Neylon v Kuzmanovic[2006] QDC 15

[2006] QDC 015

DISTRICT COURT

CIVIL JURISDICTION

JUDGE TUTT

No 66 of 2005

BEENLEIGH

DATE 16/02/2006

ORDER

HIS HONOUR:  This is the matter of an appeal by Angela Neylon, appellant, and Nikola Kuzmanovic, respondent.

1. [1]
   This is an appeal pursuant to section 222 of the Justices Act 1886 by Angela Neylon against a decision of the learned Magistrate at Beenleigh on the 6th of June 2005, whereby the respondent was convicted on entering pleas of guilty to all of the following offences, namely:

2. (a)
   four offences of driving a motor vehicle whilst under the influence of liquor in breach of section 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 ("T.O.R.U.M.");

1. (b)
   six offences of driving a motor vehicle whilst over the general alcohol limit, that is where the respondent's blood alcohol content exceeded .050 milligrams of alcohol in 100 millilitres of blood in breach of section 79(2) of T.O.R.U.M.; and

3. (c)
   seven breaches of a domestic violence order made at Beenleigh on or about the 17th of December 2003 to operate until 16 November 2005, pursuant to section 80(1)(a) of the Domestic and Family Violence Protection Act 1989.

2. [2]
   By way of penalty, the learned Magistrate sentenced the respondent to a term of two months imprisonment for each of the 10 offences under the TORUM Act and disqualified him from holding or obtaining a driver's licence for a period of two years from the 6th of June 2005.

3. [3]
   In respect of the breaches of the domestic violence order, the respondent was also sentenced to two months imprisonment for each offence, with all terms of imprisonment to be served concurrently.

4. [4]
   In brief terms, the respondent was a 44 year old man of European origin. He came to Australia in 1980. He worked in Mt Isa for some years, then met his current estranged wife in 1993. At that time, his wife had a child of her own by another union who was then aged nine years.

5. [5]
   There are two children of the respondent's marriage, born in 1994 and 1996 respectively. The relationship between the respondent and his wife was an unhappy and violent one, with his being subject to his first domestic violence order in or about 1995.

6. [6]
   The marriage continued to be tumultuous with his wife applying for orders through the Family Court and the respondent being granted only limited access to his daughter.

7. [7]
   A further domestic violence order was made against him in or about early December 2003 to operate until November 2005.

8. [8]
   For many years the respondent has had a serious problem with the heavy consumption of alcohol, and his criminal and traffic history shows that he was first convicted in the Gladstone Magistrates Court on the 17th of February 1984 for driving a motor vehicle whilst exceeding the permissible blood alcohol level.

9. [9]
   Thereafter, he has had various miscellaneous convictions for violent behaviour of varying degrees, though not of a particularly serious nature.

10. [10]
    The numerous offences for which he was dealt with on the 6th of June 2005 at the Beenleigh Magistrates Court, commenced in November 2003 and extended over a period of 16 months to March 2005. It was submitted on his behalf that his breaches of the domestic violence order stem from his excessive consumption of alcohol caused by his anger and frustration in being denied access to his children. The only submission in respect of what might be termed his "drink/driving" offences before the Magistrate was that he developed a drinking habit over a period of years and had tried to address it through counselling sessions at the Logan Central Community Health Centre without success.

11. [11]
    He also apparently attended an anger management course, but there was no report tendered from any Centre in respect of his progress or application to any rehabilitative course which might demonstrate a conscientious or genuine attempt on his part to address his grossly anti-social behaviour.

12. [12]
    It was submitted on behalf of the appellant at this hearing, that the learned Magistrate placed too much weight on mitigating factors and not enough on the respondent's criminal and traffic history.

13. [13]
    Apart from the 18 offences including one unlicensed driving offence, dealt with on the 6th of June 2005, the respondent's traffic history shows that one month prior to his sentence by the learned Magistrate, he was fined for a speeding offence of exceeding the speed limit by more than 20 kilometres per hour; two speeding offences committed in 2004; one in 2003; two driving under the influence offences, and one speeding offence in 2002; one speeding offence in 2001; three convictions for disqualified driving and driving whilst under the influence of liquor and speeding in 1998; four other offences in 1996 and one in 1995, with other offences dating back to 1984.

