Court of Appeal (Qld)|2009-02-27|Before: Holmes, Muir and Fraser JJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Holmes, Muir and Fraser JJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEALS BY CROWN – EXERCISE OF DISCRETION
– GENERALLY
– where the respondent pleaded guilty to and was convicted of dangerously
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEALS BY CROWN – EXERCISE OF DISCRETION– GENERALLY– where the respondent pleaded guilty to and was convicted of dangerouslyoperating a motor vehicle whilstadversely affected by alcohol against s 328A ofthe Criminal Code (Qld) and a summary offence of driving over thegeneral alcohol limit against s 79(2)(a) of the Transport Operations (RoadUse Management) Act 1995 (Qld) – where respondent sentenced for theindictable offence to six months imprisonment, suspended immediately, for anoperationalperiod of four years and for the summary offence, to six monthsimprisonment to be served as an Intensive Correction Order –whererespondent also disqualified from holding or obtaining a driver’s licenceabsolutely – where respondent has a criminalhistory and a relevanttraffic history – whether the sentence fails to adequately reflect thegravity of the offence generally
and this case in particular – whether the
sentence fails sufficiently to take into account the aspect of general
deterrence
– whether the sentencing judge gave too much weight to the
factors going to mitigation of sentence – whether the sentence
should have
included a short term in actual custody – whether sentence manifestly
inadequate
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEALS BY CROWN – EXERCISE OF DISCRETION
– GENERALLY
– where the respondent committed other offences after he had committed and
been charged with the offences
the subject of the present application –
whether the sentencing judge erred in treating those subsequent offences as
being
largely irrelevant
Criminal Code (Qld), s 328
Penalties
and Sentences Act 1992 (Qld), s 9(2)(a), s 9(3), s 9(4), s 114(1)
Transport Operations (Road Use Management Act) 1995 (Qld), s 79(2), s
79(1C), s 79(2G)
Baumer v The Queen (1988) 166 CLR 51
[1988] HCA 67,
cited
R v Aston (No 2) [1991] 1 Qd R 375,
cited
R v AS
ex parte A-G (Qld) [2004] QCA
259, cited
R v Coake (1999) 29 MVR 329
[1999] QCA
12, cited
R v Cocaris [2005] QCA
407, considered
R v Dullroy & Yates
ex Parte A-G (Qld)
[2005] QCA
219, cited
R v Harch [2003] QCA
315, cited
R v Hoffman
ex parte Attorney-General of
Queensland (1997) 98 A Crim R 177
[1997] QCA
377, cited
R v Hutchins (1957) 75 WN (NSW) 75,
cited
R v Kopa
ex parte DPP (Cth)
R v Istogu
ex parte DPP
(Cth) (2004) 206 ALR 197
[2004] QCA
100, cited
R v KU & Ors
ex parte A–G (Qld) [2008] QCA
154, cited
R v M [2002] QCA
409, cited
R v McInerney (1986) 42 SASR 111,
cited
R v Morris [1914] St R Qd 210, cited
R v
Neil [2001] QCA
41, considered
R v Phillips [1962] VicRp 6
[1962] VR 55,
cited
R v Poulton [1974] VicRp 85
[1974] VR 716, cited
R v
Poynter, Norman & Parker
ex parte A-G (Qld) [2006] QCA
517, cited
R v Quick
ex parte A-G (Qld) (2006) 166 A
Crim R 588
[2006] QCA
477, cited
R v Simpson [2001] QCA
109, cited
R v Sittczenko
ex parte Cth DPP [2005] QCA
461, cited
R v Smith (2004) 145 A Crim R 397
[2004] QCA
126, distinguished
R v Solway & Attorney-General of
Queensland [1995] QCA
374, cited
R v Welch & Attorney-General of Queensland
(1996) 24 MVR 284
[1996] QCA
165, cited
R v Wilson [1956] VicLawRp 31
[1956] VLR 199, cited
R
v Withers [1789] EngR 2086
(1789) 3 TR 428
100 ER 657, cited
Veen v The
Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14, cited
Weininger
v The Queen (2003) 212 CLR 629
[2003] HCA 14, cited
Judgment (105 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY - where the respondent pleaded guilty to and was convicted of dangerously operating a motor vehicle whilst adversely affected by alcohol against s 328A of the Criminal Code (Qld) and a summary offence of driving over the general alcohol limit against s 79(2)(a) of the Transport Operations (Road Use Management) Act1995 (Qld) - where respondent sentenced for the indictable offence to six months imprisonment, suspended immediately, for an operational period of four years and for the summary offence, to six months imprisonment to be served as an Intensive Correction Order - where respondent also disqualified from holding or obtaining a driver's licence absolutely - where respondent has a criminal history and a relevant traffic history - whether the sentence fails to adequately reflect the gravity of the offence generally and this case in particular - whether the sentence fails sufficiently to take into account the aspect of general deterrence - whether the sentencing judge gave too much weight to the factors going to mitigation of sentence - whether the sentence should have included a short term in actual custody - whether sentence manifestly inadequate
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY - where the respondent committed other offences after he had committed and been charged with the offences the subject of the present application - whether the sentencing judge erred in treating those subsequent offences as being largely irrelevant
Director of Public Prosecutions (Qld) for the appellant
[34]
[1] HOLMES JA: I agree with the reasons of Fraser JA and with the orders his Honour proposes.
