Sebille v Dempsey[2009] QDC 58

HIS HONOUR: Mr Van Sebille is conducting his own appeal under section 222 of the Justices Act 1886 against sentences imposed by a Magistrate on the 6th of October 2008 for offences under section 78(1) and 79(1) of the Transport Operations (Road Use Management) Act 1995 committed on the 4th of September 2008. The sentences imposed were nine months' imprisonment for each offence, concurrent. Those were accompanied by orders disqualifying Mr Van Sebille from holding or obtaining a driver's licence for three years which were ordered to be cumulative. The blood alcohol concentration was .192 per cent.

Mr Van Sebille is now 60. His situation before the Magistrate was rendered far more embarrassing because of a terrible history of similar offending. Restricting myself to the five-year period leading up to the current offences which the Act makes highly relevant for the purposes of setting penalties, one finds a conviction for driving under the influence, this time .257 per cent, and disqualified driving on the 13th of December 2007 for which a sentence of six months' imprisonment was imposed and a licence disqualification of three years. On the same date was an offence of dangerous driving which resulted in 14 months' imprisonment being ordered, and a licence disqualification of five years. On the 21st of September 2005 were further offences of driving under the influence, this time .248 per cent, and a disqualified driving on the 21st of September 2005. On the 4th of March 2004 there was an offence of driving or attempting to put in motion or being in charge of a vehicle while under the influence, this time .083 per cent. On the 4th of March 2004 there was also a licence disqualification, and there were similar offences dealt with more leniently in earlier years. The appellant's first incarceration was in respect of the 2005 offences for which he was ordered to serve three months' imprisonment and was disqualified from holding a licence for 36 months.

Proceeding through the Act, the relevant provisions today begin with section 78(1) which establishes the offence of driving unlicensed. By subsection (3), by reason of the new offence occurring while Mr Van Sebille was disqualified, the Court was obliged to disqualify him for a period of at least two years but not more than five years, to be decided by the Court. Here, her Honour imposed a three-year disqualification.

Section 79(1) establishes the offence of driving a motor vehicle while under the influence of liquor. So far as penalty is concerned, the relevant provision is section 86(1B) which applies to a person previously convicted more than once of an offence under section 79(1). Such a person is disqualified by the new conviction and, without any specific order, for a period of two years from the date of such conviction, from holding or obtaining a Queensland driver licence.

One might observe that this part of the Act has been painstakingly crafted by the Legislators to establish a system of punishments, including disqualifications, part of the purpose of which is protection of the public, of increasing severity as offenders get themselves into more serious trouble, as recidivists.

The next section of potential relevance to the appellant's situation is section 87 which provides for the issue of a restricted licence to a disqualified person. That's potentially of interest to the appellant who has qualifications in various fields including, among others, agricultural aviation. As a crop-dusting pilot, he tells the Court that he needs to be able to drive a vehicle to get to places relevant to that work for purposes including obtaining fuel for aircraft.

There is currently no application before the Court for the issue of a restricted licence to the appellant. There may be difficulties in the way of his applying in subsection (2) which requires the application to be made to the Court recording the conviction and making the order of disqualification: more seriously, by subsection (5)(c), the application may not be granted where the applicant has previously been convicted under section 79 within the five-year period referred to. That debars Mr Van Sebille.

Next in this journey through the Act, one comes to sections 90B and 90C which reinforce my comments about the policy of establishing penalties of increasing severity. They relate to cumulative periods of disqualification for offences committed at different times - that's section 90B - and at the same time, in section 90C by subsection (5) of the latter, each period of disqualification, whether for a drink-driving disqualification or an unlicensed driving disqualification or an existing disqualification, takes effect cumulatively with each other period of disqualification.

Last, and likely to be of greatest practical significance to Mr Van Sebille, is section 131 which entitles a person who's been disqualified "for a period of more than two years", at any time after the expiration of two years from the start of the disqualification period, to apply for the disqualification to be removed. That gives Mr Van Sebille the prospect of applying after the 6th of October 2010 for removal of the disqualifications currently of greatest concern to him. There's perhaps room for argument whether such an application can be made where there are discrete periods of disqualification. My view - which I understand Mr Crane, appearing for the respondent, to agree with - is that the commonsense approach of adding periods of disqualification together and applying the provision by reference to the total represents the correct procedure.

I think it's clear from Mr Van Sebille's submissions to the Court that what he really hoped to achieve in the appeal was minimal or no disqualification so that he could earn an income which, from his point of view, requires the ability to drive. I'm not sure whether he's explored alternatives sufficiently or that there would be none. The Court can do nothing for him in that regard because the events of the 13th of December 2007 mean that Mr Van Sebille is disqualified until the 13th of December 2012, unless he does something under section 131 to change that.

He presents to the Court as a person with ambivalent attitudes. He acknowledges the problems he's had with drinking and driving, which troubled the sentencing Magistrate. He says he's undertaken programs with Alcoholics Anonymous in particular to deal with that, and that he hasn't been drinking while in custody and feels better for it.

On the other side, he appears to want to cast some blame on others, one might say the system, for his offending.