14. [14]
    The appellant further submits that the learned Magistrate placed insufficient weight on the nature of the offences themselves, the number of offences and the time period over which they were committed.

15. [15]
    Further, some of the offences were committed while subject to notices to appear on bail in respect of other of the offences. The driving offences involved 10 offences of driving under the influence of alcohol, four of which involved blood alcohol readings of over 0.15 percent.

16. [16]
    It was further submitted that the offences of breaching domestic violence orders were serious, given the number of them coupled with the fact that they involved threats to kill the aggrieved and her family. These threats took place during a Family Court proceeding which placed significant stress on the aggrieved. The learned Magistrate commented that she accepted that the aggrieved was genuinely concerned for her safety on at least one occasion that these threats were made.

17. [17]
    It was further submitted that general deterrence is an important feature in sentencing both driving offences involving alcohol and also offences involving domestic violence, and that little or no weight was given to this factor in the sentence.

18. [18]
    Finally, the appellant submitted that a term of imprisonment in the order of nine to 12 months would be appropriate.

19. [19]
    It was submitted on behalf of the respondent that the learned Magistrate's decision was in accordance with proper sentencing principles, and that she had properly assessed all competing factors in reaching the decision.

20. [20]
    This Court's power in respect of an appeal under section 222 of the Justices Act is that the appeal is by way of rehearing on the evidence given in the proceedings before the Justices (see section 223 of the Justices Act 1886) and that the Court has a wide discretion in the order it makes. (S. 225)

21. [21]
    The sentencing principles to be followed by our Courts in dealing with offenders, are comprehensively set out in part 2 of the Penalties and Sentences Act 1992, particularly section 9(1) and (2) thereof.

22. [22]
    In this matter, I find that the learned Magistrate erred in her sentencing discretion in imposing the sentences she did on the respondent in the following manner:-

1. (a)
   She placed insufficient weight on the nature of the offences where the respondent was convicted of four "major", as I shall call them, and six "lesser" offences under the TORUM Act, involving the driving of a motor vehicle after the consumption of alcohol.

2. (b)
   She gave insufficient weight to the fact that the respondent committed the four "major" offences within a period of 16 months between November, 2003 and March, 2005, interspersed with the six "lesser" offences involving drinking and driving during that same period, some occurring within days of each other.  It would be difficult to find a more blatant and contemptuous attitude to a person's obligation to uphold the law.

3. (c)
   She gave insufficient weight to the number, nature and time within which the breaches of the domestic violence order occurred and the detrimental effect which such breaches imposed on the respondent's wife.

23. [23]
    While I do not accept that the respondent fell within those provisions of section 79 of the TORUM Act, which made it mandatory that he be required to serve a term of imprisonment as part of his punishment, as from my reading of his history, he had only been previously convicted twice of the "lesser" charge prior to his coming before the Court on the 16th of June, 2005, I find that for the reasons mentioned above, the sentence imposed by the learned Magistrate, was manifestly inadequate and the appeal is therefore upheld and the order of the learned Magistrate set aside.

24. [24]
    I make the following further orders in this matter.

1. (a)
   In respect of each of the four offences of driving a motor vehicle whilst under the influence of liquor in breach of section 79 1(a) of the TORUM Act 1995, the respondent is convicted of each offence and I order that he be sentenced to imprisonment for a period of nine months on each offence.

2. (b)
   In respect of the six offences of driving a motor vehicle while over the general alcohol limit, that is, where the respondent's blood alcohol content exceeded .05 milligrams of alcohol in 100 millilitres of blood, the respondent is convicted of each offence and I order that he be sentenced to imprisonment for a period of six months in respect of each offence.  I further order that he be disqualified absolutely from holding or obtaining a driver's licence.

3. (c)
   In respect of the seven breaches of a domestic violence order made at Beenleigh on or about the 17th of December, 2003, to operate until the 16th November, 2005, pursuant to the Domestic and Family Violence Protection Act of 1989, the respondent is convicted of each of those breaches of the Act and I order that he be sentenced to imprisonment for a period of three months in respect of each breach.

25. [25]
    I further order that all terms of imprisonment so imposed above be served concurrently, and I further direct that warrant be issued for the arrest of the respondent, Nikola Kuzmanovic, to serve the unexpired portion of the term of imprisonment imposed above.

…

26. [26]
    I make no order as to costs.