R v Broadbridge

[1994] QCA 278

IN THE COURT OF APPEAL	[1994] QCA 278
SUPREME COURT OF QUEENSLAND

C.A. No. 195 of 1994.

Brisbane

[R v. Broadbridge]

T H E Q U E E N

v.

KELLY JUSTIN BROADBRIDGE

Applicant

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The President
Pincus J.A.
Williams J.
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Judgment delivered 05/08/1994
Joint reasons for judgment of The President and Williams J.,
Pincus J.A. separately. Pincus J.A. dissenting in part.
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Application for leave to appeal against sentence granted.

Appeal allowed.

Sentences imposed below on 20 May 1994 set aside and in lieu

t hereof order:

1.With respect to the offence of dangerous driving, the applicant is sentenced to 18 months imprisonment with a recommendation for parole after 6 months.

2.With respect to each of the offences of burglary and stealing,

the applicant is sentenced to 6 months imprisonment.

3.All sentences to be served concurrently.

4.The sentences of imprisonment date from 20 May 1994.

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CATCHWORDS:CRIMINAL LAW - Sentence - dangerous driving - applicant drove at police officer who was trying to stop him - sentence of 3 years imposed - burglary - applicant committed offence with two co-accused - pleaded guilty - first offence - sentenced to 12 months imprisonment - whether manifestly excessive.

Counsel:Mr M Byrne Q.C. for the Crown.

Mr G Long for the applicant.

Solicitors:Director of Prosecutions for the Crown.

Legal Aid Office for the applicant.

Date of hearing:01/08/1994.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 05/08/1994

This is an application for leave to appeal against sentence relating to three convictions on pleas of guilty. The first two offences were committed about 30 December 1992 and the third on 5 June 1993; the applicant, who was born on 4 November 1974, was 18 years of age when the offences were committed.

Counts 1 and 2 relating to the December 1992 offences concerned activities in which the applicant engaged with two co- accused while driving about in a vehicle. The three noticed that, although it was bin collection day, there was no garbage bin outside a particular house. That prompted the thought that the house must be unoccupied, so they broke in and stole some jewellery. The three offenders were promptly apprehended by the police and charged with burglary and with stealing; the applicant was granted bail.

The applicant's next offences were committed while on bail, four months later, on 26 April 1993. They were possession of a dangerous drug, possession of a pipe used in connection with smoking a dangerous drug, and possession of a utensil used in connection with the preparation of a dangerous drug. On the following day the applicant was convicted of these offences and fined a total of $325.00. These offences are not the subject of the present application but are mentioned as part of the history.

On 5 June 1993, the applicant was travelling on a road at a speed which was measured by a police officer, operating a radar instrument, at 145 kph. The police officer, wearing a reflectorised vest and carrying a bright torch, moved out onto the roadway and indicated that the vehicle in which the applicant was travelling towards him should stop and pull over.

The events which then occurred were the subject of dispute

which the primary judge resolved as follows:
"The accused drove his vehicle slightly towards the police

officer. I do not believe he was trying to kill the police officer. I believe he was trying to just scare the police officer out of the road so the police officer would be in no position to take his number as he went by or to engage in immediate pursuit".

The police officer jumped out of the way and the vehicle sped past him. It was eventually forced to stop by another police vehicle whose occupants had been alerted. According to the evidence of that police officer, which the judge accepted, when the applicant was thus stopped the applicant was asked why he drove his vehicle directly at the police officer and he replied "You're lucky I didn't kill you. I wouldn't have stopped". Despite this, perhaps rather leniently, the judge took the view, as has been mentioned, that the applicant was merely trying to scare the officer out of the road.

Having been again on 7 June 1993, granted bail, the applicant was on 26 October 1993 convicted of a further offence, committed on 22 October 1993, of being in possession of a dangerous drug and fined $420.

The applicant was sentenced, in respect of the three offences currently in question, on 20 May 1994. The learned primary judge ordered that the applicant be sentenced to imprisonment for 3 years on the dangerous driving charge. His Honour then added:

"On the break and entering, to 12 months. I order that both sentences be served concurrently. I recommend that you be eligible for and to be considered for parole after a period of 12 months".

It appears to me that no sentence was imposed in respect of the stealing charge; the reason for that is unclear.

