Noon v Wilson[2006] QDC 168

[2006] QDC 168

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 693 of 2006

BRISBANE

DATE 05/06/2006

ORDER

CATCHWORDS: Appeal against sentence under s 222 of the Justices Act 1886 - sentence of one month's imprisonment for a first offence of disqualified driving (on occasion of third incident of driving under the influence for which 47 year old offender received probation) held out of the range, or manifestly excessive - sentence should be ordered to be suspended.

HIS HONOUR: The respondent, represented by Mr Hungerford-Symes, indicated to the court that there was no lack of sympathy in that quarter for the plight of the appellant. Notwithstanding, it was submitted that this appeal against sentence under s 222 of the Justices Act 1886 ought not to succeed because the sentence was not manifestly excessive or perhaps, putting it another way, that it came within range.

It is a sentence of one month's imprisonment imposed by a Magistrate on the 13th of March this year in respect of an offence of disqualified driving, which happened on the 24th of February this year, in association with an offence of driving a vehicle with a blood alcohol concentration of .22.

For that offence the penalty was one of two years probation which the Magistrate apparently attempted to defer until the imprisonment was completed. That would seem to be an unorthodox approach. In practice nothing much will turn on it and the parameters of the appeal do not extend far enough to permit regularisation.

The appellant is 47. The making of the probation order is an indication that the circumstances were unusual. A 47 year old is not normally placed on a sentence of that nature. In the appellant's case the explanation lies in his serious problems with alcohol to which it seems, on the basis of reference material, he turned in response to stressors in his life related to employment in a professional field in which important responsibilities were thrust upon him.

He has taken steps to deal with his difficulties, including abandoning that employment for rather different work in which he is giving great satisfaction to his employer, which happens to be a school. There is an impressive reference from the principal expressing his appreciation of the appellant's qualities as a man. There is a similar lengthy reference from his wife explaining the difficulties which from time to time have blighted family relations.

There is also a reference from a psychologist which confirms that the appellant has been active in pursuing rehabilitation programs, through Alcoholics Anonymous, for example. The last reference before the Magistrate was from an institution in Northern New South Wales known as the Buttery which provides long term residential programs for those with difficulties like the appellant's. He is on a waiting list but is unable to undertake the program while there are court proceedings hanging over him. Therein lies the explanation for the unusually early hearing of this appeal.

The failure to date of the efforts at rehabilitation which the appellant has made, apparently assiduously, is reflected in there being two prior convictions for driving while under the influence. The first relates to an offence on the 1st of October 2004 when the blood alcohol concentration was .189. When the matter came to court 20 days later the Magistrate's orders were a fine of $1,200 and disqualification for 10 months. It appears that 10 months passed without incident. However, there is another offence of driving under the influence with a blood alcohol concentration of .145 on the 21st of January 2006, which was dealt with in the Magistrates Court on the 17th of February by a fine of $1,300 and a disqualification of 15 months. Only a week later the appellant was caught again with the consequences outlined above. This time a three year disqualification has been imposed by the Magistrate, not the subject of appeal. The appeal relates to the sentence of one month's imprisonment for what is a first offence of disqualified driving.

The appellant has no general criminal history. The only traffic matters not mentioned are speeding offences, one in 1988, the other in 2004.

It is the case that by a whisker, or a sip, as the Magistrate said, the appellant avoided coming within the mandatory sentencing regime which would have confronted him if the blood alcohol concentration on the 21st of January this year had been .15.

The court has not been provided with any information as to sentencing ranges for the offence of disqualified driving. A judge's general experience is likely to involve scrutiny of criminal histories and traffic histories in particular. I would venture to say that it is unusual for a first offender to be sentenced to imprisonment. The maximum penalty available is 18 months imprisonment.

In the matter of Hey [2006] QCA 23 it seems the offender had three offences of disqualified driving without being sentenced to imprisonment. On the next occasion when he was caught, also adversely affected by alcohol, tragically, his driving led to the death of a woman. In dissenting in an unsuccessful Attorney's appeal, Chesterman J said at paragraphs [40] ff:

   "There was nothing spontaneous or inadvertent about the respondent's conduct on the day he killed Mrs Williamson. He chose to drive when he knew it was unlawful for him to do so. He chose to drink when he knew it was dangerous to do so. Mrs Williamson's death is a direct consequence of the respondent's refusal to accept that the law applied to him, and that the disqualification orders had been made to safeguard the public. He disregarded the legal prohibition and disdained the public's safety.

