Nielson v Radcliffe[2016] QDC 213

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 10 June 2016, the appellant was convicted after on his own plea of guilty in the Magistrates Court held in Mareeba, of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, together with other related and unrelated offences. For the offence of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, he was sentenced to two years’ imprisonment to be released on parole after serving eight months. His licence was disqualified for a period of three years, and he was ordered to pay restitution in the amount of $10,000. The sentence was delivered in the context of other penalties imposed for the other offences including a cumulative sentence of one month imprisonment for an offence of failing to appear.

2. [2]
   The appellant now appeals his sentence in respect of the dangerous operation charge.

3. [3]
   Both parties have provided outlines of argument, and made further submissions on the hearing of the appeal, which I have found helpful and have considered carefully. In all, the appellant was sentenced for the following offences, which occurred in two tranches, in 2016:

1. (a)
   unlawful use of a motor vehicle;

2. (b)
   dangerous use of a motor vehicle whilst adversely affected by an intoxication substance;

3. (c)
   drive a motor vehicle whilst under the influence of liquor or drug;

4. (d)
   unlawfully throw an object at a motor vehicle;

5. (e)
   unlicensed driving; and

6. (f)
   two charges of public nuisance offences;

7. (g)
   fail to appear; and

in 2005:

8. (h)
   possess dangerous drug, ketamine;

1. (i)
   possess dangerous drugs, methylamphetamine and methylenedioxymethamphetamine (MDMA, ecstasy); and

10. (j)
    possess scales used in connection with the commission of a crime defined in part 2 of the Drugs Misuse Act 1986.

4. [4]
   Relevantly to this hearing, the maximum penalty for the charge of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance is 400 penalty units or five years’ imprisonment.

5. [5]
   The 2016 offences occurred out of the following facts: At about 5 pm on Friday, 29 April 2016, the appellant was with a colleague, having finished drinking and leaving a hotel on the Tablelands. They were transferring items between vehicles when the appellant, without warning and without permission, got into his colleague’s Holden Clubsport car. He then drove the car off towards Cairns along the Kennedy Highway. At one stage, he overtook another vehicle, crossing double white lines, but during that manoeuvre he swerved towards the other vehicle, sideswiping it and forcing that car off the road and into a ditch. The car sustained damage, but the driver was not injured. Since the overtaken vehicle was travelling at an accepted speed of 100 kilometres an hour, there was a strong inference that the appellant was exceeding that speed, and therefore, the speed limit. The appellant then continued his journey without stopping.

6. [6]
   At some distance later, he crashed the car he was driving at a location about 40 kilometres from the Mareeba township, a journey at that stage which, whilst not clear, is likely to have taken some 20 minutes. There were no obstacles or other contributors to the crash except the appellant’s own driving and management of that car. He then became abusive to assisting and passing motorists, including challenging them to fight, throwing punches and sticks at vehicles. He was also walking in front of traffic causing disruption to the flow and creating danger to himself and to those road users. He was subsequently arrested by police, transported to the Mareeba Police Station, where he participated in a breath analysis which returned a result of 0.194 grams of alcohol per 200 litres of breath. The appellant had never held a Queensland driver’s licence. Further checks revealed that he was wanted on an 11 year old arrest warrant in relation to the 2005 offences. The appellant declined the opportunity to participate in an interview and otherwise has no recollection of these events.

7. [7]
   The appellant has a criminal history from the Northern Territory, which contains entries for minor drug-related offending. He also has a traffic history from that Territory, which includes three traffic offences occurring on 2 March 2006, namely, drive a motor vehicle whilst unlicensed, drive uninsured motor vehicle and drive an unregistered motor vehicle. His last offending was a breach of order suspending sentence, for which he was dealt with on 19 June 2012; however, it is difficult to ascertain what the original sentence was from the history. It is likely that it arises from drug-related offending for which he was dealt with on 8 July 2010. The circumstances of the breach were that he had left the Territory to return to Queensland in the pursuit of work. By the time of his sentence in the Magistrates Court on 10 June 2016, the appellant had served 42 days in custody from 29 April 2016 to 9 June 2016. That period was declared as time already served under the sentence imposed by the sentencing magistrate.

