R v Isaac[2001] QCA 95

COURT OF APPEAL

McPHERSON JA

WILLIAMS JA

MOYNIHAN J

BRISBANE

DATE 14/03/2001

JUDGMENT

McPHERSON JA:  The applicant was convicted on his own plea in the District Court of the offence of dangerous operation of a motor vehicle with a circumstance of aggravation.  The circumstance of aggravation was that his blood contained a percentage of amphetamine or methylamphetamine at the time the vehicle was being operated. 

He was sentenced to imprisonment for two years suspended after six months with an operational period of two and a half years.  He was also disqualified for two years from holding or obtaining a driver's licence.  He now applies for leave to appeal against his sentence essentially on the ground that it is manifestly excessive.  He argues that the sentence should have been for a period of nine to 12 months imprisonment suspended after serving three months.

The circumstances of the offence can be described as follows: it was committed at about 11.30 on Thursday, 11 November 1999 at Morayfield.  At that time or that day the applicant was observed by patrolling police officers driving a motorcycle from a shopping centre car park on to a public street at that place. 

They endeavoured to intercept him but he accelerated away through a stop sign.  Because there has been some contention on the hearing of this application that the detail of what happened next is not correctly stated in the Crown's written outline in this matter, I will read what was said by the Crown Prosecutor at the hearing. 

"They, that is the police officers, saw a red Honda motorcycle exiting the car park onto Visentin Street travelling south.  They checked the registration plate and found it to be and found it to be cancelled.  They activated their sirens and lights indicating to the driver to stop.  The driver, who the prosecution is this prisoner, then accelerated through a stop sign without stopping.  He continued accelerating in excess of 90 kilometres per hour along the road towards the roundabout at the intersection of Station Road and Morayfield Road. 

What happened then was that he braked heavily and traversed onto the incorrect side of the traffic island prior to the intersection travelling about 30 metres on the incorrect side of the road.  He continued into the roundabout.  He traversed it in an incorrect direction travelling in the inside lane of the two lanes.  A four-wheel drive and other vehicles were travelling north on Morayfield Road.  They had to brake heavily to avoid collision.  The police also braked heavily and they saw the prisoner also brake and swerve towards the front of the four-wheel drive coming to a stop.

He managed to stop before collision.  The police then apprehended him.  They thought he was what they call affected by a substance.  He was restless, talkative and thirsty.  His eyes appeared to glazed.  He was then taken to a hospital where a blood sample was obtained and it was found that his levels of drug were methylamphetamine point 37 milligrams per kilogram and also amphetamine detected at point 02 milligrams per kilogram. 

A statement was made by Dr Carroll about the likely effects of using or the common effects of using amphetamine and I do not need to quote from it in detail beyond saying that Dr Carroll said that it produces euphoria, an increased sense of wellbeing, heightened mental acuity, decrease in fatigue and enhancement of wakefulness."

The applicant, once apprehended, co-operated with the police and he pleaded guilty at an early stage or indicated his intention of doing so.  That was a matter which his Honour said he took into account in arriving at the sentence imposed.

The personal circumstances of the applicant are that he was aged 35 at the time of the offence and he has a prior criminal record including previous convictions for drug offences in 1984 and 1999 and previous motor offences including driving under the influence in 1985, 1986 and 1987 and having his driver's licence suspended or taken from him on four occasions.  It may be added that the maximum penalty for this offence is five years imprisonment. 

At the hearing submissions were heard on the proper or appropriate range of sentence in cases of this kind.  It was suggested, by counsel for the prosecution, that a term of up to two years as a head sentence was appropriate level. 

It appears to have been accepted by counsel for the defence that a head sentence of up to two years with suspension after three to six months was not inappropriate.  Now, as I have mentioned, the applicant contends for a sentence, a head sentence, of one year suspended after three months. 

I must say, for my part, that it does not seem to me that there is much difference between the various contentions that are being put forward.  Some authority for a sentence within the range or ranges I have mentioned is to be found in The Queen v. Coake (CA 403 of 1998). 

However that may be, my view of this matter is that any attempt to alter the sentence to introduce a sentence of the level which is now argued for would not be justified.  It was within the discretion of the sentencing Judge to impose a sentence of the order that he did.  He has not been shown to have made any error in the exercise of his discretion and I do not think, particularly having regard to the concessions that were made below and the sentence that is now argued for by the applicant, that there is any basis for saying that the sentence imposed here was excessive.

In those circumstances I would refuse the application for leave to appeal. 

WILLIAMS JA:  I agree.

MOYNIHAN J:  So do I.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.

MR WESTON:  Thank you, your Honour.  There is just - may I just - he applied for bail and was granted bail.  Do your Honours have to issue a warrant then in the circumstances?

McPHERSON JA:  Yes, thank you for the intimation.  We will order that a warrant issue and that it lie in the Registry for seven days.