Lutz v Newbury

[2013] QDC 144

[2013] QDC 144

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE HARRISON  

No 220 of 2012

CONSTABLE NATHAN LUTZ	Applicant
and
NORRIS STAN NEWBURY	Respondent

CAIRNS

..DATE 12/02/2013

JUDGMENT

HIS HONOUR:  This is an appeal by the police against a sentence imposed in the Magistrates Court at Cairns on the 12th of October 2012.  The respondent on that occasion pleaded guilty to an offence of disqualified driving on the 21st of August 2012.  He was sentenced to three months' imprisonment which was wholly suspended for a period of two years and he was disqualified from holding or obtaining a driver's licence for a period of two years.  I note that under the relevant legislation, the maximum penalty for an offence of disqualified driving insofar as imprisonment is concerned is 18 months' imprisonment and that the period of disqualification must be a minimum of two years to a maximum of five years.

Essentially, the appellant's case was based on two matters:  Firstly, it was argued that the learned Magistrate placed undue weight on earlier sentences imposed in the Magistrates Court at Mareeba and the fact that they were, on the face of them, harsh.  The second ground is that in all the circumstances, the sentence imposed was manifestly inadequate.  I will deal firstly with the first of those grounds.  I have read the transcript of the proceedings and it is clear that there was a discussion between the Magistrate and those present about the apparently harsh nature of earlier sentences imposed on this man.  I must say that my reaction when I read the traffic history was very much the same as hers and it seems to me that I would be remiss in the particular circumstances of this case if I did not comment on those matters.

The respondent was born on the 15th of December 1985 and is now 27 years of age.  He has a poor traffic history and I have a copy of the one which was handed up to the learned Magistrate.  It is worthwhile analysing that history insofar as it relates to disqualified driving.  There are numerous other entries for traffic offences, although none of any severity other than the disqualified driving.  There are a number of unlicensed drives and a number of relatively minor traffic infringements.  There do not appear to me to be any charge or any offences of driving a motor vehicle under the influence of liquor or a drug. 

The first disqualification was on the 16th of February 2004 which related to an offence committed eight days earlier.  He was fined $1,000 and disqualified from holding or obtaining a driver's licence for a period of two years.  His second conviction for disqualified driving was on the 30th of October 2006 which related to the driving on the 12th of October 2006. He had already served the two year period of disqualification from the sentence imposed on the 16th of February 2004, but I note from his record that he was dealt with on the 25th of September 2006 for an unlicensed drive which occurred on the 10th of September 2006 and was disqualified from holding or obtaining a driver's licence for three months.  It was that period of disqualification that was relevant to that offence.  That of itself seems somewhat harsh for an offence of that nature.

His next appearances was on the 24th of October 2007 for a disqualified driving offence which occurred on the 6th of September 2007.  On this occasion, he was sentenced to imprisonment for four months, wholly suspended for 12 months and disqualified from holding or obtaining a driver's licence for four years.  I should have added earlier that when he was dealt with on the 30th of October 2006, he was sentenced to 100 hours' community service and disqualified from holding or obtaining a driver's licence for three years.  I will talk further later about those very lengthy periods of disqualification.

On the 17th of March 2008, he pleaded guilty to another offence of disqualified driving on the 15th of January 2008.  On this occasion, he was sentenced to six months' imprisonment and disqualified for five years which is the absolute maximum under the legislation.  He was also required to serve the balance of the suspended sentence.  He appeared again on the 18th of May 2009 on three charges of disqualified driving, on the 27th of February 2009, the 7th of March 2009 and the 29th of March 2009.  On each charge, he was sentenced to 15 months' imprisonment and disqualified for a period of five years, the terms of imprisonment to be served concurrently.  I have analysed very closely his traffic history and it is clear that there do not appear to be any other associated offences with the disqualified driving.  It is often the case that many of the disqualified drives are associated with other serious offending, whereby the person constitutes a very real and grave danger to the public.

A classic example of this is shown in the matter of QPS v. Rex John Gregory [2010] QDC 388, a decision of his Honour Judge Irwin in Mount Isa on the 21st of September 2010. In that case, Gregory had 10 offences over a period of 16 years for disqualified driving. Interestingly however, time and time again it was associated with drink driving, in some cases with very high readings. There was reference to one back in 1993 where the reading was not mentioned, but then in 1995, there were two where the readings were 0.12 per cent which would have been the minor charge and 0.26 per cent. There was another one in 1996 where the reading was 0.257 per cent.