8. [8]
   At the time of that sentence, the appellant was 28 years old. He was educated to year ten at Trinity Bay High School and had been employed in various labouring jobs since leaving school. He attained qualifications as a dive instructor and worked on the Crown of Thorns Project in 2010. Whilst in the Northern Territory he worked as a diver, and formed his own landscaping design business before returning to Queensland in March 2016 due to the tragedy of his father’s suicide. At about this time he obtained work on a banana farm in Dimbulah. He was ordinarily a temperate drinker, but found himself turning to drinking as he grieved the loss of his father. It was in that context that he had been drinking on the day of the offending and returned a significantly high blood alcohol reading.

9. [9]
   His plea was accepted as an early plea of guilty at the hearing; however, the entry of the plea and its effect do not form part of the sentencing magistrate’s remarks. In passing the sentence, His Honour took into account the appellant’s “limited history”; the fact his intoxicated state “…led you to make decisions you would not otherwise have made; however, that’s not an excuse for your conduct;” his age of 28 and the offences committed “are particularly serious”. His Honour did not refer to the comparative cases provided at sentence other than in a general way.

10. [10]
    The sentences imposed are best summarised in tabular form and I reproduce the table contained in the outline of submissions of the respondent as follows:

11. [11]
    The ultimate effect of the sentence was that the appellant would serve two years and one month of imprisonment, to be released on parole after serving eight months, which included a one-month period of imprisonment imposed for the charge of failing to appear. Those various sentences were imposed to be served concurrently, save for the failure to appear charge. He was also ordered to pay the sum of $21,790 by way of restitution in respect of the vehicle he sideswiped and the vehicle he was driving. Further, he was disqualified from holding or obtaining a driver’s licence for a period of four and a-half years, being the cumulative effect of the imposition of three years for the dangerous operation of a vehicle, 15 months for the mid-range drinking offence, and three months for the offence of unlicensed driving.

12. [12]
    The appellant contends that the sentencing magistrate gave undue weight to personal and general deterrence and insufficient weight to the appellant’s mitigating factors including the appellant’s early plea of guilty, arriving at a sentence that was, in all the circumstances, manifestly excessive.

13. [13]
    The respondent contends that the appeal should be refused, having regard to the circumstances where the appellant has a criminal and traffic history. He was unlicensed at the time. Substantial damage was occasioned to both vehicles, which the appellant was using unlawfully. The offending was protracted, and the appellant was more than four times over the blood alcohol limit. There was a strong need for both general and personal deterrence.

Mode of Appeal

14. [14]
    Pursuant to section 223 of the Justices Act 1886 (Qld), an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate and new evidence adduced on appeal in special circumstances with leave. 

15. [15]
    The appeal is not a new hearing to consider, as if presented for the first time, the arguments advanced. It is a review of the record of the proceedings below rather than a completely fresh hearing. This Court is required to make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. This hearing is, of course, in the context of submissions made during a sentencing hearing resulting from the appellant’s own plea of guilty. Fundamentally, the appellant must demonstrate some legal, factual, or discretionary error.^[1] 

Grounds of Appeal

16. [16]
    The appellant appeals against the sentence in relation to the charge of dangerous use of a motor vehicle whilst adversely affected by an intoxicating substance in reliance on the grounds set out in the notice of appeal as follows:

1. (1)
   the learned acting magistrate failed to state in open court that he took account of the guilty plea in determining the sentence imposed;

2. (2)
   the learned acting magistrate failed to adequately take into account the applicant’s early plea of guilty in imposing the sentence imposed; and

3. (3)
   the sentence in respect to the dangerous operation of a motor vehicle is manifestly excessive in all the circumstances.

Appeal against sentence

17. [17]
    This Court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried. The High Court in House v the King (1936) 55 CLR 499 held that:^[2]

It is not enough that the Judges composing the appellate Court considered that, if they had been in a position of the primary Judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law proposes in the Court at first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has, in fact, occurred.

18. [18]
    The Court distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate Court must exercise the sentencing discretion afresh, unless in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible, but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Grounds 1 and 2, fail to state in open court the plea of guilty, and fail to adequately take account of the early plea

19. [19]
    Section 13 of the Penalties and Sentences Act 1992 (Qld) provides as follows:

(13)  Guilty plea to be taken into account

(1)  In imposing a sentence on an offender who has pleaded guilty to an offence, a court –

(a)  must take the guilty plea into account; and

(b)  may reduce the sentence that it would have been imposed had the offender not pleaded guilty.

