Ford v Cook[2002] QDC 278

APPELLATE JURISDICTION

JUDGE SAMIOS

and

BRISBANE

DATE 10/09/2002

JUDGMENT

HIS HONOUR: This is an appeal against the sentences imposed by the learned Magistrate at Holland Park, on the 7th of February 2002.

On that occasion, the appellant pleaded guilty to the offence of disqualified driving, which he committed on the 23rd of November 2001.

On that occasion, he was driving a motor vehicle on Fairfield Road, Brisbane. He was not at the time the holder of a driver's licence, authorising him to drive that vehicle on that road.

He had been disqualified from holding or obtaining a driver's licence on the 3rd of May 2001. The facts upon which the learned Magistrate sentenced the appellant, are that on the 23rd of November 2001, he was asked by his employer to collect some parts from a supplier.

The appellant's employer was present in Court, to verify that on the occasion the appellant drove, it was to do with his work. Submissions were made to the learned Magistrate and there was no dispute about this, that the driving occurred during the day, with no allegation of consumption of alcohol; further, that it would be against the interests of justice, to activate a suspended sentence, imposed on the 3rd of May 2001, at the Inala Magistrates Court and it was submitted that in all the circumstances, a large fine was appropriate.

However, the learned Magistrate, considering the appellant's traffic history noted that it disclosed the appellant had been guilty of drink driving offences for a substantial period of time, from 1994 and it was coupled with disqualified driving offences and that he had also been gaoled in 1998, for a period of time, for those types of offences.

Also, he noted that this offence had been committed during periods of suspended sentences imposed upon the appellant in the year 2000 and year 2001. Therefore, the learned Magistrate also had before him and took into account, the appellant's criminal history.

He accepted that the driving on this occasion was for the appellant's work and he took into account that he drove because he was required to do so by his employer; however, he noted that the appellant did not question the employer's request that he do so.

Having considered the circumstances, the learned Magistrate activated the 12 months' and nine months' suspended terms of imprisonment and ordered that they not be cumulative. However, with respect to the offence on the 23rd of November 2001, the learned Magistrate also sentenced the appellant to six months' imprisonment. That he ordered to be cumulative on the 12 months' imprisonment. He also disqualified the appellant from holding or obtaining a driver's licence absolutely.

The appeal is on the basis that the sentence imposed by the learned Magistrate was manifestly excessive, by activating the suspended sentence and imposing an additional sentence; further, that the learned Magistrate failed to give sufficient weight to mitigating circumstances in favour of the appellant and particularly the fact that he drove at the request of his employer and that the sentence imposed is in all respects oppressive, by ordering that the additional sentence be cumulative.

When one has regard to the appellant's traffic history and criminal history, I consider the conclusion that is inevitable, is that the appellant has disregarded the law persistently and consistently. I consider the learned Magistrate's sentencing remarks reflects the same opinion.

One can see entries commencing on 18 August 1994 for driving under the influence of liquor; 16 May 1996, failing to provide a random breath test; 16 May 1996, under influence of liquor; 19 March 1996, under influence of liquor; 2 October 1998, unlicensed driving; 21 October 1998, under influence of liquor. On this occasion, 2.36. The previous occasion was 2.68. The occasion before that was 2.43 and the first occasion was 1.86.

These are dates of conviction, not the dates of offences. Then 2 October 1998, disqualified driving; 2 October 1998, failure to provide a random breath test; 2 October 1998, prescribed concentration of alcohol, point 1.

15 January 1998, disqualified driving; 2 October 1998, under the influence of liquor, point 162, 2 October 1998, disqualified driving; 2 October 1998, under the influence of liquor, 0.236.

Then 3 May 2001 is the date on which the nine months' and the 12 months' suspended sentences were imposed. On that date, the offences were committed on 18 June 2000, disqualified driving, followed by three offences on 19 February 2001.

The three offences committed on 19 February 2001, for which the appellant was given the 12 months' wholly suspended sentence, with an operational period of three years, was for disqualified driving, exceeding the speed limit and driving under the influence of liquor. On this occasion, 0.111.

It is to be noted he was placed on probation for 18 months for that final offence, to attend the “Under the Limit Drink Driving Program”. It would appear from the sentencing before the learned Magistrate on the 7th of February 2002, that the appellant was attending that program, but nothing further was put before the learned Magistrate to show his progress or to deal with any other issues relating to the appellant, but what the learned Magistrate also had beside that, persistent and consistent breach of the traffic laws, involving the consumption of alcohol and driving - and driving whilst disqualified - is a criminal history, that shows the appellant to have been convicted of offences of dishonesty.

Although the learned Magistrate did not expressly identify the requirements of section 146 of the Penalties and Sentences Act, including the requirements of section 147, subsection 3, I consider it is implicit in his reasons, that he took into account all the relevant circumstances, when considering whether to activate the suspended sentences.

In my opinion, notwithstanding the mitigating factors and other factors personal to the appellant, the learned Magistrate could not have come to a conclusion that it was unjust to order the appellant to serve the whole of the suspended imprisonment imposed on the 3rd of May 2001.

However, the question does arise, whether in light of him coming to that conclusion, which I consider the learned Magistrate did and inevitably would, even if he enumerated all the circumstances listed in subsection 3 of section 147 and gave them their proper weight in the circumstances before the learned Magistrate, whether the six months then for the current offence was manifestly excessive or revealed error on the part of the learned Magistrate.

The criminal history and the traffic history, in my opinion, again inevitably becomes relevant, even in that exercise. It may be that the total of 18 months is on the high side; however, I do not consider in all the circumstances, that error is revealed on the part of the learned Magistrate nor that the imposition of six months cumulative on the 12 months, in light of the appellant's history, can be said to be manifestly excessive.

I consider the learned Magistrate gave due weight to factors personal to the appellant and the facts surrounding the commission of the current offence, including there was no alcohol present, that it was not a traffic accident and he had been asked to drive by his employer during the day.

Notwithstanding giving those matters due weight, I consider the learned Magistrate's decision is not attended with any error nor that the sentences are manifestly excessive.

Therefore, I dismiss the appeal. The order then is the appeal dismissed.