[35]
[2] MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.
[36]
[3] FRASER JA: On 14 November 2008 the respondent was convicted on his own pleas of guilty to an offence against s 328A of the Criminal Code of dangerously operating a motor vehicle whilst adversely affected by alcohol and a summary offence against s 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) of driving over the general alcohol limit. For the indictable offence the respondent was sentenced to six months imprisonment, suspended immediately, for an operational period of four years. The respondent was sentenced to six months imprisonment to be served as an Intensive Correction Order for the summary offence. The sentencing judge ordered that the respondent be disqualified from holding or obtaining a driver's licence absolutely.
[37]
[4] The Attorney-General has appealed against the sentence imposed for the indictable offence on the ground that it is manifestly inadequate. I will discuss the grounds of the appeal and the parties' arguments in more detail after I have summarised the relevant factual background.
[38]
[5] At about 3.30 am on Friday, 30 March 2007, the respondent set out to drive the 15 kilometres to his home in Sunnybank from Eagle Street in the city, where he had been drinking. He had a passenger in his car. The very noisy revving of the engine in the respondent's car attracted the attention of window cleaners on the 28th floor of a nearby building, and others at street level.
[39]
[6] After accelerating quickly into Mary Street the respondent drove through its intersection with Edward Street against a red light and collided with a taxi. He travelled above the speed limit of 50 kilometres per hour, perhaps well above it. He made no attempt to slow down or stop at the red traffic light. In the resulting collision the taxi driver was knocked unconscious and suffered minor cuts, abrasions and bruises; one passenger in the taxi sustained a broken collar bone and whiplash; a second passenger in the taxi suffered a hairline fracture to the right shoulder and a laceration to his head requiring stitches; and a third passenger suffered whiplash. A fourth passenger in the taxi was uninjured. The respondent's passenger suffered bruising to his lungs, and a kidney injury. The respondent himself suffered the most severe injuries, a broken jaw, five broken ribs and some other minor injuries.
[40]
[7] When subsequently interviewed by police the respondent said that he had drunk four or five stubbies of light beer during the night before his offences but that he had no memory of the accident.
[41]
[8] The respondent was 23 years old at the time of the offences and 24 years old when he was sentenced. He has a criminal history. It includes unlawful use of a motor vehicle, three drug offences for which he was fined and a number of offences of dishonesty which he committed between February 2004 and August 2005 for which he was convicted and required to perform 120 hours of community service. He also committed a public nuisance offence after he had committed and been charged with the offences the subject of the present application.
[42]
[9] The respondent also has a relevant traffic history. Before he committed the subject offences he had infringed as a learner driver twice in 2001 by driving without an open licence holder beside him in the car; in 2001 he was dealt with for starting or driving in a way which made unnecessary noise or smoke and he again infringed in that way in 2005. He was dealt with for exceeding the speed limit by at least 13 kilometres per hour in December 2005 and for driving a defective vehicle shortly before that. In April 2005 the respondent was fined $300 and disqualified from driving for three months for driving with a blood alcohol concentration of 0.06 on 22 January 2005.