(2)  A reduction under subsection (1)(b) may be made having regard to the time at which the offender –

(a)  pleaded guilty;  or

(b)  informed the relevant law enforcement agency of his or her intention to plead guilty.

(3)  When imposing a sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court –

1. (a)
   that fact; and

2. (b)
   its reasons for not reducing the sentence.

(5)  A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.

20. [20]
    In The Queen v Mallon [1997] QCA 058, on the final page of the judgment of the Court it was held:

At the hearing of this appeal, the point was made that the sentencing Judge, in breach of his obligation under section 13(3) of the Penalties and Sentences Act 1992 failed to state in open court that he took account of the guilty plea in arriving at the sentence imposed.  This Court has had occasion before to remark upon the effect that should follow a sentencing court’s failure to make that necessary statement

…

One result will be that the failure to comply with the statutory obligation will place the imposed sentence in jeopardy.  It will cause the appeal court to examine it closely since it will not clearly appear that the court has, in fact, taken the plea into account.  There are peculiarities in the drafting of section 13, and in particular, it may be noticed that while the failure to take subsection (4) into account is expressly stated to be a matter which will not invalidate the sentence imposed, a failure to comply with subsection (3) does not receive the same level of express statutory protection.  There is no need in the present case to devote further attention to the general effect of a failure to state in open court that a guilty plea has been taken into account or to take the matter any further than the observations made in the two cases referred to above. 

Here it is hardly likely that the fact of the plea would have been overlooked by the sentencing Judge since the matter came to him on an ex officio indictment.  This Court is able to state its conclusion that the sentence imposed was not manifestly excessive and was one which can be accepted as being fully appropriate in the circumstances.

21. [21]
    The appellant, through his representative, submits in effect that the magistrate has approached the question generally rather than having particular regard to the particular circumstances of the case. For this, he referred to the tenor of the sentencing remarks, the absence of any reference to the plea or its effect, and the application of the one-third rule of thumb which was some discount of about eight days, effectuated by the cumulative one-month sentence for the failure to appear. The respondent acknowledges, through its representative, the requirements of the section and properly concedes that, technically, the learned magistrate did not comply with section 13(3) of the Act. Notwithstanding a concession, the respondent submits that it is implicit in the exercise of sentencing the appellant and the setting of the parole release date at less than one-third of the head sentence, that a magistrate took the guilty pleas into account in determining the sentence imposed.

22. [22]
    It is difficult to ignore that the whole context of the sentencing hearing can only proceed on the basis of a guilty plea; however, it is undisputable that nowhere in the sentencing remarks does the sentencing magistrate make express reference to the guilty pleas entered for each of the offences subject of the sentence, nor is there any explanation as to whether or not that plea effected a reduction of the sentence in the exercise of the discretion, nor is there any explanation if that discretion wasn’t so exercised. Even though a guilty plea was entered in respect of all offences including the 2005 historical drug offences, His Honour imposed 100 per cent of the penalty in respect of that earlier offending and the pre-sentence custody period of 42 days. In addition to that, he imposed the cumulative one-month of imprisonment for the failure to appear. In approaching the matter that way it is difficult to discern any discount applied and if there was such a discount, there is no explanation of how it is effected in the balance of the sentencing process.

23. [23]
    Whilst His Honour apparently adopted the traditional approach of applying one third to the sentence, that approach is one which is a matter for the proper exercise of the discretion, having regard to the particular circumstances of a case. It is not unusual, and indeed, it is proper in appropriate circumstances for a court to impose more or less than the one third traditional discounted result. It seems to me that His Honour erred by failing to deal with the pleading in open court and, in my view, did not give sufficient weight to the plea of guilty in the reduction of the sentences in the particular circumstances of this case. Rather, he approached the matter broadly and generally without sufficient regard, in my view, to the appellant’s personal circumstances and the circumstances of the case before him.

24. [24]
    Having reached that view and that error constituting an error of law in the sense dealt with in House v The King, it is incumbent on this Court to revisit the sentence and exercise its own discretion in resentencing the appellant.  However, before doing so I would also like to deal with ground three as to whether the sentence was manifestly excessive.

Ground 3: The sentence was manifestly excessive 

25. [25]
    The appellant also argues the sentence was manifestly excessive having regard to the offence itself as well the impact of the cumulative disqualification periods, the restitution orders, and a cumulative one month of imprisonment for the failure to appear offence.