Another sometime after that where the reading was 0.254 per cent.  Another in 2005 where the reading was 0.153 per cent and two more in March '08 where the readings were 0.214 per cent and 0.225 per cent.  So, it is clear that Gregory, which was relied upon as an authority in this case on sentence, was a totally different situation to the situation here, because Gregory time and time again drove in circumstances where he posed a very real danger to the public.  That could not be said of the respondent in this case and that to me is a very major distinction.

Turning back to the first ground of the appeal: I, when I read the record, also concluded that the sentencing in the past on this young man was very harsh. There is a very useful discussion in the case of QPS v. Leigh William Santillan [2008] QDC 33, a decision of his Honour Judge Brabazon at Toowoomba on the 29th of February 2008. In paragraph 4 of that decision, he referred to an earlier English case of Shirley and quoted the following passage from that case, "Long periods of disqualification from driving may prove a very serious handicap to a man when he comes out of prison and desires to pursue a different type of life to that which has led him into that prison. Such periods of disqualification may shut out a large sector of employment, especially in certain areas. Moreover, if the length of disqualification is overlong and amounts to a period such as a decade, the position may well seem hopeless to the man, and that of itself sows the seeds of an incentive to disregard the law on this point. However wrong such attitude may be, it springs from a human factor which it is wise to take into account."

Here, the Magistrate did nothing more than comment on the seemingly harsh nature of the earlier sentences.  There is nothing to suggest in her reasoning that she relied in any way on that and it seems to me therefore that there is no basis for the first ground of the appeal.  I then turn to the question of manifestly inadequate, and I must say at the outset, that I am very concerned about what I might term a "mathematical approach" to sentencing in disqualified driving.  There seems to be this view that if the sentence imposed on one occasion is "X" months and that is not a deterrent, therefore the sentence imposed on the next occasion must be "X" plus something else and so on.  And certainly, that is the way that he has been dealt with to date.

All it does, with a young man like him, is put him on a spiral and there is very little hope of him ever getting off that spiral and that is the unfortunate history here.  If the Courts were to take the view that every time they come back that the penalty should be higher, then there would be no such thing as a discretion on sentence.  That discretion would automatically be quite seriously fettered.  This was what was submitted by the prosecution to the learned Magistrate in this case, although she quite properly informed the police Prosecutor that that was contrary to law.  It is not necessary for me to go into the authorities on that point.

There a number of matters of significance in this young man's case:  Firstly, I have had regard to his criminal history.  He has virtually nothing, yet he is a man that keeps going back to gaol because of these matters.  On the criminal history, there is reference to breaches of fine option orders and suspended sentence, ironically stemming from these very matters.  There is a contravene direction and a wilful damage and in both cases, no convictions were recorded and he was not further punished.  So, he has virtually got no criminal history, yet he is on this never ending spiral that I spoke of before.  What is also significant in his case is that the driving on the 21st of August 2012 was three years, three months and three days after the last disqualification and that is something that clearly the learned Magistrate should have taken into account.

For a young Aboriginal man, three years, three months and three days would seem like an eternity.  That is compounded even more so in his case by his condition.  A short report was provided to the learned Magistrate to show that he was suffering from schizophrenia and that he required injections on a regular basis to treat that condition.  The learned Magistrate was entitled to take into account those matters, was entitled to take into account the length of time that he had gone without reoffending, which was a very substantial period of time, and more, I believe, than what he should have been disqualified for in the first place.

She was also entitled to look at this whole situation about his future.  As Judge Brabazon said in Santillan earlier on in the fourth paragraph that I quoted earlier, “I am not the first Judge to think that the impact on the driver should be kept in mind.”  What the Magistrate did here was impose a short period of imprisonment and suspend it for two years.  She also disqualified him from driving for two years.  There was nothing unusual about the driving on this occasion, as was the case with all of his earlier driving.  He did not pose a threat to anyone else.  He gave an excuse, although it by no means was a sufficient excuse and was quite properly rejected, but in the particular circumstances of that driving against a background where he had not reoffended for in excess of three years and three months, against the background where he has the serious psychological condition, although there is no evidence to show that it impacted on offending per se, and in view of the very lengthy period since the disqualification, I am not persuaded that the sentence in this case is manifestly inadequate.

Ideally, one would hope that he can get to the point where he can apply for a licence and be an otherwise productive member of the community.  He cannot work because he has been on a disability support pension because of his schizophrenia, but at least one would hope that there should be some light at the end of the tunnel whereby he can apply for a licence and hopefully get one so that a person who does not otherwise infringe against the community should not be facing this endless spiral of one prison sentence after another.  In the circumstances, the appeal is dismissed.

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