Gurowski v Atterton
[1998] QDC 79
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Gurowski v Atterton[1998] QDC 79
Gurowski v Atterton[1998] QDC 79
DISTRICT COURT | No 3669 of 1997 |
APPELLATE JURISDICTION
SENIOR JUDGE TRAFFORD-WALKER
ALAN MARK GUROWSKI | Appellant |
v.
JOHN ALFRED ATTERTON | Respondent |
BRISBANE
DATE 25/03/98
JUDGMENT
HIS HONOUR: On 17 August 1997 the appellant was convicted of the following offence. That on 4 July 1997 whilst he was under the influence of liquor or a drug he drove a motor vehicle on a road, namely Newmarket Road, Brisbane. For that offence he was fined the sum of $1,400 and disqualified from holding or obtaining a driver's licence for a period of two years.
On 20 March 1996 the appellant had been convicted of a breach of a Domestic Violence Order committed on 6 January 1996 and assault occasioning bodily harm committed on 29 December 1995. For these offences he was imprisoned for a period of nine months to be suspended after serving 42 days. The balance of the sentence being suspended for a period of three years.
The offence committed on 4 July 1997 was within the operational period of the suspended sentence and the Magistrate ordered that the whole of the balance of the nine months imprisonment was to be served by the appellant. At the hearing of the appeal the only ground of appeal pursued was in relation to this latter order. The appellant argues that it was unjust to make him serve the whole of the balance of the nine months.
The Magistrate's reasons are as follows:
“The offence that you are now before the Court on is one involving drink driving and you are slipping back into your old ways of heavy consumption of alcohol. You know what that leads to. You have been trying to do something about it but you have not succeeded as yet but this offence, the one that I dealt with today, involved liquor and obviously from what Mr Ryan has indicated to me the breach of the Domestic Violence Order and the assault occasioning bodily harm revolve around the consumption of liquor and the violence that emanates from that within you. Are you seeking time to pay that amount, Mr Ryan?”
Those are the reasons given for the Magistrate for ordering that the appellant serve the balance of the suspended sentence. It can be seen that he put a lot of emphasis on the continued use of alcohol by the appellant. He would be aware of other matters that are to be taken into account but he has not mentioned them. However, the question arises as to whether or not he has placed too much emphasis upon alcohol consumption by the appellant.
Counsel for the appellant referred me to the two main authorities on suspended sentences, namely R v. Holcroft (1997) 2 Qd.R. P. 392 and R v. Bowen (1997) 2 Qd.R. P. 379. The Court in both cases examined the circumstances in which a Court could come to the conclusion that it would be unjust to require an offender to serve the whole of the suspended sentence.
I will not go through all of those matters referred to in the two authorities. However, there are a number of factors relevant to this appeal and I will mention some of those. The circumstances surrounding the offence which constituted the breach of the suspended sentence are that the appellant and his wife had driven to a friend's place. They intended to stay the night and drive home the next day. While at the friend's home they consumed a considerable quantity of alcohol.
That evening an argument developed between the appellant's friends and the appellant's wife persuaded the appellant to drive home. On the way home he was stopped by police under the random breath test program. His blood alcohol reading at that time was .139. The appellant has previous convictions for breaches of the Traffic Act. In fact, he had three previous offences for driving a motor vehicle after he had consumed excess quantities of alcohol. However, the Stipendiary Magistrate for the offence in July 1997 imposed a fine with a suspension of his licence.
One factor referred to by the President of the Court of Appeal in Holcroft's case is the punishment imposed in the subsequent offence: “It is a significant factor if the subsequent offence does not warrant a custodial sentence.” However His Honour and other Judges in these authorities have laid emphasis upon any changes in circumstances that there have been since the imposition of the suspended sentence.
Alcohol has clearly been a problem for the appellant and this is referred to in a Court report by a Mr Peter Slater dated 20 June 1996. This report also refers to the efforts that the appellant has made to rehabilitate himself since the imposition of the suspended sentence. In addition to that there was before the Magistrate a letter from Ms Thomas, the appellant's wife, pointing to some changes in circumstances since the imposition of the suspended sentence. These can be listed as follows.
That he now has the care of his six year old daughter; her relationship with the appellant is now stable and provides a stable environment for the appellant's daughter; also Ms Thomas was trying to better herself through job training and needed the financial support of the appellant; that the appellant had developed a more responsible attitude towards obeying the law. Her assertion is, of course, that he only drove on that evening after drinking because she persuaded him to do so to leave the residence where their friends had become involved in a rather heated argument.
The final matter I shall refer to is that the offences for which the term of imprisonment was imposed involved the appellant's wife, Ms Thomas, and the circumstances, of course, are different from the offence which brought about the breach of the suspended sentence. Bearing all these factors in mind I am of the opinion that the Magistrate appears to have given undue weight to the common link of alcohol.
The factors I have mentioned make it unjust, in my view, to require the appellant to serve the whole of the balance of the imprisonment. This means that I should now determine what is the appropriate penalty. In my view it is appropriate that he be ordered to serve part of that suspended sentence.
Since the order of the Magistrate the appellant has been on bail. Pending his appeal he served 48 days before being released on bail. In my view, at this stage, nothing would be gained by requiring him to return to prison for a further short period.
In those circumstances I order that he serve part of the suspended sentence, namely 48 days, and I deem the period which he has been in custody, imprisonment already served under that sentence. In other words the appeal is allowed and those orders are made by this Court.
MR McLENNAN: Your Honour, I think that declaration that Your Honour is thinking of is the declaration that is made when people have been in pre-sentence custody.
HIS HONOUR: Yes.
MR McLENNAN: I am not quite sure if, when someone has actually served the sentence post the imposition of a penalty that that section relating to the declaration has application here. It is really sufficient in the Crown's submission for Your Honour to have expressed the opinion that the appropriate order is that the appellant serve 48 days and to express to your opinion that you meant by that is that the time that has served means that he has completed his sentence.
HIS HONOUR: You are probably right but there are so many technicalities in this Act nowadays that you cannot always be sure but anyway if there is an error then you can come back.
MR SKOIEN: Yes. In my submission it cannot do any harm to have that declaration in that technically speaking this is now the sentencing of the appellant and the custody is pre-sentence custody in that way of thinking. The one that I would note for Your Honour is that Your Honour referred to 17 August being the date of the Magistrate's decision. It was 7 August.
HIS HONOUR: Oh, was it?
MR SKOIEN: Yes. Perhaps that matter should be cleared up and therefore the dates would be 7 August 1997 to 23 September 1997.
HIS HONOUR: I see. All right. Well that is the period of custody which applies to the order I have just made.
MR SKOIEN: Thank you, Your Honour.