R v Obern[2002] QCA 444

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

[2]  JERRARD JA:  On 17 November 1999 the applicant Herbert Obern parked his Toyota Utility in Wickham Street in the Valley in Brisbane at about 7.45 a.m.  Where he parked was a clearway from 7.00a.m to 9.00a.m. each Monday to Friday.  An officer of the Queensland Police Service, Hunter Nicol authorised two employees from Ready Towing to remove the vehicle.  Mr Obern returned to the utility as preparations were being made to tow it away.  He entered the vehicle, and ignored Senior Sergeant Nicol’s identification of himself as a police officer, and his instructions to turn the utility engine off.  Senior Sergeant Nicol feared Mr Obern might drive over one of the tow truck employees, who was crouched at the front of the utility trying to chain it.  Sergeant Nicol attempted to remove the key from the vehicle, and Mr Obern seized Sergeant Nicol’s arm, reversed the vehicle, and then drove forward with the police officer’s arm trapped inside the vehicle.  He drove across Wickham Street dragging with him the police officer, whose legs forcefully struck a pole, reversed the vehicle, and then drove further down Wickham Street.  Senior Sergeant Nicol freed his arm and seized Mr Obern by the throat.  Mr Obern stopped the car, and was arrested for dangerous driving and disobeying a direction. Sergeant Nicol had been calling out throughout to Mr Obern to stop his vehicle, and his life had been placed in danger by Mr Obern’s refusal to do that.

[3] Senior Sergeant Nicol suffered a significant injury to his right lower leg from its collision with the pole, and spent nearly three months in hospital with his lower leg, ankle, and foot in plaster.  He spent about 12 months after that undergoing extensive physiotherapy and rehabilitation.  He has a permanent disability in his right ankle, suffered great pain and continues to suffer pain, and feels restricted in performing his duties properly as a police officer.  A diminishment of promotional opportunities caused by hospitalisation for an operation in April 2000 has caused him financial disadvantage, and his morale has suffered.  He had actually been on his way to start duty at 8.00a.m. at the Fortitude Valley Police Station on 17 November 1999, and had suffered that disabling injury before starting that shift.

[4] Mr Obern pleaded guilty on 1 July 2002 to the offence of dangerous driving causing grievous bodily harm.  That was a late plea of guilty, entered only after jurors had collected in the court for empanellement on a trial.  On his sentence, he contested the fact that he was aware Mr Nicol was a police officer prior to Mr Obern finally stopping his vehicle.  After hearing evidence from the tow truck operators, from another off duty police officer who assisted in removing Mr Obern from his vehicle and subduing him, from Mr Obern, and from Mr Nicol, the learned sentencing judge found that he was satisfied to a high degree of probability that when Mr Obern embarked on his course of dangerous driving, he was aware that the person attempting to stop him was a police officer.

[5] That finding was more than reasonably open on the evidence led before the learned judge, including that of a tape recorded interview about 9.30a.m. that same day with Mr Obern, in which he described the police officer’s first words to him, before that course of dangerous driving began, as being “I’m arresting you”.  Additionally, not only did Mr Nicol describe having shown Mr Obern his police identification and having told him he was a police officer before any driving began that day, he was seen and heard to do so by both employees of Ready Towing.

[6] Mr Obern was born on 9 November 1943.  He has occasionally appeared in criminal courts since 1975, and has twice been convicted for stealing (1984 and 1988) and once for wilfully damaging property (1999).  He has been convicted of resisting police (1994), and obstructing a fire officer in the performance of the duties of that officer (1998).  His record of traffic infringements as a driver include that of failing to give way at a Give Way sign on 16 November 1999, (the day before the offence), and his licence was cancelled on 8 August 2000 as a result of a collection of demerit points.  He was convicted on 13 October 2001of unlicensed driving, and caught speeding on both 25 October 2001 and 26 October 2001.

[7] The interview conducted on 17 November 1999 did not demonstrate that he had the slightest remorse for having caused injury to the person the learned judge found he knew at all relevant times was a police officer, and he certainly knew that at the time of that interview.  The learned sentencing judge accepted the evidence of the witnesses who described the applicant as being aggressive, truculent, and uncooperative on 17 November 1999; and to that one can add that he showed no remorse at any time.  During the contested sentence hearing before the learned sentencing judge on 1 July 2002, Mr Obern described Senior Sergeant Nicol, who was attending work that day in plain clothes, as being “dressed like a bum”.  The remarks of the learned sentencing judge, before whom a photograph was exhibited of Mr Nicol on 17 November 1999, demonstrate that that was essentially a gratuitous and unjustified insult.

[8] The learned judge sentenced the applicant to 12 months imprisonment, and ordered that that term be suspended after Mr Obern had served four months of it.  The operational period of the suspended sentence is three years, and the learned judge disqualified Mr Obern from holding or obtaining a drivers’ licence for five years.

[9] Mr Obern has applied for leave to appeal against that sentence.  The matters urged to his favour before the learned sentencing judge included that he left school at about 14 and had been self employed since his mid twenties.  He holds qualifications in crane driving, rigging and scaffolding, operating excavators and rollers, and he and his wife have raised three children during their 37 year marriage.  Additionally, Mr Obern is a diabetic who is required to take medication daily, and suffered a permanent injury to his left arm in an accident on a building site in 1988.  He lives in Townsville, and had left that city about midday the day before these events and driven to Brisbane, arriving about 7.00a.m. on 17 November 1999.  He had not slept that night.   He had come to Brisbane in search of work and must have been exhausted when he committed this offence.  One of the tow truck operators said Mr Obern’s eyes seemed glazed.