[43]
[10] After the respondent committed the subject offences but before he was sentenced for them he committed two further traffic offences. On 3 April 2008 he was fined $700 and disqualified for six months for driving with a blood alcohol concentration of 0.098 on 16 June 2007. On that occasion police intercepted the respondent at about 3.55 am on the Riverside Expressway, whilst he was driving home. On 8 January 2008 he was fined $120 and disqualified for one month for driving on 6 October 2007 with a blood alcohol concentration of 0.05. He was intercepted at about 1.55 am in Ann Street in the city. The respondent committed that offence after he had been charged with the current offences and whilst he was on bail for them.
[44]
[11] A psychologist's report prepared a few days before the sentence hearing but based on an interview some months earlier in August 2008 expressed the opinion that the respondent was then suffering from clinically significant depressive symptomatology, with a background of possible cannabis and alcohol abuse. The respondent's drinking apparently worsened after his father developed Alzheimer's disease. The respondent said that he did not know what caused his offending, that he did not think he was driving dangerously, but that he did not know and could not remember a thing so could not say what happened. When asked about the possible impacts of the respondent's offences he referred to the accident and his whole life but was unable to identify any other impacts. The psychologist expressed the opinion that the respondent appeared to accept a degree of responsibility for causing the accident, with hindsight he was able to attribute the cause of it to his use of alcohol, but he displayed a limited awareness of the impact of his offending on the other people involved and injured in the accident. The psychologist referred to the respondent having identified avoidance of alcohol as the way he could prevent himself driving dangerously again. The respondent told the psychologist that he had previously limited the amount he would drink before driving but now thought that he should not drive after having consumed any alcohol.
[45]
[12] Five very favourable references (prepared in November 2008) were provided to the sentencing judge. They attested to the respondent's generally good character and his good work ethic and favourable family background. These references referred to the respondent having given himself a "zero tolerance level" for drinking whilst driving.
[46]
[13] The notice of appeal contends that the sentence is manifestly inadequate for three reasons: it fails adequately to reflect the gravity of the offence generally and this case in particular; it fails sufficiently to take into account the aspect of general deterrence; and the sentencing judge gave too much weight to the factors going to mitigation of sentence. The Attorney-General contends that this Court should set aside the sentence on the indictable offence and instead sentence the respondent to eighteen months to two years imprisonment, with parole release after four to six months.
[47]
[14] The respondent's counsel submits that a sentence involving a period of actual custody was not mandatory for this offending and that the overall combination of orders, providing for intensive supervision and assistance coupled with the threat hanging over the respondent for four years that he might be imprisoned if he offended again, was within the sound exercise of the sentencing judge's discretion.
[48]
The summary offence: driving over the general alcohol limit
[49]
[15] It is necessary first to mention some unfortunate errors in the sentence for the summary offence which were properly brought to the Court's attention by the Attorney-General's counsel. First, the prosecutor wrongly told the sentencing judge that the maximum penalty for the summary offence was nine months imprisonment or 28 penalty units. Under the relevant provision, s 79(2) of the Transport Operation Road Use Management Act 1995 (Qld), the maximum penalty was three months imprisonment or 14 penalty units. (The summary charge did not allege as a circumstance of aggravation that the respondent had three other convictions under s 79(2) within the previous five years, which would have allowed the imposition of the maximum penalty of nine months or 28 penalty units under s 79(2G)). Secondly, the prosecutor submitted to the sentencing judge, again wrongly, that the effect of s 79(1C) was that a term of imprisonment was mandatory for the summary offence. That section had no application.
[50]
[16] The Attorney-General concedes that the sentence imposed for the summary offence must therefore be set aside. I will return to consider what other orders this Court should make in relation to the summary offence after I have discussed the Attorney-General's appeal against the sentence imposed for the indictable offence.
[51]
The indictable offence: dangerous driving whilst affected by alcohol
[52]
[17] In support of the Attorney-General's appeal his counsel submits that the sentencing judge wrongly took into account in the respondent's favour that the dangerous driving was of short duration in circumstances in which the respondent had intended to drive the considerable distance to his home. He refers to the sentencing judge's remark that the respondent "may be fortunate too in that in duration your dangerous driving was short". That is an ambiguous comment, but I reject the argument that the sentencing judge failed to appreciate that the respondent had intended to drive the considerable distance to his home. The judge had earlier mentioned that very fact. That he took it into account is demonstrated also by his subsequent observation that the sentence in R v Smith [2004] QCA 126 was in respect of driving which was more protracted than the respondent's, and allowed to be so because there was no collision, but also less potentially dangerous than the respondent's driving.