26. [26]
    In The Queen v Jackson [2011] QCA 103 at [25], Justice Chesterman (with whom the other judges agreed) said:

To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one, in fact, imposed.  There is no one “right” penalty in any case.  There is always a range of permissible offences.  Different judges legitimately put weight on different circumstances and their opinions must be respect unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.

27. [27]
    It is also instructive in the context of considering manifest excess of a sentence, to have regard to the joint judgment of McPherson JA and Thomas J in The Queen v Conquest & Attorney-General of Queensland [1995] QCA 567 at page 11, where their Honours said:

The factors that would take a sentence further towards a maximum level would include the seriousness of driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender’s criminal record (with particular emphasis upon his driving history and his attitude to fellow citizens), and whether the offender has little prospect of rehabilitation. 

28. [28]
    Those remarks, of course, have particular relevance to the circumstances of this case and the charge subject of the appeal. Such an offence was also considered in The Queen v Tabakovic [2005] QCA 90 at [29] where Justice of Appeal Jerrard (with whom McMurdo P and Fryberg J agreed) said:

The cases to which this court was referred, quoted at length herein, show that relevant matters in imposing sentence in such cases include, but are not limited to:

1. (1)
   the BAC with the specific statutory increase in the maximum penalty from 10 to 14 years if the intoxicating substance is alcohol and the offender was over 0.15;

2. (2)
   the duration of the unbroken journey in which the offender had driven while the offender’s capacity was adversely affected by alcohol or another drug;

3. (3)
   the distance over which an offender had been observed to drive in a manifestly dangerous way;

4. (4)
   whether that manifestly dangerous driving was the result of a deliberate choice by the offender, or of carelessness, or inattention and if so whether prolonged or momentary, or the result of some other cause, such as drowsiness or drugs;

5. (5)
   the offender’s prior traffic history and criminal history;

6. (6)
   the offender’s plea;

7. (7)
   the extent of cooperation or non-cooperation with investigating bodies; and

8. (8)
   other conduct indicative of remorse or of its absence.

29. [29]
    In addition to the matters to which I’ve already referred above, there are further matters which are relevant to the consideration in respect of the sentence. In this case there is no evidence of a callousness or deliberate side-swiping of the first vehicle. It was submitted by the appellant’s representative that he was doing his “inebriated best”.^[3]  The circumstances of this case show a deliberate and determined attitude which falls closer to a description of recklessness rather than deliberate harm. 

30. [30]
    The side-swiping contact with the first vehicle is serious enough, but it is also significant that the appellant failed to stop after that contact. The time and distance of the unbroken journey of the appellant is not clear on the record. It is likely, having regard to local knowledge and that indicated by the appellant’s counsel, that it extended the distance of some 40 kilometres and over 20 minutes.

31. [31]
    Over that journey the appellant drove in a manifestly dangerous way by overtaking in breach of double lines, contacting another vehicle in that process, driving it off the road colliding into a ditch, travelling in excess of the speed limit and in any event at high speed, not appropriate to the conditions, ultimately bringing the appellant and the car in which he was driving to grief and the final collision in a single vehicle context.

32. [32]
    That driving was the result of a deliberate choice by the appellant and could not be characterised as being careless or the result of some inattention. It was prolonged and in the context of his highly alcohol-affected state, a state which has given him amnesia of these events, and in that regard, whilst at the appropriate time he readily accepted the allegations set out in the charge, he was unable to provide any further cooperation with the investigating bodies because of his absence of memory.

33. [33]
    In the course of the conduct he sustained damage to the vehicles amounting to $21,790, subject of the restitutionary orders. Fortunately no one was injured in the ordeal. His plea of guilty, acceptance of the circumstances despite his flawed memory, his offer and readiness to make restitution are all indicative of remorse.

34. [34]
    It is also tolerably clear that the event was out of character, spurred on in this reckless way by his unsuccessful efforts to deal with the loss of his father in very tragic circumstances and his resort to excessive drinking to cope. He does have a criminal and traffic history which I have referred to above. His past offending is of a very low order compared to the offence the subject of this appeal.

