Miller v Dunning[2006] QDC 420

[2006] QDC 420

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD300 of 2006

BRISBANE

DATE 04/12/2006

JUDGMENT

HIS HONOUR: Mr Dunning ended up arguing his own appeal under s 222 of the Justices Act 1886 against the severity of a Magistrate's sentence for three separate offences of dangerous driving, following the withdrawal of his solicitor by the Court's leave earlier in the day. What appears to be the explanation for that has now emerged; it is the financially strained circumstances that Mr Dunning now finds himself in, in consequence of the unexpected result of a two year disqualification from holding a driving licence which a Magistrate imposed on the 9th of January this year in the Brisbane Magistrates Court.

The species of dangerous driving or dangerous operation of a motor vehicle within section 328A of the Criminal Code relied on here is known in the community as tailgating. The educational programs currently featuring on highway advertising inform the drivers who take any notice of them that tailgating causes accidents, which I would not doubt. It also causes nervousness and, I think in many cases, fear in the leading driver, which is probably what it is intended to do. This must be a rare opportunity of bringing a serial offender in this regard before the Court.

Although there are three charges, Mr Dunning has pleaded guilty to offences which, as explained to the sentencing Magistrate, involve tailgating of four vehicles. Two were reported by the leading driver. In one of those, Mr Dunning's wife, who has supported him throughout and in particular in Court today, hardly brought any credit upon herself by her action during the tailgating exercise of telephoning the leading driver whose number was displayed on the back of his vehicle, in a way clearly supportive of the tailgating.

Another complainant was responsible for another of the charges. The last two incidents were observed by police observing driving behaviour on a busy road in Brisbane. They observed two different vehicles being tailgated. Some of the descriptions are alarming, including one which had Mr Dunning's four wheel drive vehicle within a couple of feet of the leading vehicle. All the Court has to go on in relation to the circumstances is the summary account provided by the prosecutor, because Mr Dunning pleaded guilty. There were no findings by the Magistrate, who failed to declare that the guilty pleas had been taken into account, enlivening the principle of Woods [2004] QCA 2004 for purposes of this appeal as volunteered by Mr Rankine (for the respondent).

Mr Dunning seems, on today's performance, very reluctant to accept that he did serious wrong, even that his manner of driving was dangerous. I hope he appreciates that whatever his judgment about the matter is, that of the courts and the community is to the contrary. He has told the Court that he pleaded guilty because the information he had leading up to the 9th of January and before Court on that day was that he was facing imprisonment, which might be avoided if he pleaded guilty.

He and his wife had a very young child at that time and were often looking after a daughter from an earlier relationship of his. He wished to remain free and working in his business of self-employed carpenter, rather than face gaol. So, one might speculate what account he would given of events had he gone into evidence as he did today. Both the sentencing Magistrate and this Court must proceed on the basis of the guilty plea being correct and the facts as outlined by counsel for the Magistrate being broadly correct. The Magistrate declined to entertain the sentencing proposal which the prosecutor and Mr Dunning's then counsel agreed in of a probation order, including conditions of participation in any anger management course or advanced driving course that might be directed. She expressed a view that given Mr Dunning's age, he's in his early thirties, the community corrections authorities ought not to have to concern themselves with his welfare, having plenty of work to do with more deserving or appropriate cases.

Her Honour referred to the prospect of a wholly suspended sentence of imprisonment being imposed and expressed the view, as I read her reasons, that his past driving history was not sufficiently bad, much as she condemned it, to justify imprisonment.

She imposed a fine of $2,000, allowing six months to pay,setting the default period of one month's imprisonment. Sheimposed a two year disqualification.

In that regard, her Honour went far beyond the submission ofthe prosecutor before her, Ms Dent, who had submitted for adisqualification of "up to a year" and a six month minimum.It is not unprecedented but it is relatively rare that asentencing court imposes a penalty more severe than theprosecutor suggests.

So far as disqualification is concerned, Mr Kelso, who wasdefence counsel before the Magistrate, accepted there would bea six month minimum disqualification and indicated to herHonour that that was something that was manageable in thatMr Dunning's wife was often driving with him with the childrenso that the burden of having to drive him and his bulky toolsto and from work in the relevant Jackaroo four-wheel drivevehicle could be managed.

What was not anticipated is the difficulties which Mr Dunninghas had through this year when the builders for whom he workeddiscovered he had no driving licence. It could be, mostmight think, that they would have been impressed by the exhibiting of a responsible attitude of not driving and the support of a spouse prepared to fill in, but I accept from Mr Dunning, who gave oral evidence, that there are inconveniences in taking on a subcontractor unable to drive and fill in if some message or other work taking him away from the principal site needs to be attended to.

Mr Dunning was able to name four builders and he suggestedthere were others who could be identified, by consultation of his records, who had terminated the services which he hadapparently been performing satisfactorily when his lack ofmobility became evident.

I think that is a legitimate species of further evidence in special circumstances which an Appeal Court may entertain and indeed act upon. See Hughes [2004] 1 QdR 541. Unexpected consequences of a disqualification which was at least twice as long as that sought by the prosecutor have made it work more harshly than the Magistrate intended. The effect on Mr Dunning's income I am satisfied has been substantial. He says he has had to borrow $15,000 to date from his wife's family to be able to meet important financial obligations, in particular his mortgage. He has not been able to pay the fine.

