Jakubowski v Jackson

[2005] QDC 172

[2005] QDC 172

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD 444 of 2005

HENRYK JAKUBOWSKI	Appellant
and
NELLIS JEAN JACKSON	Respondent

BRISBANE

..DATE 06/06/2005

JUDGMENT

CATCHWORDS: Appeal from Magistrate to District Court against sentence - appeal allowed - for third offence within 5 years for purposes of s 79(1E) of the Transport Operations (Road Use Management) Act 1995, maximum sentence imposed - sentence of 18 months imprisonment suspended after 12 months for operational period of 5 years was harsher than the maximum assuming remissions under s 76 of the Corrective Services Act
2000 - transcript unavailable - it appeared doubtful that recognition had been given the appellant's guilty plea as contemplated in s 13 of the Penalties and Sentences Act 1992 - bad prior history of similar offending - sentence varied by being suspended after seven months.

HIS HONOUR:  This is an appeal by Mr Jakubowski under section

222 of the Justices Act 1886 in respect of the penalty imposed

by a Magistrate on 12 January 2005 upon his pleading guilty to

charges of driving under the influence of alcohol and driving

while disqualified by a court order.

Unfortunately for the appellant, the circumstances came within

section 79(1E) of the Transport Operations (Road Use

Management) Act 1995 because he had been twice convicted for a

similar offence within the preceding five years.  It may not

be unjust to characterise him as a person who is incorrigible

in this regard.  The new conviction was his 13th.

Mr Marais' outline of submissions supplied today indicates

that the 10 further incidents occurred 9, 11, 11 and a-half,

12, 13, 16, 16, 17, 17 and 19 years ago.  There have also been

multiple incidences, but not so many, of driving while under

disqualification offences.  The blood alcohol content on the

occasion in question was 0.16 per cent, which is more than

three times the legal limit, but considerably less than the

readings encountered in some of the authorities that counsel

have placed before the Court.

The appeal has been heard without the transcript of

proceedings before the Magistrate being available.  That it

would not be available was only confirmed last Friday.

Mr Jakubowski really had no alternative but to proceed without

a transcript.  There was little point in adjourning the

hearing of the appeal while he remained in custody.

He has to date served 145 days, something which has proved

costly, not only to him, but to employees of his business, a

majority of whom, it seems, have lost their jobs.

In the absence of the transcript the Court has relied on what

the appellant's outline has to say about the offence,

supplemented by some comments from the Bar table by Mr Marais,

who has had a conference with or instructions from

Mr Jakubowski, who is not personally present for the appeal

hearing.

The offence occurred in the middle of the night, apparently

after the appellant had been drinking with a friend who had

arrived, maybe with alcohol, to offer consolation in the

context of some illness in the family.  After taking that

consolation, Mr Jakubowski elected to drive to the city to

visit the casino.  It seems, from what his counsel says, that

the trip was completed successfully but that the manner in

which Mr Jakubowski attempted to park his vehicle in the city

led to police interest in him.  He hadn't been pulled over by

an RBT team.  The appellant is 54 years of age.

The penalty imposed by the Magistrate was one of 18 months'

imprisonment suspended after 12 months had been served for an

operational period of five years.  Given the absence of a

transcript, it cannot be ascertained whether or not the

Magistrate stated in open Court, as required by section 13

subsection (3) of the Penalties and Sentences Act, that the

guilty pleas had been taken into account.  It's not

necessarily determinative of anything as subsection (5) makes

clear.  The sentence may be seen as the maximum in that under

section 76 of the Corrective Services Act 2000 the appellant

could expect to be released into the community after

serving 12 months.  I don't think it ought to be assumed that

his behaviour in custody would be likely to deprive him of

that opportunity.  As Mr Marais says, being released into the

community subject to a suspended sentence with the maximum

operational period, his client is in a situation that may be

seen as worse than if he had received the maximum penalty. 

Had that happened he would not have been back in the community

with the same sword of Damocles hanging over him.

