Court of Appeal (Qld)|2006-07-14|Before: Williams JA, Jerrard JA and Holmes JASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Williams JA, Jerrard JA and Holmes JASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
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 - where the appellant was found guilty of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - where the appellant was found guilty ofdangerous operation of a motor vehicle and sentencedto nine monthsimprisonment, suspended after one month, for an operational period of 12 months– the appellant was also disqualifiedfrom holding a driver’slicence for a period of four years – the offence involved the appellantdriving an unregisteredvehicle dangerously whilst trying to avoid police– whether the disqualification for four years was excessive consideringtheoffence in question, the applicant’s traffic history and his familycircumstancesPenalties and Sentences Act 1992 (Qld), s 187, s187(1)(b)Transport Operations Road Use Management Act 1995 (Qld),s 86(3), s 131(2)R v Bagust [2003] QCA 385
CA No 182 of 2003, 3 September 2003,
consideredR v Bawden [2004] QCA 285
CA No 59 of 2004, 6 August 2004,
consideredR v Bolton [2000] QCA 175
CA No 40 of 2000, 11 May 2000,
consideredR v Cunningham [2005] QCA 321
CA No 145 of 2005, 29 August
2005, distinguishedR v Fanning [2005] QCA 267
CA No 132 of 2005, 1
August 2005, considered
Judgment (23 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
WILLIAMS JA: The applicant was convicted on 23 March 2006 after a trial of the offence, that on 25 June 2004 he operated a motor vehicle dangerously. He was sentenced to nine months imprisonment, suspended after one month, for an operational period of 12 months and disqualified from holding or obtaining a driver's licence for a period of four years. He seeks leave to appeal only against that part of the sentence relating to the disqualification.
[3]
The circumstances of the offence were particularly serious. The applicant was driving an unregistered vehicle which he had fitted with registration plates from another vehicle. At about 10 am on the day in question, he drove dangerously in an effort to avoid police interest in his vehicle.
[4]
After the lights and siren of the police vehicle were put on, the applicant accelerated, travelled at about 10 kilometres per hour above the speed limit, veered onto the wrong side of the road, drove quickly past a group of pedestrians including a number of children, then drove onto the wrong side of the road again, drove through a stop sign without stopping and finally collided with the gate when he drove into his driveway.
[5]
There were two passengers in the motor vehicle, one being the applicant's child. The learned sentencing Judge who would have heard all the evidence relevant during the trial, concluded that the incident was not a high speed chase and in consequence, was not "the most serious sort of instance" of the offence. But nevertheless, he concluded that a prison sentence was called for. He noted that the applicant showed no remorse and, in a broad sense, sought to justify his driving on the occasion in question.
[6]
Of particular concern to the Sentencing Judge was the applicant's traffic history which he described as a "bad one", but not "extremely bad". Relevantly, since June 2002, the applicant's driver's licence has been suspended on three occasions because of the demerit points he has amassed. There were two further periods of suspension consequent upon non-payment of fines. During that period there were 10 speeding offences, two for unlicensed driving and one for driving a defective vehicle.
[7]
He also had traffic offences in New South Wales. There was one of unlicensed driving and one of driving under the influence of alcohol. His licence was suspended for 12 months in consequence of that last offence. In addition, the applicant had a relatively minor criminal history.
[8]
The applicant challenged the four-year period of disqualification on two grounds. Firstly, it was said, there was a denial of natural justice in that the learned Sentencing Judge gave no indication to counsel that he was minded to exercise the discretion vested in him pursuant to s 187 of the Penalties and Sentences Act1992 (Qld). Secondly, it was submitted that in any event a disqualification for a period of four years was manifestly excessive.
[9]
It is true there were no specific submissions put to the learned Sentencing Judge by either counsel with respect to the period of disqualification. By operation of s 86(3) of the Transport Operations Road Use Management Act1995 (Qld), there was a mandatory six-month disqualification upon conviction for the offence in question. That was obviously known to all parties.
[10]
Section 187 of the Penalties and Sentences Act1992 relevantly provides that if a person is convicted of an offence in connection with the driving of a motor vehicle, the Court may order that the offender be disqualified "absolutely or for such period as is ordered by the Court from holding or obtaining a driver licence".
