McIvor v Rourke[2007] QDC 95

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 17 July 2006 the appellant pleaded guilty to having driven whilst disqualified and with an excess blood/alcohol concentration (0.105 per cent) on 8 April 2006. He was sentenced to two months imprisonment on the charge of disqualified driving and one month imprisonment on the charge of driving with an excess concentration. Those terms of imprisonment were to be served concurrently and suspended after serving seven days, for an operational period of two and a-half years. Further and in respect of both offences, the appellant was fined a sum of $2,500 with three months to pay and 75 days imprisonment in default. He was also disqualified from driving for two and a-half years. He was granted bail pending appeal on the day following his sentencing.

2. [2]
   This appeal was brought on the grounds that the sentence was manifestly excessive in all the circumstances or that the learned Magistrate failed to give proper weight to the relevant factors under s 9 of the Penalties and Sentences Act 1992.  It was ultimately submitted, on behalf of the appellant, that the imposition of a fine or a probation order with conditions (including undertaking the “Under the Limit Program”) would have been appropriate, but that the sentence imposed, including actual time to serve in gaol, was manifestly excessive.  It was submitted, on behalf of the respondent, that the sentence, while “towards the higher end of the sentencing range” was not manifestly excessive, taking into account the appellant’s traffic and criminal history and the seriousness of the offences.

3. [3]
   It is evident from the sentencing remarks of the learned Magistrate that significant weight was placed on the need for general and personal deterrence, given the type of offence and the appellant’s history. In that regard, the learned Magistrate said:

“Mr Swanson properly has referred to the matter of Hay (sic), and, in particular, the remarks by His Honour, Mr Justice Chesterman, with whom the community, it has to be says – said, have identified very strongly that if the Courts deal decisively with drivers who continuously break the rules in a serious way, then we might avert the situation that occurred in Hay (sic), where someone died at the hands of a serial offender.

The very point that his Honour makes in that case is that you act quickly and you act decisively to stem such serial offending. And if that is done, then you do not have history like Mr Hay (sic), which has multiple drink driving offences, and multiple disqualified offences. His Honour, if I might be so bold, is quite right.

…

Drink driving and disqualified driving, and the combination of the two are offences that are all too prevalent in the community.  They cause death, they cause destruction.  There is a need to tell you and to tell other members of the community that these offences are not to be tolerated.  Indeed, offences of this nature need a firm determination from the court so that the community is protected.

…

I am satisfied that, as his Honour said, in Hay (sic), one needs to – needs a short, sharp shock in matters of this nature and that is – the period of imprisonment will be suspended after seven days.  It will be suspended for an operational period of two and a-half years.”

4. [4]
   I take those paragraphs to be an adoption of part of the reasoning of Chesterman J in R v Hey, Ex-parte Attorney-General (Queensland) [2006] QCA 23, (to which I will return later) together with a conclusion that a short period of actual imprisonment was appropriate to provide a “short, sharp shock” to deter the appellant from further offending and also to provide general deterrence.

5. [5]
   At the time of committing the subject offences, the appellant was disqualified from driving by reason of an order made in the Magistrates Court on 16 May 2005 when he was convicted and fined $1,200 and disqualified from driving for 11 months for the offence of driving with a blood/alcohol concentration of 0.146 per cent. He had also previously been dealt with, on 14 September 2001, for driving with an excessive blood/alcohol concentration (0.047 while on a provisional licence), for which he was fined $150 and disqualified from driving for three months. Accordingly, this was the third time he had been dealt with for driving with a blood/alcohol concentration over the prescribed limit but the first case of disqualified driving.

6. [6]
   The appellant’s traffic history also included two offences of speeding and one of failing to wear a seatbelt. He also had a criminal history for assault occasioning bodily harm. In that regard, he was dealt with in the District Court on 7 October 2002 for two counts and was given the benefit of community based orders. He was dealt with for a further count on 23 February 2006 in the Magistrates Court. He was required to enter into a recognisance of $1,500 to be of good behaviour for 18 months. The subject offences occurred during the period that he was to be of good behaviour. Before the learned Magistrate, it was conceded that that was an aggravating feature.^[1]

7. [7]
   The learned Magistrate’s reference to R v Hey, Ex-parte Attorney-General (Queensland) is likely to be a reference to parts of the judgment of Chesterman J, including paragraph 41, where his Honour made observations as to the way in which Mr Hey ought to have been dealt with by the Magistrates Court for previous offences.  The Magistrate made reference to Hey’s case in support of the conclusion that the appellant needed a “short, sharp shock”.  Whilst Chesterman J did not, in terms, speak of a “short, sharp shock”, he did express the view that Mr Hey ought to have been previously gaoled in respect of his past offending.  The full text of paragraph 41 is as follows:

“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 gaoled 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.  It is distinctly possible Mrs Williams might be alive today had that course been followed.”