35. [35]
    Of course, there are aggravating features in this case of being unlicensed to drive a motor vehicle, being affected by intoxicating liquor, returning a reading of 0.194 per cent, almost four times the legal limit for an experienced driver and one duly licensed, and the fact the vehicle driven by the appellant was being used unlawfully without the owner’s consent. His behaviour during the course of his offending demonstrated a disregard to others who were lawfully using the road, as well as those who came to his assistance or passed by. Having regard to the appellant’s history and character, it can be fairly said he is a very good candidate for rehabilitation with very good prospects of succeeding in that.

36. [36]
    Consideration also ought be given in the context of this case to the imposition of restitution in the order of $21,790 in relation to the offence of unlawful use of a motor vehicle as well as $10,000 of that relating to the offence the subject of this appeal.

37. [37]
    In addition, consideration ought be given to the cumulative disqualification orders in Santillan v the Queensland Police Service [2008] QDC 33.  His Honour Judge Brabazon DCJ said:

Punishments such as imprisonment and licence disqualifications are separate punishments, and they can amount to a double punishment for the same offence.

38. [38]
    I agree with those remarks. It seems to me that the imposition of lengthy periods of disqualification is a proper factor that a sentencing court must take into account when considering the totality of the sentence imposed, either by reducing the period of disqualification or by reducing the sentence of imprisonment where applicable and appropriate.

39. [39]
    In this case the appellant accepts the imposition and periods of disqualification imposed by the sentencing magistrate. Those periods are conceded to be separately appropriate as well as cumulatively imposed by virtue of the requirements of the traffic legislation. It seems to me that that position is correct, having regard to section 90C of the Transport Operations (Road Use Management) Act 1995 (Qld).  Having said that, it is an appropriate imposition, being four and a-half years of disqualification, which in my view ought be taken into account in imposing any other sentence of imprisonment. 

40. [40]
    During the course of the sentence hearing His Honour was referred to various comparatives, namely, The Queen v Simpson [2001] QCA 109, The Queen v Smith [2004] QCA 126, and The Queen v Isaac [2001] QCA 95.  In addition, at the hearing of this appeal I have been referred by the respondent to the comparative case of The Queen v Coake [1999] QCA 012. 

41. [41]
    In The Queen v Simpson the appellant was sentenced to two years’ imprisonment wholly suspended for an operational period of four years, together with a suspension from driving for five years and a fine for $5000.  That sentence was not disturbed on appeal which was only concerned with the imposition of the fine and suspension period.  In that case the appellant was charged with dangerous operation of a motor vehicle whilst adversely affected to the extent of 0.169 per cent.  The offending occurred after the appellant was drinking after a long lunch.  She was seen driving erratically through the main roads of Hamilton in Brisbane.  Her driving caused other drivers to take evasive action.  Her vehicle hit the curb on both sides of the road a number of times as she changed lanes erratically.  She hit the median strip with force lifting the car off its wheels.  That course of driving continued over some two kilometres at around 3 pm.  Then, at 3.30 pm she was seen driving erratically at excessive speed in the vicinity of an exit on the Pacific Highway whilst overtaking a number of cars and cutting in front of vehicles, causing those drivers to brake heavily.  She veered into a concrete barrier, spun across the exit road and collided with the rear of another vehicle coming to rest against a crash barrier.  The other vehicle, a station wagon, containing a woman and two children spun out of control colliding with an oncoming cement truck.  The driver of that car suffered soft tissue injuries and an aggravation of degeneration problems in relation to the lumbar and cervical areas of her spine.  The children were uninjured.  The appellant there was 28 years old with no criminal history of consequence except a previous mid-range drink-driving offence of 0.111 per cent.  Her plea was accepted as timely.  She was driving on an expired licence.  She was otherwise of good character and engaged in employment.  There was no indication of damage caused to the other vehicle or the cement truck. 

42. [42]
    It seems to me that those circumstances, whilst significantly different, could not be said to be much more serious than the appellant in Simpson’s case.  The additional features in this case are that the appellant was driving a stolen car and his subsequent conduct towards others and their vehicles.  However, those two matters were effectively taken into account, and in particular the unlawful use of the vehicle was the subject of a separate charge and attracted a separate sentence of three months’ imprisonment to be served concurrently together with $11,790 in restitution.  Here the appellant’s blood level alcohol concentration was much higher and he had never held a driver’s licence, notwithstanding some previous motor vehicle offences. 