   In my opinion the court should be merciless when dealing with people who behave in this way. It is a matter of considerable regret that the respondent was not dealt with appropriately on the occasions when he appeared before the Magistrates Court on charges of driving whilst disqualified and intoxicated. He had amply demonstrated his contempt for previous disqualification orders and had given clear proof that he was a danger on the roads. There was clearly no point in imposing further disqualifications. He should have been jailed for a brief period to make him realise the seriousness and unacceptability of his conduct. If he did not, and reoffended, he should have been jailed for a substantial period. It is distinctly possible that Mrs Williamson might be alive today had that course been followed.

   The imposition of severe punishments on those who drive dangerously, and thereby kill or maim others, is required as a means of reducing the number of traffic accidents which result in death or serious injury. Lengthy periods of imprisonment play an important role in deterring those who contemplate driving while disqualified, and while intoxicated."

The Magistrate here made a point of referring to his Honour's comments in her reasons for judgment. That had the commendable purpose, in my opinion, of drawing to the appellant's attention that he simply must not drive while he was "banned", to use the Magistrate's term. The warnings she gave were entirely appropriate. It is hardly impressive that the offence which lead to the sentence under appeal occurred only a week after the disqualification.

In the appellant's case, the circumstances are somewhat unusual and reveal offending somewhat less brazen than it seems at first blush. The appellant was so ashamed of the way in which he used alcohol that when he felt driven to seek solace in it, he would, on occasions at least, drive somewhere secluded in his vehicle and drink in it away from the observation of his family. That indeed is what was happening on the 24th of February of this year when he was found at about 9.30 p.m., not driving but in the place where he had gone - presumably to drink. It is simply not known whether the actual driving, preceding his being found by police, which seems to have passed without event, had actually put anyone in danger. There is a marked contrast here with Mr Hey.

It seems to me that the Magistrate became distracted in the sentencing task by reference to Chesterman J's views, which of course were not a binding precedent in the circumstances, since the other members of the court cannot be regarded as endorsing the sentiments expressed by his Honour. They would command assent by many and appear to have coincided with the Magistrate's own views. It shouldn't be forgotten what the tragic context of their being expressed was.

Although Mr Hungerford-Symes mounted a strong argument that the sentence was not manifestly excessive, it seems to me that it was. It is the first instance of "disobedience of a court's order", as it was called by way of a convenient means of describing driving while disqualified, in the appellant's history.

It simply cannot be said, on the basis of that single incident, that he is a person inclined to ignore court orders and therefore requires punishment. His exemplary record in relation to the general criminal law and his life in his family, workplace and the community generally seems to me to suggest the offending, the concern of this court, was out of character.

I think Mr Hungerford-Symes is right that there could hardly have been a complaint if the imprisonment was attached by the Magistrate to the other offence. At one point Mr Reid appeared to me to be disavowing a technical separation out of matters along those lines, but in his reply he seemed willing to take advantage of it. This court should take into account the whole of the appellant's history. That does not, in my opinion, mean that the appealed sentence can be justified because it might have been appropriate for the other offence.

He pointed to the sentencing considerations in section 78(2) of the Transport Operations (Road Use Management) Act 1995 which, it seems to me, all tend to favour his client and I would say that even of "(b) the public interest";  I am not persuaded that is served here by incarceration of the appellant.

Other sentencing principles appear in section 9 of the Penalties and Sentences Act, in particular in subsection (2)(a), whereby a sentence of imprisonment is regarded as one of last resort, one that allows the offender to stay in the community is preferable.

The qualifications imposed by subsection (3) are not relevant here. I think the sentence was out of range and manifestly excessive in involving actual incarceration of a person whose record is like the appellant's for a first offence of disqualified driving. Mr Reid accepted that the same observation will be hard to make in respect of any subsequent offence of that nature. I agree with that, but the appeal ought to be allowed and the Magistrate's sentence of one month's imprisonment changed by the addition to it of an order that it be suspended immediately for an operational period of two years. That is going to be roughly equivalent with the probation period. It is to be hoped that the appellant is fully cognisant of the risk that's faced by him. If he is not sure he can avoid driving his motor vehicle, he might be well advised to dispose of it. There is no order as to costs.

(I was grateful to be corroborated by the Court Reporter in my recollection of an incident in a local Magistrates Court in recent weeks in which a woman - it was reportedly a woman - was punished for driving while disqualified and left the court to drive home in her vehicle; she was observed doing it apparently and returned to the court where she was convicted of a second instance of that offence and punished by a much greater fine - if the report in the media was correct, the reporter recalled she had two children in the vehicle. That incident is, on the face of it, more brazen than the  appellant's. He might be justified in regarding himself as unfairly dealt with in comparison).