R v Genzel

[1996] QCA 542

[1996] QCA 542

COURT OF APPEAL
McPHERSON JA
DAVIES JA

MOYNIHAN J

CA 460 of 1996
THE QUEEN
v.

DIRK GENZEL

BRISBANE
..DATE 04/12/96
041296 D.1 T6/TW M/T COA301/96
DAVIES JA: The applicant was convicted on his own plea in the
District Court of Brisbane on 16 October last of dangerous
driving with circumstance of aggravation, namely, that he was
adversely affected by alcohol. He was sentenced to imprisonment
for 12 months with a recommendation that he be eligible for
release on parole after serving four months of that term and his
licence was disqualified. He seeks leave to appeal against that
sentence.

The applicant's dangerous driving occurred at 4.50 a.m. on a Saturday morning. He was, at the time, very much under the influence of alcohol having a blood alcohol content of .197. He said he had been drinking at Rogues Nightclub from 7.00 p.m. to 3 or 4.00 a.m. It is surprising he was able to drive the car at all.

He is now 30 years of age and was 29 at the commission of this offence. He has a small but irrelevant criminal record, one conviction of possession of marijuana, but a substantial and shockingly bad traffic record. Since 1987 he has been convicted of speeding 21 times, 18 of them for speeds in excess of 15 kilometres an hour over the speed limit and once for an offence of speeding of 30 kilometres or more over the speed limit. He has also previously been convicted in 1993 of driving under the influence of alcohol and also on another occasion of failing to give way.

On the morning in question he managed to drive his vehicle erratically and very fast from Underwood to Springwood along the south-east freeway before crashing into a traffic island and 041296 D.1 T6/TW M/T COA301/96

traffic sign. It is fortunate that no one was killed or
injured.

At one point in his trip he overtook 10 cars in quick succession, the majority of them being forced to decelerate and swerve to avoid collision with him. He then swerved across three lanes to exit the freeway at about 120 kilometres an hour.

The vehicle ahead of him mounted a gutter to escape. He then hit a traffic island, drove over double white lines onto the incorrect side of the road for about 30 metres and finally mounted a traffic island at a roundabout.

After attempting to drive his car off the traffic island he finally left in a yellow taxi. An eye witness contacted the police who in turn contacted Yellow Cabs. The taxi returned to the scene with the appellant and a companion who initially claimed to be the driver of the applicant's car. Ultimately the applicant himself admitted to the offence.

He had a driving licence for an automatic car; however he was driving a manual one at the time of the events I have just described.

In the applicant's favour his very good employment record and a reference which we have received and his timely plea of guilty.

It is said on his behalf by Mr Johnson who said everything that could be said on his behalf that his return to the scene and his prompted missions of guilt should also be taken into account, in effect, as showing remorse. But it seems as likely to me from the fact that the police had already made contact with the taxi 041296 D.1 T6/TW M/T COA301/96

company that his apprehension was inevitable and it also seems likely that he was returning not to give himself up, but to collect his car.

It is said that without admissions there would have been insufficient evidence to charge him and that the learned sentencing Judge failed to give sufficient weight to this factor, but for the reasons I have just mentioned I do not think that there is a great deal of substance in that submission.

Were it not for the applicant's shocking traffic record including a previous conviction for driving under the influence and the fact that he had so many offences of speeding, it might be thought that the sentence imposed was a high one. In the circumstances, however, it was, in my view, within the range of a sound sentencing discretion and I would refuse the application. If necessary I would order a warrant be issued for his arrest.

McPHERSON JA: I agree.

MOYNIHAN J: So do I.

McPHERSON JA: The application for leave to appeal is refused.

-----