_R v Hillier_

Court of Appeal (Qld)|2007-08-24|Before: McMurdo P, Holmes JA and Wilson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made

Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant for leave to appeal against sentence was convicted on a plea of guilty on an ex officio indictment of one count of dangerous operation of a motor vehicle and was sentenced to 18 months' imprisonment to be served cumulatively with a sentence he was already serving. He was also dealt with under section 651 of the Criminal Code on one charge of driving while disqualified and three firearms charges in respect of a .22 rifle found in his vehicle. In respect of the summary charges, he was sentenced to six months' imprisonment to be served concurrently with the larger sentence.

The dangerous operation of a motor vehicle involved a police chase over a distance of some eight kilometres. During it, the applicant travelled at speeds of up to 150 kilometres an hour, did not observe a stop sign and overtook other vehicles dangerously, on one occasion on the left-hand side and on other occasions crossing double white lines and in the face of oncoming traffic, forcing vehicles off the road. The pursuit was ceased because of the danger involved.

When the applicant was apprehended later that day he said that he had deliberately driven dangerously in order to induce the police to stop the chase, because he had feared he would be returned to gaol.

The applicant had an extensive criminal history consisting, for the most part, of drugs, traffic and breach of bail offences dealt with in the Magistrates Court by way of a fine or short periods of imprisonment. In 2001 he was sentenced in the District Court to 12 months' imprisonment suspended after three months on charges of fraud and unlawful use of a motor vehicle. Most significantly, for present purposes, on 7th of September 2006 he received a sentence of imprisonment of two years and 10 months in the District Court for charges of burglary and unlawful use of a motor vehicle and at the same time was dealt with for summary offences, including a Bail Act offence for which he received a further, cumulative month's imprisonment. The time he had already spent in pre-sentence custody, 317 days, was declared and a parole date was fixed on 19th of October 2006.

On 8th of December 2006 he committed the offences the subject of this appeal, and was returned to custody. His full-time release date on that earlier sentence, allowing for the month or so he spent at large on parole, is 1st of December 2008. The 18 months cumulative on the current sentence brings it to 1st of June 2010.

At sentence, counsel for the Crown proposed the imposition of 18 months' imprisonment cumulative, with a parole eligibility date set at 13th of March 2008, which he described as "the half-way mark of the full period". Defence counsel agreed with that approach. He said that the applicant had committed the offence under the influence of drugs to which he was addicted. He pointed out that he had been fully cooperative once apprehended and that he had two children and a girlfriend waiting for his release.

Here, the applicant complained that his counsel had not been sufficiently active on his behalf at sentence in tendering material or making submissions on his behalf. He made the point that his behaviour in respect of the offence was committed in the context of a drug problem. But that aspect was placed before the Court and counsel's concordance with the Crown's submission as to sentence was realistic.

The learned sentencing Judge, describing the dangerous operation of a vehicle as as bad as could occur without actual injury, accepted the approach to sentence proposed by both counsel and sentenced accordingly.

There can be no doubt at all that, on the one hand, the driving itself richly warranted a sentence of 18 months' imprisonment. The R v Theuerkauf; ex parte Attorney-General (Qld) [2003] QCA 94 supports that view. The Penalties & Sentences Act 1992 (Qld) required the imposition of a cumulative sentence in the circumstances of this offending on release on parole. The only possible area of argument is as to whether, having regard to the totality principle, the imposition of 18 months' cumulative on the existing sentence renders it excessive. Should he not be released on parole, the applicant faces a total period in custody, other than that short break on parole, of three years and seven months.

But having regard to the applicant's previous criminal history, the seriousness of the offences for which he was initially sentenced, his almost immediate breach of parole, the calculated nature of the dangerous driving involved in the instant offence and the risk to which members of the public were exposed, I am convinced that the sentence of 18 months cumulative, taken in the wider context of the total period to be served, is not excessive.

I would dismiss the application for leave to appeal.

You know, from what you have said to us, if you want to increase your chances of getting released on parole you had better try and do what you can to remain drug-free and work on your rehabilitation in the prison.

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