The outline of argument signed by another counsel, Mr Entriken, for the appellant, was critical of the Magistrate who was alleged to have unnecessarily introduced her personal prejudices to the sentencing process when she appeared to have made an unflattering comment about Brisbane's public transport system. I cannot see that that innocuous observation played any part in her final determination.

Mr Entriken's outline also urged that by reference to section 9(1)(a) of the Penalties and Sentences Act 1992, the Magistrate should have had regard to principles of, "just dessert, mercy, fairness and the principle of proportionality", opting for "imposing the lowest rather than the highest sentence of imprisonment that can be justified", quoting Jacobs J in Moyse [1998] 38 Australian Criminal Reports 169 at 172-73.

Those submissions were made in support of the contention that a probation order with the special conditions indicated ought to have been made and perhaps in combination with a community service order, a six month disqualification and a fine of unspecified amount. Mr Dunning has indicated after an explanation of what was involved in the probation order that he would consent to the making of one.

Ms Rankine, for the respondent in the appeal, indicated a preference for a wholly suspended sentence being imposed to mark the Court's disapproval of Mr Dunning's manner of driving. It's not for him to select the appropriate sentence, of course, but he indicated his willingness to take the risk involved in a suspended sentence, expressing confidence that he could keep out of trouble. It seems to me that although he exhibited today a good deal of stubbornness and unwillingness to accept that he's done wrong or was capable of doing wrong, he is entitled to feel some pride and satisfaction that after some serious problems with drugs which saw him in Court on a number of occasions in the past, and he mentioned heroin, he has overcome that and established himself in his new trade and in his family situation. And that's about to change with another child expected next February. He is obviously anxious to keep up his close links with his first daughter.

I mention these matters because my mind has vacillated in respect of making a probation order. In the end I have opted not to do that and for reasons somewhat similar to the Magistrate's. There have been no comparable sentences specifically referable to the tailgating species of dangerous operation of a motor vehicle referred to the Court to date; those found by Ms Rankine involved a collision.

...

HIS HONOUR: My own general approach over the years has been somewhat hostile to making disqualification orders over and above those which are mandated by legislation.

My impression is that far too often they lead to difficulties of the kind Mr Dunning has experienced and far, far too often they are followed by persistence in driving by the supposedly disqualified offenders. There appear to be no possibilities of Mr Dunning getting relief except by way of appeal in respect of the two year disqualification.

He might have been able to get a work licence had he been guilty instead of driving under the influence. Had the disqualification been for longer than two years, after that period he would have been entitled, under section 131 subsection (2) of the Transport Operations (Road Use Management) Act to apply to have the disqualification removed or reduced.

It is established that courts of appeal may have regard to events bearing on the effect the sentence since has on the offender after imposition of that sentence. This is an appropriate occasion for doing so and ameliorating the disqualification to the level that the Prosecutor had sought. So the appeal will be allowed. The fine remains, but in the circumstances I would allow until the end of the year 2007 for payment. The disqualification imposed by the Magistrate is reduced to one of one year and in addition the Court imposes a sentence of three months imprisonment which is suspended forthwith for an operational period of two years.

So, that is the good behaviour period, Mr Dunning. Now, do you understand what's happened? The disqualification is going to run till the 9th of January‑‑‑‑‑

APPELLANT: Mmm-hmm.

HIS HONOUR: ‑‑‑‑‑for another month or so. It will come to an end then. You'd better find out what you have got to do about getting your licence back. The Magistrate confiscated it, didn't she?

APPELLANT: Yes, your Honour.

HIS HONOUR: Was it handed over in Court?

APPELLANT: Yes, your Honour.

HIS HONOUR: Well, you've got that three months sentence hanging over you for a couple of years and you've still got to deal with the fine. You can seek a further extension of time if you need it because you've still got the default imprisonment attached but you can see an administrative person in the Court, probably the Magistrate's Court, to get further time to pay the fine. You can also pay in instalments and you'll more likely get an extension of time if you need it if you've paid something on account. Does that cover everything?

MS RANKINE: Yes, your Honour. Just in relation to the - the time for the fine, if it could be stated as the 31st of December 2007‑‑‑‑‑

HIS HONOUR: All right.

MS RANKINE: ‑‑‑‑‑just to be clear for‑‑‑‑‑

HIS HONOUR: If you like - go on‑‑‑‑‑

MS RANKINE: ‑‑‑‑‑the registry purposes.

HIS HONOUR: All right. I'll do that. I note that Judge Wylie has previously made an order correcting the name of respondent in the appeal to Lorissa Nicole Miller's. I don't need to order that.

MS RANKINE: I'm sorry, your Honour.

HIS HONOUR: Judge Wylie's already changed the title.

MS RANKINE: Oh, thank you, your Honour.

HIS HONOUR: All right. Just don't drive too close behind anyone else on the road ever again, Mr Dunning.

APPELLANT: I won't ever.

MS RANKINE: Your Honour, I still have the Court file. So, I'll return it to you at recess.