Jones v Attorney-General of Queensland

[1999] QCA 259

99.259

COURT OF APPEAL
McMURDO P
McPHERSON JA

THOMAS JA

CA No 169 of 1999
THE QUEEN
v.

RICKY ANDREW JONES	(Respondent)
and
ATTORNEY-GENERAL OF QUEENSLAND	(Applicant)

BRISBANE
..DATE 09/07/99
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McPHERSON JA: This is an appeal by the Attorney-General
against the inadequacy of a sentence imposed on the
respondent in the District Court at Brisbane.

The respondent, who is Ricky Andrew Jones, pleaded guilty to dangerous driving on 22 April 1999 (which was the day of the plea). He also pleaded not guilty to causing grievous bodily harm. In the result that other charge of grievous bodily harm produced an acquittal largely, I think, because there was a difficulty on the part of the prosecution in proving the identity of the person harmed.

He was in consequence convicted only of the dangerous operation of a vehicle, for which he was sentenced by the learned Judge to imprisonment for one year wholly suspended for three years, coupled with a licence disqualification for two years.

What happened was this. In the early hours of Monday 8 June 1998 the police saw the respondent riding his motorcycle with a pillion passenger through a red light in Frodsham Street, Albion. They set off in pursuit of the motorcycle which first went through the back streets of Albion and then onto Sandgate Road and finally along Kingsford Smith Drive.

In the course of this chase the following matters became apparent. First, the respondent did not have full control of his motorcycle at all points. He achieved 090799 T19-20/LM27 M/T COA151/99

speeds of up to 130 km/h on main thoroughfares. He ran through three red lights, two of them at high speed, that is, at approximately 120 to 130 km/h.

At one point his method of driving resulted in his passenger being thrown from the pillion of the motorcycle during a manoeuvre that involved crossing a traffic island. The passenger evidently landed in front of an oncoming vehicle and suffered, it may be accepted, at least some abrasions. The respondent did not stop to assist.

The reason, it may be added, why the respondent was driving as he did, at least until the passenger fell off, was because the passenger had encouraged him to do so in order to evade the police, who had outstanding warrants which they wished to execute on or enforce against the passenger.

In a sense, therefore, although it does not perhaps carry much weight in the overall circumstances, the fact is that the passenger was the person who encouraged this form of driving.

The offence, it should be noticed, was committed at approximately 2.30 a.m. and at a time when the traffic was relatively light; but there nevertheless were occasions when the presence of other vehicles created a significant danger to them or to the respondent and his passenger.

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The chase was eventually terminated by a decision of the police and not of the respondent, who, it is pointed out, did not even slow down after the police chase came to an end.

He was traced through the registration plate and, when confronted, he made admissions to the police on being interviewed.

The respondent was born on 13 July 1977. He was therefore aged 20 at the time of the offence and is now 21 years old. He has some prior criminal history, mostly for dishonesty, but has never previously been imprisoned.

He has, it must be said, an extensive traffic history of an unattractive kind. It includes four speeding offences and two occasions on which his licence has been cancelled.

It has also been pointed out to us by Mr Martin on behalf of the Attorney that the respondent continued to offend even after the subject offence was committed; that is to say, the offence with which we are concerned here was committed on 8 June 1998, and he was again convicted, or at any rate he again committed an offence of speeding on 13 October 1998, which was before being sentenced for this offence in April 1999.

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It is argued that the sentence is manifestly inadequate
because it fails to reflect adequately the gravity of
the offence generally; and in this case, in particular,
failed to take sufficient account of the fact that it
was an offence committed at high speed in the course of
a police chase.

It is further submitted that the judge gave too much weight to factors going to mitigation, and that the case is one in which a term of imprisonment was more or less mandatory if the penalty for this offence is to continue to be of any utility as a deterrent to the offender or to other potential offenders.

The maximum penalty in respect of this offence is imprisonment for three years, and comparable sentences can be identified in which a range of up to about 18 months' imprisonment has been imposed.

Most of the sentences to which we were referred with features that are similar to the present have been ones in which quite short sentences of some months have been imposed, or longer sentences but with orders for their suspension or for parole after fairly short periods in gaol.

Factors tending to increase the sentence in this case have been mentioned; but, in the end, it is my view that the matter really is one which falls within the 090799 T19-20/LM27 M/T COA151/99

legitimate sentencing discretion of the judge who heard
the matter.

To impose a prison sentence in these cases is certainly not mandatory; and even if we were to alter the sentence in this case in order to impose a sentence of duration of the kind to which some of the authorities refer, it would not alter the fact that sentences in this field in circumstances like those disclosed before us are essentially discretionary.

It is certainly not uncommon, where a police chase takes place as a result of the defiance of the driver of a car who is committing traffic offences of this kind, for a sentence of imprisonment to be imposed, even if a short one, but there is no rule or principle to that effect.

The case, in the end, therefore, seems to me to be marginal; but some allowance must be made for the operation of judicial discretion in a matter like this, and I would, in the result, not regard this as a case in which this Court ought to intervene. On the contrary, I would dismiss the appeal against sentence.

THE PRESIDENT: Yes. Whilst there are some serious aspects to this offence and a short custodial sentence could well have been imposed, I am not persuaded that His Honour's sentencing discretion has erred on fully suspending a 12 month period of imprisonment for three years and in disqualifying the respondent from holding 090799 T19-20/LM27 M/T COA151/99

or obtaining a driver's licence for two years for the reasons given by Mr Justice McPherson. I agree with the order proposed.

THOMAS JA: I agree.

THE PRESIDENT: The appeal is dismissed.

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