[11]
But while the Crown Prosecution did not make any specific submission with respect to disqualification, he placed a schedule before the Court containing summaries of comparable cases for an offence of this type. There were four cases on that schedule. It suffices to say for present purposes that Bagust [2003] QCA 385 was disqualified for 12 months, Franklin [2000] QCA 369 was disqualified for three years, Bolton [2000] QCA 175 was disqualified for 12 months and Parker[2002] QCA 403, disqualified for 18 months.
[12]
The Crown Prosecution made specific reference to Bolton and Bagust. That was a clear indication that the circumstances of this case raised at least the possibility of the sentencing Judge disqualifying for a longer period than the mandatory
[13]
Counsel for the applicant in turn handed the Sentencing Judge a copy of the decision of this Court in Bawden[2004] QCA 285. The learned Sentencing Judge made specific reference to the fact that Bawden was disqualified from holding a driver's licence for a period of 18 months. In those circumstances, it cannot be said that the applicant's then counsel was not alerted to the fact that, given the circumstances of the case, a period of disqualification greater than six months could be imposed.
[14]
Counsel for the applicant in this Court relied heavily on the decision in R v Cunningham[2005] QCA 321, but that case is clearly distinguishable. The offender in that case had pleaded guilty to one count of assault occasioning bodily harm, one count of assault occasioning bodily harm while in company and one count of wilful damage to a motor vehicle.
[15]
Nothing was said in the course of submissions as to the possible application of s 187(1)(b) of the Penalties and Sentences Act1992 which broadens the discretion of the Sentencing Judge to disqualify an offender from holding or obtaining a driver's licence if the Court is "satisfied, having regard to the nature of the offence or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a driver's licence". In that situation there is no mandatory disqualification. The provision creates a judicial discretion to impose disqualification if the provisions of the statute are satisfied.
[16]
In Cunningham, the Sentencing Judge disqualified the offender from holding or obtaining a driver's licence for a period of
[17]
three years, though the Court's discretionary powers to make such an order had not been raised in the course of submissions. This case is clearly distinguishable. There had to be a disqualification for a period of at least 6 months and the Sentencing Judge's attention was drawn to five comparable cases in which the period of disqualification was for a period in excess of that. In those circumstances, it could not be said that the principles of natural justice were breached.
[18]
The question then remains whether or not the disqualification for four years is so excessive that this Court should intervene. Whilst this was by no means the worst case of dangerous driving, there were very serious aspects to it. The applicant was attempting to evade police apprehension, though it was not a high speed chase. He drove on the wrong side of the road and through a stop sign when he had a young child and a passenger in the vehicle. He drove at speed on the wrong side of the road when there were pedestrians in the vicinity. He had a bad traffic history. He obviously had not learnt from having his licence suspended on a number of occasions, that his driver's licence was a valuable commodity and that he had to drive appropriately if he was to keep it.
[19]
Counsel for the respondent in this Court referred to Fanning[2005] QCA 267 where the disqualification was for two years. One of the principal submissions by counsel for the applicant in this Court was that a disqualification for four years would probably have drastic consequences on the applicant's future prospects. It was said that such disqualification would create a real risk of unemployment for the applicant who was described by the sentencing Judge as a "good supporter" of a large family.
[20]
Whilst there was undoubtedly some truth in the submission of counsel for the applicant, it must be borne in mind that the public must be protected from people who repeatedly create dangers for others on the road. Disqualification for a period of 4 years is excessive for a person convicted of dangerous driving without any circumstances of aggravation with the traffic history this applicant had.
[21]
Taking into account the offence in question, the applicant's traffic history and his family circumstances, the period of disqualification should be for three years. It must be remembered that pursuant to s 131(2) of the Transport Operations Road Use Management Act1995, the applicant would, after the expiration of two years from the start of the disqualification period, be entitled to apply for the disqualification to be removed. If, after serving two years disqualification, the applicant's family circumstances were such that he could demonstrate the need to have some form of driver's licence, he could raise that concern in the appropriate way.
[22]
In the circumstances, leave to appeal should be granted and the appeal allowed to the extent of reducing the period of disqualification from four years to three years.
[23]
WILLIAMS JA: Well, the order will be as I indicated.