43. [43]
    In The Queen v Smith, the Court was dealing with a similar offence involving an appellant with a blood alcohol concentration of 0.182 per cent.  The sentence imposed was 15 months’ imprisonment suspended after four months for an operational period of two years coupled with a disqualification from driving for two and a-half years.  The appeal was allowed, reducing the actual time to be served to one month being up to the date of appeal, and the operational period being extended to three years.   The offending in that case involved the appellant driving over a 20-minute period on the Warrego Highway on a Friday afternoon at about 5.30 pm.  He was seen to be driving erratically, wandering onto the shoulder of the road at times and at times crossing the centre line facing oncoming traffic which caused those drivers to take evasive action.  It did not though involve excessive speed or a collision or an injury.  It was in that case that Justice of Appeal Jerrard referred to the appellant as “doing his inebriated best”.  In the course of reasoning the Court distinguished the circumstances to those which involve a police chase where misconduct could be characterised as deliberate.^[4]   In that case the applicant’s personal circumstances were quite different to the appellant here.  The applicant was 58 years old with no criminal history but he had a traffic conviction for drink-driving with a blood alcohol reading of 0.098 per cent when he was fined $400 and disqualified for three months.  He entered a timely plea.  He was driving on an expired licence but was otherwise considered to be of good character with stable employment as well as community work.  At page five of his judgment de Jersey CJ said that:

A review of similar cases confirms to my mind that actual imprisonment is accepted as justified in generally comparable circumstances.

44. [44]
    In comparison to the present appeal, it seems to me that the appellant’s conduct is more serious and involved a protracted course of driving involving another vehicle, high speed, two crashes and distinguishable behaviour.

45. [45]
    In The Queen v Isaac, the Court was dealing with a charge of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, namely, amphetamine and methylamphetamine.  There the appellant was sentenced to two years imprisonment suspended after six months for an operational period of two and a-half years and he was disqualified from driving for two years.  The sentence was not disturbed on appeal.  That case involved the appellant’s conduct in the context of a police chase.  After a registration check at about 11.30 on a Thursday he accelerated away.  Whilst doing so he proceeded through a stop sign, drove at excessive speeds in excess of 90 kilometres per hour as he approached a roundabout causing him to break heavily and driving on the incorrect side of the road for about 30 metres before continuing through another roundabout on the wrong side of the road causing other vehicles to take evasive action to avoid a collision.  The appellant was then forced to break heavily to stop in front of an approaching four-wheel drive that also had to take evasive action.  He was found with the drugs in his system and, once he was apprehended, he cooperated with the police.  That appellant was 35 years old with a prior record for drug offences and three previous drink-driving convictions. 

46. [46]
    That case, it seems to me, can be distinguished from the present given the circumstances of the police chase. Although there are features which are helpful and comparative having regard to the extent of travel, the involvement of other vehicles and the nature of the driving, the appellant here of course was not driving in a suburban context. He did not provide cooperation with the police, which is explicable given his lack of memory. He is younger, does not have any significant criminal record relevant to this particular offending, although he does have a traffic history involving unlawful use of a motor vehicle. It seems to me that the circumstances of the appellant in this appeal are less serious than those in The Queen v Isaac.

47. [47]
    In The Queen v Cocaris, the Court was again dealing with a similar offence where that appellant was affected by heroin.  The sentence, which was not disturbed on appeal, was 15 months’ imprisonment suspended after three months for an operational period of two years and disqualification from driving for two years.  The appellant was a social worker cognisant of the effect of the drug she was taking.  She drove dangerously in moderately busy traffic at 12.25 pm on a Sunday along Annerley Road near Fairfield.  In a dazed state she traversed onto the wrong side of the road at 60 kilometres an hour and collided with an oncoming vehicle.  That other driver sustained a fractured tibia and was unable to weight-bear for three months.  She was also pregnant and had a baby in the backseat who was uninjured.  The appellant there acknowledged that she ought to have told the police that she was under the influence of heroin and expressed concern for the other driver.  She was sentenced on the basis that she was already tired and had little sleep before voluntarily injecting the drug.  Her conduct was not momentary inattention or doing her incompetent best, rather it was characterised as a real concern because of the potential to cause damage to property or injury to others.  That appellant was 23 years old at the time of the offence and 24 at the time of sentencing.  She demonstrated appropriate remorse.  She had a substance abuse problem with failed attempts at rehabilitation.  She paid $10,500 by way of compensation.  She had no prior criminal history but one speeding offence.  She had received education, obtaining her social work degree and working in that area.  In that case Jerrard JA said:

Her (Mrs Simpson’s) sentence was not manifestly excessive, and while it is more lenient regarding actual custody than that imposed here, Mrs Simpson caused less injury to another person than Ms Cocaris did, and Mrs Simpson was fined a considerable sum.

