Baird v Davies[2006] QDC 287

APPELLATE JURISDICTION

JUDGE DODDS

and

Appeal No 90 of 2006

and

CAIRNS

..DATE 02/06/2006

JUDGMENT

HIS HONOUR: This is an appeal against sentences imposed by a Magistrate on the 30th of March 2006 in the Mareeba Magistrates Court. On that date, the appellant was before the Court and pleaded guilty to driving whilst under the influence of liquor. His blood alcohol concentration was .27 per cent, a ridiculously high reading, as the Magistrate observed, driving whilst disqualified, driving an unregistered vehicle, driving an uninsured vehicle. All of those offences were committed on the 14th of February 2006.

He was also before the Magistrate for a breach of the Bail Act, committed on the 6th of March 2006. He had been granted bail after his detention on the 14th of February 2006 and had failed to answer that bail. He had been arrested under the authority of a warrant issued by the Magistrates Court at 7.30 p.m. on the 29th of March 2006. He was grossly intoxicated.

When the matter came before the Magistrate, the Magistrate was informed that he had got his Court date mixed up. As to the driving offences, the Magistrate was told by his representative that the car he was driving was one his brother intended to buy and he was driving it to a mechanically knowledgeable friend for advice about repairs necessary to obtain a roadworthy certificate.

He had relevant prior convictions. On the 11th of January 1998 before the Cairns Magistrates Court, an offence of drink driving, when his blood alcohol concentration was .11 per cent; and an offence of unlicensed driving; on the 17th of December 1994 before the Cooktown Magistrates Court; an offence of unlicensed driving; an offence of driving whilst under the influence of liquor - his blood alcohol concentration on that occasion was .243 per cent; on the 19th of May 1995 before the Cairns Magistrates Court, driving under the influence of liquor - his blood alcohol concentration was .182 per cent; disqualified driving.

Additionally, he had a history of breaches of the Bail Act: on the 8th of October 1984 before the Cairns Magistrates Court; in May 1992 before the Mossman Magistrates Court; on the 24th of February 1996 before the Cairns Magistrates Court - on this occasion he was sentenced to imprisonment for five days; on the 24th of March 1996 before the Cairns Magistrates Court; on the 25th of October 1997 before the Mareeba Magistrates Court; in October 2000 before the Mareeba Magistrates Court; on the 5th of February 2001 before the Mossman Magistrates Court; and on the 24th of January 2005 before the Mareeba Magistrates Court.

In addition to the prior Court appearances and convictions I have referred to, his criminal history, which was also before the Magistrate, indicates, in addition to the various offences, continual breaches of orders made by Courts. There are breaches of domestic violence orders, breaches of probation and breaches of suspended sentences.

The Magistrate, in sentencing, sentenced the appellant as follows. For the driving under the influence offence, imprisonment for three months; for the disqualified driving offence, imprisonment for nine months; for the drive unregistered vehicle, a fine in default four days 1 imprisonment with no time to pay; for the driving an uninsured vehicle, a fine in default five days' imprisonment with no time to pay.

All those sentences, so far as they were able, were to be served concurrently. In effect, it meant that he would serve, less remissions, a period of nine months and nine days' imprisonment, pursuant to those sentences. For the failing to appear offence, the breach of Bail Act, he was sentenced to imprisonment for three months. That sentence is required to be cumulative. In other words, an additional three months on top of the nine months and nine days.

The appellant is 49 years of age and unemployed. It is reasonably apparent, from everything in the material, that he is an alcoholic. He apparently instructed his legal representative and the Magistrate was informed at the sentencing that the failure to appear was because he had mixed up his dates. He thought he had to appear on the 5th of April. That may be so, given this man's alcoholic history.

As I indicated in a previous matter this morning, it is not a relevant matter in an appeal against sentence that I may have approached the matter differently than the Magistrate. I will not ordinarily interfere with a Magistrate's sentencing discretion unless it is shown the Magistrate has fallen into error, has misunderstood the law, has taken into account extraneous matters or plainly failed to take into account relevant matters. A sentence which is beyond a sound exercise of sentencing discretion may reveal that some error has occurred.

