Todd v Combo[2008] QDC 146

[2008] QDC 146

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE EVERSON

No 3247 of 2007

BRISBANE 

DATE 06/05/2008

ORDER

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886.  It has been brought by the Crown in respect of a sentence imposed on the defendant on 26 September 2007 in the Magistrate's Court at Brisbane, sitting as the Murri Court.  The defendant pleaded guilty to numerous offences which involved multiple traffic offences.  He pleaded guilty to driving under the influence of alcohol in excess of three times the legal limit on four separate occasions over a six month period, from 17 September 2006.  This occurred whilst he was disqualified from driving. 

On two of these occasions, the defendant failed to provide his correct name to police.  On one of these occasions he was also speeding to the extent of travelling at 116 kilometres per hour in a 60 kilometre per hour zone.  On a separate occasion on 11 August 2006, the defendant was found sitting in the driver's seat of a car, where upon breath tests administered by the police, revealed a blood alcohol reading of .126 per cent. 

Previously, he had been disqualified from driving for 15 months by an order of the Brisbane Magistrate's Court.  The facts of this case are not in dispute and stem from a schedule of facts which was tendered by consent at the hearing at first instance.  The appeal is brought in circumstances where the defendant was sentenced to imprisonment for a term of 17 months, but given an immediate parole release date of 26 September 2007.  He was also disqualified from driving for a period of four years, having regard to various of the offences for which he was sentenced. 

The appeal is brought in circumstances where the Crown contends that the head sentence of 17 months imprisonment was adequate, however, that the ordering a parole release date on the date the sentence was imposed was manifestly inadequate because it fails to reflect adequately the gravity of the offences and the defendant's antecedent criminal history.  Further, that it failed to take sufficiently into account the concept of general deterrence and that the sentencing Magistrate gave too much weight to factors going to mitigation.

Before me today, the third ground of appeal has not been pressed.  However, the other two have been rigorously argued by Ms Rutherford, who appears on behalf of the appellant.  Regrettably, the defendant has a significant criminal history relating to motor vehicle offences, which is Exhibit 1 before me.  These offences include multiple offences for which he was punished on the 1st of October, 1999, including two counts of dangerous operation of a vehicle causing death or grievous bodily harm.  These charges resulted in him being convicted and imprisoned for a period of six years.  Regrettably, also, this particular sentence occurred in the context of sentences relating to motor vehicles ranging from the 19th of April 1996 to the 2nd of September 2002.

Ms Rutherford has also relied upon a number of comparative decisions.  Firstly, she refers to the decision of the Crown and McGuire [2002] QCA 439, a decision of the Queensland Court of Appeal.  Significantly, the Court of Appeal said at page 8 of the decision that in a case such as the one under consideration by me, deterrence is an important factor, and further went on to state:-

"A review of comparable sentences of this Court clearly shows that ordinarily, offenders who drive dangerously at speed on a major highway with a blood alcohol level in excess of 0.15 and to cause potentially serious injuries to others will receive a substantial punishment which includes a period of actual imprisonment."

A similar approach is evident in the other decisions to which I have been taken.  Essentially, Ms Gilbert who appears on behalf of the defendant doesn't quibble with the fact that for offences of the type for which the defendant was sentenced, a period of imprisonment should have been imposed.  However, she submits that the learned Magistrate took this into account in imposing the head sentence, but took the view that the prospects of rehabilitation of the defendant were best achieved by his immediate release on parole.  In this regard, I note that there is no material before me which suggests that the defendant has not been completely compliant with the terms of the parole order made on the day he was sentenced. 

Ms Rutherford submits that the parole release date was manifestly inadequate and that the parole release date should have been after 180 days was spent in custody, taking into account the notional one-third reduction of sentence for the early plea of guilty and comparative decisions, one of which I have referred to above.

Ms Gilbert points to the fact that the decision of the Magistrate has lead to an expectation on the part of the defendant that he will not be going to gaol.  However, she concedes that upon the making of the order giving leave to appeal to the Crown on 25 January 2008 the defendant has known of the Crown's position and of the possibility of him receiving a custodial sentence in respect of which he will be required to actually spend time in goal.

I am of the view that the respondent's history of motor vehicle offences and, in particular, his repeated history of serious drink driving offences is such that he can only be described as a menace on the road and a threat to the community.  I am of the view that the gravity of the offences and his antecedent criminal history, particularly that relating to serious motor vehicle offences, is such that the decision not to require the respondent to serve a period of actual imprisonment was such that the decision of the learned Magistrate resulted in a penalty which was manifestly inadequate.

Furthermore, the relevant decisions make it clear that with regard to offences of this type, particularly having regard to the risk that offending behaviour of this type poses to the general community, deterrence is a significant consideration.  As this appeal merely focuses upon the question of whether or not a period of actual imprisonment should have been imposed and what that should be, I do not propose to go into detail in respect of the other aspects of the sentence imposed upon the defendant, which do not appear to be directly relevant to the determination of this appeal.

I order as follows:

1. (1) the appeal is allowed;
2. (2) that the sentence imposed by the Magistrate's Court at Brisbane on 26 September 2007 be varied by vacating the order that the defendant be released on parole as at the 26th day of September 2007, and substituting in lieu there of an order that the respondent be released on parole at the date by which the respondent has served 180 days imprisonment following his being taken into custody in relation to this sentence. As the respondent has not yet been taken into custody, it is impossible for me to set a more precise date in this regard;
3. (3) I order that a warrant issue for the arrest of the respondent, such warrant to lie in the registry for 48 hours.