Kroon v Hutchins[1997] QCA 200

COURT OF APPEAL

DEMACK J

DOWSETT J

HELMAN J

CA No 161 of 1997

RICHARD WAYNE KROON

v.

MARK RICHARD HUTCHINS Applicant

BRISBANE

DATE 17/06/97

JUDGMENT

DOWSETT J:  The applicant was born on 9 February 1967 and is therefore aged 30 years.  He was convicted on his own plea of five charges of dangerous driving, all of which occurred on 10 April 1997.  On each charge he was sentenced to imprisonment for a period of 12 months, suspended after six months for an operational period of three years, the sentences to be concurrent.

The circumstances were these.  On 9 April 1997 the police at Mossman received information that the applicant was threatening to commit suicide and had consumed a quantity of alcohol and amphetamines.  They began looking for him, and about 3.20 a.m. on 10 April, a police officer driving north along the Mossman/Daintree Road passed him travelling in the opposite direction.  He was pursued with the lights on the police vehicle operating.  The applicant's car accelerated away and a chase ensued which lasted from Mossman to Caravonica on the outskirts of Cairns.

It was alleged that the applicant drove his motor vehicle dangerously.  He regularly exceeded the speed limit and crossed the centre line.  He travelled at speeds up to 150 kilometres per hour.

On other occasions he travelled very slowly swerving across the road before accelerating rapidly away.  On occasions he drove very close to police vehicles which were trying to apprehend him.

It is sufficient to say that he drove over a protracted period, travelling at great speed and quite erratically, in ways which offered danger to himself, to other road users and in particular, to the police who were legitimately trying to apprehend him.

When apprehended he smelt of liquor and subsequently told the doctor that he had consumed a substantial amount of speed. Blood specimens were taken but no doubt because of the expedition with which the matter was disposed of, the relevant analysis was not to hand.

The applicant had some previous history for drink-driving going back to 1985 and had been disqualified from driving for a period of six months as recently as February 1997 in Sydney.  This was also for drink-driving.  In those circumstances he was to be treated as a person with a significantly bad driving record involving drink-driving.  As I have said, there was at least a suggestion that he had been drinking on this occasion.  In those circumstances a significant penalty was called for, and there can be no doubt that a period of imprisonment was justified.  I find myself unable to disagree with the learned Magistrate in fixing a period of 12 months as the appropriate head sentence.

It is conceded by the prosecution, however, and I believe correctly, that this sentence did not of itself reflect the credit due to the applicant for his early plea of guilty. 

The Magistrate ordered that the sentence be suspended after a period of six months for an operational period of three years.  This does nothing more than give the credit that would normally be available by way of parole.

In the circumstances something more than that was called for in order to recognise the early plea.  I consider that appropriate recognition would have been given by providing for suspension after a period of four months with the same operational period of three years.

As has already been indicated, the applicant chose not to appear to argue his application, but brief written reasons in support have been provided to us.  In effect, the applicant submits that he acknowledges that he deserved a prison sentence but that he has now learned his lesson and feels that it is time for his release.  He is concerned that he may be able to save his business if he is released prior to August of this year.  He also thinks that he is likely to be able to rehabilitate himself from his previous reliance upon drugs and alcohol.

I have of course taken these matters into account in reaching the decision to which I have referred.  It is my view, therefore, that the applicant should be granted leave to appeal, that the appeal should be allowed and that the sentence imposed below in respect of each count should be varied by changing the period after which the sentence is to be suspended from six months to four months.

DEMACK J:  I agree.

HELMAN J:  I agree.

DEMACK J:  The orders will be as proposed by Mr Justice Dowsett.