The Magistrate referred to a decision of the Court of Appeal, R v Hey, ex parte Attorney General [2006] QCA 23 and, in particular, remarks of Justice Chesterman. Hey was an Attorney General's appeal against a sentence of six and a-half years' imprisonment with a recommendation for post-prison community based release after two and a-half years for an offence of dangerous operation of a motor vehicle causing death, while adversely affected by alcohol. Hey's blood alcohol concentration was .189 per cent. He had five previous convictions for driving under the influence of liquor - three for disqualified driving and two for careless driving. He had committed numerous speeding offences. At the time of the offence he was disqualified from driving.

The President and Keane JA considered the sentence not outside a sound exercise of the sentencing discretion. Chesterman J considered the sentence should be increased to eight years' imprisonment. In his reasons, he referred to the respondent's history of driving whilst disqualified and intoxicated, including on the occasion the subject of the appeal. He observed the deceased's death was, “A direct consequence of the respondent's refusal to accept that the law applied to him and that the disqualification orders have been made to safeguard the public.” He went on to express his view that the law should be, “Merciless when dealing with people who behave in this way. “He expressed his view that repeat offenders for driving whilst disqualified and intoxicated should be imprisoned, “For a brief period to make him realise the seriousness and unacceptability of his conduct. If he did not and re-offended, he should have been gaoled for a substantial period.”

As I earlier observed, I do not understand the Magistrate's reference to Chesterman J's reasons as indicating he was bound to apply them. Rather, I think he was indicating that what was said were matters worthy of consideration. It is not to the point that the other members of the Court did not find it necessary, on the view they took of the primary sentence to express similar views. I agree that what Chesterman J said is plainly relevant in considering a sentence for a repeat offender.

Driving under the influence of liquor is a serious offence. Driving whilst disqualified is also a serious offence. A disqualification order by a Court is a penalty in that it restricts the right to drive a motor vehicle on roads. It has, or should have, a deterrent effect on an offender and on others who may contemplate committing an offence for which disqualification may be ordered. It removes, or should have the effect of removing an offender from driving on public roads for the period of disqualification, all of which may enhance public safety. It is an order of the Court. It is not to be thought it can be ignored and likely penalised, particularly if repeatedly committed. Offenders must be shown that the Court's order, if disobeyed, will bring condign punishment.

Bail, or the granting of bail, involves release from custody upon an accused person's promise to appear before a Court at a specified time and place. The obverse of bail is to remain in custody pending the Court proceeding. Apart from anything else, failing to appear as promised involves both individually and cumulatively waste of the State's resources. It is not a difficult thing to do, to respond to the promise to surrender. The promise is reduced to writing and a copy provided to the person bailed. Breaching bail is not an offence to be lightly regarded. The Parliament has enacted the maximum penalty of 40 penalty units or two years 1 imprisonment, and the imprisonment is to be cumulative upon other terms of imprisonment; section 33 of the Bail Act 1980.

This man has eight prior offences of breaching his bail, failing to appear. There is a need for personal and general deterrence. I do not consider, in the circumstances, three months' imprisonment to be manifestly excessive, given his prior history. I do not consider it has been shown the Magistrate's sentencing discretion, regarding the breach of bail offence, has miscarried in any way. The prosecution or respondent has conceded that the sentence for the offence of disqualified driving, in all the circumstances, was manifestly excessive.

Accordingly, I intend to allow the appeal with respect to the sentence for disqualified driving, but only with respect to that sentence. I do not consider the sentence for the drink driving offence, given the extremely high reading, as outside an exercise of a sound sentencing discretion.

The appeal will be allowed. The sentence of nine months' imprisonment for the disqualified driving offence is set aside. In lieu, the appellant is sentenced to imprisonment for five months for disqualified driving. Such a sentence will impose an additional two months' imprisonment beyond that imposed for the drink driving offence. The sentences for the drink driving offence and the disqualified driving offence are concurrent.

I consider an additional two months to be appropriate for the disqualified driving offence. It is a separate offence and it is a serious offence. There is a need to bring it home to people, including this appellant, that breach of Court orders by driving whilst disqualified will bring a serious penalty.

I acknowledge that it is quite a number of years since the appellant was last before the Court for such an offence. Nonetheless, the sentence will be one of imprisonment for five months for disqualified driving.

I have not mentioned the various disqualifications imposed by the Magistrate in his sentencing. They will remain as the Magistrate has imposed them.

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