R v Macdougall[2002] QCA 423

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded guilty on the 30th of April 2002 to one count of dangerous operation of a motor vehicle.  He was sentenced to three months' imprisonment, wholly suspended, with an operational period of 12 months, and disqualified from obtaining or holding a driver's licence for a period of six months.

The applicant was 38 years old at the time of the offence in April 1999, and was 41 at sentence.  He has a lengthy criminal history for petty offences of dishonesty, drugs, traffic and street offences, commencing in Queensland as a young person and continuing throughout the 1980s in both New South Wales and Queensland.  In 1980 he was convicted of driving a motor vehicle with a blood alcohol content of 0.1 per cent and unlicensed driving.

APPLICANT:  That's not relevant, your Honour.  It's more than 20 years old.

THE PRESIDENT:  Would you sit down and not interrupt me.  And in 1984‑‑‑‑‑

APPLICANT:  I'm sorry, your Honour, it's not relevant.

THE PRESIDENT:  ‑‑‑‑‑he was again convicted of driving a motor vehicle with a blood alcohol content this time of 0.08 per cent and unlicensed driving.

In 1988, he was convicted in the Sydney District Court of demanding money with menaces, four counts of break, enter and steal, and one count of possession of housebreaking implements.  A number of other matters were taken into account, and he was sentenced to four years' imprisonment.  Parole was set‑‑‑‑‑

APPLICANT:  That's incorrect, your Honour, it was six and a-half with three and a-half‑‑‑‑‑

McPHERSON JA:  Now I tell you - I tell you to sit down.

APPLICANT:  Well, can you remove me from the Court, please?

McPHERSON JA:  Sit down - sit down or you‑‑‑‑‑

APPLICANT:  This information is incorrect.

McPHERSON JA:  You - you sit down.

APPLICANT:  It's incorrect, your Honour.  That's not the sentence.

McPHERSON JA:  I call on you - I call on you‑‑‑‑‑

APPLICANT:  Get us handcuffs, get us out of here.

McPHERSON JA:  ‑‑‑‑‑to show cause why you shouldn't be committed for contempt.

APPLICANT:  Does it matter anymore?

McPHERSON JA:  Yes, it does.

APPLICANT:  You're reading a false history.

McPHERSON JA:  Stand up and I'll talk to you.

APPLICANT:  Your Honour, I have no history there‑‑‑‑‑

McPHERSON JA:  I call on you to show cause why you shouldn't be committed for contempt.

APPLICANT:  God, because it costs the Queensland taxpayer $60,000 a year to lock up a person on contempt.

McPHERSON JA:  Now, are you going to behave yourself and not interrupt anymore, because if you are, you may very well get a longer prison sentence.

APPLICANT:  Can you - this Court show me‑‑‑‑‑

McPHERSON JA:  Sit down.

APPLICANT:  ‑‑‑‑‑where the four year sentence is.

McPHERSON JA:  Sit down.

APPLICANT:  No.

McPHERSON JA:  Sit down.  And don't interrupt any more.

THE PRESIDENT:  Mr Copely, have I said something incorrect?

APPLICANT:  I'd prefer for him to take us out.

MR COPELY:  Not to my - not to my recollection, your Honour.

THE PRESIDENT:  Thank you.  Parole was set on 11 August 1991.  In 1991, he was convicted in Queensland of unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence, and two counts of armed robbery in company.  These offences occurred in 1988.  He was also charged with one count of escaping legal custody on about 11 January 1991.  He was sentenced to an effective term of five years' imprisonment, with a recommendation for parole after serving 18 months.  He was released on parole in Queensland in September 1992.  In 1994, in the Sydney District Court, he was sentenced to a minimum of two years' imprisonment for supplying a prohibited drug, the offence occurring after his release on parole in Queensland.  It seems his Queensland parole was cancelled on 20 May 1993 for failing to comply with its conditions, but he was not returned to custody in Queensland on those offences until 6 August 2001, and is now serving the remainder of the sentence imposed in 1991.

The offence the subject of this appeal occurred in these circumstances.  The applicant was living in Sydney and returned to Brisbane to attend his father's funeral.  After the funeral, he sought consolation with friends.  He was depressed, upset, and crying, and was very tired, having driven from Sydney without stop.  About two hours after the funeral, at about 3.15 p.m., he drove along Deception Bay Road towards Redcliffe in a Ford sedan with a woman passenger.  He was swerving in his lane and sideswiped a green Nissan Urvan bus, damaging it.  He did not stop, and turned left off Deception Bay Road into another street, running into the back of a Lexcen station wagon, which was stopped at traffic lights.  Again, he did not stop, but backed away and drove off.  The driver of the station wagon initially tried to follow the applicant, but soon gave up the chase.  She was shaken and upset but, fortunately, otherwise uninjured.  It seems the applicant's car, by this time, had a flat tyre, which further affected its safe performance at speed.  In the inaptly named, at least that day, Tranquillity Drive, the applicant dramatically hit a third vehicle.  The passenger took the keys out of the vehicle and attempted to ring the applicant's brother for assistance.  She flagged down a passing police car.  The applicant was questioned by police and taken to the police station.  Fortunately, perhaps miraculously, no one other than the applicant, who suffered a bleeding nose, received any significant physical injury.

