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[2008] QCA 233
General information, not legal advice.
Court of Appeal (Qld)
2008-08-08
Keane, Muir and Fraser JJASeparate reasons for, judgment of each member of the Court, each concurring as to the order made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Chatters [2008] QCA 233
PARTIES: R / v / CHATTERS, Heath Lance / (applicant)
FILE NO/S: CA No 71 of 2008 / DC No 2943 of 2005 / DC No 957 of 2007 / DC No 3522 of 2007 / DC No 464 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 8 August 2008
DELIVERED AT: Brisbane
HEARING DATE: 29 July 2008
JUDGES: Keane, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application for leave to appeal against sentence refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted on his plea of guilty of: one count of unlawful use of a vehicle, once count of dangerous operation of a vehicle, and a summary offence of obstructing police – where the applicant committed the offences while serving a partially suspended sentence imposed for a serious robbery offence – where the applicant was sentenced to 18 months imprisonment on each of the indictable offences and six months imprisonment for the summary offence to be served concurrently with each other but cumulatively upon the remaining term of three years of the partially suspended sentence which the sentencing judge activated – where the applicant committed the offences on the day the applicant was released from prison – where the applicant was a chronic alcoholic – where the applicant had previously been sentenced to about 65 separate terms of imprisonment and had been convicted of some 36 offences involving a motor vehicle – whether the sentence imposed was manifestly excessive / R v Theuerkauf & Theuerkauf; ex parte A-G (Qld) [2003] QCA 94 , referred to / Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL: The applicant appeared on his own behalf / M J Copley for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent.
KEANE JA: I have read the reasons for judgment prepared by Fraser JA. For those reasons I agree that the application should be refused.
MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.
FRASER JA: The applicant, who seeks leave to appeal against sentences imposed on 27 February 2008, was convicted on his plea of guilty of: one count of unlawful use of a vehicle, one count of dangerous operation of a vehicle, and a summary offence of obstructing police. The applicant committed those offences on 19 February 2007 whilst he was serving a partially suspended sentence imposed on 6 June 2006 for a serious robbery offence. For that offence he was sentenced to imprisonment for a term of five years, suspended after serving two years.
The applicant was sentenced to 18 months imprisonment on each of the indictable offences and six months imprisonment for the summary offence, those terms to be served concurrently with each other but cumulatively upon the remaining term of three years of the partially suspended sentence, which the sentencing judge activated. 373 days were declared as time already served. 27 February 2009 was fixed as the date upon which the applicant would be eligible for parole.
The offences for which the applicant was sentenced on 27 February 2008 occurred on the day that the applicant was released from prison under the order of 6 June 2006. It appears that the applicant, after drinking at a hotel at a railway station near the prison, broke into a car parked there and drove off. Minutes later police saw that car turn a corner so quickly that it nearly collided with another car. It then sped past the police car and crashed into another vehicle. Police approached the applicant's vehicle on foot, but the applicant drove up onto the footpath and then collided again with the vehicle he had earlier hit. The applicant then drove away with the police in pursuit. When the applicant was forced to stop in a cul-de-sac he reversed towards the police car. The driver of the police car swerved to avoid a collision. The applicant accelerated his car into the side of the police car and he then drove off.
There was then another chase and another incident during which the applicant stopped the car he was driving. On this occasion he reversed into the passenger side of the police car. A police officer sitting on that side suffered a whiplash injury. The applicant drove off, nearly collided with another car, crashed through two bollards and drove the wrong way along a road, forcing other cars to swerve to avoid a collision. He then drove over a median strip and through two intersections against red lights. A shopper in a shopping centre carpark had to jump out of the path of the applicant's vehicle when he drove through the carpark. After the applicant returned to the road he drove through another red light before crashing into a disused railway crossing signal. The applicant fled but was quickly caught.
R
Chatters
(1988) 164 CLR 465
The applicant was born on 26 August 1975 and was therefore 31 years of age when he committed these offences and 32 years of age when he was sentenced. At the sentence hearing the applicant's counsel attributed the applicant's offending to his intoxication during the incident. It was submitted that the applicant was a chronic alcoholic, that addiction having replaced earlier drug addictions. The same circumstance was said to explain the applicant's serious criminal history which included some 36 offences involving a motor vehicle. He had earlier been sent to prison on two occasions for dangerous driving, once for six months in May 1995 and again for a term of four months in December 2000. The applicant had been convicted of a variety of other offences, including burglary on six occasions. In all, according to the prosecutor’s count, the applicant had been sentenced to about 65 separate terms of imprisonment.
The sentencing judge described the facts of these offences as quite disturbing: that might be thought to be something of an understatement. The applicant's driving created a high degree of danger for many road users over a significant period, particularly putting in danger the lives of police officers. As the sentencing judge observed it was very fortunate that serious injury did not occur.
The sentencing judge referred to the applicant's pleas of guilty and the fact that there was a full hand-up committal. He took into account also the fact that the applicant had made serious attempts whilst in prison to address his alcohol problem by undertaking appropriate programs. He also referred to the applicant's employment whilst in prison in which he had impressed his trade instructor.
The applicant's counsel did not submit to the sentencing judge that it would be unjust to activate the whole of the unserved portion of the suspended sentence, and that was inevitable here, in circumstances where the applicant had committed these serious offences on the same day as his release from prison.
The applicant argues that his sentences of 18 months were excessive. That cannot be accepted. Viewed in isolation these sentences appear relatively lenient in light of R v Theuerkauf & Theuerkauf*; ex parte A-G (Qld)* [2003] QCA 94. The facts of that case were of course somewhat different, as the applicant argues, but that case also involved an offender (with his brother as a passenger) repeatedly driving his car at a bystander and injuring him. The brother then took over and drove dangerously fast to avoid apprehension by the police. The bystander in Theuerkauf was more seriously injured than the policeman who sustained a whiplash here. However this applicant rammed a police car and his driving was no less dangerous and his culpability for it similar. The Theuarkaufs’ criminal histories were not nearly as bad as that of this applicant. In Theuerkauf the sentences of two years and six months, suspended after 12 months, and two years suspended after nine months, also took into account the fact that they were imposed in an Attorney-General’s appeal where the offenders had been fulfilling their obligations under intensive correction orders.
The maximum penalty for the offence of dangerous operation of the motor vehicle is three years imprisonment. As in Theuerkauf, it perhaps might have been open to the sentencing judge to regard this offence as one that was in the worst category (in the sense explained in Veen v The Queen [No 2] (1988) 164 CLR 465 at 478; [1988] HCA 14, and thus one that attracted the maximum penalty. The sentencing judge evidently did not so regard it and his Honour also acknowledged that it was necessary to apply the totality principle, which no doubt explains the moderate sentence of 18 months.
There being no error of principle raised in the application, the only question for this Court is whether the sentences are manifestly excessive. The applicant’s criminal history, his re-offending immediately upon release and the manifest dangerousness of his offences point to the protection of the community being taken into account as an important factor in these sentences. If, as was submitted by the applicant's counsel at the sentence hearing to be inevitable, the applicant will not obtain parole, then he will serve a total of six and a half years imprisonment for the offences I have discussed. In the circumstances I have outlined that could not be regarded as manifestly excessive.
I would refuse the application.