R v Whiting[2009] QCA 338

SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 24 July 2008 the applicant pleaded guilty to one count of serious assault.  He was not sentenced until 13 March 2009.  On that occasion he was sentenced to 12 months imprisonment to be served by way of an intensive correction order.  He was ordered to pay compensation in the sum of $802.  He was also disqualified from holding or obtaining a driver's licence absolutely.

2. The applicant seeks leave to appeal against the severity of his sentence on the ground "[t]hat in all of the circumstances, the sentence is manifestly excessive, particularly the disqualification from holding or obtaining a driver [sic] licence absolutely."

Circumstances of the offence

3. At approximately 7.00 am on 21 March 2007, the complainant, who was a 75 year old man, was driving his car along Kingsford Smith Drive towards the city for his regular morning swim. He was travelling in the far left lane at approximately 40 to 45 kilometres per hour.

4. The applicant, who was then 45 years old, was driving his truck closely behind the complainant's car. The complainant was annoyed by the applicant's close approach behind him, so he slowed down and made a rude gesture at the applicant.

5. The applicant overtook the complainant and then pulled back into the left hand lane in front of him. The applicant stopped at a set of lights shortly thereafter. He alighted from his truck and punched the complainant in the face through the complainant's open driver's side window. He punched the complainant several times landing at least four blows. He then walked back to his truck and drove off.

6. The complainant suffered bruising and swelling to his left eye. The complainant's spectacles were damaged. As is apparent from the complainant's victim impact statement the offence has had a substantial adverse effect upon the quality of this elderly man's life.

7. When interviewed by police the applicant made no admissions.

8. The matter was originally listed for trial, but at a trial review hearing the applicant's intention to plead guilty was foreshadowed.

The applicant's personal circumstances

9. The applicant was 46 years old at the date of sentence. He is a truck driver by occupation. He does not drink and describes himself as a "workaholic".

10. The applicant has an unsatisfactory traffic history: on 16 November 2006 his driver's licence was suspended for three months because of traffic infringements; and he offended twice more prior to the serious assault in question.

11. The applicant had no other criminal history of any relevance prior to the offence in question; but on 10 March 2009, prior to being sentenced, he was convicted of the dangerous operation of a motor vehicle. For that offence he was fined $1,500 and his driver's licence was suspended for two months.

The sentence

12. At sentence the Crown sought a term of actual imprisonment and the absolute disqualification of the applicant from holding or obtaining a driver's licence.

13. On the applicant's behalf a probation order or an Intensive Correction Order was sought. The applicant's counsel accepted that absolute disqualification from holding or obtaining a driver's licence was open, but urged the learned sentencing judge to disqualify the applicant for a lesser period as that might assist him in obtaining a conditional licence.

The application in this Court

14. I am wholly unable to see how it is said that this sentence was in any way excessive, much less manifestly so.

15. The applicant's principal concern is that the licence disqualification is a hardship for himself and his wife. The loss of his driver's licence has no doubt had a substantial adverse effect on the applicant and his family, but it must be understood that holding a driver's licence is a privilege. The applicant has, in the past, abused the privilege of holding a driver's licence. On the occasion of present concern, he committed a senseless attack on an elderly man. Considerations of general and personal deterrence warranted a stern rebuke from the court. The licence disqualification imposed by the learned sentencing judge was amply justified by considerations of personal deterrence, especially having regard to the lack of insight apparent from the applicant's subsequent behaviour.^[1] 

16. The applicant may apply for the removal of his disqualification after two years pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995 (Qld).

Conclusion and order

17. The sentence which was imposed in this case was no more than was called for. It was not excessive much less manifestly so.

18. The application for leave to appeal against sentence should be refused.

19. HOLMES JA:  I agree with the reasons of Keane JA and the order he proposes.

20. McMEEKIN J:  I have had the advantage of reading the reasons of Keane JA and agree with those reasons and the order he proposes.