Noon v Wilson

[2006] QDC 168

[2006] QDC 168

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 693 of 2006

IAN RICHARD NOON	Appellant
and
KENNETH JAMES WILSON	Respondent

BRISBANE

..DATE 05/06/2006

ORDER

CATCHWORDS: Appeal against sentence under s 222 of the Justices Act 1886 - sentence of one month's imprisonment for a first offence of disqualified driving (on occasion of third incident of driving under the influence for which 47 year old offender received probation) held out of the range, or manifestly excessive - sentence should be ordered to be suspended.

HIS HONOUR:  The respondent, represented by

Mr Hungerford-Symes, indicated to the court that there was no

lack of sympathy in that quarter for the plight of the

appellant.  Notwithstanding, it was submitted that this appeal

against sentence under s 222 of the Justices Act 1886 ought

not to succeed because the sentence was not manifestly

excessive or perhaps, putting it another way, that it came

within range.

It is a sentence of one month's imprisonment imposed by a

Magistrate on the 13th of March this year in respect of an

offence of disqualified driving, which happened on the 24th of

February this year, in association with an offence of driving

a vehicle with a blood alcohol concentration of .22.

For that offence the penalty was one of two years probation

which the Magistrate apparently attempted to defer until the

imprisonment was completed.  That would seem to be an

unorthodox approach.  In practice nothing much will turn on it

and the parameters of the appeal do not extend far enough to

permit regularisation.

The appellant is 47.  The making of the probation order is an

indication that the circumstances were unusual.  A 47 year old

is not normally placed on a sentence of that nature.  In the

appellant's case the explanation lies in his serious problems

with alcohol to which it seems, on the basis of reference

material, he turned in response to stressors in his life

related to employment in a professional field in which

important responsibilities were thrust upon him.

He has taken steps to deal with his difficulties, including

abandoning that employment for rather different work in which

he is giving great satisfaction to his employer, which happens

to be a school.  There is an impressive reference from the

principal expressing his appreciation of the appellant's

qualities as a man.  There is a similar lengthy reference from

his wife explaining the difficulties which from time to time

have blighted family relations.

There is also a reference from a psychologist which confirms

that the appellant has been active in pursuing rehabilitation

programs, through Alcoholics Anonymous, for example.  The last

reference before the Magistrate was from an institution in

Northern New South Wales known as the Buttery which provides

long term residential programs for those with difficulties

like the appellant's.  He is on a waiting list but is unable

to undertake the program while there are court proceedings

hanging over him.  Therein lies the explanation for the

unusually early hearing of this appeal.

The failure to date of the efforts at rehabilitation which the

appellant has made, apparently assiduously, is reflected in

there being two prior convictions for driving while under the

influence.  The first relates to an offence on the 1st of

October 2004 when the blood alcohol concentration was .189.

When the matter came to court 20 days later the Magistrate's

orders were a fine of $1,200 and disqualification for 10

months.  It appears that 10 months passed without incident.

However, there is another offence of driving under the

influence with a blood alcohol concentration of .145

on the 21st of January 2006, which was dealt with in the

Magistrates Court on the 17th of February by a fine of $1,300

and a disqualification of 15 months.  Only a week later the

appellant was caught again with the consequences outlined

above.  This time a three year disqualification has been

imposed by the Magistrate, not the subject of appeal.  The

appeal relates to the sentence of one month's imprisonment for

what is a first offence of disqualified driving. 

The appellant has no general criminal history.  The only

traffic matters not mentioned are speeding offences, one in

1988, the other in 2004.

It is the case that by a whisker, or a sip, as the Magistrate

said, the appellant avoided coming within the mandatory

sentencing regime which would have confronted him if the blood

alcohol concentration on the 21st of January this year had

been .15.

The court has not been provided with any information as to

sentencing ranges for the offence of disqualified driving.  A

judge's general experience is likely to involve scrutiny of

criminal histories and traffic histories in particular.  I

would venture to say that it is unusual for a first offender

to be sentenced to imprisonment.  The maximum penalty

available is 18 months imprisonment.

In the matter of Hey [2006] QCA 23 it seems the offender had

three offences of disqualified driving without being sentenced

to imprisonment.  On the next occasion when he was caught,

also adversely affected by alcohol, tragically, his driving

led to the death of a woman.  In dissenting in an

unsuccessful Attorney's appeal, Chesterman J said at

paragraphs [40] ff:

"There was nothing spontaneous or inadvertent about the
   respondent's conduct on the day he killed Mrs
   Williamson.  He chose to drive when he knew it was
   unlawful for him to do so.  He chose to drink when he
   knew it was dangerous to do so.  Mrs Williamson's death
   is a direct consequence of the respondent's refusal to
   accept that the law applied to him, and that the
   disqualification orders had been made to safeguard the
   public.  He disregarded the legal prohibition and
   disdained the public's safety.

