R v Collier

[2003] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:	R v Collier [2003] QCA 314
PARTIES:	R v COLLIER, Steven Michael (applicant)
FILE NO/S:	CA No 236 of 2003 DC No 8 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Warwick
DELIVERED EX	24 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2003
JUDGES:	de Jersey CJ, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant convicted of dangerous driving with circumstance of aggravation – where sentenced to 3 months imprisonment followed by 12 months probation – where applicant claimed sentence was manifestly excessive – whether excessive having regard to comparable cases
COUNSEL:	M Johnson for the applicant M Copley for the respondent
SOLICITORS:	Gudkovs Power Osborne for the applicant Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: This is the judgment in the matter of the Queen against Steven Michael Collier. The applicant, who was 18 at the time of the offence, pleaded guilty to dangerous driving

with a circumstance of aggravation that he was adversely
affected by alcohol. When breath tested soon after the

incident, he had 0.163 per cent alcohol in his blood. He was sentenced to three months imprisonment, followed by 12 months probation.	10
The offence occurred in Warwick on the 14th of June 2003 at
about 11 p.m. His only previous offences were for obstructing
police about 10 months previously and common assault about six
months previously. Police on patrol saw the applicant driving	20
a vehicle which belonged to a friend without headlights illuminated. The police activated the warning lights on their vehicle.
The applicant accelerated away with the police car following	30
about 30 metres behind over the distance of about two
kilometres before the vehicle came to rest when the applicant voluntarily pulled over. The applicant drove at speeds of up to 90 kilometres per hour in a 50 kilometre zone, turned
corners at inappropriate speeds, spun the wheels when	40
cornering and caused the vehicle to fishtail on one occasion that was observed.
His driving caused one motorist to take evasive action during
this period. The applicant also activated indicators on his	50

vehicle, but turned in a different direction to that indicated on more than one occasion. On one occasion, he approached a set of red traffic lights showing red against him. Instead of turning, as he had indicated, he went straight ahead, almost colliding with another police car which was turning at the intersection with its flashing lights activated. Shortly after that, the applicant stopped the vehicle and gave himself up. He was alone in the vehicle.	2	60
10

He pleaded guilty to an ex officio indictment. He apologised
in writing to the owner of the vehicle for damage caused to
it. He also apologised in writing to the police. Before the
matter came on for sentence, about a month after the offence,

he had been to Alcoholics Anonymous and to another course run	20
by Queensland Health concerning drugs and alcohol. He had a good employment record and good references.
In addition to the matters just mentioned, the sentencing
Judge was told that the applicant came from a good family and	30
background. The offence was one where the vehicle was driven at high speed in a residential area in a manner where there was a risk of losing control of it. Driving through the red light was a particularly dangerous act.
40
Nevertheless, it was submitted that, given the age of the applicant, there were more preferable options than sentencing him to actual imprisonment and that in all of the circumstances, the sentence was manifestly excessive.
50

It was submitted that the proper range was from a long period of community service and probation with a special condition relating to undergoing a programme relating to alcohol abuse through to a term of imprisonment, but fully suspended, ought to be served by way of an intensive correction order. 3 60

It was conceded that the offence was a relatively serious one,

but submitted that actual imprisonment was not the only proper	10
option. Those submissions must be balanced against the need
for deterrence of highly irresponsible behaviour with
considerable potential to harm others and the fact that one of the more common sectors of the community who are likely engage in it is young drivers.	20
A clear expression of principle in relation to cases where
there is a combination of a high concentration of alcohol,
driving at excessive speed and in a manner otherwise likely to
put other road users at risk and an attempt to outrun the	30
police who try to apprehend the offender is to be found in the Queen against Coake, Court of Appeal No 403 of 1998. The President, with whom the Chief Justice and Mr Justice McPherson agreed, said:
40

"In my view, a deterrent sentence is necessary in such a in such conduct, will usually include a prison sentence."

case to stress to the community that dangerous driving,
particularly in a police chase situation and whilst
heavily under the influence of alcohol or drugs, will not
be tolerated because of the potential danger created.

50

The other authorities to which attention was drawn in submissions also support the conclusion that, generally, a sentence of imprisonment of two years with a suspension after a period of actual custody may not be outside a proper exercise of discretion for serious cases with a lesser head sentence of which a relatively brief period is served in custody, being an available option in less serious cases. 4 60

Since applications for leave to appeal by offenders only	10
involve a determination whether the sentence is manifestly
excessive, absolute consistency cannot be found in the cases.
However, the general proposition holds good. Unlike the
majority of cases to which we were referred, the three months
actual imprisonment to which the applicant was sentenced was	20
not part of a longer suspended sentence. He was sentenced to a term of three months imprisonment with probation for 12 months upon release.
In crafting the sentence in that way, in my view the learned	30
sentencing Judge reached a balance between deterrence and rehabilitation that cannot be characterised as manifestly excessive and I would refuse the application.
THE CHIEF JUSTICE: I agree.	40
HELMAN J: I agree.
THE CHIEF JUSTICE: The application is refused.
50

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