R v Fanning[2005] QCA 267

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  This is an application for leave to appeal against sentence.

The applicant was convicted of two offences, namely the dangerous operation of a vehicle, whilst adversely affected by an intoxicating substance and breaking, entering and stealing.

He was sentenced in the Beenleigh District Court, to 18 months' imprisonment for both offences, to be suspended after six months, for an operational period of three years.  He was also disqualified from holding or obtaining a driver's licence for five years.

The offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance was committed on 12 April 2003 at about 1.30 in the early morning.  The applicant was observed by a police officer, driving at excessive speed.

He was seen to lose control of the vehicle, which went sideways into a corner.  When the police caught up with it again, the applicant's vehicle was seen to lose control and spin 360 degrees on approximately three occasions.  The applicant drove off at excessive speed before being intercepted by the police.  No chase then ensued.

His blood alcohol content, tested by the roadside, was 0.175.  He was granted police bail, but failed to appear in relation to this offence and a warrant was issued for his arrest.

He was still at large on 24 January 2004, the date of the second offence, which was the breaking, entering and stealing.  On that occasion, at about 3.40 a.m. he forced open the window of an engineering company's office at Carole Park, causing damage to the frame and window.

He stole a laptop computer and a video camera.  The alarm on the premises was activated.  The applicant was apprehended at about 6.30 p.m. that day, after being seen walking down the street, carrying a black case, which contained the stolen property and an extensive array of house-breaking or breaking implements.

He refused to be interviewed or to provide his address, but claimed he had borrowed the items from a friend.  He was arrested and charged.  The applicant has a minor criminal record, consisting of one offence of failing to take reasonable care and precautions in respect of a syringe or needle and two counts of breach of a bail undertaking, which arose in consequence of the dangerous driving charge.

These offences were committed after the dangerous driving offence.  Of more immediate significance for present purposes is the applicant's traffic history.  He has had his licence suspended on three previous occasions and has four recorded speeding offences, all of which were committed before the present dangerous driving offence.

The applicant was 22 years’ old at the time of committing the offence of dangerous operation of a vehicle, 23 at the time of the break, enter and stealing offence and 24 at sentencing.  He has a conflict ridden relationship with his family, in the course of which he was asked to leave home at the age of 14.

Although he has been backwards and forwards from the family home since then, he has effectively been without family support for 10 years.  The driving offence was apparently committed shortly after a family argument.

The applicant has worked at house painting, panel beating and spray painting and appears to have a good work history in this regard. During the period of his offences, he was using amphetamines, although counsel for the applicant at sentencing informed the Court that the applicant is now free from that habit.

Mr Rafter SC, who appeared for the applicant, has submitted to us today that the learned sentencing judge erred in the exercise of his sentencing discretion, by failing to consider properly or at all the relevant considerations described as "principles" in s 9(2)(a) of the Penalties and Sentences Act 1992. He submitted, in effect, that undue attention was given to the evidence of punishment at the expense of rehabilitation in the case of this offender.

He submitted that those matters were particularly relevant in the circumstances of this applicant, who was employed, only 20 years’ old when sentenced, did not have an extensive criminal or traffic record, had apparently taken effective steps to resolve his drug habit and had not committed any offence for 11 months, nor any traffic offence for over two years. He had also entered timely pleas of guilty to both offences and had never previously been given the benefit of a community based order, despite his difficult family background, which suggested a lack of mature guidance in his life.

The applicant also referred to the short period of time over which the dangerous driving took place, the fact that he stopped on interception and that there was no police chase. Neither was there any injury caused by his dangerous driving, although the sentencing judge considered that to have been a result more of good luck than good management.  It may have been that the early hour of the day at which the offending occurred made it much less likely that there others who could have been threatened with injury.

We were referred to the R v Simpson [2001] QCA 109; CA No 309 of 2000, 21 March 2001, where the 28 year old offender was given a sentence of two years' imprisonment, wholly suspended for four years, a $5,000 fine, payable within two years and a five year licence disqualification for the offence of dangerous operation of a motor vehicle, with the circumstance of aggravation.

Simpson drove erratically over a longer period of time and when breathalysed had a blood alcohol content of 0.169.  She crashed into another vehicle and caused some injury to one of its occupants.  She had a traffic history that included one offence of driving with an excess blood alcohol concentration.

In R v Gehrman [2002] QCA 261; CA No 192 of 2002, 25 July 2002, a sentence of 12 months' imprisonment, suspended after six month for an operational period of two years, was upheld for the offence of dangerous operation of a motor vehicle, with a circumstance of aggravation, consisting of being adversely affected by alcohol.  Gehrman had a more significant criminal history than the applicant here, including several convictions for speeding and one previous conviction for driving under the influence of alcohol.

In R v Smith [2004] QCA 126; CA No 88 of 2004, 22 April 2004, a 54 year old offender was sentenced to 15 months' imprisonment, suspended after four months, for a period of two years, in respect of dangerous driving, in which he recorded a blood alcohol content of 0.182.  He was disqualified from holding or obtaining a driving licence for two and a half years.  On appeal his sentence was suspended forthwith for an operational period of three years.  Smith had no previous criminal history, but had a traffic history of a previous fine for driving over the limit and disqualification for three months.  In his case he drove dangerously for about 20 minutes along a highway.  His meandering path forced other drivers to take evasive action to avoid colliding with him.

The applicant submitted that an appropriate sentence, now that he has served 73 days of imprisonment, would be 12 months' imprisonment, suspended after 73 days for an operational period of three years, plus a 12 months' licence disqualification for both offences.

The other matters that tell against the applicant are his erratic and dangerous driving while under the influence of alcohol, his failure to appear in answer to his bail, and his subsequent apprehension only after committing the breaking, entering and stealing offence, as to which he initially refused to cooperate with the police, and his subsequent traffic offence soon after the primary offence had been committed. What does go against him is his state of intoxication, although as it happens, he caused no injury or threat to other identifiable road users and he submitted to the police when pulled over.

The circumstances of the break enter and steal offence tend to my mind to suggest a degree of professionalism; but there is otherwise nothing to suggest that he had committed prior offences of this kind and certainly nothing for which he could have been properly sentenced. This was his first sentence of imprisonment and it is right to say that previously he has not done anything that in my view would ordinarily attract a term in custody for a first offending.

He was still a relatively young man when he first offended, who by all accounts, has had a difficult upbringing.  There is some reason to hope he has now given up the addiction which one suspects caused him to engage in the break enter and steal.

All matters considered, I think that the sentence of six months is excessive.  I would allow the application and appeal and vary the effective sentence by suspending the sentence on each count after three months, rather than six months.

In other words, I think that the period of six months was excessive and should be reduced to three months in each case.

WILLIAMS JA:  Because of the commission of the later offence whilst on bail an actual custodial sentence was called for. I agree with all that has been said by the learned presiding Judge and the orders he has proposed.

JERRARD JA:  I agree with the presiding judge and with His Honour Williams JA.

McPHERSON JA:  The order is as I have said.

McPHERSON JA:  He will be disqualified from holding or obtaining a driving licence for two years.  We will reduce the disqualification imposed to the two year period as suggested by counsel.