[53]
[18] The Attorney-General also argues that the sentencing judge erred in treating the respondent's drink driving offences committed after the present offences as being largely irrelevant. The submission emphasises the sentencing judge's remark that the subsequent offending was "more concerning to the court, although I think I have to treat it as essentially irrelevant to today's sentencing exercise". That remark must be understood in the context of other observations, to which I will return after I have briefly discussed the relevant legal principle.
"It is, of course, open to a Court to take into account not only prior convictions, that is convictions of offences committed before the offence in question, but also convictions of subsequent offences.
[56]
In R v Aston (No. 2) [1991] 1 Qd.R. 375, Cooper J., with whom Kneipp and Shepherdson JJ. agreed, said this:
[57]
'Evidence of convictions and the sentences imposed for offences committed both before and after the offence for which sentence is to be imposed is both relevant and admissible when the sentencing discretion is to be exercised. Evidence of later convictions may be used to determine whether leniency ought to be exercised (see R v. Hutchins(1957) 75 W.N. (N.S.W.) 75). Such evidence may also be used to determine the risk of recidivism, the prospect of rehabilitation, and, the connection, if any, between the offence for which the offender is being sentenced and the later offences for which the offender has being earlier sentenced.'"
[58]
[20] The common law principle confirmed in R v Hutchins may be traced to R v Withers (1789) 3 TR 428; 100 ER 657,[1] in which Kenyon LCJ said:
[59]
"It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant."
[60]
[21] That principle may, of course, be displaced or modified by applicable sentencing legislation: R v Aston (No 2) per Cooper J at 382-383, referring to R v Wilson [1956] VicLawRp 31; [1956] VLR 199 and R v Phillips [1962] VicRp 6; [1962] VR 55. It was not, however, displaced by the statutory provision considered in R v Aston (No 2), s 650 of the Criminal Code, which provided that the court "may receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed or order to be made". Nor, as appears from R v M, was the principle displaced by the Penalties and Sentences Act 1992 (Qld).
[61]
[22] Because the respondent's offence resulted in physical harm to others, s 9(3) of that Act rendered inapplicable the principle expressed in s 9(2)(a) that a sentence of imprisonment should only be imposed as a last resort and instead obliged the sentencing court to have regard primarily to the matters set out in s 9(4), namely:
[62]
"(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed:
[63]
(b) the need to protect any members of the community from that risk;
[64]
(c) the personal circumstances of any victim of the offence;
[65]
(d) the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence:
[66]
(e) the nature or extent of the violence used, or intended to be used, in the commission of the offence:
[67]
(f) any disregard by the offender for the interests of public safety;
[68]
(g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed:
[69]
(h) the antecedents, age and character of the offender;
[70]
(i) any remorse or lack of remorse of the offender;
[71]
(j) any medical, psychiatric, prison or other relevant report in relation to the offender;
[72]
(k) anything else about the safety of members of the community that the sentencing court considers relevant."
[73]
[23] Paragraph (h) comprehends subsequent offences, which are appropriately described as an offender's "antecedents": see R v Morris [1914] St R Qd 210 at 214, R v Aston (No 2) at 383; see also R v Poulton [1974] VicRp 85; [1974] VR 716 at 720. Subsequent convictions also form part of "the past record of the offender" under paragraph (g) which, like attempts at rehabilitation, comprehends matters post-dating the subject offences. Subsequent offences and convictions may also be relevant to the matters in other paragraphs, including (a), (b) and (i). Subsequent offences and convictions therefore constitute part of the material to which a sentencing court is obliged "primarily" to have regard where s 9(4) applies, as it does here.
[74]
[24] Of course it remains necessary for the sentencing judge to assess the relevance and weight to be afforded to such matters in devising an appropriate sentence. Subsequent offences ordinarily should be given less weight than previous offences, and less weight again than previous offences for which convictions have been recorded. In the latter case, an offender falls to be sentenced on the footing that the offender committed the subject offence both when his or her character was affected by the prior offence and after having previously been subject to the "formal and solemn act marking the court's and society's disapproval" of that earlier wrongdoing: R v McInerney (1986) 42 SASR 111 at 124 per Cox J.