8. [8]
   It was pointed out, on behalf of the appellant, that Chesterman J delivered the dissenting judgment in Hey and that the observations at para 41 were, in any event, obiter.  Hey’s case was not directly concerned with the appropriateness of sentences imposed on Mr Hey by the Magistrates Court for previous offences.  The issue in Hey’s case was whether the sentence imposed upon Mr Hey for one count of dangerous operation of a motor vehicle causing death whilst adversely affected, was manifestly inadequate. 

9. [9]
   Mr Hey, who was 28 when he committed the offence and 29 at sentence, had what was described by McMurdo P as a relatively minor but nevertheless concerning criminal history. Of more direct relevance however, was his previous traffic history which suggested a significant alcohol problem. He had five previous convictions for driving under the influence of alcohol, three previous convictions for disqualified driving, two convictions for careless driving as well as speeding offences. The fifth offence for driving under the influence of liquor involved a blood/alcohol concentration of 0.189 and occurred only some nine months prior to the offence in question.

10. [10]
    Mr Hey was sentenced to six and a-half years imprisonment with a recommendation for post-prison community based release after two and a-half years and his licence was disqualified absolutely. McMurdo P, with whom Keane JA agreed, dismissed the Attorney-General’s appeal against that sentence. Chesterman J, on the other hand, would have allowed the appeal on the basis that the sentence did not reflect the gravity of the criminal misbehaviour nor address the community’s justified concern about the level of danger likely to be encountered on public roads constituted by conduct such as the respondent’s.

11. [11]
    The observations made by his Honour at paragraph 41 were obiter, but should not be disregarded on that account or taken to bad simply because they were made in the course of a dissenting judgment. Counsel for the appellant acknowledged, in the course of oral argument, that he would not disagree with the proposition that the court should deal decisively with drivers who continuously break the rules in a serious way. In Hey, the learned President did not specifically endorse paragraph 41 of the Reasons of Chesterman J, but did observe of Mr Hey that, “Despite his dreadful track history he had not previously been sentenced to a term of imprisonment” and continued to re-offend “despite the leniency shown to him in the past by the courts”.

12. [12]
    The dicta of Chesterman J in Hey’s case would, as Robin QC DCJ observed in Noon v Wilson [2006] QDC 168, command assent by many.  As Robin QC DCJ also pointed out however, there is a need for caution about focusing on those observations without taking due account of the context in which they were expressed.

13. [13]
    An acceptance of the proposition that Mr Hey ought to have been gaoled in respect to his previous offences, does not necessarily lead to the conclusion that every repeat offender ought be imprisoned or that the appellant ought to have been imprisoned by the Magistrate in this case. As was pointed out in submissions before the learned Magistrate, there are significant differences between Mr Hey’s history and that of the appellant. 

14. [14]
    While the appellant’s history is not trivial, it features only two previous offences of driving with a blood/alcohol concentration above the prescribed limit, rather than five previous occasions of driving under the influence of alcohol, as was the case with Mr Hey. Further, this is the first time the appellant has been convicted for disqualified driving, whereas Mr Hey had three previous convictions of that kind. That obviously provided the foundation for the observation by Chesterman J that Mr Hey had “amply demonstrated his contempt for previous disqualification orders” such that “there was clearly no point in imposing further disqualifications”. While the appellant had some other traffic offences, he did not have two convictions for careless driving as did Mr Hey. Moreover, whilst the appellant’s history was far from trivial, it was not of the “dreadful” character which applied to Mr Hey. I also note that in the appellant’s case, the offence of disqualified driving occurred at the very end of the disqualification period, when he had served all but some eight days of the disqualification period.

15. [15]
    Counsel for the appellant and for the respondent referred me to a number of decisions in relation to the appropriate sentencing range, the most comparable of which was Noon v Wilson (supra).  That was a successful appeal against a sentence of one month imprisonment and a three year disqualification for an offence of disqualified driving which occurred in association with an offence of driving a vehicle with a blood/alcohol concentration of 0.22.  Two years probation was imposed with respect to the latter of those offences. It was only the term of imprisonment which was challenged on appeal.

16. [16]
    The appellant was 47 years of age and had two relevant prior convictions, one for driving with a blood/alcohol concentration of 0.189, for which he was fined and disqualified for 10 months and another, after the expiration of the disqualification, for driving with a blood/alcohol concentration of 0.145. That was met with another fine and a more substantial disqualification. He was however, a first time offender with respect to the charge of driving whilst disqualified.

17. [17]
    The sentence was changed on appeal by wholly suspending (for 2 years) the term of imprisonment.

18. [18]
    While the case has a degree of comparability there are, of course, also points of difference. It was rightly pointed out, on behalf of the respondent, that Mr Noon had no criminal history and suffered a serious alcohol problem in respect to which he had been pursuing rehabilitation “apparently assiduously”. Robin QC DCJ also referred to the somewhat unusual circumstances of the offending, where Mr Noon had driven, apparently without incident, to a quiet location to drink alcohol away from his family. On the other hand, it was pointed out, on behalf of the appellant, that Mr Noon’s readings were relatively high, were all within an 18 month period and that he had driven within one week of the imposition of a disqualification period.

