Campbell v Pinney

[2008] QDC 52

[2008] QDC 52

DISTRICT COURT
CIVIL JURISDICTION

JUDGE BRABAZON QC

No 2251 of 2007

GEOFFREY ALLAN CAMPBELL	Appellant
and
STEPHEN KEITH PINNEY	Respondent
BRISBANE ..DATE 29/01/2008
ORDER
HIS HONOUR: This is an appeal about Mr Campbell's sentence	1
for driving while disqualified.
He appeared in the Magistrates Court on the 8th of August last year. He was then 36 years of age. He was actually being

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dealt with for several sentences arising out of somewhat
related events over two or three days. For this particular
offence he was sentenced to three months imprisonment with a
parole release date on the 31st of October 2007. That is to

say he was being sentenced to serve almost the whole of the

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three month term before being released on parole.

He was ordered by this Court on the 8th of June 2004 to serve a term of imprisonment for dangerous driving causing grievous bodily harm. He served 18 months and was then released on

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parole. This Court also disqualified him from holding a
licence for five years, that is until the 8th of June 2009.

It was that disqualification that led to this offence.

The facts indicate, only what he told the police, that is to

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say he was driving a vehicle owned by a friend, a woman, and he thought he should do it for her because she had been kind to him letting him stay at her place. The facts indicate that
he drove it across Brisbane from one side to another and that

is the only driving which is the subject of the conviction.

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The learned Magistrate placed considerable emphasis on the
fact that he was driving whilst under the umbrella of a

suspended sentence imposed by this Court. There seems to have

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been no consideration given to the degree of driving and the	1
reason for it. The learned Magistrate quite rightly said that:

"He was obliged to consider the matter set out in section
78 of the Transport Operations Road Use Management Act

1995".

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And that required him to consider, in particular, all the circumstances of the case, including circumstances of aggravation of mitigation, the public interest, his criminal history and traffic history, any personal information such as his medical history or his mental or his physical capacity and

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whether or not the offence was committed in association with
other offences, and any other relevant matter.

In addition to the actual circumstances of the driving, it might well have been relevant here to consider his personal

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circumstances, which were not happy ones. That is to say he
was a man suffering from a drug addiction, was dealing with
the Subutex programme, was obviously not in good mental health
and had been rather disturbed in the few days around the time

of this offence.

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Therefore, it seems to me, undue emphasis was given on the fact that the judgment of this Court was the cause of his disqualification. I am told that quite shortly this Court will be called upon to deal with the breach of its order. In

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that case, all the circumstances can be considered whereas in
the instant case before the Magistrate rather more attention
should have been paid to the circumstances of the offender and

of the disqualified driving.

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The maximum punishment available to the Magistrate was 18	1
months imprisonment or 60 penalty units fine. That demonstrates, no doubt, that Parliament takes a serious view of this offence. On the other hand, it needs to be taken into account, though I do not think it was mentioned by the

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Magistrate, that there was an early plea of guilty. He certainly realised of course that he was dealing with a plea of guilty which he said he was taking into account.

Bearing in mind the maximum punishment available and bearing

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in mind that the traffic history had to be taken into account
and that that contained two incidences of unlicensed driving
earlier in his life, I think it is very difficult to say that
the sentence of three months was necessarily too severe. I do

not think it is possible to sustain that submission.

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However, the question of his release on parole was another matter. It would have been appropriate, in my view, to have considered a release on parole at the traditional third - after a third of the sentence had been served which would be

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the usual approach when there was an early plea of guilty. In my opinion, the learned Magistrate made an error in not taking that into account.

In fact, it is agreed here that Mr Campbell has served 18 days

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in prison before being released on bail because of this
appeal. In my view, it is necessary that he return to prison
for the additional 12 days to make up the month. It was

asking too much of this Court to simply let him remain at

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large having got bail after serving 18 days. So, subject to	1
any comments by counsel, an order has to be fashioned to deal with that bearing in mind that he is not in Court today and cannot immediately be returned to prison.

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The simpler solution may be to order that there be a suspended sentence rather than parole being given to him because it is not easy to fix a parole date under these circumstances. So, I suggest that the order of the Court be this, vary the sentence of the 8th of August 2007, order the appellant now

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serve an additional 12 days imprisonment and that the
remainder of the term of three months be suspended for an
operational period of 18 months. There should be a warrant

for his arrest.

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Now, any comments about that order?

...

HIS HONOUR: I will not sign it before Wednesday but I will

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have it in mind as something to do on - sorry, not Wednesday
because it is now Tuesday, is it not? Tuesday, Wednesday,

Thursday, three days time, and that will give you some time.

...

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HIS HONOUR: As part of that order I took into account the
automatic - well, not automatic - but the order of the

Magistrate for an additional disqualification of three years

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which has the practical effect of disqualifying for around	1
about another 14 months. And I have taken that into account too in thinking that a month's imprisonment, out of a possible total of 18 months, was about right and that once again comes from that same - I think section 78 we were looking at -

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indeed it does.

...

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6 ORDER 60