Halcrow v Beaman

[2009] QDC 411

[2009] QDC 411

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE NOUD

No 1326 of 2009

LUCAS JOHN HALCROW	Appellant
and
DANIEL MARTIN BEAMAN	Respondent
BRISBANE ..DATE 16/11/2009
ORDER

1-1

HIS HONOUR: This is an appeal from the decision of a Magistrate. Ms Litchen appears for the respondent. The appellant has appeared in person. The appellant is, in fact, at present in custody.

The appellant was before the Magistrate in respect of two offences. Ms Litchen has prepared comprehensive submissions. The details of the offences are set out on the first page of the submissions.

The appellant was charged with disqualified driving, that was one offence. The second offence was that of having a high blood alcohol limit whilst he was driving. Both offences occurred on 21 March 2009.

It was a bad case of disqualified driving for the reasons mentioned by Ms Litchen in her submissions. The Magistrate imposed the maximum for that and Ms Litchen submits that that was correct and I tend to agree with that.

In relation to the high blood alcohol offence the Magistrate sentenced the appellant to 18 months' imprisonment whereas the maximum penalty was, in fact, three months. An error has therefore been made on the part of the Magistrate.

It is clear that it is wrong but I hasten to add that enlivened and I have heard fairly detailed submissions on the part of Ms Litchen as to what the sentence should be and Ms Litchen stresses the seriousness of the matter. I think that her submissions are probably encapsulated at the top of page 9 of the submissions where Ms Litchen stresses the very aggravating features. 1-2 ORDER

Magistrates do not get a lot of assistance at first instance
in respect of these matters. It is something that we all need
assistance on.

So it is therefore important not to treat the appellant too leniently in sentencing him as I propose to do myself in a moment. By the same token I am mindful of the overall time that the appellant has been in custody and I am also mindful of his difficulties with parole unless a sentence is suspended at this stage.

Ms Litchen submits - it is her primary submission - that it is quite inappropriate to suspend a sentence when, as is the case with the appellant, he has offended in the way he has whilst

on parole. It is serious. So I have to balance that up
against the mitigating factors. I have had regard to what the
appellant has said from the dock and also in his written
submissions to me.

I want to be clear on Ms Litchen's primary submission although at the same time I think Ms Litchen may have conceded that it is not irrelevant to have regard to the difficulties that people might have on parole.

At the moment I do not have at hand any authoritative statement as to what the correct position is about that, but I want to make it clear that I have had regard to that as a factor in the exercise of my discretion in sentencing the appellant. 1-3 ORDER

Overall I take the view here that it is right to start thinking about a sentence of 18 months for the disqualified driving but he has been in presentence custody on these matters not declarable for about eight months, so therefore that sentence should come down to about 10 months I think and then there can be a sentence of three months on the other matter.

I indicated these things to the appellant and Ms Litchen in the course of my discussions with them. I think I will allow the appeal and sentence the appellant on that basis.

So for the above reasons the appeal is allowed. The orders in the Magistrates Court, apart from the orders relating to the disqualification of the driver's licence, are set aside. In relation to the driving whilst disqualified offence the sentence is 10 months' imprisonment and in relation to the other offence, the one of the blood alcohol content the sentence is three months' imprisonment, those sentence to be concurrent.

I order that those terms of imprisonment be suspended after serving a period of one month imprisonment and you, Mr Halcrow, must not commit another offence punishable by imprisonment within a period of two and a half years if you are to avoid being dealt with for the suspended terms of imprisonment. 1-4 ORDER

The order means what it says. If you re-offend you will be brought back to the Court. You will be at risk of having to serve the balance of that period of nine months' imprisonment. You are nodding indicating that you understand that form of order and I appreciate that.

The sentence, of course, runs from today. So the driver's licence matters, the disqualification for those, remains as ordered by the Magistrates Court but you have now been re- sentenced and there was argument about the operational period and I have specified what I consider to be appropriate in the order that I have made.

So those are the orders and that is the sentence and I do not think there is any question of costs.

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1-5 ORDER