The cases from the Court of Appeal which counsel have made

reference to are Manion [2005] QCA 5, Whye CA 234 of 1997,

Cockburn CA 259 of 2002, also Christian Daniel McGuire, CA 197

of 2002.  This last case relied on by the appellant was a

successful Attorney's appeal in which a two years sentence

which had been wholly suspended by the primary Judge was

increased by the suspension being delayed until six months had

been served.  The offence was dangerous operation of a motor

vehicle causing grievous bodily harm with a circumstance of

aggravation of involvement of alcohol.  There was previous

offending by way of driving under the influence.  Manion

concerned an offender with similar previous convictions which

the Court of Appeal described as "old, recorded in 1978 and

1980".  He was ordered to serve one month's imprisonment for

offences of drink-driving, disqualified driving and failure to

supply a specimen of breath cumulative upon nine months and 12

months sentences for fraud.  He was thus an offender who was

going to be imprisoned anyway.  The Court of Appeal considered

the cumulative aspect of the sentence for the driving offences

was manifestly excessive and removed it.

The other two Court of Appeal decisions were handed up by

Mr Hungerford-Symes appearing for the respondent.  In Whye a

five year sentence was reduced to three.  In Cockburn a

sentence of two years and nine months accompanied by a

recommendation for post-prison community-based release after

15 months had been served was left standing by the Court of

Appeal.  Those two cases, like McGuire, concerned offences

under the Criminal Code prosecuted on indictment. They

are useful in that alcohol was involved.  However, they

involved offenders whose manner of driving could be shown or

was accepted to be dangerous.  Speaking generally, one would

expect more significant sentences under the Code.  Some

comments of the Court in Whye are particularly helpful to the

appellant's case here.  What Pincus JA said towards the end of

his reasons is this:

"In the present case if the applicant is released on
     parole after two years (which of course may not occur)
     then that does not on the face of it seem a remarkable
     prison term for an offence of this seriousness.  But the
     Crown has to defend the award of a maximum sentence which
     is reserved by the statute, as the High Court have said,
     for the worst category of cases.  Where one has an
     applicant who has never before so offended as to merit

prison, there is a plea of guilty to be considered as well as the relatively deserted state of the roads at the time and apparently voluntary stopping of the vehicle at the end, I have been unable to conclude that the case

warranted the imposition of a head sentence of the
     maximum term.  Taking into account all these matters,
     including the plea of guilty, I would set aside the
     sentence imposed below and reduce the sentence to three
     years with no recommendation for early parole".

The other authority which seemed to me helpful was an appeal

similar to this one heard by Judge Richards in Ipswich on the

15th of November 2004, Barry Michael Woolens.  It's not known

what was the sentence which was reduced on appeal to 51 days

representing the time the appellant already served.  He

amassed two convictions for the offence which Mr Jakubowski

pleaded guilty to on successive days with readings of 0.231

per cent and 0.238 per cent.  There was apparently some

history of drink-driving.  There's nothing to show it was as

bad as the present appellant's.  Woolens seemed to have some

serious health problems.

In all of the circumstances, my conclusion is that the

sentence here is manifestly excessive.  Dreadful as the

appellant's record is, it's possible to imagine worse ones,

and worse instances of the offences.

I ought to interpolate I am grateful to Mr Marais for making

it clear that the appellant has served actual imprisonment in

the past.  It's not clear from the criminal history whether

sentences of imprisonment there were suspended.

In reaching the conclusion that the sentence was manifestly

excessive, the obvious considerations are that the maximum of

18 months was imposed, that the 12 months part of that was to

be served and that the release of the appellant into the

community then would be under invidious circumstances.  None

of the cases mentioned, or others collected by Mr Marais which

I haven't mentioned, contain such a lengthy operational

period.  If Mr Jakubowski is able to persuade those who have

the relevant discretion to allow him to have a licence, if

only for the purposes of his work and business at some time in

the future, he is going to have an extremely powerful

incentive to ensure he doesn't drink and drive again.

I would allow the appeal and order that the 18 months'

sentence imposed should be suspended after seven months have

been served rather than 12 months ordered by the Magistrate.

Is that all I have got to do?

MR HUNGERFORD-SYMES:  Just with regard to the operational
period, is your Honour minded to leave that?

HIS HONOUR:  I am not going to change that.  What Mr Marias asked for was an earlier suspension, specifically after the 145 days already served.

MR HUNGERFORD-SYMES:  Nothing further.

HIS HONOUR:  Thank you.

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