Jocumsen v Olive

[2013] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:

Jocumsen v Olive [2013] QDC 264

PARTIES:

SERGEANT MICHAEL JOCUMSEN
(appellant)

V

GARY ROY OLIVE
(respondent)

FILE NO/S:

Maroochydore D77/13

DIVISION:

Appellate

PROCEEDING:

Section 222 appeal

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

18 October 2013

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

11 October 2013; 18 October 2013

JUDGE:

Long SC DCJ

ORDER:

The orders of the sentencing Magistrate made on 2 May 2013 be varied by deleting the fixing of a parole release date on 2 May 2013 and substituting an order that, in respect of the period of six months imprisonment the respondent was to serve for the offence of driving whilst under the influence of liquor and the breach of the suspended sentence imposed on 16 October 2012, his parole eligibility date is fixed as the day after he has served two months imprisonment. 

CATCHWORDS:

CRIMINAL LAW-APPEAL AGAINST SENTENCE-SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent convicted of offences in the magistrates court of driving a motor vehicle whilst under the influence of liquor and driving a motor vehicle whilst disqualified by court order – where the respondent had committed the offences whilst on parole and in breach of a suspended sentence for similar offending and had other significant prior criminal history of other similar offending -whether the magistrate erred in a fixing a parole release date rather than a parole eligibility date-whether the sentence was manifestly inadequate.

COUNSEL:

G Cummings for the applicant

M Robinson for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant

Legal Aid Queensland for the respondent

1. On 2 May 2013, the respondent was convicted, in the Magistrates Court at Maroochydore, on his guilty plea to the following offences, each committed on 2 February 2013:

§ Driving a motor vehicle whilst under the influence of liquor (contrary to s 79(1) of the Transport Operations (Road Use Management) Act – “TORUM Act”; and

§   Driving a motor vehicle whilst disqualified by court order (contrary to s 78(1) and (3) of the TORUM Act.

1. He was sentenced respectively to:

§   Six months’ imprisonment with an immediate parole release; and

§   Six months’ imprisonment, wholly suspended for an operational period of three years.

In addition there was a period of two years’ license disqualification ordered for each offence, ordered to operate cumulatively, so as to make a total period of four years license disqualification. However that order simply reflected the statutory effect of s 90C(3) of the TORUM Act. Although, it can also be noted that such periods, which were the minimum periods of disqualification allowed in each instance (pursuant to s 86(1B) and s78(3)(a), respectively), would also, pursuant to s 90C(5), operate cumulatively on the total period of disqualification of 4 years effected by earlier orders made on 16 October 2012. 

1. Because these offences were committed in breach of a suspended sentence of six months imprisonment, imposed on 16 October 2012, as part of an overall sentence for similar offending conduct which had occurred…