Ebb v Donaldson[2008] QDC 155

[2008] QDC 155

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE McGILL SC

No 1081 of 2007

BRISBANE 

DATE 21/04/2008

ORDER

HIS HONOUR: This is an appeal from the decision of a Magistrate, who on 3 April 2007 dealt with the appellant on a plea of guilty to driving while disqualified. The appellant had been dealt with for disqualified driving in Brisbane Magistrate's Court on 19 May 2003 and on that occasion he was sentenced to four months imprisonment, suspended forthwith with an operational period of three years, and disqualified from holding or obtaining a drivers license for a period of five years.

This further offence occurred after the expiration of the operational period of suspended imprisonment, but during that five year disqualification - although well into it. It does not appear that there was any other offending prior to that time. On this occasion he admitted the offending to the police when he was stopped for a random breath test and he pleaded guilty at an early stage.

He had a traffic history which had a number of speeding offences and some other offences, but the more significant offences really start, I think, in August 2002 when he was driving under the influence of liquor. On that occasion he was fined and disqualified for driving for two months. Then during that two month period he drove while disqualified, and in December 2002 a more substantial fine - $1,200 - was imposed and he was disqualified for driving for three years.

It was during that three year period that he drove again and so the sentence of disqualification for five years and the wholly suspended period of imprisonment were imposed on 20 June 2003.

What worries me about this is the sentence imposed was six months imprisonment suspended - or at least with a parole release date after one month, and in addition there was a period of disqualification of 54 months - that is four and a half years. Driving while disqualified is a matter of some concern and considerations of general deterrence are a matter of some importance in relation to the offence, and although I have seen examples of driving while disqualified that were much worse than this, it seems to me that this is a relatively severe penalty, bearing in mind the length of time which had passed since the disqualification was imposed, without apparently any further offending.

I am particular concerned by the combination of a period of imprisonment with some actual imprisonment to be served and a lengthy period of disqualification. It seems to me that, although perhaps either of those courses separately might not have made the penalty excessive, a combination of those two penalties is excessive in the circumstances of this case.

I should say that the appellant has not appeared to argue in support of the appeal today, and I have not received any particular guidance in relation to comparable decisions from the respondent either, so I am dealing with this largely on the basis of instinct. And my instinct is that a period of six months imprisonment with one month actually served in combination with a period of four and a half year disqualification is an excessive combination together in the circumstances of driving on this occasion. It does not appear that there was anything particularly dangerous or unsatisfactory about the driving on this occasion except that the appellant was driving while he was disqualified.

In my opinion the combination of those two penalties does make the sentence imposed manifestly excessive.  Accordingly the appeal is allowed and the sentence is varied by setting aside the disqualification for four and a half years and substituting a disqualification for two years. The sentence is otherwise confirmed. Thank you.