[75]
[25] It is common ground here that the sentencing judge should have taken the subsequent offences into account, but the parties' submissions diverge on the question whether the judge did so and gave appropriate weight to them. The Attorney-General's counsel submits that the sentencing judge erred by not sentencing on the footing that the respondent's subsequent offending prevented him from relying on rehabilitation or a change of attitude so as to justify particular leniency and that his continued offending emphasised the need for personal deterrence.
[76]
[26] The respondent contends that the judge did take the offences into account. His counsel submits that other observations by the sentencing judge show that when the judge remarked that the subsequent offending was "essentially irrelevant" he meant to convey only that it did not justify an increase in the sentence beyond that which the offending merited. If so, the judge did not err. Although subsequent offending might result in a severer sentence than otherwise would have been imposed, the Penalties and Sentences Act 1992 (Qld) left intact the principle that subsequent offences cannot justify the imposition of a penalty that is severer than the offence itself merits. An offender is not to be penalised for an offence other than that for which the sentence is imposed: see Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-8, [1988] HCA 14; Baumer v The Queen (1988) 166 CLR 51 at 57, [1988] HCA 67; Weininger v R (2003) 212 CLR 629 at [32], [2003] HCA 14.
[77]
[27] I think it clear that, although the sentencing judge observed that the subsequent offences were "essentially irrelevant", he did in fact take them into account. The sentencing judge said that the respondent's history showed that he was a "menace on the road", that he "did not learn the lesson he ought to have from the one that sees you in the dock today". The sentencing judge did take into account the subsequent offences as factors limiting a claim to full rehabilitation or remorse, and he also took into account the risk of recidivism by the respondent.
[78]
[28] For these reasons I do not accept that the appellant has established any error of principle by the sentencing judge that materially influenced the sentence.
[79]
[29] There remains the question whether, as the Attorney-General also contends, the sentence imposed for the indictable offence was so lenient as to be manifestly inadequate, thereby demonstrating error.
[80]
[30] At the sentence hearing the prosecutor submitted that the range of appropriate sentences was between two and three years, with suspension or parole a third of the way through. The respondent's counsel sought a sentence of imprisonment coupled with an order that it be served by way of an Intensive Correction Order or an order for full suspension of any term. The sentencing judge adopted a combination of those sentencing options.
[81]
[31] The Attorney-General submits that the authorities support his proposition that the sentence was manifestly inadequate.
[82]
[32] In R v Smith [2004] QCA 126 (to which the sentencing judge referred) the Court, by majority, allowed an offender's appeal against a sentence of 15 months imprisonment suspended after four months for a period of two years and substituted a sentence of 15 months imprisonment suspended forthwith for an operational period of three years. Smith was a man in his mid-fifties with a good employment and service history and a good record of voluntary community work. Like the respondent he had one previous drink driving offence but unlike the respondent he had no prior criminal history. His blood alcohol concentration was of the order of 0.18 and he drove for about 20 minutes on the Warrego Highway and a country road, wandering across lanes and necessitating evasive action by other vehicles, but not at excessive speed and there was no collision or injury. The Chief Justice (in dissent) characterised Smith's driving as "doing his inebriated best".
[83]
[33] Smith relevantly decided only that, despite the accepted importance of general deterrence, the appropriate order for that less culpable offender who had more favourable antecedents involved a fully suspended term of imprisonment. That decision is of limited relevance here, save that it emphasises the importance of deterrence in sentencing for these offences.
[84]
[34] Counsel for the Attorney-General accepted that cases in which an offender attempted to avoid detection by police and a chase ensued were more serious examples of the offence: see, for example, R v Harch [2003] QCA 315 (18 months imprisonment suspended after four months for an operational period of two years) and R v Coake (1999) 29 MVR 329; [1999] QCA 12 (imprisonment for two years suspended after eight months for an operational period of two years). In those cases the offender's car did not collide with another vehicle and no one was injured but because of the seriously aggravating feature of the offender's attempts to escape those charges do not support the Attorney-General's contention that a non-custodial sentence was manifestly inadequate.