48. [48]
    His Honour was there, of course, referring to the earlier comparative which I discussed above, The Queen v Simpson.  The Court there took into account the comparative youth of the appellant, her efforts to overcome her addiction and the need for continued supervision and support.  It seems to me that the circumstances of the appellant here could not readily be characterised as being more serious than the appellant in Cocaris.  That is, the driving and consequences of the driving in Cocaris were in the context of suburbia and resulted in significant damage and injury. 

49. [49]
    However, the appellant’s personal circumstances in this appeal are distinguishable in that he is older, and he does have some prior criminal convictions, including traffic history of unlawful use of a motor vehicle. The driving was on the highway at high speed and involved damage to two vehicles including the one he was driving. In the end, though, it is difficult to draw a comparative analysis between the case of The Queen v Cocaris and the present case. 

50. [50]
    This then brings me to the case relied upon by the respondent in this appeal of The Queen v Coake.  In that case the appellant was sentenced to two years’ imprisonment suspended after eight months for a period of two years.  The appellant was also disqualified from holding or obtaining a driver’s licence for three years.  The circumstances of that case involved the appellant driving his motorcycle after consuming liquor.  It involved a police chase which ensued at speeds of up to 120 kilometres an hour in a 60 kilometre an hour area.  The appellant lost control of his motorcycle at one point during that chase and drove through a red light at another.  The pursuit ended when the appellant lost control of his motorcycle and he was apprehended by police.  He had a blood alcohol concentration of 0.201. 

51. [51]
    The respondent’s representative submits that the present appellant and the circumstances in this appeal are somewhat comparable with Coake, notwithstanding that it involved a police chase.  Reliance is placed upon the appellant’s collision with one vehicle which caused substantial damage and further damage to the vehicle which he was driving and had stolen.  The appellant here it is said is also unlicensed which elevated his circumstances vis-à-vis those in The Queen v Coake. 

52. [52]
    It seems to me that the circumstances in The Queen v Coake are distinguishable to those here having regard to the context of the offending occurring during a police chase.  I referred earlier to the remarks of Justice of Appeal Jerrard in The Queen v Smith dealing with a similar distinction.  His Honour said at page 9, second paragraph, of his reasons:

I regard it as a serious or significant feature in each of the matters of Coake, Parker, Gehrman, Harch and Collier to which the Crown has referred the Court that at least a portion of the relevant dangerous driving in those matters occurred when those applicants were attempting to evade arrest during a police pursuit of their vehicle.  I consider that there is a specific danger inherent in the circumstances when a driver is attempting to outrun a pursuing police car.  That danger derives from the predetermination of the fleeing driver not to stop or slow down when that might otherwise be expected in the intervening circumstances such as the presence of other cars or pedestrians on the road.

53. [53]
    In relation to the circumstances in The Queen v Smith, His Honour later remarked at page 11:

All of those circumstances seem to me vastly different in that they involved the attempt to outrun the police and the complete abandonment of caution which is not present in this case.

54. [54]
    It seems to me that those observations are also pertinent to the circumstances in the current appeal. Here the appellant was not involved in a police chase. The driving occurred on a highway rather than in a zone restricted by a speed limit of 60 kilometres an hour.  Although the appellant’s conduct involved collision with another vehicle and ultimately crashing the vehicle in which he was driving, those circumstances are distinguishable from those and the character of the driving in The Queen v Coake through suburbia, involving lights and all that attends that environment. 

55. [55]
    Whilst it is true that the appellant had actually collided with another vehicle as well as substantially damaging the vehicle he had stolen, it seems to me that it’s difficult to make a comparison with vastly different circumstances in the matter of The Queen v Coake.  Similarly, the appellant’s unlicensed state in the current offending is difficult to compare in contrast with the circumstances in Coake. 