[10]  The matters which might go to mitigate the severity of the otherwise applicable sentence in this matter are not many.  The sentence imposed was below that suggested by counsel for the prosecution when Mr Obern was being sentenced.  That prosecutor submitted that the appropriate sentence would be one ranging between an order for 18 months to two years imprisonment, with a period of actual imprisonment to be served being at least six months.  The learned judge was more merciful to Mr Obern than the prosecution argued the judge should be, and I consider that the sentence of imprisonment actually imposed could not be described as being excessive in any way. 

[11]  To demonstrate this point it is sufficient to refer to two other sentences imposed by this court.  One was on an appeal by an Anthony Whye in CA No 234 of 1997.  That matter involved a plea of guilty to a charge of dangerous driving simpliciter, in a matter in which the offender had ignored obvious instructions from a police officer performing radar duties to pull to the side of the road, and had instead driven his vehicle at the police officer.  That officer just managed to jump out of the way, and a second police officer had a torch knocked from his hand.  There was a chase, and the vehicle pursued reached speeds between 160 and 180 kmph.  It lasted for about three kilometres when the applicant pulled up, upon realising the enormity of what he was doing.

[12]  That applicant had a level of concentration of alcohol in his blood exceeding 150 milligrams per 100 millilitres of blood, and had been convicted of driving under the influence of alcohol on four previous occasions.  A sentence originally imposed of five years imprisonment was reduced on appeal to three years imprisonment.  In that matter neither police officer was injured, and the applicant himself stopped the course of his driving which had the potential to cause injury to others.  Here, Mr Obern had to be choked by police officer Nicol before he ceased his serious endangerment of Mr Nicol’s life.

[13]  In a matter of Broadbridge (CA No 195 of 1994) this court substituted a sentence of imprisonment for 18 months for the three year sentence originally imposed on a charge of dangerous driving simpliciter.  That applicant had also driven his vehicle at a police officer who was performing radar duty.  That applicant was travelling at about 145 kmph, and that police officer avoided injury by leaping out of the way.  The applicant was on bail at that time on an offence of burglary for which he had been arrested some months earlier.  His course of dangerous driving stopped when another police vehicle forced him to. 

[14]  In that matter no police officer was injured.  That applicant had pleaded guilty to other serious offences as well, (including burglary), but his driving was arguably no worse than that of Mr Obern.  In the circumstances of a remarkably late plea, entire absence of remorse, and actual injury caused to a police officer, Mr Obern has nothing to complain about in the sentence of imprisonment he received. 

[15]  What Mr Obern complains about as manifestly excessive is the order that he be disqualified from holding or obtaining a drivers’ licence for a period of five years from the date of sentence.  Mr Obern points to his past occupations and present self employment, and submits that possession of a driving licence is crucial to either employment or self employment in the fields in which he is qualified.  This is undoubtedly so, and the sentence imposed will have a very significant effect upon his financial circumstances on his release from prison.  His conduct has, of course, had a significant financial effect too on his victim.

[16]  The applicant in Whye was disqualified absolutely (i.e. for life) from holding or obtaining a drivers’ licence, and that order was not altered on appeal.  The judgment of this court in the matter of Broadbridge makes no reference to any period during which Broadbridge was prohibited from having a drivers’ licence, and accordingly the statutory automatic period of six months disqualification provided by 86(3) of the Transport Operations (Road Use Management) Act 1995 (Qld) would apply.  It follows that Mr Obern has been treated more harshly than Mr Broadbridge, but more leniently that Mr Whye.

[17]  The learned sentencing judge described Mr Obern as having quite a bad traffic history.  Mr Obern’s submission on the appeal was that that description was not justified, since his traffic record for the ten years from 12 August 1992 (A.R. pages 118-119) records only 14 matters in ten years, and in his oral argument he submitted he had been driving professionally for nearly 40 years with overall very few infringements of the traffic rules recorded in that time.  The record did show that Mr Obern had recorded against him infringements totalling 14 “points” in the period from and including 14 December 1997 to 18 May 2000, by reason of which accumulation of 12 or more demerit points in a three year period his licence was cancelled on 8 August 2000. This was as a result of the combined effect first of s 108BB of the Traffic Act 1949, and then of reg 25 of the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld).

[18]  Mr Obern is entitled to apply to a judge of the District Court pursuant to s 131(2) of the Transport Operations (Road Use Management) Act once two years have passed from the date on which his five year disqualification was imposed, and to ask that judge to lift the five year disqualification.  He would have the same entitlement if his licence had been disqualified absolutely.  A judge hearing any such application would undoubtedly take into account whether or not Mr Obern had undergone any anger management counselling or other appropriate counselling, demonstrated any remorse, and whether Mr Obern intended to exclude driving throughout the night or for long periods without a break from his future intended use of a licence to drive.  Relevant also would be whether Mr Obern had familiarised himself with traffic signs indicating a clearway.  His evidence before the learned sentencing judge included evidence that he denied even acting in breach of a traffic sign indicating a clearway.  I consider that the circumstances exposed in the evidence, which include the applicant’s willingness to drive very long distances without sleep at night, inability to recognise traffic signals, and unrepentantly aggressive behaviour towards persons with authority who attempt to control his use of a vehicle, make the period of suspension ordered by the learned judge below an appropriate one.

[19]  I would dismiss the application for leave to appeal against sentence.

[20]  HELMAN J:  I agree with the order proposed by Jerrard JA and with his reasons.