[85]
[35] Of more relevance to this appeal are R v Neil [2001] QCA 41 and R v Cocaris [2005] QCA 407, in which drivers under the influence of drugs were involved in collisions. In R v Neil [2001] QCA 41, a 30 year old man with an extensive traffic history, including four convictions for drink driving, drove with a concentration in his blood of morphine and codeine at a level which could effect his safe operation of his van. He drove from a shopping centre onto the wrong side of a busy road, struck one vehicle on its side and, after remaining on the wrong side of the road, collided head-on with another vehicle. Occupants of both vehicles which the applicant hit were injured, and the applicant sustained the most serious injuries, a broken leg requiring surgery and hospitalisation for almost two weeks. The court refused the offender's application for leave to appeal against the sentence of 18 months imprisonment suspended after four months for an operational period of two years. That decision indicates that a similar period of incarceration was in range for the respondent but it does not support the contention that incarceration was mandatory.
[86]
[36] In R v Cocaris [2005] QCA 407, the offender worked during the night, took some heroin in the morning and (knowing of the potential of her lack of sleep and heroin use to affect her driving) subsequently drove her car onto a busy suburban road. After having driven between three and four kilometres she apparently collapsed or fell asleep. She drove above the speed limit and onto the incorrect side of the road and collided with an oncoming car. The other driver sustained a fracture of his tibia and a laceration, characterised as "just shy" of grievous bodily harm. Cocaris sustained a broken ankle, a broken collarbone and two fractured vertebrae. She was sentenced in the Brisbane District Court to 15 months imprisonment suspended after three months for an operational period of two years. The Court allowed an appeal and substituted a sentence of two months imprisonment followed by probation for a period of 12 months. The appeal was allowed because the sentencing judge was found to have erred in simply suspending the sentence rather than ordering probation. After an analysis of the authorities, Jerrard JA held that it was proper to modify the actual time in custody "to place it more at the mid point of the range".
[87]
[37] It appears, as counsel for the Attorney-General accepted in argument, that the Court considered that the sentencing range for Cocaris included a sentence with no period in actual custody. Indeed, McMurdo P, with whose reasons and Jerrard JA's reasons Muir JA agreed, observed that a period of actual custody for that offender was not mandatory. (That view finds support also in the somewhat less serious case of R v Simpson [2001] QCA 109, in which an offender with a previous drink driving conviction drove dangerously whilst affected by an excessive blood alcohol concentration, caused a collision in which one other person was injured, and was given a wholly suspended sentence).
[88]
[38] I do not accept the submission made for the respondent that the fact that he was affected by alcohol rather than heroin rendered his offence less culpable than that of Cocaris. There is no indication that the Court acted on any such view in Cocaris or Neil. The relevant element of the crime charged here, for which the maximum punishment is 400 penalty units or five years imprisonment, is that the offender is "adversely affected by an intoxicating substance": s 328A(2).
[89]
[39] In other respects the respondent's offending was more culpable than that of Cocaris, in that he drove recklessly with a passenger in his vehicle. Further, five people were injured in the collision he caused, although their injuries were not as serious as those suffered by the other driver injured in the collision with Cocaris' vehicle. The respondent also has less compelling personal circumstances: Cocaris had only one previous traffic infringement, a speeding offence, and no prior criminal history, and she was able to point to her demonstrated remorse and significant efforts towards her own rehabilitation.
[90]
[40] Nevertheless, Cocaris, like the other authorities cited to the Court, is not inconsistent with the view that it was within the sentencing judge's discretion to structure a sentence that involved either no period in actual custody or at least only a short period in actual custody.
[91]
[41] It is necessary then to turn to the facts of this case to decide whether the sentence was inadequate.
[92]
[42] The mitigating factors here were the respondent's relatively young age, the contributing effect of his depression, that he was in employment whilst in the course of completing his motor mechanic apprenticeship (with only some seven months to complete), the material suggesting that after the subsequent offences the respondent had developed some greater (albeit still limited) insight into his offending and how to avoid future offending, and the respondent's early plea of guilty.
