R v Cockburn[2002] QCA 461

SUPREME COURT OF QUEENSLAND 

THE CHIEF JUSTICE:  On the 17th of July 2002 the applicant pleaded guilty in the District Court at Rockhampton to the dangerous operation of a motor vehicle with the circumstance of aggravation that he was at the time adversely affected by alcohol.  He was sentenced to two years nine months' imprisonment with a recommendation for post-prison community based release after the serving of 15 months of that term.  He seeks leave to appeal against that sentence. 

He was at the time subjected to the partial activation of a four month suspended sentence which had been imposed on the 26th of November 2001 for breach of a domestic violence order.  He was ordered to serve two months of that suspended sentence cumulatively upon the two year nine months term, the subject of this application.  He was additionally disqualified absolutely from holding or obtaining a driver's licence.

The offence occurred late on Saturday afternoon.  A police officer saw the applicant within his vehicle on the Bruce Highway north of St Lawrence.  The applicant was alone.  The police officer illuminated the lights on his vehicle, whereupon the applicant sped off along the highway at speeds of up to 160 kilometres per hour. 

He twice crossed double white lines, apparently in an effort to get away.  On one of those occasions he was on the blind side of a hill.  The police followed him over approximately 50 kilometres. 

The applicant slowed down, but apparently when he saw the police cars coming towards him he suddenly stopped his vehicle, carried out a U-turn, and after travelling a further 100 metres or so drove onto the wrong side of the road and carried out another U-turn.

He then drove at two police vehicles, although no collision occurred as the police were able to get out of the way.  A passer-by's vehicle also had to get off the road to avoid danger.  The police then ended the pursuit. 

Later in the evening they located the applicant's vehicle stationery on private land.  As they approached the applicant, who was within the vehicle, drove off, but then stopped and was arrested.  He then registered a blood alcohol content of .28.

The applicant pleaded guilty after a full hand-up committal.  The learned sentencing Judge pointed out as significant that the applicant committed the offence while subject to a four months suspended sentence, that he had previously been imprisoned, that he was an alcoholic at the time but had since made progress in dealing with that problem, and that at the time he was emotionally disturbed.

It was submitted by the Crown Prosecutor that the learned Judge was bound to imprison the applicant because of section 328A(3)(b) of the Criminal Code.  That was based on his having previously been convicted of failing to supply a specimen of breath and driving under the influence of liquor.

The contention was technically wrong, however, because that had not been charged on the indictment as required as a circumstance of aggravation.  The submission for the respondent before us is that even though imprisonment was not mandatory the learned Judge would not have imposed a substantially different sentence had he proceeded on the basis that his sentencing discretion was not in that respect fettered.

The Crown contention is that the sentence was not manifestly excessive in light of the protracted nature of the driving and because the applicant drove deliberately dangerously in order to out-run the police.  Mr Copley submitted that matters favourable to the applicant were reflected in the early recommendation for release, and that the overall sentence appears to have been reduced in order to temper the effect of the activation of part of the suspended sentence.

That last submission derives from a comparison between the circumstances of this case and Whye, Court of Appeal 234 of 1997, to which the learned Judge was referred.  Whye was 27 years old at the time of committing the offence of dangerous driving to which he pleaded guilty.  He had been convicted four times of driving under the influence of liquor.  On this occasion his blood alcohol reading was .187.

His driving included accelerating directly towards two police officers, endangering their lives.  The Court of Appeal adjusted the sentence to three years with no recommendation in relation to parole.  That Court was influenced by the circumstances that Whye had never been previously imprisoned, that the road was relevantly deserted, and that eventually he voluntarily stopped.

This applicant was 50 years old when sentenced.  The particularly serious aspect of the case was his driving directly at the police vehicles.  In the material provided to us and here orally today the applicant has challenged the contention that he tried to ram police vehicles.  What was said by the Prosecutor at the time of sentencing was as follows:

"The prisoner moved to the wrong side of the road and drove directly at the police vehicles following him.  The prisoner swerved to hit the police Commodore, who took evasive action.  He then tried to ram a police Land Cruiser, which was forced to drive over a small embankment off the left-hand side of the road to avoid collision."

Those contentions were not challenged at the hearing, and that really must be an end of that matter.

Especially allowing for the applicant's more mature years by contrast with Whye, and the circumstance that he had previously been imprisoned, I would not think there was a great deal of significant difference in terms of culpability between the applicant's case and Whye's.  As would be apparent, the applicant was sentenced to two years, nine months, not three years, no doubt in recognition of the imposition of the cumulative two month term.

In his written submissions to us the applicant focused on his alcoholism and emotional disturbance.  They could not have appropriately resulted in a sentence less than the one imposed.  The consumption of alcohol in particular is of course an aggravating circumstance, not one warranting leniency.

Notwithstanding the error of approach conceded by the Crown, I am for my part satisfied that the sentence which was imposed was nevertheless appropriate.  I would refuse the application.

McPHERSON JA:  I agree.  I would only mention also that the applicant has an extensive record of prior convictions, most for stealing or breaking and entering many years ago, but somewhat more recently for one or more offences of violence, and in 1987 for driving under the influence.  He also has a list of traffic related offences accumulated since the year 2000, including two instances of refusing to supply a breath specimen or the like, and other matters of that kind.

The Judge was of course entitled to take those offences into account, and I would expect that he did so.  I have nothing further to add to what the Chief Justice has said, with which I agree.

MULLINS J:  I also agree with the Chief Justice.

THE CHIEF JUSTICE:  The application is refused.