The prosecutor invited the Judge to also take into consideration in passing sentence an offence of failing to supply a breath specimen, which offence was then currently before the Magistrates Court, in the hope that when the applicant appeared before the Magistrates Court, the Magistrate would impose a concurrent or similar sentence to the fully suspended sentence, which the prosecutor urged the Judge to impose for this offence.  The prosecutor's suggestion was plainly to assist the applicant, who was self-represented at his sentence, as he is on this application.  The applicant made no complaint about the course proposed by the prosecutor in his articulate sentencing submissions before the primary Judge.

The applicant appears to now contend that the Judge wrongly took into account the summary offence of failing to provide a breath specimen, when his plea of guilty to the dangerous driving charge did not involve any circumstance of aggravation.

It should first be noted that the Judge did not formally take that matter into account under section 651 Criminal Code.  There is nothing in the Judge's sentencing remarks to suggest that a heavier penalty was imposed because of the failure to provide a breath specimen.  The Judge made it plain in his sentencing remarks that he was mentioning the summary offences only because, in his view, the applicant should not be punished further for those matters, even if they were established.

This is certainly not a case of double jeopardy, where section 16 or section 17 of the Criminal Code has application.  No conviction or additional penalty was imposed by the Judge in respect of the Magistrates Court offences.

The applicant also complains that a circumstance of aggravation is not an offence, but that is an irrelevant complaint because he was not convicted or sentenced in respect of any circumstance of aggravation.  There is nothing in this contention.

The applicant next contends that the offence of dangerous driving simpliciter could and should have been dealt with in the Magistrates Court, and was a simple offence.  The offence of dangerous driving was a matter that could properly proceed on indictment, and there is no question that the District Court clearly had jurisdiction to hear this matter.  There is nothing in this complaint.

The applicant contends that this was an appropriate case for a declaration as to pre-sentence custody.  As the applicant was in custody in respect of other matters, and not solely in respect of this matter, that is not so, but in any case, no declaration was necessary in respect of the sentence imposed because it was fully suspended.  This contention is also without merit.

The applicant's real complaint at sentence and here concerns the authority of the warrant cancelling his parole on the Queensland offences and whether his time in custody in New South Wales should be taken into account as time served for the breach of parole of his Queensland offences. 

He seems to be upset at the considerable delay in executing that warrant having, he contends, lived freely and openly in New South Wales for some years after his release from prison.  He claims that when he was released from custody there, he made inquiries and understood there were no warrants in existence for his arrest.  In November 1993, he claims he openly returned to Queensland to give evidence of a trial, and learnt nothing of any warrant.  Upon his release from prison in New South Wales, he says he worked as a volunteer in community groups, mixing with New South Wales politicians and members of the New South Wales Bar Association.  He says he was an active advocate in New South Wales for prisoners' rights.

He received a bravery commendation as a result of his actions in October 1997 in saving the occupants of a house which was on fire.  He was injured in the course of his attempts to rescue the occupants.

More recently, he says he openly visited his ailing father in Queensland after learning of his father's diagnosis with cancer.  It should also be noted that he tendered a number of favourable references at sentence.

The applicant's concern as to the legitimacy of the warrant for his extradition and/or arrest on the matters constituting the breach of parole in Queensland and the cancellation of his parole are not matters that affect this application.

I should mention that he also claims that if the warrant of extradition is flawed, the Queensland District Court could not have had jurisdiction to deal with this matter, but no material placed before this Court establishes that the warrant of extradition was flawed or that this had any effect on the jurisdiction of the District Court.

The appellant has also asked us to remit this matter to a Judge of the Supreme Court, but that is not a course which is appropriate in an application for leave to appeal against sentence.  If the applicant wishes to pursue his complaints as to the legitimacy of the warrant, and as to the interpretation by Corrective Services of his parole breaches, that is a matter which should be pursued by him in a proper application before the Supreme Court.

I should also mention that in his written submissions, the applicant seeks to raise issues of fraud on the part of the Corrective Services Department, but again, these matters are irrelevant to his application for leave to appeal against sentence.

All that can be said is that the sentence imposed was a merciful one for conduct which was plainly dangerous and serious, and which caused a significant amount of property damage.  It is most fortunate that no one was maimed or killed.  The applicant had a significant criminal history.  The sentence was lenient and in no way manifestly excessive.  Because it was fully suspended, it has no effect on any sentences he was currently serving on other matters.

I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

CULLINANE J:  I also agree.

THE PRESIDENT:  That is the order of the Court.