Morse v Anderson

[2007] QDC 356

[2007] QDC 356

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE BOTTING

No 1443 of 2007

JACOB ROBERT MORSE	Appellant
and
ROBERT STEVEN ANDERSON	Respondent
BRISBANE ..DATE 02/10/2007
ORDER
HIS HONOUR: This is an appeal from decisions made in the	1
Magistrates Court at Southport on 26th April 2007. On that day the appellant pleaded guilty to two charges of driving whilst disqualified and to a further charge of breach of the Bail Act of failure to appear.

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The failure to appear offence was said to have been committed on 22nd December 2005. The first of the disqualified driving matters relates to driving which occurred on 26th September

2005 whilst the other referred to driving that took place on

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12th November 2006.

Matters were complicated because the appellant had, on 7th disqualified driving and had been sentenced to a number of

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wholly suspended sentences. One of those was for a period of
one month, the second was for a period of three months and the

third was for a period of six months.

In each case the operational period was ordered to be two

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years. Clearly, therefore, the second disqualified driving
offence breached the terms of those suspended sentences.

His Honour appears, with respect, to have been lulled into error by submissions made to him on behalf of the appellant

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because he concluded that he could simply decline to deal, as
it were, with those breach matters. He certainly does not

appear to have made any orders in respect to them.

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In those circumstances, the respondent accepts, in my view	1
properly, that there has been a demonstrated error in his now falls to me to impose sentences which appear to me to be appropriate.

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In doing so I must take into account, of course, those matters which were put before his Honour and the appellant has, without objection by the respondent, put before me some further material and, in particular, a report from a Dr

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Griffin who is a psychiatrist who has been, as I understand it, treating the appellant for a depressive-type illness whilst he has been incarcerated.

There was another document put before me by the appellant

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which again was not objected to and which I have taken into
account. The first part of it appears to be no more than the
outlining of submissions and the second part are notes which
the appellant has prepared of a number of decisions which he

submits have similarity to his circumstances.

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On any view, the appellant's traffic history is a disgraceful one so far as his repeatedly driving whilst precluded to do so by various orders of Courts. In my view, his Honour was quite right in concluding, as least so far as the last disqualified

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driving was concerned, that a sentence of imprisonment must be
imposed. In my view, that was so even if he accepted the
explanation which the appellant put before him through his

then solicitor and which the appellant has urged again before

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me in his ultimate submissions, namely that he had in the	1
interim - sorry, he had prior to 12th November 2006 been residing overseas and had obtained a driver's licence in a foreign country and he believed that that entitled him to drive in this country.

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It seems to me that, in the circumstances, had his Honour considered the suspended sentences his Honour must have concluded that he could not be satisfied that it would be unjust to order that the whole of the sentences be ordered to

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be served.

That would have led him to order that in respect of the disqualified driving offence committed on 19th August 2005 and that committed on 23rd September 2005, and that committed on

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30th January 2006 be sentences of imprisonment of one months,
three months and six months should be activated.

So far as the matter that was before him, namely the disqualified driving on 26th September 2005, it seems to me

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that it was appropriate for his Honour to make the order that
he did, namely five months' imprisonment to be suspended after
three months with an operational period of two years. It
seems to me that there were certain issues of totality

concerned in respect of that matter. It was urged before him

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that the appellant had believed that that matter had been
disposed of at the Court appearance of 7th February 2006 and,

indeed, it is difficult to imagine that any significantly

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greater penalty would have been imposed in February of 2006	1
had this matter then been before the Court.
So far as the matter of the disqualified driving is concerned on 12th November 2006, I have difficulty in accepting the

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appellant's explanation that he believed that the possession
of a Spanish licence would entitle him to drive in this
country. But, as I say, even allowing for that explanation it
seems to me that a sentence of imprisonment was called for

and, in my view, it had to be, bearing in mind the atrocious

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prior history, had to be a significant sentence and, in my
view, the appropriate sentence was one of nine months.