56. [56]
    It seems to me that if the offence of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance were to be dealt with in isolation from the other offences considered by the sentencing magistrate, a sentence in the order of 18 months’ imprisonment would have been appropriate. However, in this case, taking into account the totality of the appellant’s criminal behaviour and applying the totality principle to the various aggregate sentences, it seems to me that a just and appropriate head sentence would be in the order of two years’ of imprisonment and in my view would not result in a sentence which would be too crushing or disproportionate having regard to the whole of the criminal behaviour the subject of the hearing before the sentencing magistrate.

57. [57]
    Having said that, it seems to me that the appellant here did warrant appropriate consideration of his personal circumstances in relation to the offending and more generally as well as his age, the impact of other cumulative sentences involving disqualification from driving and the failure to appear and restitution and, once those matters are properly weighed up, it seems to me that the actual time to be served in custody ought be in the order of four months. It seems to me that the eight months imposed for actual custody, having regard to the particular circumstances of this case, is beyond the permissible range and too severe in this case.

Conclusion

58. [58]
    For these reasons, in my respectful view, the sentencing magistrate erred in exercising the sentencing discretion by:

1. (1)
   acting upon a wrong principle by failing to give sufficient weight to the personal circumstances of the appellant, in particular his very early plea in the reduction of penalty.  Instead, he approached the matter broadly and generally and thereby allowed general and personal deterrents to overwhelm his sentencing discretion;

2. (2)
   having regard to the comparative cases, imposing a sentence which appears to me to be beyond the allowable range and manifestly excessive; and

3. (3)
   to the extent that it does not appear how the sentencing magistrate reached the result having regard to the totality of the defendant’s criminal behaviour and relevant sentences, it seems to me that that result, in my respectful opinion, the sentence was unreasonable or plainly unjust.

59. [59]
    I therefore allow the appeal against sentence.

Re-sentence

60. [60]
    Having come to that conclusion, it is incumbent on me to resentence the defendant. In doing so I have regard to all that I have said. The sentence must accord with the Penalties and Sentences Act such that it ought be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter similar behaviour by the appellant and others, make it clear that the community denounces his conduct in the offending and protect the community.

61. [61]
    Since the offending also involves dangerous conduct, I take into account the risk of physical harm to the community if a custodial sentence is not imposed and the need to protect the community from that risk, which I find is low. It seems to me that the offending was out of character, explained by the unusual and tragic personal circumstances facing the appellant and his struggle to unsuccessfully deal with those matters by resorting to excessive drinking. That, of course, does not excuse or mitigate the sentence but rather explains how it is he came to be in such an unusual and uncharacteristic position.

62. [62]
    I take into account his early plea of guilty which in my view ameliorates the lower end of the sentence to the extent of actual time served. I take into account his cooperation as best he could with the police, and then later with the prosecution, so as to save significant time, cost and convenience to the community as well as avoid further trauma to those involved in his criminal behaviour.

63. [63]
    In weighing up the appropriate sentence I have looked at the totality of his criminal behaviour, reviewed and considered the aggregate sentences and determined what would be just and appropriate so as not to be too crushing and disproportionate. Having regard to the whole of the circumstances and the approach taken to the other offences, it seems to me that the whole of the appellant’s criminal behaviour ought be reflected in the more serious of the offences and circumstances in which it was committed, namely, the dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance.

64. [64]
    However, to that extent, given the historical nature of the other offences committed in 2005, in particular the further imposition of the cumulative period of one month for failing to appear, it seems to me that that can be and ought be appropriately reflected in the head sentence. 

Orders

65. [65]
    Therefore I will allow the appeal and order that:

1. (1)
   Appeal allowed.

2. (2)
   The orders made by the Magistrates Court on 10 June 2016 are set aside to a limited extent as follows:

1. (a)
   In relation to charge 8 of failing to appear, in lieu of one month of imprisonment to be served cumulatively, the appellant will be convicted but not further punished.

2. (b)
   In respect of charge 2 of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, the sentence will be varied to the extent that in lieu of setting a parole release date, that term and the concurrent term of imprisonment for charge 3 of driving under the influence of liquor will be partly suspended after the appellant serves four months with an operational period under this order of three years.

3. (c)
   Declare that 102 days spent in custody from 29 April 2016 to 9 August 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence.   The Registrar is directed to inform the Commission of this declaration.

Judge Dean P. Morzone QC