19. [19]
    In seeking to uphold the sentence, the respondent relied upon the seriousness of the offending, viewed as a whole, set in the context of the appellant’s previous traffic and criminal histories, together with the fact that the appellant had previously been given the benefit of non-custodial sentences in respect of previous traffic and criminal offences. The submissions on behalf of the appellant emphasised that the appellant is a first offender with respect to disqualified driving, that that offence occurred towards the very end of the period of disqualification, that previous offences involving alcohol did not involve readings which triggered the provisions of s 79(1C) of the Transport Operations Road Use (Management) Act with respect to mandatory imprisonment, that he had pleaded guilty, was still a relatively young man, that imprisonment was a sentence of last resort and that a short term of actual imprisonment was unlikely to provide rehabilitation.

20. [20]
    The age of the appellant and his plea of guilty are relevant considerations. Counsel for the appellant made reference to The Queen v Taylor and Napatali; Ex-parte Attorney-General for Queensland [1999] QCA 323.  It should be noted however, that both Taylor and Napatali were younger than the appellant and, unlike the present appellant, had no previous convictions of any kind. 

21. [21]
    Counsel for the appellant drew attention to a passage from the transcript of the proceedings below in which the Magistrate made further remarks after imposing the sentence. The relevant passage is as follows:

“MR SWANSON:  So, your Honour is imposing a fine as well as imprisonment.  The two separate orders in respect of both matters?

BENCH:  Yes.

MR SWANSON:  Thank you, your Honour.

BENCH:  The fine is a given that the term of imprisonment is suspended after seven days.

MR SWANSON:  Yes.

BENCH:  If it were a straight term of imprisonment, Mr Swanson, I would not order a fine as well.  But given that there is a suspension after seven days, the fine goes with it.  It is arguable …

MR SWANSON:  Okay.

BENCH:  … As several Judges do argue that a term of suspended imprisonment is, in fact, no punishment at all given that it is no more than that which is required for all of us in the community.

MR SWANSON:  Yes.

BENCH:  That is, not to offend.”

22. [22]
    The learned Magistrate appears to have determined to impose a period of imprisonment, to mollify that by partial suspension but then to also impose a substantial fine, to balance, to a degree, that mollifying effect. She seems to have done so on the basis that it is at least “arguable” that term of suspended imprisonment is, in fact, no punishment at all.

23. [23]
    It is wrong to suggest that a suspended term of imprisonment is no punishment at all. While everyone in the community is called to obey the law, a person who is the subject of a suspended sentence thereby has an entry in their criminal record of a sentence of imprisonment (albeit suspended) and has, hanging over their head for the operational period, the prospect that disobedience of the law will not only lead to punishment for that subsequent offence, but will also activate the suspended term of imprisonment. That is not something which applies to the community at large. It is a real, rather than an illusory, punishment and one which is designed to provide strong personal deterrence particularly during the operational period.

24. [24]
    It is, of course, important for any appeal court to pay due respect to the sentencing discretion at first instance. I am satisfied however, that, in this case, the exercise of the discretion miscarried. In particular, the learned Magistrate has arrived at a sentence which is manifestly excessive in the circumstances, by imposing a sentence with all of the following components:

1. (a)
   terms of imprisonment;

2. (b)
   actual time to serve;

3. (c)
   a substantial operational period;

4. (d)
   a substantial fine with a period of imprisonment in the event of default, and

5. (e)
   a significant further period of disqualification.

25. [25]
    I have given consideration to adopting a similar course to that taken by Robin QC DCJ in Noon v Wilson (in wholly suspending the terms of imprisonment), but I have ultimately come to the view that the appropriate sentence to impose in the current circumstances is one which involves probation, with a condition to undertake an appropriate program, to maximise the prospects of rehabilitation, together with the punishment of a significant fine and a substantial period of disqualification. A sentence of imprisonment, with actual time to serve, would likely be within range and appropriate if Mr McIvor were to re-offend, notwithstanding the opportunity given to him on this occasion.

26. [26]
    I set aside the sentence of the learned Magistrate and in lieu I sentence the appellant, on the offence of driving with an excessive blood alcohol concentration, to 18 months probation, with a condition that he attend the “Under the Limit Drink Driving Program”. On the offence of disqualified driving I impose a fine of $2000 with 3 months to pay. The matter is to be referred to SPER in the event of default. In determining that fine I have taken into account the fact that the appellant will have to pay an amount of approximately $500 to attend the Under the Limit Program. In respect of each of the offences the appellant is also disqualified from driving for a period of 2 ½ years. I order that the convictions be recorded. In my view that represents an appropriate sentence overall.