Gethins v Rickard[2012] QDC 23

[2012] QDC 23

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE DEVEREAUX SC

No 2658 of 2011

BRISBANE

DATE 30/01/2012

JUDGMENT

HIS HONOUR: On 11 July 2011, the appellant pleaded guilty in the Magistrates Court at Caboolture to one charge of obstruct police, one of driving while disqualified and one of failing to provide a specimen of breath.

For the obstruct police charge, he was fined $300 with consequential orders. With respect to the other two charges, the driving while disqualified and the failing to provide a specimen of breath, the Magistrate seems to have imposed a single order of three years' imprisonment with parole release, in effect, after one year.

It was wrong to impose a single order for two offences. On aconviction, a separate sentence needs to be imposed for eachoffence. It is plain that what his Honour intended to dowas impose the maximum period for each offence, which is 18months, and make them cumulative.

It is conceded by the respondent that that sentence was, in any case, manifestly excessive, and so the appeal will be allowed and I will impose sentence in a moment.

The appellant was born on 25 March 1960. He was 51 years old at the date of sentence. He was 50 at the date of the offences which was November 2010.

He has quite a serious traffic history and some criminal history. The traffic history includes five previous entries for disqualified driving and five for driving under the influence of liquor. He had been sentenced to a prison probation order in 2005 and in March 2007 was sentenced to 12months' imprisonment suspended after service of nine months. That suspension was for an operational period of five years. That is an unusually long period for such a short sentence but the relevant point is that the present offences were committed while that operational period continued so that the learned Magistrate activated the outstanding three months' imprisonment and ordered that it be served concurrently. The learned Magistrate also ordered that the appellant be disqualified from driving for a total of seven years.

To be clear, only the sentence of three years' imprisonment for the two counts of failing to provide and disqualified driving are in contest in this appeal, and I will make no orders regarding the fine and the activation of the suspended sentence.

The facts of the offences are set out in the appellant's outline and are not in contest, and the following comes from Ms Gilbert's outline. At 10.20 p.m. on Friday, 19 November 2010, police while on patrol in Welsby Parade, Bongaree saw the car which the appellant was driving drift across the centre line markings on the road. The police activated lights and sirens on their car and followed the car. It went around a roundabout. The car appeared to slow near the Bribie Island Bowls Club and came almost to a complete stop before accelerating away. Police continued to follow the car as it accelerated away on Welsby Parade. The car was turning left into First Avenue but overshot the turn and drove over the median strip before crossing to the wrong side of the road, travelling about 50 metres before stopping on the wrong side of the road. A police officer ran to the driver's door and reached in through the window to remove the key and instructed the driver to get out of the car. The appellant did not respond. The officer took hold of the appellant's arm. The appellant refused to let go of the steering wheel. The officer used force to break the appellant's grip on the steering wheel, removing him from the car and onto the ground. The appellant refused to cooperate and there was a struggle. During the struggle, police could smell alcohol on the appellant's breath. He was handcuffed and put into the rear of the police car. It was found he was disqualified by a Court for a period of five years from 22 March 2007. The appellant was taken back to Bribie Island Police Station. He was questioned and answered some questions including telling police that he had been drinking at the bowls club all day. He refused to answer further questions. He was given three opportunities to provide a specimen of breath but he refused.

Upon his plea of guilty in the Magistrates Court, the appellant's legal representative told the learned Magistrate that the appellant was an alcoholic, had been drinking all day and had gone home but upon being told he had won a meat tray decided to drive back to the bowls club to collect it  It was on this trip that he was caught. The learned Magistrate expressed sympathy for the appellant's affliction but made the, with respect, obvious and sensible comment that, in the circumstances, the appellant should never go near a car.

The Magistrate said he took into account the plea of guilty. Given the sentences imposed, it is hard to see how pleas of guilty were actually taken into account.

I have been referred to two cases by Ms Gilbert. The first is The Queen v. Harris [2008] QCA 141 and the second is Dixon v. Millar, CM number 11/2006. Without repeating the circumstances and details of those cases, I accept that they demonstrate that the appropriate range for each charge in this case could be 12 to 15 months.

Because there were two quite serious offences and given the appellant's criminal and traffic history and especially given the fact that he was still on a suspended sentence, it would be open, I think, to give some cumulative effect to the sentences for the two offences. So, for example, it would be appropriate to fix 12 months for one and add six for the other. Overall, it would be simpler for all concerned, I think, if I fix the same sentence concurrently to each offence.

I have concluded that the sentences imposed were manifestly excessive. I certainly have some sympathy for the Magistrate's position. His Honour had before him a recidivist drink driver, but it is important to remember that the sentence which was suspended and still operative had been imposed in March 2007. The offences were committed in November 2010 and were not dealt with until July 2011.

In the circumstances, although I view the offending seriously and I think that personal deterrence is the overriding consideration here, the sentence that should be imposed with respect to the two charges is 18 months' imprisonment.

So the orders will be that the appeal is allowed. The sentences imposed for the offences of driving while disqualified and failure to provide a specimen of breath are set aside and in lieu I impose sentences of 18 months for each charge, concurrent, and I fix 11 May 2012 as the parole release date.

It is important, I think, that I explain a couple of things. Eighteen months is the maximum sentence for each of those charges. In effect, I have imposed the maximum. The circumstances are that there are two offences of different nature for which it would be appropriate to add some cumulative effect. Also there is the activation of the threemonths' concurrent suspended sentence at play and, in the circumstances, it seems to me that an overall figure of 18months is the appropriate sentence and, as I said, it makes sense to simply fix that term for both of the charges making them concurrent.

The statutory expectation would be release on parole after a half of that. Because there is the three months' suspended sentence activated, I think it is proper to make the parole release date 10 months into the 18 months' sentence. Another factor there is that the appellant has a real need for personal deterrence and perhaps the longer than expected non-parole period will bring that home.

I have not lost sight of some of the other factors that were brought to the Magistrate's attention, including the injuries that the appellant received during his interaction with the police, his age and, as I have already mentioned, his alcoholism. So those will be the orders.

(1)The appeal is allowed.

(2)The sentences are set aside for those two charges.

(3)In lieu, 18 months concurrent is imposed for each.

(4)Parole release date is 11 May 2012.