It seems to me that that sentence must be cumulative upon the suspended sentences and the sentence in respect of the driving

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on 26th September 2005. So far as the failure to appear is concerned, it does seem to me from the explanation that was given for which there does seem to be some support, I might add, in what I have read from the Court file, that is that a
phone call had been made and certain information given to the

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Court, that the appropriate course there is simply to convict the appellant but not impose any further penalty.

I am now required to fix a parole release date. The appellant has now been in prison since 8th April this year. That is, a

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period fast approaching six months. So far as I am aware,
this is the first time he has been incarcerated, at least for

anything more than a short stay in a watch-house.

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The letter from Dr Griffin does confirm that he has had a	1
depressive illness. He may well, of course, have had it prior to his incarceration but he does appear to be suffering from that illness and it seems to me that that is a matter which I can take into account.

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I have discussed with counsel for the respondent what I take to be the ordinary practice, in this jurisdiction at least, one which I think has been if not actually considered, I think it has - if I can put it this way - by implication been

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sanctioned by the Court of Appeal and that is in cases where
prisoners plead guilty, a "discount" will usually be given
which suggests that they should be able to enter back into the

community at about the one third point of their sentences.

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So far as the three suspended sentences are concerned and, indeed, also the disqualified driving committed on 26th September 2005 are concerned, that would lead me to conclude that the appellant's release date should be around about two months after he was first taken into custody, that is around

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about 8th June.

So far as the other disqualified driving is concerned, three months is approximately one third into that sentence which would take matters until early September. It is, of course,

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now a month past that date. In the circumstances, therefore,
I am minded to fix the parole release date as tomorrow, that

is 3rd October 2007. I do so because if I was to order his release today it would be incumbent upon him to report to a corrective services commission officer in Brisbane either 6 ORDER 60

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today or tomorrow. My understanding is that if he was
released from the gaol tomorrow, the type of formalities which
must otherwise be gone through can be effected by the prison

officials at the correctional centre.

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So I propose to allow the appeal. I set aside the sentences imposed below. In respect of the three suspended matters in each case I find that, as I have indicated, that his Honour

should have found that he could not be satisfied that it would

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be unjust to order that the sentences be wholly activated and
in each case the order will be that the sentence imposed on
7th February 2006 be served, that is a sentence of one month,

a sentence of three months and a sentence of six months.

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In respect of the matter that was before his Honour on 26th April this year the sentence imposed should, in my view, be a suspended sentence, that is a sentence of five months' imprisonment to be suspended after three months with an operational period of two years. That sentence to be

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concurrent with the sentences imposed in respect of the
suspended sentences.

So far as the disqualified driving on 26th April 2007 is concerned, the sentence will be one of nine months'

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imprisonment, that to be cumulative upon all other sentences

imposed that day or activated.

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So far as the failure to appear is concerned, the sentence of	1
the Court would be that the appellant be convicted and not further punished.
In respect of all the sentences I can, of course, only fix one

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parole release date and that date will be 3rd October 2007. touch upon?

MR HUNGERFORD-SYMES: Just with regard to the disqualified

driving of 12th November 2006, does your Honour wish to affirm	20
that the appellant ought to be disqualified from holding or obtaining a-----
HIS HONOUR: Yes thank you. Thank you. In fact, I should make that order in respect of both the disqualified drivings, should I not? It is mandatory in both cases, is it?
MR HUNGERFORD-SYMES: It is mandatory for two years and he was
given two years and then four years. On my table, number 5,
you get to the four year licence disqualification.	30
HIS HONOUR: Yes. Well further, so far as the disqualified driving on 26th September 2005, there will be a further order that the appellant be disqualified from holding or obtaining a driver's licence for a period of two years and so far as the
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offence committed on 26th September 2005 is concerned, bearing in mind the appellant's history, it seems to me that the disqualification period for four years is warranted and I order that he be disqualified from holding or obtaining a driver's licence for a period of four years.
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So there is no ambiguity about that, Mr Morse, you will not be
able to obtain or to drive lawfully in Australia for a period
of four years. That would date from 26th April this year.

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What impact, if any, it has on any overseas licence you may	1
have I do not know, you may be wise to make your own enquiries there if you do go overseas. But within Australia you may not drive for four years from April of this year.

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