• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Toowoomba

DELIVERED EX TEMPORE ON: 22 April 2004

DELIVERED AT: Brisbane

HEARING DATE: 22 April 2004

JUDGES: de Jersey CJ, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, Jerrard JA and Holmes J concurring as to the orders made, de Jersey CJ dissenting

ORDER: The sentence imposed in the District Court on 1 April 2004 be varied to provide that the sentence of 15 months’ imprisonment be suspended forthwith for an operational period of three years, the operational period to date from 1 April 2004

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 GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to the dangerous operation of a motor vehicle while adversely affected by alcohol – where sentenced to 15 months’ imprisonment suspended after four months for a period of two years – where applicant appeals on the ground that the sentence was manifestly excessive – whether the sentence is excessive having regard to comparable cases

R v Coake [1999] QCA 12, CA No 403 of 1998, 5 February 1999, considered R v Collier [2003] QCA 314, CA No 236 of 2003, 24 July 2003, considered R v Gehrman [2002] QCA 261, CA No 192 of 2002, 25 July 2002, considered R v Harch [2003] QCA 315, CA No 237 of 2003, 24 July 2003, considered R v Harvey-Sutton [2003] QCA 229, CA No 83 of 2003, 27 May 2003, considered R v Parker [2003] QCA 316, CA No 139 of 2003, 24 July 2003, considered R v Simpson [2001] QCA 109, CA NO 309 of 2000, 21 March 2001, considered

COUNSEL: I A Entriken for the applicant B G Campbell for the respondent

SOLICITORS: Clewett Corser & Drummond for the applicant Director of Public Prosecutions (Queensland)

THE CHIEF JUSTICE: The applicant pleaded guilty on an ex officio indictment in the District Court to the dangerous operation of a motor vehicle while adversely affected by alcohol.

An hour after ceasing driving his blood alcohol concentration was .182. In the context of a maximum penalty of five years' imprisonment he was sentenced to 15 months' imprisonment suspended after four months for a period of two years and he was disqualified from holding or obtaining a driver's licence for two and a half years. He seeks leave to appeal on the ground the penalty is manifestly excessive.

At the time of the offence, which was committed on the 22nd of August 2003, the applicant was 54 years of age. He is an avionics technician with a good employment and service history and a good record of voluntary community work. His counsel emphasised those features in relation to this application.

He had no prior criminal history but he did have a relevant traffic history. Approximately 18 months before committing this offence he drove while his blood alcohol concentration was .098 for which, on 23rd February 2003 he was fined $400 and disqualified for three months. He subsequently had a provisional licence until the 23rd of May 2003 and then three months later this incident occurred.

The driving took place over about 20 minutes while the applicant was driving east between Oakey and Toowoomba on a Friday afternoon at about 5.30 p.m. He was driving on the Warrego Highway and in O'Mara's Road, Charlton. Another driver observed erratic driving on the part of the applicant with the vehicle wandering across lanes onto the shoulder of the road necessitating evasive action by other vehicles including by a prime mover and semi-trailer. It was not a case of excessive speed and there was no collision or injury. It may be thought that the applicant was doing his inebriated best.

So the full flavour of the driving may be appreciated I propose reading from the prosecutor's submissions to the sentencing judge:

"The subject driving occurs … between the town of Oakey and Toowoomba. That road is generally a single carriageway in each direction, although there are a number of overtaking lanes along that road. The speed limit on that road there is between 80 and 100 kilometres an hour, although speed is not alleged to be a factor in the dangerous driving.

The offence occurs in the afternoon and continues from approximately 5.20 p.m. until about 5.40 p.m., a period of about 20 minutes. The offence was disclosed by a member of the public … He himself was driving a vehicle between Oakey and Toowoomba and he observed the driving a Mitsubishi utility in the same direction, that is towards Toowoomba.

He initially observed the vehicle about eight kilometres out of Oakey heading towards Toowoomba and shortly thereafter as a result of what he observed he, in fact, contacted the police on his mobile phone and then gave police a running commentary on the present [applicant's] driving.

