Roberts v Edwards[2011] QDC 184

HIS HONOUR: Yes, I mention the matter of Darren Mark Roberts versus Sergeant S C Edwards. This is an appeal against sentence.

On the 21st of July 2010, the appellant appeared in the Magistrates Court at Mackay and pleaded guilty to one charge of driving a motor vehicle whilst under the influence of liquor with a reading of .209 per cent and one charge of dangerous operation of a motor vehicle with the circumstance of aggravation that he was adversely affected by an intoxicating substance. Both charges arose from his driving of a motor vehicle in the area of the Northern Beaches Bowls Club north of Mackay on the early hours of Saturday the 17th of July 2010.

In relation to the charge of drink driving, he was convicted and fined $2,000 and disqualified for a period of 15 months, and in relation to the charge of dangerous driving with a circumstance of aggravation, he was sentenced to a wholly suspended 10 month term of imprisonment and disqualified from holding or obtaining a driver's licence for a period of 12 months. By virtue of the relevant legislation, the two terms of suspension have to run cumulatively such that the effective disqualification was 27 months.

Whilst I do not have a complete transcript of the sentence, I was able to ascertain something about the appellant's antecedents. He was 31 years of age at the time, and I note that he had previously served nine years in the Australian Army and was actually employed as a security officer in Afghanistan at the time of the commission of these offences, and I understand continues to be so employed. There was no relevant criminal history and there was some relevant traffic history. There are a number of speeding offences in what I might term as less serious offences, and also one charge of disqualified driving on the 7th of September 2004 and one charge of driving a motor vehicle with a blood alcohol concentration in excess of the limit on the 18th of July 2004. On that occasion the reading was .083 per cent.

The allegations are contained in the reasons of the learned Magistrate and appear on pages 2 to 3 of the transcript of the decision.

At the outset I must say that his behaviour was incredibly stupid. He had two people with him who I understand were friends and it would appear, on the strength of submissions made on his behalf by his solicitor, that they to some extent, if I can put it in the colloquial sense, egged him on. But in any event, he left the Northern Beaches Bowls Club at about 10 to 1 and turned left into the Mackay-Bucasia Road. He was revving the engine loudly before doing so and the rear wheels could be heard spinning on the roadway. He was actually observed by police who also saw a small amount of smoke emanating from the rear wheels. They noticed that the rear wheels started to slide and the vehicle eventually spun in what was described as a 360 degree spin to the right. This caused the rear of the vehicle to impact the gutter and for the vehicle to bounce into the air and to come to a stop. Shortly afterwards there was further revving of the motor and the vehicle took off rapidly in the direction of a traffic island and actually went over the traffic island and landed on the northbound lane of the Mackay-Bucasia Road where it travelled for a considerable distance. The police were able to stop traffic further down the road and eventually intervened and he stopped.

The appeal relates more to the penalty imposed on the more serious charge of dangerous operation with the circumstance of aggravation.

In submissions, counsel for the applicant argued that a number of matters were not properly reflected in that sentence such that it was manifestly excessive. These included his prompt plea of guilty, which was only four days later; his cooperation with the police; his display of remorse; his limited criminal history; the fact that the relevant traffic entries were over six years old; the fact that the dangerous driving was over a short distance, and that he did not attempt to flee the police or cause a chase on a public road. It was further argued that he did not cause any injury to anyone.

In response, the respondent argues in effect that the sentence imposed is not manifestly excessive and that imprisonment is within range in a matter such as this. I already indicated to the representative for the respondent at the end of the hearing that I probably would have imposed a fine myself in circumstances such as this, although I still have to consider whether or not what was imposed is outside the range for these types of offences such that it is manifestly excessive which would justify my interfering with the decision.

The prosecution pointed to the fact that quite correctly the distance travelled would have been more than 70 metres on the wrong side of the road and stressed the fact that there were other people in the vehicle, as well as referring to the overall nature of the driving itself.

The respondent relied on a Court of Appeal decision of R v. Smith [2004] QCA 126. In that case Smith was convicted of dangerous operation of a motor vehicle when adversely affected by alcohol with a reading in that case of .182 per cent. He was originally sentenced by the sentencing Judge, that matter being dealt with in the District Court, to 15 months' imprisonment, to be suspended after serving four months, with an operational period of two years. The majority of the Court found that that was manifestly excessive and interfered to the extent that the term of imprisonment was wholly suspended with an operational period of three years.

