Evasion Offence: Sentencing Inconsistencies Resolved
Failing to stop a vehicle at the direction of police is a serious offence in Queensland and is duly penalised.
Section 754 of the Police Powers and Responsibilities Act 2000 (Qld) provides:
“754 Evasion Offence
(1) This section applies if, 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.
(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.”
Penalty—
Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.
Penalty—
Maximum penalty—200 penalty units or 3 years imprisonment.”
Inconsistencies in sentencing outcomes
Judicial interpretation of the penalty under section 754 has been inconsistent.
Whilst some judicial officers interpreted the penalty as requiring a minimum term of actual imprisonment, [1] others considered community based orders as remaining available sentencing options under the section.[2]
This has led to varied and at times unreliable sentencing outcomes in the Magistrates and District Courts.
Commissioner of Police v Broederlow (2020) 5 QR 296
These interpretative inconsistences may have arguably been resolved by the Court of Appeal in Commissioner of Police v Broederlow.[3] In this case the Court considered an equivalent penalty provision under section 50(1)(d)(iii) of the Weapons Act 1990 (Qld):
“Penalty—
Minimum penalty—
(d) for an offence, committed by an adult, to which paragraph (a) , (b) , (c) (i) or (c)(ii) applies—
…
(iii) if the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s imprisonment served wholly in a corrective services facility; or”
To the question of whether the section precluded sentencing options outside actual imprisonment, the Court’s decision centred on the words “wholly in a corrective services facility”:
“…the way in which the provision specifies the penalty is entirely unambiguous. It requires the period of imprisonment to be served “wholly in a corrective services facility”. Those very clear words exclude serving a penalty outside a corrective services facility. A probation order is just such a penalty.”[4]
In coming to this conclusion Broederlow approved the reasoning of Bowskill J (as her Honour then was) in R v DS.[5] In that case her Honour interpreted the relevant section of the Weapons Act to exclude sentencing options outside imprisonment and made a point of agreeing with Devereux SC DCJ’s judgement in Doig[6] to do the same with respect to section 754 of the PPRA.[7]
Broederlow also distinguished the decision of Spencer[8] on the basis that, inter alia, it was decided before section 754 of the PPRA was amended to include the “entirely unambiguous” words that a period of imprisonment must be served “wholly in a corrective services facility”.[9] The Court placed great significance on these words to the question of statutory interpretation of sentencing options.
Conclusion
Broederlow arguably provides Court of Appeal authority for a strict interpretation of statute that requires a period of imprisonment to be served “wholly in a corrective services facility”.
The Court’s decision in Broederlow centred on the meaning of the words “wholly in a corrective services facility” as they appeared in the context of a penalty provision. The specific statute in which these words appeared did not, in my view, inform the Court’s reasoning.
Accordingly it may be argued that the Broederlow decision applies to the interpretation of the penalty under section 754 of the PPRA:
“Penalty—
Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.
Penalty—
Maximum penalty—200 penalty units or 3 years imprisonment.”
Applying the Court’s reasoning in Broederlow, a sentence of imprisonment imposed for an evasion offence under section 754 of the PPRA must include a minimum of 50 days served in a corrective services facility.
Hannah Pugh
Solicitor
[1] Doig v Commissioner of Police [2016] QDC 320, approved in R v DS (2020) 2 QR 621. See also Broederlow v Commissioner of Police [2019] QDC 228; Nitz v Commissioner of Police [2021] QDC 237.
[2] Commissioner of Police Service v Spencer (2014) 2 Qd R 23; Forbes v Jingle [2014] QDC 204; Campbell v Galea [2019] QDC 53.
[3] (2020) 5 QR 296.
[4] At 307, [28].
[5] R v DS (2019) 2 QR 621.
[6] Doig v The Commissioner of Police [2019] QDC 228.
[7] R v DS (2019) 2 QR 621 at 624, 639-640.
[8] Commissioner of Police Service v Spencer (2014) 2 Qd R 23. This decision was the catalyst for the amendment of the section to include the words, “served wholly in a corrective services facility”.
[9] Ibid, n 4.