R v Foreman[2000] QCA 71

COURT OF APPEAL

McMURDO P

DAVIES JA

MOYNIHAN J

CA No 273 of 1999

THE QUEEN

v.

FOREMAN, Anthony Ronald (Applicant)

BRISBANE

DATE 15/03/2000

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court at Ipswich on 20 July 1999 to offences, the first that on 19 March 1998 he drove without due care and attention, and the second that on 14 August 1998 he unlawfully used a motor vehicle with a circumstance of aggravation.  On the first of these he was given three years probation, and on the second of these he was sentenced to three years imprisonment, wholly suspended, an operational period of three years.  He seeks leave to appeal against those sentences.

It is common ground between the parties that in imposing those sentences the learned sentencing Judge's sentencing discretion miscarried.  A sentence of imprisonment and a probation order cannot be ordered to run concurrently: R v. Hughes [2000] QCA 16 at [6] and [12].  Accordingly, those sentences must be set aside, and this Court must exercise its sentencing discretion afresh.

At the time he committed the first of these offences, the appellant was also driving under the influence of alcohol and driving whilst unaccompanied on a learner's permit, and he was sentenced on those offences at the same time.  They arose out of an incident which occurred, as I have said, on 19 March 1998 when the appellant turned right off the road and drove into a shop.  He attempted to leave by putting his vehicle into reverse, but was unsuccessful.  He was found to have a blood alcohol reading of 0.188 per cent.

The second offence was much more serious.  The complainant's vehicle was found in a stripped condition.  What remained of it after stripping had been pushed into a creek.  A number of its parts were found lying in a paddock.  The applicant admitted to having stripped the car, removing the parts for his own vehicle.  The vehicle was written off and both the complainant and the insurance company suffered loss.

At the time of the commission of these offences the applicant was only 18 years of age.  He was 19 by the time he came to be sentenced.  He had a very minor criminal history, having been convicted and fined only in respect of possession of a dangerous drug, presumably marijuana.  However, he had a poor traffic history, having been fined on a number of occasions for unlicensed driving, and on one occasion for careless driving.  It follows that he had not previously been in gaol, nor had the benefit of probation or community service.

There is no doubt, as I have said, that the second of the offences I have mentioned is quite serious.  On the other hand, the question before this Court is not whether the applicant should serve a term of imprisonment, but whether a wholly suspended term of imprisonment or a probation order, perhaps coupled with an order for community service, is more appropriate.

There is no doubt in my mind that the latter is more appropriate.  The applicant is at an age where he appears to be in need of some supervision, and an order for probation would ensure that.  As well, it is desirable that he perform some useful community work in order to impress upon him the seriousness of his conduct and the need to instil in him some sense of community responsibility.

Accordingly, I would allow the application, and set aside the sentences imposed below.  I would then, in respect of the first of the offences which I have mentioned, subject to his consent, order that he be released under the supervision of an authorised Corrective Services Officer for a period of 12 months, and in respect of the second, I would order, again subject to his consent, that he be ordered to be released under the supervision of an authorised Corrective Services officer for a period of three years; those terms, of course, to be concurrent.

Mr Callaghan, who appears for the applicant, has indicated that the applicant consents to those orders, and also to an order for community service, which I would also order.  I would order that, in respect of the second of the offences I have mentioned, that the applicant be required to perform unpaid community service of 120 hours.  The orders in each case should contain the requirements provided by the Penalties and Sentences Act.  In my view, convictions should be recorded in respect of both offences.

THE PRESIDENT:  I agree with what has been said by Justice Davies and with the order he proposes.  I would only add that whilst this may not necessarily have been an appropriate case to impose a concurrent suspended sentence with probation, such a combination of sentences is often a sensible outcome, although presently unlawful.  See R v. Craig David Hughes [2000] QCA 16, CA 306 of 1999, 11 February 2000, especially the comments of Thomas JA.  The legislature may wish to review this situation.

MOYNIHAN J:  I agree with what has been said and the order proposed.

THE PRESIDENT:  The order is as proposed by Justice Davies.