Mr Long, who appeared for the applicant, submitted that in view of the applicant's youth and his plea of guilty, the dangerous driving sentence was manifestly excessive. The maximum sentence for dangerous driving simpliciter, under s. 328A of the Code, is a fine of 200 penalty units or imprisonment for 3 years or both, so that so far as imprisonment was concerned the applicant received the maximum sentence. With respect to the burglary offence, the Court's attention has been drawn to the fact that one of the co-accused, Scott Robert Jackson, received a probation order and that was contrasted with the 12 month imprisonment imposed on the applicant. Jackson is older than the applicant, but according to the information placed before the judge, was a less active participant in the offence. Nevertheless, it does not appear to me that a sentence of 12 months imprisonment, on a plea of guilty in respect of a first offence - which the burglary was - can be justified, in view of the age of the applicant, 18 years at the time of the offence.

However, the proper sentence for the burglary is not the principal point since the most serious offence was the dangerous driving. As has been mentioned, when this offence was committed the applicant had been arrested for burglary and granted bail; it will also be recalled that he had shortly prior to that been convicted of some other, lesser offences. Having regard to the considerable danger to the police officer created by the applicant's action, and giving full weight to the judge's finding that the applicant merely meant to frighten the officer, I have come to the conclusion that it was right to impose a sentence of imprisonment in respect of the dangerous driving offence. It need hardly be said that this sort of aggressive action against police officers attempting to perform their duty must be firmly discouraged.

Nevertheless, I can see no good answer to the contention made by Mr Long that a sentence of 3 years imprisonment, the maximum imprisonment permissible, cannot be supported, in view of the youth and relatively slight criminal history of the offender. Apart from those circumstances, the judge was in my view obliged to give some weight to the plea of guilty, although I keep in mind that the applicant disputed, unsuccessfully, the police account of the circumstances in which the offence was committed. I propose to replace the sentence imposed below for the dangerous driving offence by one of 18 months, with a recommendation for parole after 6 months. For the reasons I have given, it is necessary to set aside the sentence of 12 months imposed on the burglary offence. In respect of that and the offence of stealing (for which no punishment appears to have been imposed below), it would have been appropriate to order probation, to conform with what was done in respect of the co- offender Jackson. But, as the applicant is serving a term of imprisonment on the dangerous driving charge it appears to me that there is no point in imposing any punishment in respect of the other two offences.

In my view, the orders of the Court should therefore be:

1.Application granted.
2.Appeal allowed.
3.Orders of the learned primary judge varied by substituting for

the sentence of 3 years imposed on the dangerous driving charge a sentence of 18 months imprisonment with a recommendation that the applicant be considered for parole after having served 6 months of that term; and by setting aside the sentence of 12 months imprisonment imposed on the breaking and entering charge.

JUDGMENT - THE PRESIDENT AND G N WILLIAMS J

Judgment delivered 05/08/1994

Subject to the following matters we agree with the reasons prepared by Pincus JA which we have had the advantage of reading.

It is true that the learned sentencing Judge did not specifically advert to the offence of stealing when imposing sentence, but (particularly when regard is had to his Honour's approach on the earlier occasion when he sentenced the co-offenders) we would infer that he intended to impose a sentence of 12 months on each of the burglary and stealing offences, to be served concurrently.

Given the serious nature of those offences, a sentence should be imposed though it would not be of practical effect because of the longer sentence imposed with respect to the offence of dangerous driving. Bearing in mind the age and antecedents of the applicant, and taking into account the way in which his co-offenders were dealt with, we would order that he be imprisoned for six months with respect to each of the offences of burglary and stealing; the sentences should be served concurrently with each other and with the period of imprisonment with respect to the dangerous driving offence. All the sentences should be taken to have commenced on 20 May 1994.

Our orders would be as follows:

Grant leave to appeal against the sentences imposed on 20 May
1994, allow the appeal, set aside the sentences imposed on
20 May 1994, and in lieu thereof make the following orders.
With respect to the offence of dangerous driving, impose a
sentence of 18 months imprisonment with a recommendation

that the applicant be considered for parole after having

served six months of that term.

With respect to each of the offences of burglary and stealing, impose a sentence of imprisonment of six months. Order that all sentences be served concurrently, and that the sentences of imprisonment date from 20 May 1994.