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HIS HONOUR: He was released on parole, in respect of the sentence of the 13th of December 2007, on the 29th of August 2008 and, conscious of his obligation to report to Community Corrections in Cairns on his release, he tells the Court, he got the driver of the bus in which he'd come from Mareeba to let him off in Sheridan Street, Cairns outside the Community Corrections office. There, the assessment was made by an officer, and perhaps unjustly, that he was intoxicated and she refused to see him. He blames that rejection for his driving one of his motor vehicles to attend again on the 4th of September 2008, when the assessment was made, and this time correctly it seems, that he was intoxicated and he probably again had no success in having the requisite interview. He drove back home. Community Corrections reported the matter to the police who were quickly investigating it, obtaining the blood alcohol concentration reading and the like. The consequence of this was immediate loss of parole, Mr Van Sebille being returned to custody where he's been ever since.

The full-time release date from that 14 months' sentence in circumstances which include a few days having to be served in default of payment of fines, is the 9th of August 2009. It will be seen that the Magistrate's penalty, so far as the imprisonment aspect of it is concerned in any event, was lenient because it imposed no additional incarceration above what the appellant was already liable to. Further, the day in Court gave Mr Sebille some hope for the future by the Magistrate's ordering a parole eligibility date of the 4th of March 2009. Because he had offended on parole it was not open to the Magistrate to fix a parole release date. Nonetheless, I am confident that her intention was that, other things being equal, he would be released on parole on the 4th of March 2009, that the parole date would be in effect in respect of the 14 months' sentence I mentioned, as well as the new nine-month sentences. Mr Van Sebille has had no benefit from it.

I've marked Exhibit 1 a notification from the authorities at Lotus Glen Correctional Centre, where he is residing at the moment, of an application for parole on the 9th of January 2009. As I would expect, Mr Van Sebille sought to apply for parole early so that the parole board, which I understand is at Townsville, could process his application in time.

The communication Exhibit 1 advises him, "Your application will be processed according to your parole eligibility date and you will be contacted in due course for a parole assessment review. After this review the report will be sent to the board for consideration."

Contrary to my understanding of the way the system worked in the distant past, it looks as though nothing will happen, or was intended by the authorities at Lotus Glen to happen until the 4th of March this year. The advice the appellant has, apparently verbally, is that nothing is going to be done until the outcome of this present appeal is known. I suppose that makes sense in the sense that theoretically, Mr Van Sebille's situation might be worsened, but that seems unrealistic to me. I've no idea what considerations may be responsible for the protocols or guidelines that are followed, however, it seems to me odd and I would suggest undesirable that a prisoner's application for parole is held in the prison where he is, rather than transmitted to the parole board; it could easily enough be transmitted with some covering documentation to indicate that the parole eligibility date hadn't yet arrived, that a report on the conduct in prison to that date might be forthcoming, that an appeal such as the present which may affect the sentence was still to be determined and the like.

I'm grateful to Mr Crane for inquiries he's made while the matter was stood down this morning. He has made reference to section 180 of the Corrective Services Act, he's also indicated his information is that processing of applications for parole - Mr Van Sebille hasn't yet even got underway, notwithstanding that it's now the 18th of March, two weeks after the eligibility date - may take up to 120 days, that's four months, and is going to take the appellant into the second half of July against a final discharge date of the 9th of August 2009. In fact, by that date the sentences under appeal will be expired anyway, won't they?

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This seems to me a bizarre situation, and as a citizen I express the hope that the parole system could work a little more expeditiously. Mr Van Sebille has already paid a very high price by loss of the parole which he received on the 29th of August last year. Of course it was he who chose to breach his parole. It might be convenient to mention at this point that he also makes mention of the strong medication which he is on and which he has had trouble keeping up in custody. He attributes to a combination of that medication with alcohol some part of the blame for his offending. A small comfort to members of the public who want the roads they use to be safe.

While on this theme of the less than ideal way in which the system works I record my concern that Mr Van Sebille who had brought his papers for the appeal and also his reading glasses to the Court from Lotus Glen was without access to them when the appeal came on, and indeed for a substantial part of it until I discovered those deprivations which plainly made things difficult for him. I am pleased that they have been attended to during the adjournment, and to see that the Court has been able to provide him with a device to make it easier for him to hear proceedings. Whether his being compelled to present his case with those disadvantages was a matter of oversight, or lack of consideration, or some deliberate attempt to subject him to degradation I am not in a position to say. It ought not to have occurred.

Mr Crane accepts that the appeal has to be allowed in so far as her Honour imposed a three year disqualification period for the offence under section 79(1). That is in excess of the two years allowed, indeed mandated, by section 86(1B). His submission is that on the merits given Mr Van Sebille's history, which has to be accounted execrable, what the Magistrate ordered was within range, but should not be allowed to stand in that it exceeds what the Act allows. The Magistrate did not go as high as she could have under section 78(3)(a). She could have gone lower adopting two years rather than three.

The effect of doing so would be to impose disqualifications running to the 6th of October 2012. The respondent's suggestion advanced by Mr Crane is that 6th of October 2013 would set a more appropriate duration for the disqualification, and indeed be necessary to provide some element of punishment in respect of Mr Van Sebille's most recent offending given that at the time of it he was already subject to disqualification to the 13th of December 2012.

In all of the circumstances if the Court were minded to indulge Mr Van Sebille in the way he seeks it could do no more than produce an outcome in which the disqualification would expire on the 6th of October 2012 and be without effect given the continuation of the earlier disqualification for another two months and a week.

I accept the merit of Mr Crane's submission in accordance with which the appeal is allowed, but only to the extent of reducing the three-year period of disqualification ordered in respect of the section 79(1) offence of the 4th of September 2008 to the two years imposed by section 86 (1B).

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HIS HONOUR: So the only order that the Court makes is to set aside the three-year disqualification imposed for the offence under section 79(1) of the 4th of September 2008.