In my opinion the court should be merciless when dealing
   with people who behave in this way. It is a matter of
   considerable regret that the respondent was not dealt
   with appropriately on the occasions when he appeared
   before the Magistrates Court on charges of driving whilst
   disqualified and intoxicated.  He had amply demonstrated
   his contempt for previous disqualification orders and had
   given clear proof that he was a danger on the roads.
   There was clearly no point in imposing further
   disqualifications.  He should have been jailed for a
   brief period to make him realise the seriousness and
   unacceptability of his conduct. If he did not, and
   reoffended, he should have been jailed for a substantial
   period.  It is distinctly possible that Mrs Williamson
   might be alive today had that course been followed.

The imposition of severe punishments on those who drive
   dangerously, and thereby kill or maim others, is required
   as a means of reducing the number of traffic accidents
   which result in death or serious injury.  Lengthy periods
   of imprisonment play an important role in deterring those
   who contemplate driving while disqualified, and while
   intoxicated."

The Magistrate here made a point of referring to his Honour's

comments in her reasons for judgment.  That had the

commendable purpose, in my opinion, of drawing to the

appellant's attention that he simply must not drive while he

was "banned", to use the Magistrate's term.  The warnings she

gave were entirely appropriate.  It is hardly impressive that

the offence which lead to the sentence under appeal occurred

only a week after the disqualification. 

In the appellant's case, the circumstances are somewhat unusual and reveal offending somewhat less brazen than it seems at first blush.  The appellant was so ashamed of the way in which he used alcohol that when he felt driven to seek solace in it, he would, on occasions at least, drive somewhere secluded in his vehicle and drink in it away from the observation of his family.  That indeed is what was happening on the 24th of February of this year when he was found at about 9.30 p.m., not driving but in the place where he had gone - presumably to drink.  It is simply not known whether the actual driving, preceding his being found by police, which seems to have passed without event, had actually put anyone in danger.  There is a marked contrast here with Mr Hey.

It seems to me that the Magistrate became distracted in the

sentencing task by reference to Chesterman J's views, which of

course were not a binding precedent in the circumstances,

since the other members of the court cannot be regarded as

endorsing the sentiments expressed by his Honour.  They

would command assent by many and appear to have coincided

with the Magistrate's own views.  It shouldn't be forgotten

what the tragic context of their being expressed was.

Although Mr Hungerford-Symes mounted a strong argument that

the sentence was not manifestly excessive, it seems to me that

it was.  It is the first instance of "disobedience of a

court's order", as it was called by way of a convenient means

of describing driving while disqualified, in the appellant's

history.

It simply cannot be said, on the basis of that single

incident, that he is a person inclined to ignore court

orders and therefore requires punishment.  His exemplary

record in relation to the general criminal law and his life in

his family, workplace and the community generally seems to me

to suggest the offending, the concern of this court, was out

of character.

I think Mr Hungerford-Symes is right that there could hardly

have been a complaint if the imprisonment was attached by the

Magistrate to the other offence.  At one point Mr Reid

appeared to me to be disavowing a technical separation out of

matters along those lines, but in his reply he seemed willing

to take advantage of it.  This court should take into account the whole of the appellant's history.  That does not, in my opinion, mean that the appealed sentence can be justified because it might have been appropriate for the other offence.

He pointed to the sentencing considerations in section 78(2)

of the Transport Operations (Road Use Management) Act 1995

which, it seems to me, all tend to favour his client and I

would say that even of "(b) the public interest";  I am not
persuaded that is served here by incarceration of the

appellant.

Other sentencing principles appear in section 9 of the

Penalties and Sentences Act, in particular in subsection

(2)(a), whereby a sentence of imprisonment is regarded as one

of last resort, one that allows the offender to stay in the

community is preferable.

The qualifications imposed by subsection (3) are not relevant

here.  I think the sentence was out of range and manifestly

excessive in involving actual incarceration of a person whose

record is like the appellant's for a first offence of

disqualified driving.  Mr Reid accepted that the same

observation will be hard to make in respect of any subsequent

offence of that nature.  I agree with that, but the appeal

ought to be allowed and the Magistrate's sentence of one

month's imprisonment changed by the addition to it of an order

that it be suspended immediately for an operational period of

two years.  That is going to be roughly equivalent with the

probation period.  It is to be hoped that the appellant is

fully cognisant of the risk that's faced by him. If he is

not sure he can avoid driving his motor vehicle, he might be

well advised to dispose of it.  There is no order as to costs.

(I was grateful to be corroborated by the Court Reporter in my

recollection of an incident in a local Magistrates Court in

recent weeks in which a woman - it was reportedly a woman -

was punished for driving while disqualified and left the court

to drive home in her vehicle; she was observed doing it

apparently and returned to the court where she was convicted

of a second instance of that offence and punished by a much

greater fine - if the report in the media was correct, the

reporter recalled she had two children in the vehicle.  That

incident is, on the face of it, more brazen than the  

appellant's.  He might be justified in regarding himself as

unfairly dealt with in comparison).

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