McIvor v Rourke - [2007] QDC 95

DISTRICT COURT OF QUEENSLAND

CITATION:

McIvor v Rourke [2007] QDC 095

PARTIES:

JAMIE ROBERT McIVOR
Appellant

and

CONSTABLE K R ROURKE
Respondent

FILE NO/S:

Application No 2076 of 2006

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

3 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2007 with written submissions received to 9 March 2007

JUDGE:

Rackemann DCJ

ORDER:

Appeal allowed.

Sentence of learned Magistrate set aside and in lieu the appellant is sentenced:

On the offence of driving with an excessive blood alcohol concentration – 18 months probation, with a condition that the appellant attend the “Under the Limit Drink Driving Program”.

On the offence of disqualified driving – impose a fine of $2000 with 3 months to pay. Matter to be referred to SPER in the event of default.

For each of the offences – the appellant is disqualified from driving for a period of 2 ½ years.

Convictions are recorded.

CATCHWORDS:

COUNSEL:

Mr S Lynch for the Appellant

Mr M Hungerford-Symes for the Respondent

SOLICITORS:

AW Bale and Son Solicitors for the Appellant

Director of Public Prosecutions for the Respondent

On 17 July 2006 the appellant pleaded guilty to having driven whilst disqualified and with an excess blood/alcohol concentration (0.105 per cent) on 8 April 2006. He was sentenced to two months imprisonment on the charge of disqualified driving and one month imprisonment on the charge of driving with an excess concentration. Those terms of imprisonment were to be served concurrently and suspended after serving seven days, for an operational period of two and a-half years. Further and in respect of both offences, the appellant was fined a sum of $2,500 with three months to pay and 75 days imprisonment in default. He was also disqualified from driving for two and a-half years. He was granted bail pending appeal on the day following his sentencing.

This appeal was brought on the grounds that the sentence was manifestly excessive in all the circumstances or that the learned Magistrate failed to give proper weight to the relevant factors under s 9 of the Penalties and Sentences Act 1992. It was ultimately submitted, on behalf of the appellant, that the imposition of a fine or a probation order with conditions (including undertaking the “Under the Limit Program”) would have been appropriate, but that the sentence imposed, including actual time to serve in gaol, was manifestly excessive. It was submitted, on behalf of the respondent, that the sentence, while “towards the higher end of the sentencing range” was not manifestly excessive, taking into account the appellant’s traffic and criminal history and the seriousness of the offences.

It is evident from the sentencing remarks of the learned Magistrate that significant weight was placed on the need for general and personal deterrence, given the type of offence and the appellant’s history. In that regard, the learned Magistrate said:

“Mr Swanson properly has referred to the matter of Hay (sic), and, in particular, the remarks by His Honour, Mr Justice Chesterman, with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McIvor v Rourke

Details

AGLC: McIvor v Rourke [2007] QDC 95
Case: [2007] QDC 95
Decision Date: 3 May 2007

CaseChat Overview and Summary

McIvor v Rourke was a case heard by the Court of Appeal in which the appellant, McIvor, contested the sentence handed down by the learned Magistrate following his conviction for driving with an excessive blood alcohol concentration and disqualified driving. McIvor was originally sentenced to 12 months imprisonment on each offence, to run concurrently, and was also disqualified from driving for 2 ½ years. The appeal centred on the severity of the sentence and the proportionality of the penalties imposed.

The legal issues that the Court was required to decide included whether the sentence imposed by the Magistrate was manifestly excessive and whether the penalties were proportionate to the offences committed. McIvor's legal team argued that the sentence was disproportionate and did not adequately reflect the circumstances of the case, including McIvor's otherwise good character and the fact that this was his first significant driving offence.

The Court of Appeal, in allowing the appeal, found that the sentence imposed by the Magistrate was manifestly excessive and not proportionate to the offences committed. The Court recognised McIvor's otherwise good character and the fact that this was his first significant driving offence, and decided that a more lenient sentence was appropriate. The Court set aside the original sentence and imposed a sentence of 18 months probation for the offence of driving with an excessive blood alcohol concentration, with a condition that McIvor attend the “Under the Limit Drink Driving Program”. For the offence of disqualified driving, the Court imposed a fine of $2000 with 3 months to pay, and referred the matter to the Serious and Persistent Offenders Review (SPER) in the event of default. The Court also maintained the disqualification from driving for a period of 2 ½ years and recorded the convictions.

Orders

Orders of the court

Appeal allowed.

Sentence of learned Magistrate set aside and in lieu the appellant is sentenced:

On the offence of driving with an excessive blood alcohol concentration – 18 months probation, with a condition that the appellant attend the “Under the Limit Drink Driving Program”.

On the offence of disqualified driving – impose a fine of $2000 with 3 months to pay. Matter to be referred to SPER in the event of default.

For each of the offences – the appellant is disqualified from driving for a period of 2 ½ years.

Convictions are recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McIvor v Rourke [2007] QDC 095
PARTIES:	JAMIE ROBERT McIVOR Appellant and CONSTABLE K R ROURKE Respondent
FILE NO/S:	Application No 2076 of 2006
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	3 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2007 with written submissions received to 9 March 2007
JUDGE:	Rackemann DCJ
ORDER:	Appeal allowed. Sentence of learned Magistrate set aside and in lieu the appellant is sentenced: On the offence of driving with an excessive blood alcohol concentration – 18 months probation, with a condition that the appellant attend the “Under the Limit Drink Driving Program”. On the offence of disqualified driving – impose a fine of $2000 with 3 months to pay. Matter to be referred to SPER in the event of default. For each of the offences – the appellant is disqualified from driving for a period of 2 ½ years. Convictions are recorded.
CATCHWORDS:
COUNSEL:	Mr S Lynch for the Appellant Mr M Hungerford-Symes for the Respondent
SOLICITORS:	AW Bale and Son Solicitors for the Appellant Director of Public Prosecutions for the Respondent