McConachy v Fulmer

[2009] QDC 416

[2009] QDC 416

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE NOUD

No 1609 of 2009

STEVEN JAMES McCONACHY	Appellant
and
BRENDON FRANCIS FULMER	Respondent
BRISBANE ..DATE 16/11/2009
ORDER

1-1

HIS HONOUR: This is an appeal from a decision of a Magistrate

Mr Hoare appeared for the appellant, Ms Litchen for the
respondent. Mr Hoare adopts the submissions of Mr Ackerman.
Both sides have made comprehensive and helpful submissions.

The appellant was before the Magistrate on a number of offences. He pleaded guilty to all the offences. I am only concerned with four offences. Those are:

1.    driving while disqualified on 10 October 2008;

2.    driving while disqualified on 6 November 2008;

3.    driving while disqualified on 28 December 2008;

4.    driving while disqualified on 11 January 2009.

The details of the sentences passed are conveniently set out on the first page of Mr Ackerman's submissions. The overall sentence was in excess of four years. The Magistrate fixed a

parole release date as at 27 August 2010.

It is conceded that in fixing the parole release date the Magistrate erred. Mr Hoare, however, has a number of other points but essentially he says that the Magistrate did not have regard to the overall impact of the sentences passed.

I respectfully agree with that submission and with what Mr It is, however, an unusual case because even though the appeal will succeed, there is a lot that can be said against the appellant. 1-2 ORDER

The case is also unusual in that there is not much to guide one in the sentencing process, however I have formed a view and I will express that in a moment. Before doing so let me say that in approaching this matter I have carefully had regard to Ms Litchen's submissions, especially what Ms Litchen has to say at pages 4 and 7-12 of her submissions.

I shall not recount all the very serious aggravating features.
They are all set out there very clearly. Nevertheless, I am
of the opinion that the sentences should be as submitted by Mr
Hoare.

Essentially Mr Hoare submits for a three year sentence with 12 months to serve. Ms Litchen's submissions was for four years with 18 months to serve. I have discussed with counsel the orders which should be made and the sentences which should in the circumstances be passed.

I order that the appeal be allowed. With respect to the months' imprisonment in respect of each of those offences.

sentences referred to at the commencement of these remarks
(the four disqualified driving sentences) I set aside the

I order that each of those sentences be cumulative on the other. For clarity that means that there is a total of 36 months. I fix the appellant's parole release date as at 11 January 2010. 1-3 ORDER

For clarity I set aside the Magistrate's orders about the disqualifications of the drivers licence with respect to the four offences of driving while disqualified. In lieu of those orders of the Magistrate I order with respect to each of the four offences that the appellant be disqualified from holding or obtaining a driver's licence for a period of five years. I order those disqualification periods be concurrent. For clarity that means that there is a total of five years.

I otherwise confirm the orders made and sentences passed by the Magistrate.

...

HIS HONOUR: I have considered the matter of costs. I do not
think $1800 is unreasonable these days. Mr Hoare asks for
costs and is not opposed to them being fixed, nor is Ms
Litchen, but Ms Litchen submits, I note, that the costs should
be fixed in the sum of $1200. I agree, however, with
Mr Hoare.

I order that the respondent pay the appellant's costs of and incidental to the appeal fixed in the sum of $1800.

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1-4 ORDER