[93]
[43] It was open to the sentencing judge, who had this material and the respondent before him at the sentence hearing, to form the view that the respondent would most effectively be deterred from any future offending of this character and aided in his rehabilitation by the combination of the suspended term of imprisonment and the Intensive Correction Order. But even so, in my opinion the respondent's personal circumstances were not so favourable as to explain the absence of any requirement that the respondent serve a period in actual custody, particularly when one recalls his subsequent offending, the absence of demonstrated remorse, and particularly the necessity to attribute particular significance to the deterrent aspect of sentencing for these offences. In my respectful opinion the sentence gave too much weight to mitigating factors and insufficient weight to deterrence. I consider that the sentence for the respondent should have involved at least a short period in actual custody.
[94]
[44] There are, however, a number of matters that militate against this Court now re-sentencing the respondent to a term of imprisonment that requires his incarceration.
[95]
[45] It is necessary now to take into account that the respondent has served three months of the intensive correction order imposed by the sentencing judge in respect of the six months imprisonment for the summary offence, a sentence which it is conceded must be set aside because the judge acted upon the prosecutor's incorrect submissions described earlier.
[96]
[46] The Court should also accept the submission for the Attorney-General that a moderate approach should be taken in appeals by the Attorney-General, which involve an element of double jeopardy for an offender: see R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588, [2006] QCA 477 at [15], [43]; and see R v AS; ex parte A-G (Qld) [2004] QCA 259 at [30], R v Dullroy and Yates; ex parte A-G (Qld) [2005] QCA 219 at [27], and R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [156].
[97]
[47] The respondent's counsel supplied the Court with a favourable report from the respondent's Community Corrections Officer to the effect that in the intervening months since the respondent was sentenced he has complied satisfactorily with the requirements of his Intensive Correction Order and co-operated with and abided by all directions of his supervising officers. I understood the Attorney-General's counsel to accept that the authorities require that caution should be exercised when an appeal court is urged to send to prison for a relatively short time an offender who has been released into the community, particularly one who has complied with the requirements of a non-custodial sentence: R v Solway & Attorney-General of Queensland [1995] QCA 374; R v Welch & Attorney-General of Queensland (1996) 24 MVR 284, [1996] QCA 165; R v Hoffman; ex parte Attorney-General (1997) 98 A Crim R 177, [1997] QCA 377; R v Kopa; ex parte DPP (Cth); R v Istogu; ex parte DPP (Cth) (2004) 206 ALR 197, [2004] QCA 100 at [27]: R v Sittczenko; ex parte DPP [2005] QCA 461 at [27]; see also R v Poynter, Norman and Parker; ex parte A-G (Qld) [2006] QCA 517 at [52], [57], [82].
[98]
[48] Although the sentence imposed upon the respondent was distinctly lenient, taking all of these matters into account I consider that, on balance, it is not appropriate now to impose a custodial sentence.
[99]
[49] It remains necessary, however, to deal with the problem that the Intensive Correction Order, an important part of the sentence, must be set aside for the reasons I earlier mentioned, which are not of the respondent's making.
[100]
[50] In this unusual combination of circumstances, I would accept the submission made for the respondent that the mistake in the sentence imposed for the summary offence should be rectified in a way that preserves the overall structure of an Intensive Correction Order coupled with a suspended term of imprisonment.
[101]
[51] The orders I propose are set out below. In summary, the respondent would be required to serve a total term of imprisonment of nine months by way of an Intensive Correction Order (another six months on top of the three months already served) whilst at the same time being sentenced to imprisonment for three months (the maximum available for the summary offending), that imprisonment to be wholly suspended for an operational period of four years.
[102]
[52] The Intensive Correction Order would run from the date this Court delivers judgment and it could be imposed only with the respondent's consent, which the respondent's submission conveyed. The Attorney-General's counsel did not contend that this was an inappropriate form of orders if the Court did not accede to his submission that a period of actual custody should now be imposed.
[103]
[53] The appeal should be allowed. I would vary the sentence imposed in the District Court for the summary offence by substituting for the sentence of imprisonment for six months and the order that the respondent serve that term as an Intensive Correction Order a sentence of three months imprisonment and an order that the whole term of imprisonment be suspended forthwith for an operational period of four years. Otherwise I would confirm the sentence and orders in the District Court in relation to the summary offence.
[104]
[54] I would set aside the sentence for the indictable offence, re-sentence the respondent for that offence to a term of six months imprisonment and order, with the consent of the respondent, that the respondent serve that six month term of imprisonment as an Intensive Correction Order and that the respondent comply with the requirements set out in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.