R v Bolton

[2000] QCA 175

[2000] QCA 175
COURT OF APPEAL

DAVIES JA
MACKENZIE J
DOUGLAS J

[R v Bolton]

CA No 40 of 2000

THE QUEEN

v.

CLIVE ROBERT JOHN BOLTON                   Applicant

BRISBANE

..DATE 11/05/2000

JUDGMENT

DAVIES JA:  The applicant who was 41 years of age pleaded guilty in the District Court on 2 February this year to the offence of dangerous operation of a motor vehicle.  He was sentenced to 12 months imprisonment to be suspended after four months with an operational period of two years.  He was also disqualified from holding or obtaining a driver's licence for 12 months.  He seeks leave to appeal against that sentence.

On the day in question which was 12 October 1997 the applicant drove his car out of a car park and onto and along North Street, Bribie Island.  It was a Sunday afternoon at about 3.30 p.m. and there were many holiday makers and weekend picnickers in the vicinity.  As he entered North Street from the car park his car fishtailed.  His speed thereafter was described as excessive in the circumstances although no actual estimates of his speed were given.  He then overtook a car in front of him on the left side.  

He performed this manoeuvre by going onto the grassed verge and, in effect, the unmade footpath beside the road.  As he came back onto the road in front of that vehicle there was another vehicle being driven in the opposite direction.  His manoeuvre which must have taken him at least partly onto his incorrect side caused the driver of that car to veer off the road on its correct side.  The applicant then over-corrected back to his left and collided with some posts which separated the road reservation from a picnic area.  There were picnickers picnicking a short distance the other side of those posts.  The collision caused his car to perform a manoeuvre described as a corkscrew.  However, it landed back on its wheels again and he continued to drive.

He was followed to some nearby shops by the driver of the vehicle whom he caused to take avoiding action and he was spoken to by that driver there.  He apologized for his conduct.  When spoken to by police the applicant admitted his conduct although he tended to understate its seriousness. 

Thereafter however he failed to co-operate.  He failed to appear in the Magistrates Court and even after his committal he failed to appear in the District Court.  There was a long delay before he was found and the case then proceeded.  He pleaded not guilty and it was only on the day of his trial that he altered his plea to guilty.

The applicant has a fairly minor prior criminal history.  Included in it is only one substantial conviction and that being for two offences of breaking, entering and stealing and one of receiving for which he was sentenced to
12 months imprisonment with a recommendation for parole after two months.

His other offences apart from traffic offences to which I will shortly refer, appear to relate mainly to possession of drugs.  However, his traffic history is quite substantial.  He has at least 14 convictions for traffic offences between 1989 and mid-1997.  Most of these were for speeding or driving a defective vehicle but he has one conviction for drink driving.

It is plain that having regard to his age and his prior criminal history he is not an appropriate candidate for probation or community service nor was that suggested by
Mr McLennan who appeared for him before this Court.  The submission on his behalf was that the sentence should have been wholly suspended.  In support of that submission it was said that he not previously been convicted of careless driving, that the driving in this case could fairly be said to fall at the lower end of the scale of deliberate recklessness and that while there was potential injury to members of the public no one was, in fact, injured.

He did take, as it turned out, effective evasive action and he did apologize afterwards both to the driver of the approaching vehicle and in his interview with the police.  It was also pointed out that the Crown prosecutor conceded below that an non custodial sentence was open perhaps by suspending the sentence or imposing a maximum number of hours of community service.

It is no doubt correct that in this case it would have been open to the learned sentencing Judge to wholly suspend the sentence as the applicant now contends.  On the other hand I cannot be satisfied that the sentence which the learned sentencing Judge, in fact, imposed was an error in the exercise of his sentencing discretion.  Serious aspects of this case were the potential for very serious injury both to nearby picnickers and the oncoming motorist both of which were avoided as much by good luck as by good management.

The applicant's previous serious traffic history and his mature age, his attempts to apparently either avoid or postpone the hearing by simply not appearing, and the fact that although he pleaded guilty it was extremely late.  I would therefore refuse the application.

MACKENZIE J:  I agree.

DOUGLAS J:  I agree.

DAVIES JA:  The application is refused.   A warrant is issued but the Court order is that it lie in the Registry for seven days.

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