Much was said of the circumstances in Smith and it is relevant to look closely at just what Smith did. He was driving on the Toowoomba-Oakey Road and was first observed about eight kilometres from Oakey at 5.30 p.m. on a Friday afternoon. This was the Warrego Highway at, I can only imagine, was a fairly busy time in an area such as that. He was noticed initially by another driver who was following him and that driver became so concerned about Smith's driving that he actually telephoned the police on his mobile. He then did certain things at the instruction of the police and followed Smith right up to the point where Smith went to his home in Oakey where he was subsequently located. This witness noted that the vehicle driven by Smith was swerving across the marked centre line of the two lane roadway and at times onto the dirt shoulder of the road. At the suggestion of police, he reached a point where he could overtake the vehicle where there were two lanes travelling towards Oakey. He noticed that as he did overtake, the other vehicle moved all over the place, it actually crossed the line between the two lanes in the direction that they were both travelling, and at one point nearly cut him off. The witness said that whilst he wasn't particularly speeding, he was nonetheless driving all over the place, so much so that one of the Judges on appeal describing him as doing his intoxicated best. The witness was able to get past Smith's vehicle and then, presumably on instruction from the police, slowed right down in the hope that Smith would stop. He noticed Smith behind him in the rear vision mirror wandering all over the road and at times crossing out of his lane. I presume by that stage we were back to a two lane carriageway. That plan did not work and Smith overtook him again, and from that point on the witness noticed that he was swerving all over the road, at times travelling with his driver's side wheels on the centre line, and at times actually crossing the centre line. On one occasion he noted that a semi-trailer moving in the opposite direction had to move out of its lane, or partly out of its lane, and onto the shoulder to prevent an accident. He also noted that a number of other vehicles had to take evasive action because of the driving from that point on by Smith.

What I found helpful in the decision of Smith was the analysis by the different members of the Court of sentences that had been imposed in what had been referred to as non injury cases. On page 7 of the report the Chief Justice, who was in the minority in that case, referred to two earlier decisions of R v. Coake [1999] QCA 12 and R v. Gehrman [2002] QCA 261, where prison terms were imposed in non injury cases. He did note, however, that both involved the police chase situation. He noted that two other cases, namely R v. Simpson [2001] QCA 109 and R v. Harvey-Sutton [2003] QCA 229, were mentioned in the course of submissions before the sentencing Judge in that case. He never explained what they entailed, but I had regard to what Justice Gerard said on page 9 of the report. He noted that in both of those cases there was a substantial reading of in excess of .15, as is the case here, as is the case of Smith, but he also noted that the driving in each of those cases was worse than the driving in Smith, although he did concede that may be some matter of debate.

When referring back to Coake and Gehrman and a number of other cases that were referred to on argument in Smith, he noted on page 9 why substantial penalties are imposed in circumstances were people attempt to evade arrest during pursuit of their vehicle and to the associated inherent dangers when someone is attempting to outrun a pursuing police car. He said that that danger derives from the predetermination of the fleeing driver not to stop or slow down when might otherwise be expected in the intervening circumstances such as the presence of other cars or pedestrians on the road.

It seems to me that whilst the driving in this case was indeed serious in the short term, it is not as serious as the driving in the matter of Smith. In Smith it was prolonged driving on a highway in circumstances where a number of vehicles had to take evasive action. On this occasion it occurred in the early hours of the morning, and whilst I accept that this was due in part to the prompt intervention by the police, there was no necessity for anyone to have to take any evasive action to avoid the appellant here, with the police being able to stop the traffic further down the road. There is no suggestion that anyone was injured, although I do accept that the fact that there were two passengers, regardless of their attitude, was clearly relevant. The big difference to me is the short period of time. This was something which has often been referred to as hoon-type driving where the person in the very short time displayed no regard whatsoever for anyone else, but significantly on the intervention of the police, it seems as though this matter came to a relatively quick end. It certainly never involved any defiance of the police or any attempt to get away from the police, which in the circumstances here, coupled with the initial driving, would have clearly justified the imposition of a period of imprisonment probably so much so that some time in actual custody would have been warranted.

It seems to me that, for the reasons I have stated, this is not the type of case where a period of imprisonment, even fully suspended, is within range, and I find that the sentence is manifestly excessive.

Counsel for the applicant has submitted, firstly, that I should substitute a substantial fine in respect of the suspended term of imprisonment, and I intend to do that.