He observed the [applicant] driving along the highway and on numerous occasions he initially saw the [applicant's] vehicle swerving around the marked lane and onto the dirt shoulder of the road. He also observed the [applicant's] vehicle swerving and crossing over the centre line of the highway as oncoming traffic was approaching.

He observed the vehicle only contained the [applicant]. As they continued along towards Toowoomba they approached an overtaking lane where there were two carriageways heading in an easterly direction. Mr Stark, on that occasion, as a result of conversations he had with the police, took the opportunity to overtake the [applicant's] vehicle.

Prior to that he observed the [applicant's] vehicle swerving over both those lanes and he overtook the vehicle. As he overtook it, the [applicant's] vehicle wandered across both lanes and, in fact, nearly cut him off. His observations were such that he doesn't believe that that was a deliberate act, but just a simple result of inattention and intoxication …

When he proceeded in front of the vehicle, he then commenced to slow his vehicle down in order to get the [applicant] to slow down and hopefully stop his driving. He did that and continued to watch the [applicant's] vehicle in his rear vision mirror and again observed it wandering over the road and crossing out of the laneway.

Ultimately the [applicant's] vehicle then overtook Mr Stark's vehicle. Mr Stark continued to observe the [applicant's] vehicle following that. He observed again it swerving all over the road. On occasions he was travelling with the driver's side wheels on the centre line. On one occasion he crossed the centre line and a semitrailer had to move off out of its lane onto the shoulder to prevent an accident.

Mr Stark also observed on a number of occasions that other vehicles had to take evasive action. Mr Stark followed the [applicant] all the way till he pulled into his home in Toowoomba and police subsequently attended. They located the prisoner … within the house."

Counsel for the applicant sought a penalty which would involve no actual incarceration. The learned sentencing judge, notwithstanding the plea of guilty and other mitigating features, considered however that general deterrence warranted some actual imprisonment in this case.

A review of similar cases confirms to my mind that actual imprisonment is accepted as justified in generally comparable circumstances. Whether or not actual imprisonment is imposed, of course, depends on all the circumstances of the case and as I will mention a little later on it is the previous conviction here which, to my mind, is the applicant's burden in promoting this application.

That imprisonment may be imposed is, of course, consistent with the substantial potential danger to other road users and pedestrians inevitably associated with driving motor vehicles while substantially intoxicated.

General deterrence is a primarily important sentencing criterion in this area where offending persists, notwithstanding saturation media coverage of the dangers.

Quite recently the Court of Appeal, on 24th of July 2003, dealt with three cases in which actual incarceration was upheld, cases where no personal injury had resulted.

R v Parker [2003] QCA 316, CA No 139 of 2003, 24 July 2003, was sentenced to 18 months' imprisonment suspended after six. His blood alcohol concentration was .219. He was dealt with on the basis he had no relevant prior traffic history. That driving involved a police chase over about a kilometre. He was 27 years old and had taken steps towards rehabilitation.

R v Harch [2003] QCA 315, CA No 237 of 2003, 24 July 2003, was a 20-year old who drove with a blood alcohol concentration of .191. He was sentenced to 18 months' imprisonment suspended after four months. He had previously been convicted of driving while under the influence of liquor with a concentration then of .056. That case involved more dangerous driving than occurred here. But then again he was a much younger driver.

R v Collier [2003] QCA 314, CA No 236 of 2003, 24 July 2003, was 18 years old and his blood alcohol concentration was .163. He had no prior traffic history. He drove dangerously over about two kilometres with police following and voluntarily pulled over. His penalty, three months' imprisonment followed by 12 months' probation, was sustained.

By contrast this applicant was substantially older and had the prior traffic history and drove dangerously for a much more substantial period.

Especially bearing in mind this applicant's more mature age and that prior conviction 18 months before, those recent cases would, in my view, support the penalty imposed here notwithstanding the lack of police intervention or chase.

Were it not for the prior conviction and his offending again relatively soon after working through the consequences of that earlier offending he should not have been imprisoned.