing police, possessing dangerous drugs, possessing utensils, contravening directions, possessing regulated poison without approval, possessing property suspected of being used in connection with the commission of a drug offence, driving with a suspended licence and failing to provide a blood specimen. He received six months imprisonment suspended for 12 months, having spent 52 days in pre-sentence custody.
The appellant came before the court as a person with previous relevant convictions; a mature man who was deliberately obstructive to police and in possession of the serious drug ice and other drug paraphernalia. He had been in custody for a significant period of time and as such, the magistrate properly factored in a sentence which took into account that time served. Given his age a term of probation was not an appropriate sentence.
The appellant has now served his period of parole, which concluded on 15 January 2017, so there seems little utility, even if the sentence was manifestly excessive in ameliorating that sentence. Furthermore, given his obstructive actions on the day, his criminal and traffic history, mature age and the inconvenience to the public, it seems to me that the sentence was not manifestly excessive, so the appeal should be dismissed.