There was also a further submission that I should reduce the period of disqualification with the argument being that 12 months on top of 15 months was crippling. It seems to me, however, that the period of suspension is warranted in view of the stupidity of what he did, and I do not intend to interfere in any way with the period of disqualification. I believe, however, that a substantial fine would be justified and it seems to me that an appropriate fine in his case would have been $2,500. This, I believe, would reflect the seriousness of the matter, coupled with the overall effect of the cumulative period of disqualification and would also reflect the relevant matters in his background and more particularly the prompt disposition of the matter by way of an early plea consisting with remorse on his part. I believe also that his previous background in terms of his service to his country would also be relevant.

So in the circumstances, I order that the appeal be allowed. I order that in relation to the charge of dangerous operation of a motor vehicle with a circumstance of aggravation, that the term of imprisonment be set aside and that in lieu thereof I order that he be fined the sum of $2,500.

Does he need time to pay that?

MR CULLINANE: Your Honour, he's presently overseas and won't be back for two months. Could I ask for three months in the first instance?

HIS HONOUR: All right.

MR CULLINANE: And perhaps referred to SPER in default.

HIS HONOUR: Exactly. I order that that fine be paid within three months of today's date and that in default of payment the matter be referred to the State Penalties Enforcement Register.

Does that cover everything?

MR CULLINANE: Just the question of conviction, given it is something which falls within the Criminal Code. He'd automatically attracted a conviction given a term of imprisonment was imposed below. I don't wish to press the matter, but certainly given your Honour's findings, it's within‑‑‑‑‑

HIS HONOUR: Well, there was an argument - sorry, I didn't realise the appeal extended that far, but I'll determine that now and I'll hear you both on that. There was some argument on the part of the solicitor that it could affect his work, but I see he's back there.

MR CULLINANE: That's so.

HIS HONOUR: Do you want to say something on that, Ms Franklin?

MS FRANKLIN: As your Honour has somewhat alluded to, if it were to effect his work to that extent, surely he wouldn't have been able to go back to Afghanistan as the conviction was already recorded.

I note, your Honour, that he's not actually employed in the military any more but an independent - from my understanding, an independent‑‑‑‑‑

HIS HONOUR: No, that was clear.

MS FRANKLIN: ‑‑‑‑‑security contractor.

HIS HONOUR: I didn't actually mention that, but that was clear, but I said nine years in the army. That nine‑‑‑‑‑

MS FRANKLIN: No, your Honour, but in terms of the conviction being recorded, I understand that would affect significantly were he still in the military.

HIS HONOUR: I see what you mean.

MS FRANKLIN: However, being an independent security contractor and already overseas again, I would ask that your Honour leave the conviction as recorded given the seriousness of the offending.

MR CULLINANE: Your Honour, whilst he did work as an independent‑‑‑‑‑

HIS HONOUR: I'm inclined to do that, Mr Cullinane, but anyway tell me.

MR CULLINANE: I just need to put on the record that whilst he was initially employed as a contractor with a private firm when he first toured, if I can put it that way, Afghanistan after leaving the army, he is now employed by the Department of Foreign Affairs and Trade directly, so a government entity. However, as has been outlined, it hasn't prevented him from travelling to Afghanistan in this instance, and I cannot put it so highly as to say that it will affect his work prospects in the future. All I can say is that in the circumstances, given a fine was imposed, and his lack of criminal history hitherto, that it's within the Court's discretion to refrain from recording a conviction, but beyond that I can't put it any higher.

HIS HONOUR: When I prepared my reasons I overlooked the issue of recording a conviction, with a conviction having been recorded in relation to the charge of dangerous operation with a circumstance of aggravation. I heard submissions on that point at the conclusion of my decision in relation to the issue of whether the original sentence was manifestly excessive.

I have been urged not to impose a conviction. The basis put before me is - and perhaps I'll take it back one step further - the basis put before the learned Magistrate on sentence was that it may affect his ongoing employment as a security adviser in Afghanistan, which work he took up, I understand, after he completed his nine years in the Australian Army. It seems that he is now back doing that, so obviously to that extent his capacity to undertake that work was not affected in any way by the conviction.

I'm now told that he is employed over there but employed by an Australian Federal Government department and that there may be some impact into the future. That is not particularly clear to me, and when I consider the exercise of my discretion in relation to the recording or otherwise of a conviction, it seems to me that one matter which stands out in this case is the serious nature of his driving.

The only reason I interfered in terms of the prison sentence was the fact that it was not particularly prolonged and ceased when it did, but it was nonetheless incredibly serious as per the summary which I included, and it seems to me that in the absence of any clear evidence to the effect that his ongoing employment will be affected, I should not interfere with the current situation, namely that is a conviction is recorded, and in those circumstances a conviction is recorded on that charge.